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) February 25, 1999
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 (I.R.S. Employer
Jurisdiction of File Number) Identification No.)
Incorporation)
1000 Corporate Drive
Ft. Lauderdale, Florida 33334
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (954) 351-5000
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(Former Name or Former Address, if Changed Since Last Report)
<PAGE>
Item 5. Other Events.
On February 25, 1999, RC/Arby's Corporation ("RC/Arby's") announced that
it is redeeming its $275 million principal amount of 9 3/4% Senior Secured Notes
due 2000 on March 30, 1999 at a redemption price of 102.786% of the principal
amount, plus accrued and unpaid interest.
On February 25, 1999, Triarc Consumer Products Group, LLC ("Triarc
LLC"), a new wholly-owned subsidiary of Triarc Companies, Inc. and the parent of
RC/Arby's, completed the sale of $300 million principal amount of 10.25% Senior
Subordinated Notes due 2009 (the "Notes"), pursuant to Rule 144A of the
Securities Act of 1933, as amended (the "Securities Act"). Concurrently,
subsidiaries of Triarc LLC entered into a new $535 million Senior Secured Credit
Facility.
The Notes have not been registered under the Securities Act, and may not
be offered or sold in the United States absent registration or an applicable
exemption from the registration requirements of the Securities Act. This Current
Report on Form 8-K shall not constitute an offer to sell or a solicitation of an
offer to buy the Notes.
A copy of the Indenture and Registration Rights Agreement relating to
the Notes and the Credit Agreement are being filed as exhibits hereto.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
(c) Exhibits
4.1-- Credit Agreement dated as of February 25, 1999, among Snapple
Beverage Corp., Mistic Brands, Inc., Cable Car Beverage
Corporation, RC/Arby's Corporation and Royal Crown Company,
Inc., as Borrowers, various financial institutions party
thereto, as Lenders, DLJ Capital Funding, Inc., as syndication
agent, Morgan Stanley Senior Funding, Inc., as Documentation
Agent, and The Bank of New York, as Administrative Agent
.
4.2-- Indenture dated of February 25, 1999 among Triarc Consumer
Products Group, LLC ("TCPG"), Triarc Beverage Holdings Corp.
("TBHC"), as Issuers, the subsidiary guarantors party thereto
and The Bank of New York, as Trustee.
4.3-- Registration Rights Agreement dated February 18, 1999 among
TCPG, TBHC, the Guarantors party thereto and Morgan Stanley &
Co. Incorporated, Donaldson, Lufkin & Jenrette Securities
Corporation and Wasserstein Perrella Securities, Inc.
<PAGE>
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on behalf by the undersigned
hereunto duly authorized.
RC/ARBY'S CORPORATION
By: CURTIS S. GIMSON
----------------------------
Name: Curtis S. Gimson
Title: Senior Vice President and
General Counsel and Secretary
Dated: March 10, 1999
<PAGE>
EXHIBIT INDEX
Exhibit
No. Description Page No.
4.1 Credit Agreement dated as of February 25, 1999,
among Snapple Beverage Corp., Mistic Brands,
Inc., Cable Car Beverage Corporation, RC/Arby's
Corporation and Royal Crown Company, Inc., as
Borrowers, various financial institutions party
thereto, as Lenders, DLJ Capital Funding, Inc., as
syndication agent, Morgan Stanley Senior Funding,
Inc., as Documentation Agent, and The Bank of
New York, as Administrative Agent
4.2 Indenture dated of February 25, 1999 among Triarc
Consumer Products Group, LLC ("TCPG"), Triarc
Beverage Holdings Corp. ("TBHC"), as Issuers, the
subsidiary guarantors party thereto and The Bank of
New York, as Trustee.
4.3 Registration Rights Agreement dated February 18,
1999 among TCPG, TBHC, the Guarantors party
thereto and Morgan Stanley & Co. Incorporated,
Donaldson, Lufkin & Jenrette Securities Corporation
and Wasserstein Perrella Securities, Inc.
<PAGE>
Exhibit 4.1
U.S. $535,000,000
CREDIT AGREEMENT,
dated as of February 25, 1999,
among
SNAPPLE BEVERAGE CORP.,
MISTIC BRANDS, INC.,
CABLE CAR BEVERAGE CORPORATION,
RC/ARBY'S CORPORATION
and
ROYAL CROWN COMPANY, INC.,
as the Borrowers,
VARIOUS FINANCIAL INSTITUTIONS,
as the Lenders,
DLJ CAPITAL FUNDING, INC.,
as the Syndication Agent for the Lenders,
MORGAN STANLEY SENIOR FUNDING, INC.,
as the Documentation Agent for the Lenders,
and
THE BANK OF NEW YORK,
as the Administrative Agent for the Lenders.
ARRANGED BY
DLJ CAPITAL FUNDING, INC.
AND
MORGAN STANLEY SENIOR FUNDING, INC.
TABLE OF CONTENTS
SECTION PAGE
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1. Defined Terms..........................................................
1.2. Use of Defined Terms..................................................
1.3. Cross-References......................................................
1.4. Accounting and Financial Determinations...............................
ARTICLE II
COMMITMENTS, BORROWING PROCEDURES AND NOTES
2.1. Loans and Commitments.................................................
2.1.1. Term Loans..........................................................
2.1.2. Revolving Loan Commitment and Swing Line Loan Commitment............
2.1.3. Letter of Credit Commitment.........................................
2.1.4. Lenders Not Permitted or Required to Make Loans.....................
2.1.5. Issuer Not Permitted or Required to Issue Letters of Credit.........
2.1.6. RC/Arby's and Royal Crown...........................................
2.2. Reduction of Commitment Amounts.......................................
2.2.1. Optional............................................................
2.2.2. Mandatory...........................................................
2.3. Borrowing Procedures and Funding Maintenance..........................
2.3.1. Term Loans and Revolving Loans......................................
2.3.2. Swing Line Loans....................................................
2.4. Continuation and Conversion Elections.................................
2.5. Funding...............................................................
2.6. Issuance Procedures...................................................
2.6.1. Other Lenders' Participation........................................
2.6.2. Disbursements; Conversion to Revolving Loans........................
2.6.3. Reimbursement.......................................................
2.6.4. Deemed Disbursements................................................
2.6.5. Nature of Reimbursement Obligations.................................
2.7. Register; Notes.......................................................
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
3.1. Repayments and Prepayments; Application...............................
3.1.1. Repayments and Prepayments..........................................
3.1.2. Application.........................................................
3.1.3. Cash Collateral.....................................................
3.2. Interest Provisions...................................................
3.2.1. Rates...............................................................
3.2.2. Post-Maturity Rates.................................................
3.2.3. Payment Dates.......................................................
3.3. Fees..................................................................
3.3.1. Commitment Fee......................................................
3.3.2. Agents' and Arrangers' Fees.........................................
3.3.3. Letter of Credit Fees...............................................
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
4.1. LIBO Rate Lending Unlawful............................................
4.2. Deposits Unavailable..................................................
4.3. Increased LIBO Rate Loan Costs, etc...................................
4.4. Funding Losses........................................................
4.5. Increased Capital Costs...............................................
4.6. Taxes.................................................................
4.7. Payments, Computations, etc...........................................
4.8. Sharing of Payments...................................................
4.9. Setoff................................................................
4.10. Change of Lending Office.............................................
4.11. Replacement of Lenders...............................................
ARTICLE V
CONDITIONS PRECEDENT
5.1. Initial Credit Extension..............................................
5.1.1. Resolutions, etc....................................................
5.1.2. Delivery of Notes...................................................
5.1.3. Transaction Consummated..............................................
5.1.4. Closing Date Certificate.............................................
5.1.5. Transaction Documents, etc...........................................
5.1.6. Payment of Outstanding Indebtedness, etc.............................
5.1.7. Subsidiary Guaranty..................................................
5.1.8. Pledge Agreements....................................................
5.1.9. Security Agreements..................................................
5.1.10. UCC Filing Service.................................................
5.1.11. Financial Information, etc.........................................
5.1.12. Solvency, etc......................................................
5.1.13. Opinions of Counsel................................................
5.1.14. Reliance Letters...................................................
5.1.15. Insurance..........................................................
5.1.16. RC/Arby's Notes Repayment..........................................
5.1.17. Closing Fees, Expenses, etc........................................
5.2. All Credit Extensions................................................
5.2.1. Compliance with Warranties, No Default, etc..........................
5.2.2. Credit Extension Request.............................................
5.2.3. Satisfactory Legal Form..............................................
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1. Organization, etc.....................................................
6.2. Due Authorization, Non-Contravention, etc.............................
6.3. Government Approval, Regulation, etc..................................
6.4. Validity, etc.........................................................
6.5. Financial Information.................................................
6.6. No Material Adverse Effect............................................
6.7. Litigation, Labor Controversies, etc..................................
6.8. Subsidiaries..........................................................
6.9. Ownership of Properties...............................................
6.10. Taxes................................................................
6.11. Pension and Welfare Plans............................................
6.12. Environmental Warranties.............................................
6.13. Regulations U and X..................................................
6.14. Accuracy of Information..............................................
6.15. Solvency.............................................................
6.16. Year 2000............................................................
ARTICLE VII
COVENANTS
7.1. Affirmative Covenants................................................
7.1.1. Financial Information, Reports, Notices, etc.........................
7.1.2. Compliance with Laws, etc............................................
7.1.3. Maintenance of Properties............................................
7.1.4. Insurance............................................................
7.1.5. Books and Records....................................................
7.1.6. Environmental Covenant...............................................
7.1.7. Future Subsidiaries..................................................
7.1.8. Future Leased Property and Future Acquisitions of Real Property;
Future Acquisition of Other Property.................................
7.1.9. Use of Proceeds, etc.................................................
7.1.10. Hedging Obligations................................................
7.1.11. RC/Arby's Notes Repayment; Execution and Delivery of Loan
Documents..........................................................
7.1.12. Consummation of Acquisition; Prepayment of Term C Loans............
7.1.13. Additional Post-Closing Items......................................
7.2. Negative Covenants...................................................
7.2.1. Business Activities..................................................
7.2.2. Indebtedness.........................................................
7.2.3. Liens................................................................
7.2.4. Financial Covenants..................................................
7.2.5. Investments..........................................................
7.2.6. Restricted Payments, etc.............................................
7.2.7. Capital Expenditures, etc............................................
7.2.8. Consolidation, Merger, Acquisitions, etc.............................
7.2.9. Asset Dispositions, etc.............................................
7.2.10. Modification of Certain Agreements................................
7.2.11. Transactions with Affiliates......................................
7.2.12. Negative Pledges, Restrictive Agreements, etc.....................
7.2.13. Sale and Leaseback................................................
ARTICLE VIII
EVENTS OF DEFAULT
8.1. Listing of Events of Default.......................................
8.1.1. Non-Payment of Obligations.........................................
8.1.2. Breach of Warranty.................................................
8.1.3. Non-Performance of Certain Covenants and Obligations...............
8.1.4. Non-Performance of Other Covenants and Obligations.................
8.1.5. Default on Other Indebtedness......................................
8.1.6. Judgments..........................................................
8.1.7. Pension Plans......................................................
8.1.8. Change in Control..................................................
8.1.9. Bankruptcy, Insolvency, etc........................................
8.1.10. Impairment of Security, etc........................................
8.2. Action if Bankruptcy...............................................
8.3. Action if Other Event of Default...................................
ARTICLE IX
THE AGENTS
9.1. Actions..............................................................
9.2. Funding Reliance, etc................................................
9.3. Exculpation..........................................................
9.4. Successor............................................................
9.5. Loans or Letters of Credit Issued by the Agents......................
9.6. Credit Decisions.....................................................
9.7. Copies, etc..........................................................
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1. Waivers, Amendments, etc..........................................
10.2. Notices...........................................................
10.3. Payment of Costs and Expenses.....................................
10.4. Indemnification...................................................
10.5. Survival..........................................................
10.6. Severability......................................................
10.7. Headings..........................................................
10.8. Execution in Counterparts, Effectiveness, etc.....................
10.9. Governing Law; Entire Agreement...................................
10.10. Successors and Assigns............................................
10.11. Sale and Transfer of Loans and Notes; Participation in Loans
and Notes.........................................................
10.11.1. Assignments.......................................................
10.11.2. Participations....................................................
10.12. Confidentiality...................................................
10.13. Other Transactions................................................
10.14. Forum Selection and Consent to Jurisdiction.......................
10.15. Waiver of Jury Trial..............................................
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of February 25, 1999, among
SNAPPLE BEVERAGE CORP., a Delaware corporation ("Snapple"), MISTIC BRANDS, INC.,
a Delaware corporation ("Mistic"), CABLE CAR BEVERAGE CORPORATION, a Delaware
corporation ("Cable Car"), RC/ARBY'S CORPORATION, a Delaware corporation
("RC/Arby's") and ROYAL CROWN COMPANY, INC., a Delaware corporation ("Royal
Crown") (Snapple, Mistic, Cable Car and, following the consummation of the
RC/Arby's Notes Repayment, RC/Arby's and Royal Crown, are collectively referred
to as the "Borrowers", and each, individually, a "Borrower"), the various
financial institutions as are or may become parties hereto (collectively, the
"Lenders"), DLJ CAPITAL FUNDING, INC. ("DLJ"), as syndication agent (the
"Syndication Agent") for the Lenders, MORGAN STANLEY SENIOR FUNDING, INC.
("Morgan Stanley"), as documentation agent (the "Documentation Agent") for the
Lenders, and THE BANK OF NEW YORK ("BNY"), as administrative agent (the
"Administrative Agent") for the Lenders.
W I T N E S S E T H:
WHEREAS, Snapple, Mistic, Cable Car and Royal Crown are engaged
directly and through their Subsidiaries in the business of producing, marketing
and distributing beverages, beverage concentrates and other similar or related
products under various trademarks and trade names, and Arby's (as defined below)
is engaged directly and through its Subsidiaries in the business of franchising
"Arby's" restaurants and other restaurant and food service concepts
(collectively, with any related and ancillary businesses, the "Business");
WHEREAS, each Borrower is a direct or indirect, wholly-owned
Subsidiary of Triarc Consumer Products Group, LLC, a Delaware limited liability
company ("Holdco"), and Holdco is a direct, wholly-owned Subsidiary of Triarc
Companies, Inc., a Delaware corporation ("Triarc");
WHEREAS, Holdco and Triarc Beverage Holdings Corp., a Delaware
corporation ("Triarc Beverage"), intend to issue senior subordinated notes due
2009 (the "Subordinated Notes Offering") for gross cash proceeds of at least
$300,000,000;
WHEREAS, the Borrowers intend to use the proceeds of the
Borrowings hereunder and Holdco and Triarc Beverage intend to use the proceeds
of the Subordinated Notes Offering (a) to refinance (the "Refinancing") certain
existing indebtedness of each of Triarc Beverage, Cable Car, Snapple and Mistic,
(b) to acquire (the "Acquisition") all of the issued and outstanding Capital
Stock of Millrose Distributors, Inc., a New Jersey corporation, for an
aggregate purchase price not to exceed $17,250,000 (subject to adjustment
pursuant to the terms of the Acquisition Agreement), (c) to make the Triarc
Dividend (as defined below) and (d) to make the RC/Arby's Notes Repayment (as
defined below) (the Subordinated Notes Offering, the Refinancing, the
Acquisition, the Triarc Dividend, the RC/Arby's Notes Repayment and each of the
other transactions relating thereto (other than Triarc's proposed going-private
transaction) are collectively referred to as the "Transaction");
WHEREAS, upon, and only upon, the consummation of the RC/Arby's
Notes Repayment, RC/Arby's and Royal Crown shall be entitled to the rights and
subject to the obligations and liabilities of a "Borrower" hereunder;
WHEREAS, to finance in part each of the Refinancing, the
Acquisition and the Triarc Dividend, and to provide for the ongoing working
capital and general corporate needs of the Borrowers and their respective
subsidiaries, the Borrowers desire to obtain the following financing facilities
from the Lenders:
(a) a Term Loan Commitment pursuant to which Borrowings of
Term Loans will be made in a maximum original principal amount of
(i) $45,000,000 (in the case of Term A Loans), (ii) $125,000,000
(in the case of Term B Loans) and (iii) $305,000,000 (in the case
of Term C Loans) to the Borrowers in a single Borrowing to occur
on the Closing Date;
(b) a Revolving Loan Commitment (to include availability for
Revolving Loans, Swing Line Loans and Letters of Credit) pursuant
to which Borrowings of Revolving Loans, in a maximum aggregate
principal amount (together with all Swing Line Loans and Letter
of Credit Outstandings) not to exceed the lesser of (i) the then
existing Revolving Loan Commitment Amount and (ii) the Borrowing
Base Amount, will be made to the Borrowers from time to time on
and subsequent to the Closing Date but prior to the Revolving
Loan Commitment Termination Date;
(c) a Letter of Credit Commitment pursuant to which the
Issuer will issue Letters of Credit for the account of the
Borrowers and their respective Subsidiaries from time to time on
and subsequent to the Closing Date but prior to the Revolving
Loan Commitment Termination Date in a maximum aggregate Stated
Amount at any one time outstanding not to exceed $25,000,000
(provided, that the aggregate outstanding principal amount of
Revolving Loans, Swing Line Loans and Letter of Credit
Outstandings at any time shall not exceed the lesser of (i) the
then existing Revolving Loan Commitment Amount and (ii) the
Borrowing Base Amount); and
(d) a Swing Line Loan Commitment pursuant to which
Borrowings of Swing Line Loans in an aggregate outstanding
principal amount not to exceed $10,000,000 will be made on and
subsequent to the Closing Date but prior to the Revolving Loan
Commitment Termination Date (provided, that the aggregate out-
standing principal amount of Swing Line Loans, Revolving Loans
and Letter of Credit Outstandings at any time shall not exceed
the lesser of (i) the then existing Revolving Loan Commitment
Amount and (ii) the Borrowing Base Amount);
with all the proceeds of the Credit Extensions to be used for the purposes set
forth in Section 7.1.9; and
WHEREAS, the Lenders are willing, on the terms and subject to the
conditions hereinafter set forth (including Article V), to extend the
Commitments, make Loans to the Borrowers and issue (or participate in) Letters
of Credit;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Defined Terms. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall, except where the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms
thereof):
"Account" means (i) any account (as that term is defined in
Section 9-106 of the UCC) of any Borrower or any of their wholly-owned U.S.
Subsidiaries arising from the sale or lease of goods or the rendering of
services, and (ii) with respect to Arby's and its wholly-owned U.S.
Subsidiaries, to the extent not otherwise included in clause (i), all royalties,
fees and other amounts due under any franchise or master development agreement
which, in accordance with GAAP, would be classified as an account receivable and
which are included on the balance sheets of Arby's and its Subsidiaries.
"Account Debtor" is defined in clause (b) of the definition of
"Eligible Accounts".
"Acquisition" is defined in the fourth recital.
"Acquisition Agreement" means, collectively, the stock purchase
agreements executed in connection with the Acquisition.
"Acquisition Escrow Account" means the escrow account established
pursuant to the Acquisition Escrow Agreement.
"Acquisition Escrow Agreement" means the escrow agreement, dated
as of the Closing Date, by and among the Borrowers and the Administrative Agent
pursuant to which Borrowings under the Term C Loans shall be deposited to be
used within 45 days thereafter to pay the purchase price in connection with the
Acquisition, as amended, supplemented, amended and restated or otherwise
modified from time to time in accordance herewith and therewith.
"Administrative Agent" is defined in the preamble and includes
each other Person as shall have subsequently been appointed as the successor
Administrative Agent pursuant to Section 9.4.
"Administrative Agent's Fee Letter" means the confidential fee
letter, dated as of February 25, 1999, among the Administrative Agent and the
Borrowers.
"Affiliate" of any Person means any other Person which, directly
or indirectly, controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any Plan). A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power (i)
to vote 10% or more of the Capital Stock (on a fully diluted basis) of such
Person having ordinary voting power for the election of directors or managing
general partners, or (ii) to direct or cause the direction of the management and
policies of such Person whether by contract or otherwise.
"Agents" means, collectively, the Administrative Agent, the Syn-
dication Agent and the Documentation Agent.
"Agreement" means, on any date, this Credit Agreement as
originally in effect on the Closing Date and as thereafter from time to time
amended, supplemented, amended and restated, or otherwise modified and in effect
on such date.
"Alternate Base Rate" means, on any date and with respect to all
Base Rate Loans, a fluctuating rate of interest per annum equal to the higher of
(i) the rate of interest in effect on such day as publicly announced or
established from time to time by the Administrative Agent in New York, New York
as its "prime commercial lending rate", and (ii) the Federal Funds Rate most
recently determined by the Administrative Agent plus 1/2 of 1%. The Alternate
Base Rate is not necessarily intended to be the lowest rate of interest
determined by the Administrative Agent in connection with extensions of credit.
Changes in the rate of interest on that portion of any Loans maintained as Base
Rate Loans will take effect simultaneously with each change in the Alternate
Base Rate. The Administrative Agent will give notice promptly to the Borrowers
and the Lenders of changes in the Alternate Base Rate.
"Annualized" means (i) with respect to the end of the first full
Fiscal Quarter of Holdco to occur after the Closing Date, the applicable amount
for such Fiscal Quarter multiplied by four, (ii) with respect to the second
Fiscal Quarter of Holdco to occur after the Closing Date, the applicable amount
for such Fiscal Quarter and the immediately preceding Fiscal Quarter multiplied
by two, and (iii) with respect to the third Fiscal Quarter of Holdco to occur
after the Closing Date, the applicable amount for such Fiscal Quarter and the
immediately preceding two Fiscal Quarters multiplied by 1.3333.
"Applicable Commitment Fee" means, (i) at all times from the
Closing Date through (and including) the day that is six months following the
Closing Date, a fee which shall accrue at a rate of 3/4 of 1% per annum, and
(ii) thereafter, a fee which shall accrue at a rate per annum determined by
reference to the Leverage Ratio for the Fiscal Quarter last ended and the
applicable percentage per annum set forth below under the column entitled
"Applicable Commitment Fee":
Applicable
Leverage Ratio Commitment Fee
-------------- --------------
greater than or 0.75%
equal to 3.0:1
less than 3.0:1 0.50%
The Leverage Ratio used to compute the Applicable Commitment Fee shall be the
Leverage Ratio set forth in the Compliance Certificate most recently delivered
by or on behalf of the Borrowers to the Administrative Agent pursuant to clause
(d) of Section 7.1.1. Changes in the Applicable Commitment Fee resulting from a
change in the Leverage Ratio shall become effective upon delivery by or on
behalf of the Borrowers to the Administrative Agent of a new Compliance
Certificate pursuant to clause (d) of Section 7.1.1. If the Borrowers shall fail
to deliver a Compliance Certificate within the number of days required pursuant
to clause (d) of Section 7.1.1 (after giving effect to any grace period), the
Applicable Commitment Fee from and including the first day after the date on
which such Compliance Certificate was required to be delivered to, but not
including the date the Borrowers deliver to, the Administrative Agent an
appropriately completed Compliance Certificate shall conclusively equal the
highest Applicable Commitment Fee set forth above.
"Applicable Margin" means at all times during the applicable
periods set forth below,
(a) with respect to the unpaid principal amount of each Term
B Loan maintained as (i) a Base Rate Loan, 2.50% per annum and
(ii) a LIBO Rate Loan, 3.50% per annum;
(b) with respect to the unpaid principal amount of each Term
C Loan maintained as (i) a Base Rate Loan, 2.75% per annum and
(ii) a LIBO Rate Loan, 3.75% per annum; and
(c) with respect to the unpaid principal amount of each
Revolving Loan and each Term A Loan maintained as (i) a Base Rate
Loan, (x) from the Closing Date through (and including) the day
that is six months following the Closing Date, 2.00% per annum,
and (y) thereafter, by reference to the Leverage Ratio and at the
applicable percentage per annum set forth below under the column
entitled "Applicable Margin for Base Rate Loans", and (ii) a LIBO
Rate Loan, (x) from the Closing Date through (and including) the
day that is six months following the Closing Date, 3.00% per
annum, and (y) thereafter, by reference to the Leverage Ratio and
at the applicable percentage per annum set forth below under the
column entitled "Applicable Margin for LIBO Rate Loans":
Applicable Margin For Revolving Loans and Term A Loans
Applicable Applicable
Margin For Base Margin For LIBO
Leverage Ratio Rate Loans Rate Loans
-------------- ---------- ----------
greater than or equal
to 4.0:1 2.00% 3.00%
greater than or equal
to 3.5:1 and less
than 4.0:1 1.75% 2.75%
greater than or equal
to 3.0:1 and less
than 3.5:1 1.50% 2.50%
less than 3.0:1 1.25% 2.25%
The Leverage Ratio used to compute the Applicable Margin for Revolving Loans and
Term A Loans shall be the Leverage Ratio set forth in the Compliance Certificate
most recently delivered by or on behalf of the Borrowers to the Administrative
Agent pursuant to clause (d) of Section 7.1.1. Changes in the Applicable Margin
for Revolving Loans or Term A Loans resulting from a change in the Leverage
Ratio shall become effective upon delivery by or on behalf of the Borrowers to
the Administrative Agent of a new Compliance Certificate pursuant to clause (d)
of Section 7.1.1. If the Borrowers shall fail to deliver a Compliance
Certificate within the number of days required pursuant to clause (d) of Section
7.1.1 (after giving effect to any grace period), the Applicable Margin for
Revolving Loans and Term A Loans from and including the first day after the date
on which such Compliance Certificate was required to be delivered to, but not
including the date the Borrowers deliver to, the Administrative Agent an
appropriately completed Compliance Certificate shall conclusively equal the
highest Applicable Margin for Revolving Loans and Term A Loans set forth above.
"Arby's" means Arby's, Inc., a Delaware corporation, and includ-
ing any successor thereto.
"Arby's Assets" is defined in the definition of "Arby's Securiti-
zation Residual Payment".
"Arby's Securitization" means the sale, transfer and assignment
by Arby's and/or one or more of its Subsidiaries to one or more Arby's
Securitization Entities of all or a portion of the Arby's Securitization Assets,
the issuance and sale by one or more Arby's Securitization Entities of the
Arby's Securitization Notes and the Arby's Securitization Residual Notes and the
right and obligations of Arby's and/or one or more of its Subsidiaries to
provide certain servicing and other services with respect to such Arby's
Securitization Assets and one or more Arby's Securitization Entities.
"Arby's Securitization Assets" means all right, title and
interest to the trademarks "Arby's", "T.J. Cinnamons" and/or "Pasta Connection"
or any variations or successors thereto and the goodwill related to such
trademarks, all existing and future franchise, licensing and other rights to
grant to any Persons the right to use the names "Arby's", "T.J. Cinnamons"
and/or "Pasta Connection" or operate restaurants identified with the names
"Arby's", "T.J. Cinnamons" and/or "Pasta Connection" and the right to enforce
and take all other actions with respect to such agreements and collect and
receive all royalties, fees and other amounts payable under such agreements, and
all other assets of Arby's and its Subsidiaries reasonably related to any of the
foregoing.
"Arby's Securitization Entity" means any newly created direct or
indirect subsidiary of Holdco formed for the sole purpose of consummating the
Arby's Securitization.
"Arby's Securitization Excess" is defined in the definition of
"Arby's Securitization Residual Payment".
"Arby's Securitization Notes" means the notes, certificates,
participation interests or other securities to be issued by an Arby's
Securitization Entity in connection with the Arby's Securitization.
"Arby's Securitization Residual Note" means a subordinated
promissory note payable by an Arby's Securitization Entity to Arby's in
connection with the Arby's Securitization.
"Arby's Securitization Residual Payment" means, in the event that
the gross cash proceeds received from the Arby's Securitization exceed
$350,000,000 (as such amount may be increased pursuant to clause (d)(iii) of
Section 7.2.9) (with such excess being the "Arby's Securitization Excess"), the
distribution to Triarc of all of the Capital Stock of RC/Arby's, the Arby's
Securitization Entities and Subsidiaries of RC/Arby's (other than Royal Crown
and its Subsidiaries, and so long as each such Person has no assets other than
the Arby's Securitization Assets, the Arby's Securitization Excess, any Arby's
Securitization Residual Notes, the Capital Stock of any Arby's Securitization
Entity and businesses related thereto (collectively, the "Arby's Assets"));
provided, that the Capital Stock of any other Subsidiary of RC/Arby's (but not
any assets of such Person other than the Arby's Assets) that has any obligations
or liabilities, contingent or otherwise with respect to the assets transferred
pursuant to the Arby's Securitization Residual Payment are also distributed to
Triarc at such time; provided, further, that immediately after giving effect to
the Arby's Securitization Residual Payment, no Default shall have occurred and
be continuing or would result therefrom; provided, however, that,
notwithstanding any of the aforementioned, the obligations of RC/Arby's and its
Subsidiaries under Sections 4.3 through 4.6 and 10.3 (to the extent due and
owing for any period prior to the date of the Arby's Securitization Residual
Payment) and 10.4 (for any Indemnified Liabilities relating to the period prior
to the date of the Arby's Securitization Residual Payment) shall in each case
survive the transfer of the Capital Stock of RC/Arby's and its Subsidiaries
(other than Royal Crown and its Subsidiaries) and the Arby's Securitization
Assets pursuant to the Arby's Securitization Residual Payment, the termination
of this Agreement, or the occurrence of the Termination Date.
"Arby's Stock Option Plan" means a stock option plan that may be
adopted by Arby's providing for the granting of options to acquire up to 15% of
the voting Capital Stock of Arby's on a fully diluted basis, which stock option
plan shall not contain any provisions that are inconsistent with or would cause
a Default under this Agreement, as amended, supplemented, amended and restated
or otherwise modified from time to time as permitted in accordance with the
terms hereof.
"Arrangers" means, collectively, DLJ and Morgan Stanley.
"Assignee Lender" is defined in Section 10.11.1.
"Assumed Restricted Debt" is defined in clause (a) of
Section 7.1.7.
"Authorized Officer" means, relative to any Obligor, those of its
officers whose signatures and incumbency shall have been certified to the Agents
and the Lenders pursuant to Section 5.1.1.
"Base Rate Loan" means a Loan bearing interest at a fluctuating
rate determined by reference to the Alternate Base Rate.
"Beverage Companies" means, collectively, Snapple, Mistic, Cable
Car and Royal Crown.
"BNY" is defined in the preamble.
"Borrower" and "Borrowers" are defined in the preamble.
"Borrower Pledge Agreement" means the Pledge Agreement executed
and delivered by the Borrowers pursuant to clause (b) of Section 5.1.8,
substantially in the form of Exhibit J-2 hereto, as amended, supplemented,
amended and restated or otherwise modified from time to time.
"Borrower Security Agreement" means the Security Agreement
executed and delivered by an Authorized Officer of each of the Borrowers
pursuant to Section 5.1.9, substantially in the form of Exhibit K-1 hereto, as
amended, supplemented, amended and restated or otherwise modified from time to
time.
"Borrowing" means the Loans of the same type and, in the case of
LIBO Rate Loans, having the same Interest Period made by all Lenders on the same
Business Day and pursuant to the same Borrowing Request in accordance with
Section 2.3.
"Borrowing Base Amount" means, at any time, the Net Asset Value
of all Eligible Accounts and Eligible Inventory at such time as determined in
accordance with the definition of "Net Asset Value" and as certified by each
Borrower to the Lenders in the most recently delivered Borrowing Base
Certificate, including the Borrowing Base Certificate delivered on the Closing
Date pursuant to clause (c) of Section 5.1.11.
"Borrowing Base Certificate" means a certificate duly completed
and executed by the chief accounting or chief financial Authorized Officer of
Holdco on behalf of the Borrowers, substantially in the form of Exhibit E
hereto.
"Borrowing Request" means a loan request and certificate duly
executed by an Authorized Officer of any Borrower, substantially in the form of
Exhibit C hereto.
"Business" is defined in the first recital.
"Business Day" means
(a) any day which is neither a Saturday or Sunday nor a
legal holiday on which banks are authorized or required to be
closed in New York, New York; and
(b) relative to the making, continuing, prepaying or
repaying of any LIBO Rate Loans, any day on which dealings in
Dollars are carried on in the London interbank market.
"Cable Car" is defined in the preamble and includes any successor
thereto.
"Capital Expenditures" means, with respect to any Person for any
applicable period, the sum (without duplication) of
(a) the aggregate amount of all expenditures of such Person
and its Subsidiaries determined on a consolidated basis for fixed
or capital assets made during such period which, in accordance
with GAAP, would be classified as capital expenditures; and
(b) the aggregate amount of all Capitalized Lease
Liabilities incurred during such period;
provided that Capital Expenditures shall not include (i) any such expenditures
funded with (x) any Net Casualty Proceeds as permitted pursuant to clause (f) of
Section 3.1.1 or (y) any Net Disposition Proceeds as permitted pursuant to
clause (c) of Section 3.1.1 of any disposition of assets permitted pursuant to
clause (b) or (e) of Section 7.2.9 or (ii) (x) any Investment made pursuant to
Section 7.2.5 or (y) any purchase made pursuant to clause (b)(ii) of Section
7.2.8.
"Capital Stock" means, with respect to any Person, (i) any and
all shares, interests, participations or other equivalents of or interests in
(however designated) corporate or capital stock, including, without limitation,
shares of preferred or preference stock of such Person, (ii) all partnership
interests (whether general or limited) in such Person, (iii) all membership
interests or limited liability company or partnership interests in such Person,
and (iv) all other equity or ownership interests in such Person of any other
type.
"Capitalized Lease Liabilities" means with respect to any Person
for any applicable period, all monetary obligations of such Person and its
Subsidiaries determined on a consolidated basis under any leasing or similar
arrangement which, in accordance with GAAP, would be classified as capitalized
leases, and, for purposes of this Agreement and each other Loan Document, the
amount of such obligations shall be the capitalized amount thereof, determined
in accordance with GAAP, and the stated maturity thereof shall be the date of
the last payment of rent or any other amount due under such lease prior to the
first date upon which such lease may be terminated by the lessee without payment
of a penalty.
"Cash Equivalent Investment" means, at any time:
(a) any evidence of Indebtedness, maturing not more than one
year after such time, issued or guaranteed or insured by the
United States Government of any agency thereof, or by any state
of the United States (the securities of which state are rated
at least AA by S&P or Aa by Moody's);
(b) commercial paper, maturing not more than nine months
from the date of issue, which is issued by
(i) a corporation (other than an Affiliate of any
Obligor) organized under the laws of any state of the United
States or of the District of Columbia and rated at least A-1
by S&P or P-1 by Moody's, or
(ii) any Lender (or its holding company);
(c) any certificate of deposit, demand deposit account, time
deposit account or bankers acceptance, maturing not more than one
year after such time, which is issued by either
(i) a commercial banking institution that is a member of
the Federal Reserve System (or with respect to any Non-U.S.
Subsidiary of any Borrower, a commercial banking institution
located in the country where such Non-U.S. Subsidiary does
business) and has a combined capital and surplus and
undivided profits of not less than $500,000,000 (or the
foreign currency equivalent thereof), or
(ii) any Lender;
(d) any repurchase agreement or transaction under a master
repurchase agreement entered into with any Lender (or other
commercial banking institution of the stature referred to in
clause (c)(i)) which
(i) is secured by a fully perfected security interest in
any obligation of the type described in any of clauses (a)
through (c), and
(ii) has a market value at the time the transaction
under such repurchase agreement is entered into of not less
than 100% of the repurchase obligation of such Lender (or
other commercial banking institution) thereunder; or
(e) money market funds having no restrictions on liquidation
rights and whose sole investments are comprised of investments
permitted under clauses (a) through (d).
"Casualty Event" means, with respect to any Person, the damage,
destruction or condemnation, as the case may be, of any property of such Person.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response
Compensation Liability Information System List.
"Change in Control" means
(a) any Person, or two or more Persons acting in concert,
other than the Permitted Holders, (individually or collectively)
acquiring beneficial ownership (within the meaning of Rule 13d-3
of the Securities and Exchange Act of 1934, as amended) of 35% or
more of the outstanding shares of voting Capital Stock of Triarc
on a fully diluted basis, but only if the Permitted Holders (x)
beneficially own (as defined in this clause (a)), directly or
indirectly, in the aggregate, a lesser percentage of the
outstanding shares of voting Capital Stock of Triarc on a fully
diluted basis than such Person or Persons and (y) do not have the
right or ability by voting power, contract or otherwise to elect
or designate for election a majority of the Board of Directors of
Triarc;
(b) prior to a merger of Holdco with and into Triarc
Beverage, the failure of Triarc to own, either directly or
indirectly, free and clear of all Liens (other than as permitted
under the Loan Documents), 100% of the outstanding shares of
voting Capital Stock of Holdco on a fully diluted basis;
(c) (i) prior to a merger of Holdco with and into Triarc
Beverage, the failure of Holdco to own, either directly or
indirectly, free and clear of all Liens (other than as permitted
under the Loan Documents), 100% of the outstanding shares of
voting Capital Stock of Triarc Beverage on a fully diluted basis,
(ii) after a merger of Holdco with and into Triarc Beverage and
prior to an Initial Public Offering of Triarc Beverage, the
failure of Triarc to own, either directly or indirectly, free and
clear of all Liens (other than as permitted under the Loan
Documents), 100% of the outstanding shares of voting Capital
Stock of Triarc Beverage on a fully diluted basis, and (iii)
after an Initial Public Offering of Triarc Beverage, the failure
of Triarc to own, either directly or indirectly, free and clear
of all Liens (other than as permitted under the Loan Documents),
at least 51% of the outstanding shares of voting Capital Stock of
Triarc Beverage on a fully diluted basis; provided, however,
that, with respect to clauses (i) and (ii) above, Triarc Beverage
may issue up to 15% of its outstanding shares of voting Capital
Stock on a fully diluted basis pursuant to the Triarc Beverage
Stock Option Plan;
(d) except as otherwise permitted under the Loan Documents,
(i) prior to a merger of Holdco with and into Triarc Beverage,
the failure of Holdco to own, either directly or indirectly, free
and clear of all Liens (other than as permitted under the Loan
Documents), 100% of the outstanding shares of voting Capital
Stock of each of the Borrowers and Arby's, in each case on a
fully diluted basis (provided, however, that Triarc Beverage may
issue up to 15% of its outstanding shares of voting Capital Stock
on a fully diluted basis pursuant to the Triarc Beverage Stock
Option Plan), and (ii) after a merger of Holdco with and into
Triarc Beverage, the failure of Triarc Beverage to own, either
directly or indirectly, free and clear of all Liens (other than
as permitted under the Loan Documents), 100% of the outstanding
shares of voting Capital Stock of each of the Borrowers and
Arby's on a fully diluted basis; provided, however, that in
either case, (A) Arby's may issue up to 15% of its outstanding
shares of voting Capital Stock on a fully diluted basis pursuant
to the Arby's Stock Option Plan, and (B) the Capital Stock of
RC/Arby's and its Subsidiaries (to the extent provided in the
definition of Arby's Securitization Residual Payment) may be
transferred to Triarc in connection with the Arby's
Securitization Residual Payment;
(e) the chief executive officer of the "Triarc Beverage
Group", as of the Closing Date, shall have ceased to continue to
serve in the operational and managerial capacities in which he
now serves or in an enhanced operational or managerial capacity
with Holdco or any Borrower and a successor shall not be
appointed within 180 days thereof with the prior consent of the
Required Lenders (which consent shall not be unreasonably
withheld or delayed);
(f) during any period of 12 consecutive months, individuals
who at the beginning of such 12-month period were directors of
Holdco, Triarc Beverage or any Borrower cease for any reason to
continue to constitute a majority of the Board of Directors of
Holdco, Triarc Beverage or such Borrower unless their successors
shall have been approved by a majority of the continuing
directors;
(g) except as otherwise permitted under the Loan Documents,
the failure of each applicable Borrower to own, either directly
or indirectly, free and clear of all Liens (other than as
permitted under the Loan Documents), 100% of the outstanding
shares of voting Capital Stock of each U.S. Subsidiary of such
Borrower which is a Material Obligor on a fully diluted basis; or
(h) any "Change in Control" as defined in any document or
instrument evidencing or applicable to any Subordinated Debt.
"Closing Date" means the date on which all the conditions set
forth in Section 5.1 are satisfied or waived and the initial Credit Extension is
made hereunder.
"Closing Date Certificate" means a certificate of an Authorized
Officer of each Borrower substantially in the form of Exhibit G hereto,
delivered pursuant to Section 5.1.4.
"Code" means the Internal Revenue Code of 1986, as amended,
reformed or otherwise modified from time to time.
"Commitment" means, as the context may require, a Lender's Term
Loan Commitment, Revolving Loan Commitment, Letter of Credit Commitment or Swing
Line Loan Commitment.
"Commitment Amount" means, as the context may require, the Letter
of Credit Commitment Amount, the Revolving Loan Commitment Amount, the Swing
Line Loan Commitment Amount, the Term A Loan Commitment Amount, the Term B Loan
Commitment Amount or the Term C Loan Commitment Amount.
"Commitment Termination Event" means
(a) the occurrence of any Default described in clauses (a)
through (d) of Section 8.1.9 with respect to any Material
Obligor; or
(b) the occurrence and continuance of any other Event of
Default and either (i) the declaration of the Loans to be due and
payable pursuant to Section 8.3, or (ii) in the absence of such
declaration, the giving of notice by the Administrative Agent,
acting at the direction of the Required Lenders, to the Borrowers
that the Commitments have been terminated.
"Compliance Certificate" means a certificate duly completed and
executed by the chief financial Authorized Officer of Holdco, on behalf of the
Borrowers, substantially in the form of Exhibit H hereto.
"Consummation Date" is defined in Section 7.1.12.
"Contingent Liability" means any agreement, undertaking or
arrangement (but not any obligation or liability arising by operation of law or
pursuant to any statutory requirement) by which any Person guarantees, endorses
or otherwise becomes or is contingently liable upon (by direct or indirect
agreement, contingent or otherwise, to provide funds for payment, to supply
funds to, or otherwise to invest in, a debtor, or otherwise to assure a creditor
against loss) the indebtedness, obligation or any other liability of any other
Person (other than by endorsements of instruments in the course of collection),
or guarantees the payment of dividends or other distributions upon the shares of
Capital Stock of any other Person. The amount of any Person's obligation under
any Contingent Liability shall (subject to any limitation set forth therein) be
deemed to be the outstanding principal amount (or maximum principal amount, if
larger) of the debt, obligation or other liability guaranteed thereby.
"Continuation/Conversion Notice" means a notice of continuation
or conversion and certificate duly executed by an Authorized Officer of the
applicable Borrower, substantially in the form of Exhibit F hereto.
"Controlled Group" means all members of a controlled group of
corporations and all members of a controlled group of trades or businesses
(whether or not incorporated) under common control which, together with Holdco
and the Borrowers, are treated as a single employer under Section 414(b) or
414(c) of the Code or Section 4001 of ERISA.
"Copyright Security Agreement" means any Copyright Security
Agreement executed and delivered by an Obligor in substantially the form of
Exhibit C to any Security Agreement, as amended, supplemented, amended and
restated or otherwise modified from time to time.
"Credit Extension" means, as the context may require,
(a) the making of a Loan by a Lender; or
(b) the issuance of any Letter of Credit, or the extension
of any Stated Expiry Date of any previously issued Letter of
Credit, by any Issuer.
"Credit Extension Request" means, as the context may require, any
Borrowing Request or Issuance Request.
"Current Assets" means, on any date with respect to any Person,
without duplication, all assets (other than cash) which, in accordance with GAAP
consistently applied, would be included as current assets on a consolidated
balance sheet of such Person and its Subsidiaries at such date as current
assets.
"Current Liabilities" means, on any date with respect to any
Person, without duplication, all amounts which, in accordance with GAAP
(consistently applied), would be included as current liabilities on a
consolidated balance sheet of such Person and its Subsidiaries at such date,
excluding current maturities of Indebtedness ("Indebtedness" for purposes of
this definition includes principal and interest with respect to Revolving
Loans).
"Debt" means the outstanding principal amount of all Indebtedness
of Holdco and its Subsidiaries of the nature referred to in clauses (a), (b),
and (c) of the definition of "Indebtedness" plus (without duplication) the
aggregate amount of all Contingent Liabilities to the extent covering or
supporting the principal amount of any such Indebtedness.
"Default" means any Event of Default or any condition, occurrence
or event which, after notice or lapse of time or both, would constitute an Event
of Default.
"Disbursement" is defined in Section 2.6.2.
"Disbursement Date" is defined in Section 2.6.2.
"Disclosure Schedule" means the Disclosure Schedule attached
hereto as Schedule I, as it may be amended, supplemented or otherwise modified
from time to time by the Borrowers with the written consent of the Required
Lenders.
"DLJ" is defined in the preamble.
"Documentation Agent" is defined in the preamble.
"Dollar" and the sign "$" mean lawful money of the United States.
"Domestic Office" means, relative to any Lender, the office of
such Lender designated as such as set forth opposite its name on Schedule II
hereto under the applicable column heading or as set forth in the Lender
Assignment Agreement or such other office of a Lender (or any successor or
assign of such Lender) within the United States as may be designated from time
to time by notice from such Lender, as the case may be, to each other Person
party hereto.
"EBITDA" means, with respect to Holdco and its Subsidiaries
(including each of the Borrowers) for any applicable period, the sum (without
duplication), determined on a consolidated basis, of
(a) Net Income,
plus
- ----
(b) the amount deducted in determining Net Income
representing depreciation and amortization,
plus
- ----
(c) the amount deducted in determining Net Income
representing federal, state, local and foreign income and
franchise tax expense (including (i) reserves for deferred taxes
not payable currently and (ii) payments or accruals made pursuant
to the Tax Sharing Agreement),
plus
- ----
(d) the amount deducted in determining Net Income
representing Interest Expense,
plus
- ----
(e) an amount equal to the amount of all non-cash charges
deducted in determining Net Income,
plus
- ----
(f) an amount equal to the amount of any extraordinary
charges deducted in determining Net Income,
plus
- ----
(g) an amount equal to the amount of all non-recurring fees
and expenses incurred in connection with the Transaction and
deducted in determining Net Income,
minus
- ----
(h) an amount equal to the amount of all non-cash credits
included in determining Net Income.
"Effective Date" means the date this Agreement becomes effective
pursuant to Section 10.8.
"Eligible Account" means, with respect to each Borrower and any
of its wholly-owned U.S. Subsidiaries which are Subsidiary Guarantors, at the
time of any determination thereof, any Account as to which each of the following
requirements has been fulfilled to the reasonable satisfaction of the Agents:
(a) such Borrower or such Subsidiary owns such Account free
and clear of all Liens other than any Lien in favor of the
Administrative Agent and the Lenders granted pursuant to or in
connection with this Agreement or another Loan Document;
(b) such Account is a legal, valid, binding and enforceable
obligation of the Person obligated under such Account (the
"Account Debtor");
(c) such Account is not subject to any bona fide dispute,
setoff, counterclaim or other claim (or right to assert any such
setoff right, counterclaim or other claim) or defense on the part
of the Account Debtor or any other Person denying liability under
such Account; provided, however, that such Account shall
constitute an Eligible Account to the extent it is not subject to
any such dispute, setoff, counterclaim or other claim or defense;
(d) such Borrower or such Subsidiary has the full and
unqualified right to assign and grant a Lien in such Account to
the Administrative Agent, for its benefit and that of the
Lenders, as security for the Obligations;
(e) such Account is evidenced by an invoice rendered to the
Account Debtor (which shall include computer records) or is
reflected by computer records maintained by such Borrower or such
Subsidiary evidencing such Account and is not evidenced by any
instrument or chattel paper (as the terms "instrument" and
"chattel paper" are defined in Section 9-105 of the UCC), unless
such instrument or chattel paper has been delivered to the
Administrative Agent;
(f) such Account arose from the sale of goods or services by
such Borrower or such Subsidiary or pursuant to a franchise or
master development agreement in the ordinary course of such
Borrower's or such Subsidiary's business, and such goods or
services have been shipped or delivered (in the case of goods) or
rendered in full (in the case of services) to the Account Debtor
for such Account;
(g) with respect to such Account, no Account Debtor is (i)
an Affiliate of such Borrower or any of its Subsidiaries or (ii)
the subject of any of the conditions described in clauses (a)
through (d) of Section 8.1.9 unless the payment of Accounts from
such Account Debtor is secured by a letter of credit from an
issuer and in a manner satisfactory to the Agents;
(h) such Account is not outstanding more than 90 days from
the date of invoice giving rise to such Account (unless such
Account, by its terms, is permitted to be outstanding for a
longer period, in which case such Account shall not be
outstanding for more than such period, provided that such period
does not exceed 180 days and such Account together with all such
other Eligible Accounts outstanding in excess of 90 days do not
in the aggregate exceed $5,000,000 at any time);
(i) such Account is not an Account owing by an Account
Debtor having, at the time of any determination of Eligible
Accounts, in excess of 35% of the aggregate outstanding amount of
all Accounts of such Account Debtor (other than any Accounts
which are the subject of bona fide disputes between such Account
Debtor and such Borrower or such Subsidiary, as the case may be)
outstanding more than 90 days past the date of invoice (unless
such Account, by its terms, is permitted to be outstanding for a
longer period, in which case such Account shall not be
outstanding for more than such period, provided that such period
does not exceed 180 days and such Account together with all such
other Eligible Accounts outstanding in excess of 90 days do not
in the aggregate exceed $5,000,000 at any time);
(j) with respect to the Account Debtor under such Account,
neither such Borrower nor any such Subsidiary is indebted to such
Account Debtor, unless such Borrower or such Subsidiary and such
Account Debtor have entered into an agreement whereby the Account
Debtor is prohibited from exercising any right of setoff with
respect to the Accounts of such Borrower or such Subsidiary;
provided, that in any event, if such an agreement prohibiting
setoff rights is not delivered by the Account Debtor, then only
the amount that such Borrower or such Subsidiary is indebted to
such Account Debtor shall be excluded as an Eligible Account
pursuant to this clause; and
(k) such Account arises from a sale to an Account Debtor, or
pursuant to a franchise or master development agreement with a
franchisee, located within the United States, Canada (to the
extent such Account is owed to a Borrower or any U.S. Subsidiary
of any Borrower) or Puerto Rico, unless the Account Debtor's
obligations (or that portion of such obligations which is
acceptable to the Agents) with respect to a sale to an Account
Debtor not located within the United States, Canada (to the
extent provided above) or Puerto Rico are secured by a letter of
credit, guaranty or eligible bankers' acceptance having terms,
and from such issuers and confirmation banks, as are acceptable
to the Agents.
"Eligible Inventory" means, with respect to each Borrower and any
of its wholly-owned U.S. Subsidiaries which are Subsidiary Guarantors, at the
time of any determination thereof, any Inventory arising in the ordinary course
of business and as to which each of the following requirements has been
fulfilled to the reasonable satisfaction of the Agents:
(a) such Inventory is located in the United States or
Puerto Rico;
(b) such Borrower or its wholly-owned U.S. Subsidiary owning
such Inventory, as the case may be, has full and unqualified
right to assign and grant a Lien in such Inventory to the
Administrative Agent, for its benefit and that of the Lenders, as
security for the Obligations;
(c) such Borrower or one of its wholly-owned U.S.
Subsidiaries owns such Inventory free and clear of all Liens in
favor of any Person other than any Lien in favor of the
Administrative Agent and the Lenders granted pursuant to or in
connection with this Agreement or another Loan Document; and
(d) none of such Inventory is obsolete, unsalable, damaged
or otherwise unfit for sale or consumption or further processing.
"Environmental Laws" means all applicable federal, state or local
statutes, laws, ordinances, codes, rules, regulations and binding guidelines
(including consent decrees and administrative orders) relating to the protection
of the environment.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and any successor statute of similar import, together with the
regulations thereunder, in each case as in effect from time to time. References
to sections of ERISA also refer to any successor sections.
"Event of Default" is defined in Section 8.1.
"Excess Amount" is defined in Section 3.1.3.
"Excess Cash Flow" means, with respect to Holdco and its Subsid-
iaries for any applicable period, the excess (if any) of
(a) EBITDA for such applicable period;
over
- ----
(b) the sum, without duplication (for such applicable
period) on a consolidated basis of
(i) the cash portion of Interest Expense (net of cash
interest income) actually paid during such applicable
period;
plus
----
(ii) (x) scheduled payments and optional and mandatory
prepayments, to the extent actually made, of the principal
amount of the Term Loans or any other term Debt (including
Capitalized Lease Liabilities), (y) mandatory prepayments of
the principal amount of the Revolving Loans and Swing Line
Loans pursuant to clauses (b) or (k) of Section 3.1.1 in
connection with a reduction of the Revolving Loan Commitment
Amount, in each case for such applicable period and (z) to
the extent not deducted in the computation of EBITDA, all
cash payments in respect of other Indebtedness (exclusive of
optional prepayments of amounts outstanding under the
Revolving Loan Commitment);
plus
----
(iii) all federal, state, local and foreign income and
franchise taxes actually paid in cash (including payments
made pursuant to the Tax Sharing Agreement) during such
applicable period, net of any refunds of such taxes received
during such applicable period;
plus
----
(iv) Capital Expenditures actually made during such
applicable period pursuant to Section 7.2.7 (excluding
Capital Expenditures constituting Capitalized Lease
Liabilities and by way of the incurrence of Indebtedness
permitted pursuant to clause (g) of Section 7.2.2 to a
vendor of any assets permitted to be acquired pursuant to
Section 7.2.7 to finance the acquisition of such assets);
plus
----
(v) the amount of the net increase (or minus in the case
of a net decrease) of Current Assets over Current
Liabilities of Holdco and its Subsidiaries for such
applicable period (or, with respect to the period ending
January 2, 2000, for the full Fiscal Year ending January 2,
2000);
plus
----
(vi) the cash portion of any fees and expenses incurred
in connection with any required Hedging Obligation.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to
(a) the weighted average of the rates on overnight federal
funds transactions with members of the Federal Reserve System
arranged by federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York; or
(b) if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three
federal funds brokers of recognized standing selected by it.
"Fee Letters" means, collectively, (i) the confidential fee
letter, dated January 27, 1999, among the Arrangers and Triarc, and (ii) the
Administrative Agent's Fee Letter.
"Filing Agent" is defined in Section 5.1.10.
"Filing Statements" is defined in Section 5.1.10.
"Fiscal Month" means any fiscal month of any Fiscal Year of
Holdco.
"Fiscal Quarter" means any fiscal quarter of any Fiscal Year of
Holdco.
"Fiscal Year" means any fiscal year of Holdco; provided that, as
of the Closing Date, Holdco's Fiscal Year shall end on the Sunday occurring
closest to December 31 of each year, including December 31; references to a
Fiscal Year with a number corresponding to any calendar year (e.g., "1999 Fiscal
Year") refer to the Fiscal Year ending on the Sunday occurring closest to
December 31 of such calendar year.
"Fixed Charge Coverage Ratio" means, at the end of any Fiscal
Quarter, the ratio for the period consisting of such Fiscal Quarter and each of
the three immediately preceding Fiscal Quarters (provided that for the first
three Fiscal Quarters after the Closing Date, the amounts determined in clauses
(b)(ii), (b)(iii) and (b)(v) below shall be determined on an Annualized basis)
of
(a) EBITDA for all such Fiscal Quarters, plus the aggregate
amount of all management fees permitted and paid during such
Fiscal Quarters pursuant to clause (a) of Section 7.2.11, to the
extent deducted in computing EBITDA;
to
- --
(b) the sum (without duplication) of
(i) Capital Expenditures actually made during all such
Fiscal Quarters pursuant to Section 7.2.7;
plus
----
(ii) the cash portion of Interest Expense (net of cash
interest or investment income) for all such Fiscal Quarters;
plus
----
(iii) all scheduled payments of principal, to the extent
actually made, of the Term Loans and other term Debt
(including the principal portion of any Capitalized Lease
Liabilities) during all such Fiscal Quarters;
plus
----
(iv) all federal, state, local and foreign income and
franchise taxes actually paid in cash (including payments
made pursuant to the Tax Sharing Agreement) during all such
Fiscal Quarters, net of any refunds of such taxes received
during such applicable period;
plus
----
(v) all payments of management fees permitted and paid
during all such Fiscal Quarters pursuant to clause (a) of
Section 7.2.11;
plus
----
(vi) all payments permitted and paid during such Fiscal
Quarters pursuant to clause (d) of Section 7.2.6.
"F.R.S. Board" means the Board of Governors of the Federal Re-
serve System or any successor thereto.
"GAAP" is defined in Section 1.4.
"Hazardous Material" means
(a) any "hazardous substance", as defined by CERCLA;
(b) any "hazardous waste", as defined by the Resource
Conservation and Recovery Act, as amended;
(c) any petroleum product; or
(d) any pollutant or contaminant or hazardous, dangerous or
toxic chemical, material or substance within the meaning of any
other applicable federal, state or local law, regulation,
ordinance or requirement (including consent decrees and
administrative orders) relating to or imposing liability or
standards of conduct concerning any hazardous, toxic or dangerous
waste, substance or material, all as amended or hereafter
amended.
"Hedging Obligations" means, with respect to any Person, all
liabilities of such Person under interest rate swap agreements, interest rate
cap agreements and interest rate collar agreements, and all other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates or currency exchange rates.
"herein", "hereof", "hereto", "hereunder" and similar terms
contained in this Agreement or any other Loan Document refer to this Agreement
or such other Loan Document, as the case may be, as a whole and not to any
particular Section, paragraph or provision of this Agreement or such other Loan
Document.
"Holdco" is defined in the second recital and includes any suc-
cessor thereto.
"Holdco/Triarc Beverage Guaranty and Pledge Agreement" means the
Guaranty and Pledge Agreement executed and delivered by Holdco and Triarc
Beverage pursuant to clause (a) of Section 5.1.8, substantially in the form of
Exhibit J-1 hereto, as amended, supplemented, amended and restated or otherwise
modified from time to time.
"Impermissible Qualification" means, relative to the opinion or
certification of any independent public accountant as to any financial statement
of any Obligor, any qualification or exception to such opinion or certification
(a) which is of a "going concern" or similar nature;
(b) which relates to the limited scope of examination of
matters relevant to such financial statement; or
(c) which relates to the treatment or classification of any
item in such financial statement and which, as a condition to its
removal, would require an adjustment to such item the effect of
which would be to cause such Obligor to be in default of any of
its obligations under Section 7.2.4.
"including" means including without limiting the generality of
any description preceding such term, and, for purposes of this Agreement and
each other Loan Document, the parties hereto agree that the rule of ejusdem
generis shall not be applicable to limit a general statement, which is followed
by or referable to an enumeration of specific matters, to matters similar to the
matters specifically mentioned.
"Indebtedness" of any Person means, without duplication
(a) all obligations of such Person for borrowed money and
all obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments;
(b) all obligations, contingent or otherwise, relative to
the face amount of all letters of credit, whether or not drawn,
and banker's acceptances issued for the account of such Person;
(c) all obligations of such Person as lessee under leases
which have been or should be, in accordance with GAAP, recorded
as Capitalized Lease Liabilities;
(d) net liabilities of such Person under all Hedging
Obligations;
(e) whether or not so included as liabilities in accordance
with GAAP, (i) all obligations of such Person to pay the deferred
purchase price of property or services (but not including
liabilities incurred in connection with any employment severance
arrangements), (ii) liabilities (but only to the extent required
by GAAP to be reflected on the balance sheet of such Person) in
connection with take-or-pay contracts, and (iii) indebtedness
(excluding prepaid interest thereon) secured by a Lien on
property owned or being purchased by such Person (including
indebtedness arising under conditional sales or other title
retention agreements), whether or not such indebtedness shall
have been assumed by such Person or is limited in recourse
(provided, however, that, to the extent such Indebtedness is
limited in recourse to the assets securing such Indebtedness, the
amount of such Indebtedness shall be limited to the fair market
value of such assets); and
(f) all Contingent Liabilities of such Person in respect of
any of the foregoing.
For all purposes of this Agreement, the Indebtedness of any Person shall include
the Indebtedness of any partnership or joint venture in which such Person is a
general partner or a joint venturer to the extent such Person is liable for such
Indebtedness.
"Indemnified Liabilities" is defined in Section 10.4.
"Indemnified Parties" is defined in Section 10.4.
"Indenture" means the Indenture, dated as of February 25, 1999,
among Holdco, Triarc Beverage, the guarantors party thereto and The Bank of New
York, as trustee, as the same may be amended, supplemented, amended and restated
or otherwise modified from time to time in accordance with Section 7.2.10.
"Initial Public Offering" means a primary underwritten public
offering of the voting Capital Stock of Holdco or Triarc Beverage, other than
any public offering or sale pursuant to a registration statement on Form S-8 or
a comparable form.
"Interest Coverage Ratio" means, at the end of any Fiscal
Quarter, the ratio computed for the period consisting of such Fiscal Quarter and
each of the three immediately prior Fiscal Quarters (provided, that, for the
first three Fiscal Quarters after the Closing Date, the amount determined in
clause (b) below shall be determined on an Annualized basis) of:
(a) EBITDA for all such Fiscal Quarters;
to
--
(b) the cash portion of Interest Expense for all such Fiscal
Quarters.
"Interest Expense" means, for any applicable period, the
aggregate consolidated interest expense of Holdco and its Subsidiaries
(including the Borrowers) for such applicable period, as determined in
accordance with GAAP, including the portion of any payments made in respect of
Capitalized Lease Liabilities allocable to interest expense, but excluding (to
the extent included in interest expense) (i) the amortization of fees and
expenses incurred in connection with the Transaction and (ii) any fees and
expenses incurred in connection with any required Hedging Obligation.
"Interest Period" means, relative to any LIBO Rate Loans, the
period beginning on (and including) the date on which such LIBO Rate Loan is
made or continued as, or converted into, a LIBO Rate Loan pursuant to Section
2.3 or 2.4 and ending on (but excluding) the day which numerically corresponds
to such date one, two, three or six months (or, if available to each applicable
Lender, nine or twelve months) thereafter (or, if such month has no numerically
corresponding day, on the last Business Day of such month), in each case as the
applicable Borrower may select in its relevant notice pursuant to Section 2.3 or
2.4; provided, however, that
(a) no more than 10 Interest Periods shall be in effect at
any one time;
(b) Interest Periods commencing on the same date for Loans
comprising part of the same Borrowing shall be of the same
duration;
(c) if such Interest Period would otherwise end on a day
which is not a Business Day, such Interest Period shall end on
the next following Business Day (unless such next following
Business Day is the first Business Day of a calendar month, in
which case such Interest Period shall end on the Business Day
next preceding such numerically corresponding day); and
(d) no Interest Period for any Loan may extend beyond the
Stated Maturity Date for such Loan.
"Inventory" means any "inventory" (as that term is defined in
Section 9-109(4) of the UCC) of any Borrower or any of its wholly-owned U.S.
Subsidiaries.
"Investment" means, relative to any Person,
(a) any loan or advance made by such Person to any other
Person (excluding (i) payroll, commission, travel and similar
advances to officers and employees made in the ordinary course of
business or (ii) ordinary trade debt (in the nature of open
accounts payable) extended in the ordinary course of business on
customary terms);
(b) any Contingent Liability of such Person; and
(c) any ownership or similar interest held by such Person in
any other Person.
The amount of any Investment shall be the original principal or capital amount
thereof less all returns of principal or equity thereon, whether by means of
dividend, distribution or otherwise (and without adjustment by reason of the
financial condition of such other Person), and shall, if made by the transfer or
exchange of property other than cash, be deemed to have been made in an original
principal or capital amount equal to the fair market value of such property.
"Issuance Request" means a Letter of Credit request and
certificate duly executed by an Authorized Officer of the applicable Borrower,
substantially in the form of Exhibit D hereto.
"Issuer" means, collectively, BNY, in its individual capacity
hereunder as the issuer of the Letters of Credit, and such other Lender or
Lenders as may be designated from time to time by the Syndication Agent (and
agreed to by the Borrowers and each such Lender), in its individual capacity
hereunder as the issuer of any Letter of Credit.
"Lender Assignment Agreement" means a Lender Assignment Agreement
substantially in the form of Exhibit L hereto.
"Lenders" is defined in the preamble.
"Letter of Credit" is defined in clause (a) of Section 2.1.3.
"Letter of Credit Commitment" means, with respect to each Issuer,
such Issuer's obligation to issue Letters of Credit pursuant to Section 2.1.3
and, with respect to each of the other Lenders that has a Revolving Loan
Commitment, the obligation of such Lender to participate in such Letters of
Credit pursuant to Section 2.6.1.
"Letter of Credit Commitment Amount" means, on any date, a
maximum amount of $25,000,000, as such amount may be reduced from time to time
pursuant to Section 2.2.
"Letter of Credit Outstandings" means, on any date, an amount
equal to the sum of
(a) the aggregate Stated Amount at such time of all Letters
of Credit then outstanding and undrawn (as such aggregate Stated
Amount shall be adjusted, from time to time, as a result of
drawings, the issuance of Letters of Credit, or otherwise),
plus
- ----
(b) the then aggregate amount of all unpaid and outstanding
Reimbursement Obligations.
"Leverage Ratio" means, at the end of any Fiscal Quarter, the
ratio of
(a) total Debt;
to
(b) EBITDA for the period of four consecutive Fiscal
Quarters most recently ended on or prior to such date;
provided, however, that during each of the first two Fiscal Quarters of each
Fiscal Year, the amount determined in clause (a) above shall be reduced by the
Seasonal Working Capital Amount.
"LIBO Rate" means, relative to any Interest Period for LIBO Rate
Loans, the rate of interest per annum determined by the Administrative Agent to
be the arithmetic mean (rounded upward to the next 1/32 of 1%) of the rates of
interest per annum at which dollar deposits in the approximate amount of the
amount of the Loan to be made or continued as, or converted into, a LIBO Rate
Loan by the Administrative Agent and having a maturity comparable to such
Interest Period would be offered to the Administrative Agent in the London
interbank market at its request at approximately 11:00 a.m. (London time) two
Business Days prior to the commencement of such Interest Period.
"LIBO Rate Loan" means a Loan bearing interest, at all times
during an Interest Period applicable to such Loan, at a fixed rate of interest
determined by reference to the LIBO Rate (Reserve Adjusted).
"LIBO Rate (Reserve Adjusted)" means, relative to any Loan to be
made, continued or maintained as, or converted into, a LIBO Rate Loan for any
Interest Period, the rate of interest per annum (rounded upwards to the next
1/32 of 1%) determined by the Administrative Agent as follows:
LIBO Rate = LIBO Rate
--------------------------------
(Reserve Adjusted) 1.00 - LIBOR Reserve Percentage
The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO
Rate Loans will be adjusted automatically as to all LIBO Rate Loans then
outstanding as of the effective date of any change in the LIBOR Reserve
Percentage.
"LIBOR Office" means, relative to any Lender, the office of such
Lender designated as such as set forth opposite its name on Schedule II hereto
under the applicable column heading or as set forth in the Lender Assignment
Agreement or such other office of a Lender (or any successor or assign of such
Lender) as designated from time to time by notice from such Lender to the
Borrowers and the Administrative Agent, whether or not outside the United
States, which shall be making or maintaining LIBO Rate Loans of such Lender
hereunder.
"LIBOR Reserve Percentage" means, relative to any Interest Period
for LIBO Rate Loans, the percentage (expressed as a decimal, rounded upward to
the next 1/100th of 1%) in effect on such day (whether or not applicable to any
Lender) under regulations issued from time to time by the F.R.S. Board for
determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) with respect to Eurocurrency
funding (currently referred to as "Eurocurrency Liabilities" in Regulation D of
the F.R.S. Board).
"Lien" means any security interest, mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
otherwise), charge against or interest in property to secure payment of a debt
or performance of an obligation or other priority or preferential arrangement of
any kind or nature whatsoever.
"Loan" means, as the context may require, a Revolving Loan, a
Swing Line Loan or a Term Loan of any type.
"Loan Document" means this Agreement, the Notes, the Letters of
Credit, each Borrowing Base Certificate, the Administrative Agent's Fee Letter,
each Pledge Agreement, the Subsidiary Guaranty, each Mortgage (if any), each
Security Agreement, each Copyright Security Agreement, each Patent Security
Agreement, each Trademark Security Agreement, each Rate Protection Agreement and
each other material agreement, document or instrument delivered in connection
with this Agreement or any other Loan Document, whether or not specifically
mentioned herein.
"Material Adverse Effect" means (i) a material adverse effect on
the financial condition, operations, assets, business, properties or prospects
of (A) Holdco and its Subsidiaries, taken as a whole; or (B) the Beverage
Companies and their Subsidiaries, taken as a whole; (ii) a material impairment
of the ability of any Borrower or any other Material Obligor to perform its
respective material obligations under the Loan Documents to which it is or will
be a party; or (iii) an impairment of the validity or enforceability of, or a
material impairment of the rights, remedies or benefits available to each
Issuer, the Agents or the Lenders under this Agreement or any other Loan
Document.
"Material Obligor" means, at any time of determination, (i) any
Borrower, (ii) Holdco, (iii) Triarc Beverage or (iv) any Material Subsidiary.
"Material Subsidiary" means each direct and indirect Subsidiary
of Holdco (other than Triarc Beverage or any Borrower) that (a) accounted for 5%
or more of the EBITDA of Holdco and its Subsidiaries on a consolidated basis for
the most recently completed Fiscal Quarter with respect to which, pursuant to
Section 7.1.1, financial statements have been, or are required to have been,
delivered by the Borrowers on or before the date as of which any such
determination is made, as reflected in such financial statements; or (b) has
assets which represent 5% or more of the consolidated gross assets of Holdco and
its Subsidiaries as of the last day of the most recently completed Fiscal
Quarter with respect to which, pursuant to Section 7.1.1, financial statements
have been, or are required to have been, delivered by the Borrowers on or before
the date as of which any such determination is made, as reflected in such
financial statements.
"Mistic" is defined in the preamble and includes any successor
thereto.
"Moody's" means Moody's Investors Service, Inc. or any successor
thereto.
"Morgan Stanley" is defined in the preamble.
"Mortgage" means, collectively, each mortgage or deed of trust or
leasehold mortgage that may be executed and delivered pursuant to Section
7.1.7(a), Section 7.1.8(b) or Section 7.1.13 in form and substance reasonably
satisfactory to the Agents, in each case as amended, supplemented, amended and
restated or otherwise modified from time to time.
"Net Asset Value" means, at any time of any determination, (i)
with respect to Eligible Accounts, 80% of an amount equal to the book value of
all Eligible Accounts as reflected on the books of the Borrowers and their
applicable U.S. Subsidiaries, determined on a consolidated basis and valued in
accordance with GAAP, net of all credits, discounts and allowances in respect of
such Eligible Accounts and (ii) with respect to Eligible Inventory, an amount
equal to 50% of the lesser of the market value and the cost of goods of all
Eligible Inventory as reflected on the books of the Borrowers and their
applicable U.S. Subsidiaries, determined on a consolidated basis and valued in
accordance with GAAP.
"Net Casualty Proceeds" means, with respect to any Casualty
Event, the excess of:
(a) the gross amount of all insurance proceeds or
condemnation awards received by the Person suffering such
Casualty Event as a result of such Casualty Event,
over
- ----
(b) the sum (without duplication) of (i) the reasonable and
customary legal and other professional fees and expenses actually
incurred in connection with the receipt of such proceeds or
awards and (ii) all taxes (including any payments made or to be
made pursuant to the Tax Sharing Agreement) and other
governmental costs and expenses actually paid or estimated by any
Borrower or any of its Subsidiaries (in good faith) to be payable
in cash in connection with the receipt of such proceeds or
awards;
provided, however, that if, after the payment of all taxes and other
governmental costs and expenses (including payments payable pursuant to the Tax
Sharing Agreement) with respect to such proceeds, the amount of estimated taxes
and other governmental costs and expenses, if any, pursuant to clause (b)(ii)
above exceeded the amount actually paid in cash in respect of such proceeds, the
aggregate amount of such excess shall, within two (2) Business Days thereafter,
be payable, pursuant to clause (f) of Section 3.1.1, as Net Casualty Proceeds.
"Net Debt Proceeds" means, with respect to the incurrence, sale
or issuance by Holdco or any of its Subsidiaries of any Debt (other than Debt
permitted by Section 7.2.2), the excess of:
(a) the gross cash proceeds received by such Person from
such incurrence, sale or issuance,
over
- ----
(b) all reasonable and customary underwriting commissions
and legal, investment banking, brokerage and accounting and other
professional fees, sales commissions and disbursements and all
other reasonable fees, expenses and charges, in each case
actually incurred in connection with such incurrence, sale or
issuance, including any reasonable up-front fees and expenses
incurred in connection with any required Hedging Obligation;
provided such Hedging Obligation relates solely to the new Debt
incurred pursuant to such incurrence, sale or issuance.
"Net Disposition Proceeds" means, with respect to any sale,
transfer or other disposition of any assets of Holdco or any of its Subsidiaries
(other than (i) as permitted pursuant to clause (a), (c), (e) (to the extent
provided therein) or (f)(i) of Section 7.2.9 or (ii) between Holdco and Triarc
Beverage) or from the Arby's Securitization, the excess of:
(a) the gross cash proceeds received by such Person from any
such sale, transfer, other disposition or the Arby's
Securitization, and any cash payments received in respect of
promissory notes or other non-cash consideration delivered to
such Person in respect thereof,
over
- ----
(b) the sum (without duplication) of (i) all reasonable and
customary fees and expenses with respect to legal, investment
banking, brokerage and accounting and other professional fees,
sales commissions and disbursements and all other reasonable
fees, expenses and charges, in each case actually incurred in
connection with such sale, transfer, other disposition or the
Arby's Securitization, (ii) all taxes (including any payments
made or to be made pursuant to the Tax Sharing Agreement) and
other governmental costs and expenses actually paid or estimated
by Holdco or any of its Subsidiaries (in good faith) to be
payable in cash in connection with such sale, transfer, other
disposition or the Arby's Securitization (including any costs and
expenses actually paid or incurred relating to compliance with
Environmental Laws), (iii) payments made by Holdco or any of its
Subsidiaries to retire Indebtedness (other than the Loans) of
such Person where payment of such Indebtedness is required in
connection with such sale, transfer, other disposition or the
Arby's Securitization and (iv) reasonable amounts to be provided
by Holdco or any of its Subsidiaries, as the case may be, as a
reserve, in accordance with GAAP, against any liabilities
associated with such sale, transfer, other disposition or the
Arby's Securitization and retained by Holdco or such Subsidiary,
as the case may be;
provided, however, that if, after the payment of all taxes and other
governmental costs and expenses (including payments payable pursuant to the Tax
Sharing Agreement) with respect to such sale, transfer, other disposition or the
Arby's Securitization, the amount of estimated taxes and other governmental
costs and expenses, if any, pursuant to clause (b)(ii) above exceeded the amount
actually paid in cash in respect of such sale, transfer, other disposition or
the Arby's Securitization, or if any amounts reserved pursuant to clause (b)(iv)
shall be released or reversed, the aggregate amount of such excess or released
or reversed reserve amount shall, within two (2) Business Days thereafter, be
payable, pursuant to clause (c) of Section 3.1.1, as Net Disposition Proceeds.
"Net Equity Proceeds" means, with respect to the sale or issuance
by Holdco or any of its Subsidiaries to any Person (other than Holdco or any of
its wholly-owned U.S. Subsidiaries) of any of its Capital Stock or any warrants
or options with respect to its Capital Stock or the exercise of any such
warrants or options after the Closing Date (other than pursuant to any
subscription agreement, incentive plan or similar arrangement with any officer,
employee or director of Holdco or any of its Subsidiaries, including without
limitation the Triarc Beverage Stock Option Plan and the Arby's Stock Option
Plan) the excess of:
(a) the gross cash proceeds received from such sale, exer-
cise or issuance,
over
----
(b) all reasonable and customary underwriting commissions
and legal, investment banking, brokerage and accounting and other
professional fees, sales commissions and disbursements and all
other reasonable fees, expenses and charges, in each case
actually incurred in connection with such sale or issuance.
"Net Income" means, for any period, without duplication, the sum
of the aggregate of all amounts which, in accordance with GAAP, would be
included as net income of Holdco and its Subsidiaries (including each of the
Borrowers) for such period on a consolidated basis, excluding extraordinary
gains.
"Net Worth" means the consolidated net worth of Holdco and its
Subsidiaries (including each of the Borrowers), determined in accordance with
GAAP.
"Non-U.S. Subsidiary" means any Subsidiary other than a U.S. Sub-
sidiary.
"Note" means, as the context may require, a Revolving Note, a
Swing Line Note, a Term A Note, a Term B Note or a Term C Note.
"Obligations" means all obligations (monetary or otherwise) of
each Borrower and each other Obligor arising under or in connection with this
Agreement and each other Loan Document.
"Obligor" means any Borrower, Holdco, Triarc Beverage, any
Subsidiary Guarantor or any Affiliate thereof obligated under, or otherwise a
party to, any Loan Document.
"Organic Document" means, relative to any Obligor, as applicable,
its certificate of incorporation, by-laws, certificate of partnership,
partnership agreement, certificate of formation, limited liability agreement and
all shareholder agreements, voting trusts and similar arrangements applicable to
any of such Obligor's partnership interests, limited liability company interests
or authorized shares of Capital Stock.
"Participant" is defined in Section 10.11.2.
"Patent Security Agreement" means any Patent Security Agreement
executed and delivered by an Obligor in substantially the form of Exhibit A to
any Security Agreement, as amended, supplemented, amended and restated or
otherwise modified from time to time.
"PBGC" means the Pension Benefit Guaranty Corporation and any
entity succeeding to any or all of its functions under ERISA.
"Pension Plan" means a "pension plan", as such term is defined in
section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a
multi-employer plan as defined in section 4001(a)(3) of ERISA), and to which
Holdco or any of its Subsidiaries or any corporation, trade or business that is,
along with Holdco or any of its Subsidiaries, a member of a Controlled Group,
may have liability, including any liability by reason of having been a
substantial employer within the meaning of section 4063 of ERISA at any time
during the preceding five years, or by reason of being deemed to be a
contributing sponsor under section 4069 of ERISA.
"Percentage" means, relative to any Lender, the applicable
percentage relating to Term A Loans, Term B Loans, Term C Loans or Revolving
Loans, as the case may be, set forth opposite its name on Schedule II hereto
under the applicable column heading or set forth in the Lender Assignment
Agreement, as such percentage may be adjusted from time to time pursuant to any
Lender Assignment Agreement(s) executed by such Lender and its Assignee
Lender(s) and delivered pursuant to Section 10.11. A Lender shall not have any
Commitment to make Revolving Loans if its percentage under the respective column
heading is zero. Each Lender's Percentage of Swing Line Loans and Letters of
Credit shall be equal to such Lender's Percentage of Revolving Loans.
"Permitted Holders" means, collectively, Nelson Peltz, Peter W.
May and/or their respective affiliates (including members of their immediate
families) and any trusts and estates of which any of them are primary
beneficiaries and any entities of which any of them hold a majority of the
equity securities.
"Person" means any natural person, corporation, partnership,
limited liability company, partnership, joint venture, association, trust,
government, governmental agency or any other entity, whether acting in an
individual, fiduciary or other capacity.
"Plan" means any Pension Plan or Welfare Plan.
"Pledge Agreement" means, as the context may require, the
Holdco/Triarc Beverage Guaranty and Pledge Agreement, the Borrower Pledge
Agreement and/or the Subsidiary Pledge Agreement.
"Pro Forma Balance Sheet" is defined in clause (b) of
Section 5.1.11.
"Quarterly Payment Date" means June 15, 1999 and, thereafter, the
fifteenth day of each March, June, September and December or, if such day is not
a Business Day, the next succeeding Business Day.
"Rate Protection Agreement" means, collectively, any interest
rate swap, cap, collar or similar agreement entered into by any Borrower or any
of its Subsidiaries in respect of the Loans pursuant to the terms of this
Agreement under which the counterparty to such agreement is (or at the time such
Rate Protection Agreement was entered into, was) a Lender, an Agent or an
Affiliate of a Lender or an Agent.
"RC/Arby's" is defined in the preamble and includes any successor
thereto.
"RC/Arby's Notes" means the $275,000,000 principal amount of
9.75% Senior Secured Notes due August 2000 issued by RC/Arby's pursuant to an
Indenture, dated as of August 1, 1993, among RC/Arby's, Royal Crown, Arby's and
The Bank of New York, as trustee.
"RC/Arby's Notes Repayment" means the redemption of the RC/Arby's
Notes on a date that is no more than 35 days after the Closing Date for an
amount not to exceed the aggregate principal amount thereof plus the applicable
premium of 2.786%, plus accrued interest and related fees and expenses through
the date of redemption.
"RC/Arby's Notes Repayment Pledge Account" means the account
established pursuant to the RC/Arby's Notes Repayment Pledge Agreement pursuant
to which Holdco and Triarc Beverage will deposit into a pledge account funds to
be used to consummate the RC/Arby's Notes Repayment.
"RC/Arby's Notes Repayment Pledge Agreement" means the pledge
agreement, dated as of the Closing Date, by and among Holdco and Triarc
Beverage, as pledgors, The Bank of New York, as securities intermediary, and the
Administrative Agent pursuant to which Holdco and Triarc Beverage will grant the
Administrative Agent a security interest in the funds to be used in connection
with the RC/Arby's Notes Repayment, as amended, supplemented, amended and
restated or otherwise modified from time to time in accordance herewith and
therewith.
"Rebuilding and Replacement Work" is defined in clause (f) of
Section 3.1.1.
"Refinancing" is defined in the fourth recital.
"Refunded Swing Line Loans" is defined in Section 2.3.2(b).
"Register" is defined in clause (b)(i) of Section 2.7.
"Reimbursement Obligation" is defined in Section 2.6.3.
"Related Funds" is defined in clause (b) of Section 10.11.1.
"Release" means a "release", as such term is defined in CERCLA.
"Replacement Lender" is defined in Section 4.11.
"Replacement Notice" is defined in Section 4.11.
"Required Lenders" means, at any time, Lenders holding more than
50% of the Total Exposure Amount.
"Resource Conservation and Recovery Act" means the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., as in effect
from time to time.
"Revolving Loans" is defined in clause (a) of Section 2.1.2.
"Revolving Loan Commitment" means, relative to any Lender, such
Lender's obligation to make Revolving Loans pursuant to Section 2.1.2 and to
issue (in the case of an Issuer) or participate in (in the case of all Lenders)
Letters of Credit pursuant to Section 2.1.3.
"Revolving Loan Commitment Amount" means, on any date,
$60,000,000, as such amount may be reduced from time to time pursuant to Section
2.2.
"Revolving Loan Commitment Termination Date" means the earliest
of
(a) March 1, 2005;
(b) the date on which the Revolving Loan Commitment Amount
is terminated in full or reduced to zero pursuant to Section 2.2;
and
(c) the date on which any Commitment Termination Event
occurs.
Upon the occurrence of any event described in clause (b) or (c), the Revolving
Loan Commitments shall terminate automatically and without any further action.
"Revolving Note" means a joint and several promissory note of the
Borrowers payable to the order of any Lender, in the form of Exhibit A-1 hereto
(as such promissory note may be amended, endorsed or otherwise modified from
time to time), evidencing the aggregate Indebtedness of the Borrowers to
such Lender resulting from outstanding Revolving Loans, and also means all
other promissory notes accepted from time to time in substitution therefor or
renewal thereof.
"Royal Crown" is defined in the preamble and includes any suc-
cessor thereto.
"Royal Crown Disposition" means the sale of the Capital Stock of,
or all or substantially all of the assets comprising the soft drink concentrates
business of, Royal Crown and its Subsidiaries to a third Person pursuant to
clause (f)(ii) of Section 7.2.9.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw
Hill, Inc. or any successor thereto.
"Seasonal Working Capital Amount" means, as of any time of
determination, the lesser of (x) $40,000,000 and (y) the aggregate amount
outstanding under the Revolving Loan Commitments, whether in respect of Loans,
Letters of Credit, Reimbursement Obligations or otherwise.
"Secured Parties" means, collectively, (i) the Lenders and the
Agents, and (ii) any Lender, Agent or Affiliate of any Lender or Agent which may
be party to any Rate Protection Agreement.
"Security Agreement" means, as the context may require, the
Borrower Security Agreement and/or the Subsidiary Security Agreement.
"Snapple" is defined in the preamble and includes any successor
thereto.
"Solvency Certificate" means the solvency certificate delivered
pursuant to clause (b) of Section 5.1.12, substantially in the form of Exhibit M
hereto.
"Solvent" means, with respect to any Person on a particular date,
that on such date (a) the fair value of the property of such Person is greater
than the total amount of liabilities, including contingent liabilities, of such
Person, (b) the present fair salable value of the assets of such Person is not
less than the amount that will be required to pay the probable liability of such
Person on its debts as they become absolute and matured, (c) such Person does
not intend to, and does not believe that it will, incur debts or liabilities
beyond such Person's ability to pay as such debts and liabilities mature, and
(d) such Person is not engaged in business or a transaction, and such Person is
not about to engage in business or a transaction, for which such Person's
property would constitute an unreasonably small capital. The amount of
contingent liabilities at any time shall be computed as the amount that, in the
light of all the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or matured liability.
"Stated Amount" of each Letter of Credit means the total amount
available to be drawn under such Letter of Credit upon the issuance thereof.
"Stated Expiry Date" is defined in Section 2.6.
"Stated Maturity Date" means
(a) in the case of any Revolving Loan, Swing Line Loan or
Term A Loan, March 1, 2005;
(b) in the case of any Term B Loan, March 1, 2006; and
(c) in the case of any Term C Loan, March 1, 2007.
"Subject Lender" is defined in Section 4.11.
"Subordinated Debt" means all unsecured Indebtedness for money
borrowed which is subordinated in right of payment to the payment in full in
cash of all Obligations, including the Subordinated Notes, but not including
intercompany Indebtedness permitted pursuant to clause (i) of Section 7.2.2.
"Subordinated Notes Offering" is defined in the third recital.
"Subordinated Notes" means the 10.25% senior subordinated notes
due 2009 of Holdco and Triarc Beverage issued pursuant to the Subordinated Notes
Offering and the Indenture, including any senior subordinated notes of Holdco
and Triarc Beverage with substantially identical terms exchanged therefor
pursuant to a registration statement under the Securities Act of 1933, as
amended.
"Subsidiary" means, with respect to any Person, any corporation,
limited liability company, partnership or other entity of which more than 50% of
the outstanding Capital Stock having ordinary voting power to elect a majority
of the board of directors, managers or other voting members of the governing
body of such corporation, limited liability company, partnership or other entity
(irrespective of whether at the time Capital Stock of any other class or classes
of such corporation, limited liability company, partnership or other entity
shall or might have voting power upon the occurrence of any contingency) is at
the time directly or indirectly owned or controlled by such Person, by such
Person and one or more other Subsidiaries of such Person, or by one or more
other Subsidiaries of such Person; provided that the term "Subsidiary" shall not
include any Arby's Securitization Entity.
"Subsidiary Guarantor" means, on the Closing Date, each direct
and indirect U.S. Subsidiary of each Borrower (except as otherwise provided
herein) and, thereafter, each other direct and indirect Subsidiary of any such
Borrower that is required, pursuant either to clause (a) of Section 7.1.7 or
clause (b) of Section 7.1.11, to execute and deliver a supplement to the
Subsidiary Guaranty.
"Subsidiary Guaranty" means the Subsidiary Guaranty executed and
delivered by each Subsidiary Guarantor pursuant to Section 5.1.7, clause (a) of
Section 7.1.7 or clause (b) of Section 7.1.11, substantially in the form of
Exhibit I hereto, as amended, supplemented, amended and restated or otherwise
modified from time to time.
"Subsidiary Pledge Agreement" means the Pledge Agreement executed
and delivered by each Subsidiary Guarantor pursuant to clause (c) of Section
5.1.8, clause (b) of Section 7.1.7 or clause (b) of Section 7.1.11,
substantially in the form of Exhibit J-3 hereto, in each case as amended,
supplemented, amended and restated or otherwise modified from time to time.
"Subsidiary Security Agreement" means the Security Agreement
executed and delivered by each Subsidiary Guarantor pursuant to Section 5.1.9,
clause (a) of Section 7.1.7 or clause (b) of Section 7.1.11, substantially in
the form of Exhibit K-2 hereto, in each case as amended, supplemented, amended
and restated or otherwise modified from time to time.
"Swing Line Lender" means BNY (or another Lender designated by
the Syndication Agent with the consent of the Borrowers, if such Lender agrees
to be the Swing Line Lender hereunder), in such Person's capacity as the maker
of Swing Line Loans.
"Swing Line Loans" is defined in clause (b) of Section 2.1.2.
"Swing Line Loan Commitment" means, with respect to the Swing
Line Lender, the Swing Line Lender's obligation pursuant to clause (b) of
Section 2.1.2 to make Swing Line Loans and, with respect to each Lender with a
Commitment to make Revolving Loans (other than the Swing Line Lender), such
Lender's obligation to participate in Swing Line Loans pursuant to Section
2.3.2.
"Swing Line Loan Commitment Amount" means $10,000,000.
"Swing Line Note" means a joint and several promissory note of
the Borrowers payable to the Swing Line Lender, in the form of Exhibit A-2
hereto (as such promissory note may be amended, endorsed or otherwise modified
from time to time), evidencing the aggregate Indebtedness of the Borrowers to
the Swing Line Lender resulting from outstanding Swing Line Loans, and also
means all other promissory notes accepted from time to time in substitution
therefor or renewal thereof.
"Syndication Agent" is defined in the preamble.
"Tax Sharing Agreement" means, collectively, (i) the Tax Sharing
Agreement, dated as of February 25, 1999, among the Borrowers, certain
Subsidiaries of RC/Arby's, Holdco, Triarc Beverage and Triarc, as amended,
supplemented, amended and restated or otherwise modified from time to time, and
(ii) any other tax sharing agreement, in form and substance reasonably
satisfactory to the Arrangers, among Triarc, Holdco, the Borrowers and/or any of
their Subsidiaries containing terms no less favorable to the Borrowers and their
Subsidiaries than the tax sharing agreement referred to in clause (i).
"Taxes" is defined in Section 4.6.
"Term A Loan" is defined in clause (a) of Section 2.1.1.
"Term A Loan Commitment Amount" means $45,000,000.
"Term A Note" means a joint and several promissory note of the
Borrowers payable to the order of any Lender, in the form of Exhibit B-1 hereto
(as such promissory note may be amended, endorsed or otherwise modified from
time to time), evidencing the aggregate Indebtedness of the Borrowers to such
Lender resulting from outstanding Term A Loans, and also means all other
promissory notes accepted from time to time in substitution therefor or renewal
thereof.
"Term B Loan" is defined in clause (b) of Section 2.1.1.
"Term B Loan Commitment Amount" means $125,000,000.
"Term B Note" means a joint and several promissory note of the
Borrowers payable to the order of any Lender, in the form of Exhibit B-2 hereto
(as such promissory note may be amended, endorsed or otherwise modified from
time to time), evidencing the aggregate Indebtedness of the Borrowers to such
Lender resulting from outstanding Term B Loans, and also means all other
promissory notes accepted from time to time in substitution therefor or renewal
thereof.
"Term C Loan" is defined in clause (c) of Section 2.1.1.
"Term C Loan Commitment Amount" means $305,000,000.
"Term C Note" means a joint and several promissory note of the
Borrowers payable to the order of any Lender, in the form of Exhibit B-3 hereto
(as such promissory note may be amended, endorsed or otherwise modified from
time to time), evidencing the aggregate Indebtedness of the Borrowers to such
Lender resulting from outstanding Term C Loans, and also means all other promis-
sory notes accepted from time to time in substitution therefor or renewal
thereof.
"Term Loans" means, collectively, the Term A Loans, the Term B
Loans and the Term C Loans.
"Term Loan Commitment" means, relative to any Lender, such
Lender's obligation to make Term Loans pursuant to Section 2.1.1.
"Termination Date" means the date on which all of the following
shall have occurred on or before such date: (a) all monetary Obligations have
been paid in full in cash, other than (i) indemnification obligations under
Section 10.4 so long as no actions, causes of action or suits are pending or
threatened against any Indemnified Party asserting any Indemnified Liabilities
and (ii) any Letter of Credit Outstandings that have been terminated, expired or
cash collateralized on terms reasonably satisfactory to the Agents, and (b) all
Commitments and all Rate Protection Agreements have been terminated.
"Total Exposure Amount" means, on any date of determination, the
then outstanding principal amount of all Term Loans and the then effective
Revolving Loan Commitment Amount.
"Trademark Security Agreement" means any Trademark Security
Agreement executed and delivered by an Obligor in substantially the form of
Exhibit B to any Security Agreement, as amended, supplemented, amended and
restated or otherwise modified from time to time.
"Tranche" means, as the context may require, the Term A Loans,
the Term B Loans, the Term C Loans or the Revolving Loan Commitments.
"Transaction" is defined in the fourth recital.
"Transaction Documents" means each of the Acquisition Agreement,
the Indenture, the Acquisition Escrow Agreement, the RC/Arby's Notes Repayment
Pledge Agreement and all other material agreements, documents, instruments,
certificates, filings, consents, approvals, resolutions and opinions furnished
to or in connection with the Subordinated Notes, the Triarc Dividend, the
Refinancing, the Acquisition, the RC/Arby's Notes Repayment and the transactions
contemplated thereby, each as amended, supplemented, amended and restated or
otherwise modified from time to time as permitted in accordance with the terms
hereof or any other Loan Document, but shall not include any of the foregoing
entered into in connection with Triarc's proposed going-private transaction.
"Triarc" is defined in the second recital and includes any suc-
cessor thereto.
"Triarc Beverage" is defined in the third recital and includes
any successor thereto.
"Triarc Beverage Stock Option Plan" means the Triarc Beverage
Holdings Corp. 1997 Stock Option Plan providing for the granting of options to
acquire shares of the Capital Stock of Triarc Beverage, as amended,
supplemented, amended and restated or otherwise modified from time to time as
permitted in accordance with the terms hereof.
"Triarc Dividend" means the distributions by Holdco and Triarc
Beverage to Triarc of (i) a portion of the gross proceeds of the Subordinated
Notes Offering and (ii) all of Holdco's and its Subsidiaries' cash equivalents
and cash on hand on the Closing Date in excess of $2,000,000 plus the amount
held in escrow referenced in Item 7.2.3(b) ("Ongoing Liens") of the Disclosure
Schedule (after the payment or accrual of all costs and expenses to be borne by
Holdco and its Subsidiaries in connection with the Transaction; provided that
any amount in excess of the amount so accrued may be distributed by Holdco and
Triarc Beverage to Triarc, and such excess amount shall be deemed to constitute
a portion of the Triarc Dividend and such distributions may be made, in whole or
in part, at any time, including, without limitation, subsequent to the date of
the RC/Arby's Notes Repayment), which distributions may be made, in whole or in
part, at any time and from time to time, on or prior to the date of the
RC/Arby's Notes Repayment.
"type" means, relative to any Loan, the portion thereof, if any,
being maintained as a Base Rate Loan or a LIBO Rate Loan.
"UCC" means the Uniform Commercial Code as in effect from time to
time in the State of New York or, with respect to Filing Statements, the Uniform
Commercial Code as in effect from time to time in each applicable jurisdiction
of the United States.
"United States" or "U.S." means the United States of America, its
fifty States and the District of Columbia.
"U.S. Subsidiary" means any Subsidiary of any Borrower organized
under the laws of the United States or any state, possession or commonwealth
thereof.
"Waiver" means any agreement in favor of the Administrative Agent
for the benefit of the Lenders and each Issuer in form and substance reasonably
satisfactory to the Administrative Agent.
"Welfare Plan" means a "welfare plan", as such term is defined in
section 3(1) of ERISA (other than a multi-employer plan as defined in Section
4001 (a)(3) of ERISA).
"wholly-owned Subsidiary" means, with respect to any Person, any
Subsidiary of such Person all of the Capital Stock (including all rights and
options to purchase such Capital Stock) of which, other than directors' quali-
fying shares (as applicable), are owned, beneficially and of record, by
such Person and/or one or more wholly-owned Subsidiaries of such Person.
SECTION 1.2. Use of Defined Terms. Unless otherwise defined or
the context otherwise requires, terms for which meanings are provided in this
Agreement shall have such meanings when used in the Disclosure Schedule and in
each Borrowing Request, Issuance Request, Continuation/Conversion Notice, Loan
Document, notice and other communication delivered from time to time in
connection with this Agreement or any other Loan Document.
SECTION 1.3. Cross-References. Unless otherwise specified,
references in this Agreement and in each other Loan Document to any Article or
Section are references to such Article or Section of this Agreement or such
other Loan Document, as the case may be, and, unless otherwise specified,
references in any Article, Section or definition to any clause are references to
such clause of such Article, Section or definition.
SECTION 1.4. Accounting and Financial Determinations. Unless
otherwise specified, all accounting terms used herein or in any other Loan
Document shall be interpreted, all accounting determinations and computations
hereunder or thereunder (including under Section 7.2.4) shall be made, and all
financial statements required to be delivered hereunder or thereunder shall be
prepared in accordance with, those generally accepted accounting principles
("GAAP") as in effect on the Closing Date.
ARTICLE II
COMMITMENTS, BORROWING PROCEDURES AND NOTES
SECTION 2.1. Loans and Commitments. On the terms and subject to
the conditions of this Agreement (including Articles II and V), each Lender
severally agrees as otherwise provided in this Section 2.1:
SECTION 2.1.1. Term Loans. On the Closing Date, each Lender
(a) will make loans (relative to such Lender, its "Term A
Loans") to each applicable Borrower, on a joint and several basis
for all the Borrowers, in an amount equal to such Lender's
Percentage of the aggregate amount of the Borrowing or Borrowings
of Term A Loans requested by such Borrower to be made on the
Closing Date;
(b) will make loans (relative to such Lender, its "Term B
Loans") to each applicable Borrower, on a joint and several basis
for all the Borrowers, in an amount equal to such Lender's
Percentage of the aggregate amount of the Borrowing or Borrowings
of Term B Loans requested by such Borrower to be made on the
Closing Date; and
(c) will make loans (relative to such Lender, its "Term C
Loans") to each applicable Borrower, on a joint and several basis
for all the Borrowers, in an amount equal to such Lender's
Percentage of the aggregate amount of the Borrowing or Borrowings
of Term C Loans requested by such Borrower to be made on the
Closing Date.
No amounts paid or prepaid with respect to Term A Loans, Term B Loans or Term C
Loans may be reborrowed.
In connection with the foregoing, on the Closing Date, Snapple will borrow
$36,543,793.05 in aggregate principal amount of Term A Loans, $101,501,536.31 in
aggregate principal amount of Term B Loans and $247,685,708.49 in aggregate
principal amount of Term C Loans, of which $9,123,157.89 in aggregate principal
amount of Term A Loans, $25,342,105.26 in aggregate principal amount of Term B
Loans and $61,834,736.84 in aggregate principal amount of Term C Loans shall be
deemed to have been borrowed on behalf of Royal Crown. Upon the consummation of
the RC/Arby's Notes Repayment, the amounts of such Term Loans shall be allocated
to Royal Crown's account as if Royal Crown had borrowed such amounts directly.
SECTION 2.1.2. Revolving Loan Commitment and Swing Line Loan
Commitment.
(a) From time to time on any Business Day occurring prior
to the Revolving Loan Commitment Termination Date, each Lender
will make loans (relative to such Lender, its "Revolving Loans")
to each applicable Borrower, on a joint and several basis for all
the Borrowers, equal to such Lender's Percentage of the aggregate
amount of the Borrowing of Revolving Loans requested by such
Borrower to be made on such day. On the terms and subject to the
conditions hereof, the Borrowers may from time to time borrow,
prepay and reborrow Revolving Loans; and
(b) From time to time on any Business Day occurring prior to
the Revolving Loan Commitment Termination Date, the Swing Line
Lender will make Loans (relative to the Swing Line Lender, its
"Swing Line Loans") to each applicable Borrower, on a joint and
several basis for all the Borrowers, equal to the principal
amount of the Swing Line Loans requested by such Borrower to be
made on such day. On the terms and subject to the conditions
hereof, the Borrowers may from time to time borrow, prepay and
reborrow such Swing Line Loans.
SECTION 2.1.3. Letter of Credit Commitment. From time to time
on any Business Day occurring prior to the Revolving Loan Commitment Termination
Date, each Issuer will
(a) issue one or more standby or documentary letters of
credit (each referred to as a "Letter of Credit") for the account
of each applicable Borrower, on a joint and several basis for all
Borrowers, in the Stated Amount requested by such Borrower on
such day; or
(b) extend the Stated Expiry Date of an existing Letter of
Credit previously issued hereunder to a date that is not later
than the earlier of (x) five Business Days prior to the Revolving
Loan Commitment Termination Date and (y) one year from the date
of such extension.
SECTION 2.1.4. Lenders Not Permitted or Required to Make Loans.
No Lender shall be permitted or required to, and the Borrowers shall not request
that any Lender, make
(a) any Revolving Loan if, after giving effect thereto, the
aggregate outstanding principal amount of all the Revolving Loans
(i) of all the Lenders with Revolving Loan Commitments and the
outstanding principal amount of all Swing Line Loans, together
with the Letter of Credit Outstandings, would exceed the lesser
of (x) the then existing Revolving Loan Commitment Amount and (y)
the then existing Borrowing Base Amount, or (ii) of such Lender
with a Revolving Loan Commitment, together with such Lender's
Percentage of the Letter of Credit Outstandings and its
Percentage of the outstanding principal amount of all Swing Line
Loans, would exceed such Lender's Percentage of the lesser of (x)
the then existing Revolving Loan Commitment Amount and (y) the
then existing Borrowing Base Amount; or
(b) any Swing Line Loan (i) if, after giving effect thereto,
(x) the aggregate outstanding principal amount of all Swing Line
Loans would exceed the then existing Swing Line Loan Commitment
Amount, or (y) the sum of the Letter of Credit Outstandings plus
the aggregate principal amount of all Swing Line Loans and
Revolving Loans then outstanding would exceed the lesser of (A)
the then existing Revolving Loan Commitment Amount and (B) the
then existing Borrowing Base Amount, or (ii) unless otherwise
agreed to by the Swing Line Lender, in its sole discretion, if
the sum of all Swing Line Loans and Revolving Loans made by the
Swing Line Lender plus the Swing Line Lender's Percentage of the
Letter of Credit Outstandings would exceed the Swing Line
Lender's Percentage of the lesser of (x) the then existing
Revolving Loan Commitment Amount and (y) the then existing
Borrowing Base Amount.
SECTION 2.1.5. Issuer Not Permitted or Required to Issue Letters
of Credit. No Issuer shall be permitted or required to issue any Letter of
Credit if, after giving effect thereto, (i) the aggregate amount of all Letter
of Credit Outstandings would exceed the Letter of Credit Commitment Amount or
(ii) the sum of the Letter of Credit Outstandings plus the aggregate principal
amount of all Swing Line Loans and Revolving Loans then outstanding would exceed
the lesser of (x) the then existing Revolving Loan Commitment Amount and (y) the
then existing Borrowing Base Amount.
SECTION 2.1.6. RC/Arby's and Royal Crown. Notwithstanding
anything herein to the contrary, the parties hereto acknowledge and agree that
(a) RC/Arby's and Royal Crown shall not become "Borrowers" hereunder or under
any other Loan Document and the Subsidiaries of RC/Arby's and Royal Crown that
are expected to be Subsidiary Guarantors shall not become Subsidiary Guarantors
hereunder, under the Subsidiary Guaranty or under any other Loan Document, with
corresponding liabilities and entitlements pursuant hereto and thereto, until
the consummation of the RC/Arby's Notes Repayment, (b) RC/Arby's shall be
released as a Borrower and the Subsidiaries of RC/Arby's (to the extent provided
in the definition of Arby's Securitization Residual Payment) shall be released
as Subsidiary Guarantors in connection with the Arby's Securitization Residual
Payment and (c) Royal Crown shall be released as a Borrower and the Subsidiaries
of Royal Crown shall be released as Subsidiary Guarantors in connection with the
Royal Crown Disposition.
SECTION 2.2. Reduction of Commitment Amounts. The Commitment
Amounts are subject to reduction from time to time pursuant to this Section 2.2.
SECTION 2.2.1. Optional. The Borrowers may, from time to time on
any Business Day, voluntarily reduce the amount of the Swing Line Loan
Commitment Amount, the Revolving Loan Commitment Amount or the Letter of Credit
Commitment Amount; provided, however, that all such reductions (i) shall be
permanent and (ii) to the extent such reduction in the Commitment Amount
requires a mandatory prepayment of Revolving Loans or Swing Line Loans pursuant
to clause (k) of Section 3.1.1 (x) in the case of prepayments of Base Rate Loans
(other than Swing Line Loans) shall require at least one Business Day's prior
notice to the Administrative Agent, and any partial reduction of any Commitment
Amount shall be in a minimum amount of $1,000,000 and in an integral multiple of
$500,000 or (y) in the case of prepayments of LIBO Rate Loans, shall require at
least three Business Days' prior notice to the Administrative Agent, and any
partial reduction of any Commitment Amount shall be in a minimum amount of
$5,000,000 and in an integral multiple of $1,000,000. Any reduction of the
Revolving Loan Commitment Amount which reduces the Revolving Loan Commitment
Amount below (i) the Swing Line Loan Commitment Amount or (ii) the Letter of
Credit Commitment Amount shall result in an automatic and corresponding
reduction of the Swing Line Loan Commitment Amount and/or Letter of Credit
Commitment Amount (as directed by the Borrowers in a notice to the
Administrative Agent delivered together with the notice of such voluntary
reduction in the Revolving Loan Commitment Amount) to an aggregate amount not in
excess of the Revolving Loan Commitment Amount, as so reduced, without any
further action on the part of the Swing Line Lender or any Issuer.
SECTION 2.2.2. Mandatory. The Revolving Loan Commitment Amount,
the Swing Line Loan Commitment Amount and the Letter of Credit Commitment Amount
shall be reduced as set forth below.
(a) Following the prepayment or repayment in full of the
Term Loans, the Revolving Loan Commitment Amount shall, without
any further action, automatically and permanently be reduced on
the date and in the amount the Term Loans, if then outstanding,
would otherwise have been required to be prepaid with any Net
Debt Proceeds, Net Disposition Proceeds, Net Casualty Proceeds,
Net Equity Proceeds or Excess Cash Flow.
(b) Any reduction of the Revolving Loan Commitment Amount
which reduces the Revolving Loan Commitment Amount below (i) the
Swing Line Loan Commitment Amount or (ii) the Letter of Credit
Commitment Amount shall result in an automatic and corresponding
reduction of the Swing Line Loan Commitment Amount and/or Letter
of Credit Commitment Amount (as directed by the Borrowers in a
notice to the Administrative Agent) to an aggregate amount not in
excess of the Revolving Loan Commitment Amount, as so reduced,
without any further action on the part of the Swing Line Lender
or any Issuer.
SECTION 2.3. Borrowing Procedures and Funding Maintenance.
Loans shall be made by the Lenders in accordance with this Section.
SECTION 2.3.1. Term Loans and Revolving Loans. By delivering a
Borrowing Request to the Administrative Agent on or before 11:00 a.m., New York
time, on a Business Day, any Borrower may from time to time irrevocably request,
on not less than one (in the case of Base Rate Loans) or three (in the case of
LIBO Rate Loans) nor more than five (in each case) Business Days' notice, that a
Borrowing be made, in the case of LIBO Rate Loans, in a minimum amount of
$5,000,000 and an integral multiple of $1,000,000, and in the case of Base Rate
Loans, in a minimum amount of $1,000,000 and an integral multiple of $500,000,
or, in either case, in the unused amount of the applicable Commitment. On the
terms and subject to the conditions of this Agreement, each Borrowing shall be
comprised of the type of Loans, and shall be made on the Business Day, specified
in such Borrowing Request. On or before 1:00 p.m., New York time, on such
Business Day each Lender shall deposit with the Administrative Agent same day
funds in an amount equal to such Lender's Percentage of the requested Borrowing.
Such deposit will be made to an account which the Administrative Agent shall
specify from time to time by notice to the Lenders. To the extent funds are
received from the Lenders, the Administrative Agent shall make such funds
immediately available to the Borrower requesting the Loan by wire transfer or
otherwise to the accounts such Borrower shall have specified in its Borrowing
Request. No Lender's obligation to make any Loan shall be affected by any other
Lender's failure to make any Loan. The Borrowing Request for the initial Credit
Extension hereunder may be delivered prior to the Closing Date.
SECTION 2.3.2. Swing Line Loans.
(a) By telephonic notice, promptly followed (within three
Business Days) by the facsimile delivery of a confirming
Borrowing Request, to the Swing Line Lender on or before 11:00
a.m., New York time, on a Business Day, any Borrower may from
time to time irrevocably request that Swing Line Loans be made by
the Swing Line Lender in an aggregate minimum principal amount of
$500,000 and an integral multiple of $100,000. Each request by
any Borrower for a Swing Line Loan shall constitute a
representation and warranty by the Borrowers that on the date of
such request and (if different) the date of the making of the
Swing Line Loan, both immediately before and after giving effect
to such Swing Line Loan and the application of the proceeds
thereof, the statements made in Section 5.2.1 are true and
correct. All Swing Line Loans shall be made as Base Rate Loans
and shall not be entitled to be converted into LIBO Rate Loans.
The proceeds of each Swing Line Loan shall be made available by
the Swing Line Lender, by its close of business, on the Business
Day telephonic notice is received by it as provided in the
preceding sentences in immediately available funds, to the
Borrower requesting the Loan by wire transfer or otherwise to the
accounts such Borrower shall have specified in its notice
therefor.
(b) The Swing Line Lender, at any time in its sole and
absolute discretion, may request each Lender that has a Revolving
Loan Commitment, and each such Lender, including the Swing Line
Lender hereby agrees, to make a Revolving Loan (which shall
always be initially funded as a Base Rate Loan) in an amount
equal to such Lender's Percentage of the amount of the Swing Line
Loans (the "Refunded Swing Line Loans") outstanding on the date
such notice is given. On or before 11:00 a.m. (New York time) on
the first Business Day following receipt by each Lender of a
request to make Revolving Loans as provided in the preceding
sentence, each such Lender (other than the Swing Line Lender)
shall deposit in an account specified by the Administrative Agent
to the Lenders from time to time the amount so requested in same
day funds, whereupon such funds shall be immediately delivered to
the Swing Line Lender (and not a Borrower) and applied to repay
the Refunded Swing Line Loans. On the day such Revolving Loans
are made, the Swing Line Lender's Percentage of the Refunded
Swing Line Loans shall be deemed to be paid. Upon the making of
any Revolving Loan pursuant to this clause, the amount so funded
shall become due under such Lender's Revolving Note and shall no
longer be owed under the Swing Line Note. Each Lender's
obligation to make the Revolving Loans referred to in this clause
shall be absolute and unconditional and shall not be affected by
any circumstance, including, without limitation, (i) any set-off,
counterclaim, recoupment, defense or other right which such
Lender may have against the Swing Line Lender, any Borrower or
any other Person for any reason whatsoever; (ii) the occurrence
or continuance of any Default; (iii) any adverse change in the
condition (financial or otherwise) of any Borrower or any other
Obligor, including a reduction in the Borrowing Base Amount
subsequent to the date of the making of any Swing Line Loan; (iv)
the acceleration or maturity of any Loans or the termination of
the Revolving Loan Commitment after the making of any Swing Line
Loan; (v) any breach of this Agreement by any Borrower or any
other Lender; or (vi) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing.
(c) In the event that (i) any of the Borrowers or any of
their respective Subsidiaries are subject to any bankruptcy or
insolvency proceedings as provided in Section 8.1.9 or (ii) the
Swing Line Lender otherwise requests, each Lender with a
Revolving Loan Commitment shall acquire without recourse or
warranty an undivided participation interest equal to such
Lender's Percentage of any Swing Line Loan otherwise required to
be repaid by such Lender pursuant to the preceding clause by
paying to the Swing Line Lender on the date on which such Lender
would otherwise have been required to make a Revolving Loan in
respect of such Swing Line Loan pursuant to the preceding clause,
in same day funds, an amount equal to such Lender's Percentage of
such Swing Line Loan, and no Revolving Loans shall be made by
such Lender pursuant to the preceding clause. From and after the
date on which any Lender purchases an undivided participation
interest in a Swing Line Loan pursuant to this clause, the Swing
Line Lender shall distribute to such Lender (appropriately
adjusted, in the case of interest payments, to reflect the period
of time during which such Lender's participation interest is
outstanding and funded) its ratable amount of all payments of
principal and interest in respect of such Swing Line Loan in like
funds as received; provided, however, that in the event such
payment received by the Swing Line Lender is required to be
returned to any Borrower, such Lender shall return to the Swing
Line Lender the portion of any amounts which such Lender had
received from the Swing Line Lender in like funds.
(d) Notwithstanding anything herein to the contrary, the
Swing Line Lender shall not be obligated to make any Swing Line
Loans if it has elected after the occurrence of a Default not to
make Swing Line Loans and has notified the Borrowers in writing
or by facsimile delivery of such election. The Swing Line Lender
shall promptly give notice to the Lenders of such election not to
make Swing Line Loans.
SECTION 2.4. Continuation and Conversion Elections. By deliver-
ing a Continuation/Conversion Notice to the Administrative Agent on or before
12:00 noon, New York time, on a Business Day, any Borrower may from time to time
irrevocably elect, on not less than one (in the case of a conversion of LIBO
Rate Loans to Base Rate Loans) and three (in the case of a continuation of
LIBO Rate Loans or a conversion of Base Rate Loans into LIBO Rate Loans) nor
more than five (in each case) Business Days' notice that all, or any portion
in an aggregate minimum amount of $5,000,000 and an integral multiple of
$1,000,000, in the case of the continuation of, or conversion into, LIBO Rate
Loans, or an aggregate minimum amount of $1,000,000 and an integral multiple
of $500,000 in the case of the conversion into Base Rate Loans (other than Swing
Line Loans as provided in clause (a) of Section 2.3.2) be, in the case of Base
Rate Loans, converted into LIBO Rate Loans or, in the case of LIBO Rate Loans,
converted into a Base Rate Loan or continued as a LIBO Rate Loan (in the
absence of delivery of a Continuation/Conversion Notice with respect to any
LIBO Rate Loan at least three Business Days before the last day of the then
current Interest Period with respect thereto, such LIBO Rate Loan shall,
on such last day, automatically convert to a Base Rate Loan); provided, how-
ever, that (x) each such conversion or continuation shall be pro rated among the
applicable outstanding Loans of the relevant Lenders, and (y) no portion of the
outstanding principal amount of anyLoans may be continued as, or be converted
into, LIBO Rate Loans when any Default has occurred and is continuing.
SECTION 2.5. Funding. Each Lender may, if it so elects, fulfill
its obligation to make, continue or convert LIBO Rate Loans hereunder by causing
one of its foreign branches or Affiliates (or an international banking facility
created by such Lender) to make or maintain such LIBO Rate Loan, so long as such
action does not result in increased costs to the Borrowers; provided, however,
that such LIBO Rate Loan shall nonetheless be deemed to have been made and to be
held by such Lender, and the obligation of the Borrowers to repay such LIBO Rate
Loan shall nevertheless be to such Lender for the account of such foreign
branch, Affiliate or international banking facility. In addition, the Borrowers
hereby consent and agree that, for purposes of any determination to be made for
purposes of Section 4.1, 4.2, 4.3 or 4.4, it shall be conclusively assumed that
each Lender elected to fund all LIBO Rate Loans by purchasing Dollar deposits in
its LIBOR Office's interbank eurodollar market.
SECTION 2.6. Issuance Procedures. By delivering to the
Administrative Agent an Issuance Request on or before 12:00 noon, New York time,
on a Business Day, any Borrower may from time to time irrevocably request, on
not less than three nor more than ten Business Days' notice (or such other
notice period as may be acceptable to the Issuer in its sole discretion), in the
case of an initial issuance of a Letter of Credit, and not less than three nor
more than ten Business Days' notice prior to the then existing Stated Expiry
Date of a Letter of Credit (or such other notice period as may be acceptable to
the Issuer in its sole discretion), in the case of a request for the extension
of the Stated Expiry Date of a Letter of Credit, that the Issuer issue, or
extend the Stated Expiry Date of, or amend, as the case may be, an irrevocable
Letter of Credit for such Borrower's account or for the account of any
wholly-owned U.S. Subsidiary of such Borrower that is a signatory to the
Subsidiary Guaranty and the Subsidiary Security Agreement and whose outstanding
Capital Stock is pledged to the Administrative Agent for the benefit of the
Lenders pursuant to the Subsidiary Pledge Agreement, in each case on a joint and
several basis for all Borrowers, in such form as may be requested by such Bor-
rower and approved by the Issuer, solely for the purposes described in Section
7.1.9. Notwithstanding anything to the contrary contained herein or in any
separate application for any Letter of Credit, the Borrowers hereby acknowledge
and agree that each of them shall be obligated, jointly and severally, to reim-
burse the Issuer upon each Disbursement of any Letter of Credit, and they shall
all be deemed to be Obligors for purposes of each such Letter of Credit issued
hereunder (whether the account party on such Letter of Credit is a Borrower or a
wholly-owned U.S. Subsidiary of a Borrower). Upon receipt of an Issuance
Request, the Administrative Agent shall promptly notify the Issuer and each
Lender thereof and the Issuer shall, subject to the terms and conditions hereof,
including Article V, promptly (but in no event later than three Business Days
after such notification) issue a Letter of Credit. Each Letter of Credit shall
by its terms be stated to expire on a date (its "Stated Expiry Date") no later
than the earlier to occur of (i) five Business Days prior to the Revolving Loan
Commitment Termination Date and (ii) one year from the date of its issuance. The
Issuer will make available to the beneficiary thereof the original of each
Letter of Credit which it issues hereunder.
SECTION 2.6.1. Other Lenders' Participation. Upon the issuance of
each Letter of Credit issued by the Issuer pursuant hereto, and without further
action, each Lender (other than the Issuer) that has a Revolving Loan Commitment
shall be deemed to have irrevocably purchased from the Issuer, to the extent of
its Percentage to make Revolving Loans, and the Issuer shall be deemed to have
irrevocably granted and sold to such Lender a participation interest in such
Letter of Credit (including the Contingent Liability and any Reimbursement
Obligation and all rights with respect thereto), and such Lender shall, to the
extent of its Revolving Loan Commitment Percentage, be responsible for
reimbursing promptly (and in any event within one Business Day) the Issuer for
Reimbursement Obligations which have not been reimbursed by the Borrowers in
accordance with Section 2.6.3. In addition, such Lender shall, to the extent of
its Percentage to make Revolving Loans, be entitled to receive a ratable portion
of the Letter of Credit fees payable pursuant to Section 3.3.3 with respect to
each Letter of Credit and of interest payable pursuant to Section 3.2 with
respect to any Reimbursement Obligation. To the extent that any Lender has
reimbursed the Issuer for a Disbursement as required by this Section, such
Lender shall be entitled to receive its ratable portion of any amounts
subsequently received (from the Borrowers or otherwise) in respect of such
Disbursement.
SECTION 2.6.2. Disbursements; Conversion to Revolving Loans. The
Issuer will notify the Borrowers and the Administrative Agent promptly of the
presentment for payment of any Letter of Credit issued by the Issuer, together
with notice of the date (the "Disbursement Date") such payment shall be made
(each such payment, a "Disbursement"). Subject to the terms and provisions of
such Letter of Credit and this Agreement, the Issuer shall make such payment to
the beneficiary (or its designee) of such Letter of Credit. Prior to 12:00 noon,
New York time, on the first Business Day following the Disbursement Date (the
"Disbursement Due Date"), the Borrowers shall be obligated, on a joint and
several basis, to reimburse the Administrative Agent, for the account of the
Issuer, for all amounts which the Issuer has disbursed under such Letter of
Credit, together with interest thereon at the rate per annum otherwise
applicable to Revolving Loans (made as Base Rate Loans) from and including the
Disbursement Date to but excluding the Disbursement Due Date and, thereafter
(unless such Disbursement is converted into a Base Rate Loan on the Disbursement
Due Date), at a rate per annum equal to the rate per annum then in effect
with respect to overdue Revolving Loans (made as Base Rate Loans) pursuant
to Section 3.2.2 for the period from and including the Disbursement Due Date to
but excluding the date of such reimbursement; provided, however, that, if no
Default shall have then occurred and be continuing, unless any Borrower has
notified the Administrative Agent no later than one Business Day prior to the
Disbursement Due Date that it will reimburse the Issuer for the applicable Dis-
bursement, then the amount of the Disbursement shall be deemed to be a Revolving
Loan constituting a Base Rate Loan and following the giving of notice thereof by
the Administrative Agent to the Lenders, each Lender with a Revolving Loan
Commitment (other than the Issuer) will deliver to the Issuer on the Disburse-
ment Due Date immediately available funds in an amount equal to such Lender's
Percentage of such Revolving Loan. Each conversion of Disbursement amounts
into Revolving Loans shall constitute a representation and warranty by the
Borrowers that on the date of the making of such Revolving Loan all of the
statements set forth in Section 5.2.1 are true and correct.
SECTION 2.6.3. Reimbursement. The obligation (a "Reimbursement
Obligation") of the Borrowers under Section 2.6.2 to reimburse the Issuer with
respect to each Disbursement (including interest thereon) not converted into a
Base Rate Loan pursuant to Section 2.6.2, and, upon the failure of the Borrowers
to reimburse the Issuer and the giving of notice thereof by the Administrative
Agent to the Lenders, each Lender's (to the extent it has a Revolving Loan
Commitment) obligation under Section 2.6.1 to reimburse the Issuer or fund its
Percentage of any Disbursement converted into a Base Rate Loan, shall be
absolute and uncondi tional under any and all circumstances and irrespective of
any setoff, counterclaim or defense to payment which the Borrowers or such
Lender, as the case may be, may have or have had against the Issuer or any such
Lender, including any defense based upon the failure of any Disbursement to
conform to the terms of the applicable Letter of Credit (if, in the Issuer's
good faith opinion, such Disbursement is determined to be appropriate) or any
non-application or misapplication by the beneficiary of the proceeds of such
Letter of Credit; provided, however, that after paying in full its Reimbursement
Obligation hereunder, nothing herein shall adversely affect the right of the
Borrowers or such Lender, as the case may be, to commence any proceeding against
the Issuer for any wrongful Disbursement made by the Issuer under a Letter of
Credit as a result of acts or omissions constituting gross negligence or willful
misconduct on the part of the Issuer.
SECTION 2.6.4. Deemed Disbursements. Upon the occurrence and
during the continuation of any Event of Default of the type described in Section
8.1.9 or, with notice from the Administrative Agent acting at the direction of
the Required Lenders, upon the occurrence and during the continuation of any
other Event of Default,
(a) an amount equal to that portion of all Letter of Credit
Outstandings attributable to the then aggregate amount which is
undrawn and available under all Letters of Credit issued and
outstanding shall, without demand upon or notice to the Borrowers
or any other Person, be deemed to have been paid or disbursed by
the Issuer under such Letters of Credit (notwithstanding that
such amount may not in fact have been so paid or disbursed); and
(b) upon notification by the Administrative Agent to the
Borrowers of the obligations of the Borrowers under this Section,
the Borrowers shall be immediately obligated, jointly and
severally, to reimburse the Issuer for the amount deemed to have
been so paid or disbursed by the Issuer.
Any amounts so payable by the Borrowers pursuant to this Section shall be
deposited in cash with the Administrative Agent and held as collateral security
for the Obligations in connection with the Letters of Credit issued by the
Issuer. At such time when the Events of Default giving rise to the deemed
disbursements hereunder shall have been cured or waived, the Administrative
Agent shall return to the Borrowers all amounts then on deposit with the
Administrative Agent pursuant to this Section, together with accrued interest at
the Federal Funds Rate, which have not been applied to the satisfaction of such
Obligations.
SECTION 2.6.5. Nature of Reimbursement Obligations. The Borrowers
and, to the extent set forth in Section 2.6.1, each Lender with a Revolving Loan
Commitment, shall assume all risks of the acts, omissions or misuse of any
Letter of Credit by the beneficiary thereof. The Issuer (except to the extent of
its own gross negligence or willful misconduct) shall not be responsible for:
(a) the form, validity, sufficiency, accuracy, genuineness
or legal effect of any Letter of Credit or any document submitted
by any party in connection with the application for and issuance
of a Letter of Credit, even if it should in fact prove to be in
any or all respects invalid, insufficient, inaccurate, fraudulent
or forged;
(b) the form, validity, sufficiency, accuracy, genuineness
or legal effect of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or the proceeds thereof in whole or in
part, which may prove to be invalid or ineffective for any
reason;
(c) failure of the beneficiary to comply fully with
conditions required in order to demand payment under a Letter of
Credit;
(d) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable,
telegraph, telex or otherwise; or
(e) any loss or delay in the transmission or otherwise of
any document or draft required in order to make a Disbursement
under a Letter of Credit.
None of the foregoing shall affect, impair or prevent the vesting of any of the
rights or powers granted to the Issuer or any Lender with a Revolving Loan
Commitment hereunder. In furtherance and extension and not in limitation or
derogation of any of the foregoing, any action taken or omitted to be taken by
the Issuer in good faith (and not constituting gross negligence or willful
misconduct) shall be binding upon the Borrowers, each Obligor and each such
Lender, and shall not put the Issuer under any resulting liability to the
Borrowers, any Obligor or any such Lender, as the case may be.
SECTION 2.7. Register; Notes.
(a) Each Lender may maintain in accordance with its usual
practice an account or accounts evidencing the Indebtedness of
the Borrowers to such Lender resulting from each Loan made by
such Lender to each such Borrower, including the amounts of
principal and interest payable and paid to such Lender from time
to time hereunder. In the case of a Lender that does not request,
pursuant to clause (b)(ii) below, execution and delivery of a
Note evidencing the Loans made by such Lender to each such
Borrower, such account or accounts shall, to the extent not
inconsistent with the notations made by the Administrative Agent
in the Register (as defined below), be conclusive and binding on
the Borrowers absent demonstrable error; provided, however, that
the failure of any Lender to maintain such account or accounts
shall not limit or otherwise affect any Obligations of any
Borrower or any other Obligor.
(b) (i) Each Borrower hereby designates the Administrative
Agent to serve as its agent, solely for the purpose of this
clause (b), to maintain a register (the "Register") on which the
Administrative Agent will record each Lender's Commitment, the
Loans made by each Lender to each Borrower and each repayment in
respect of the principal amount of the Loans of each Lender to
each Borrower and annexed to which the Administrative Agent shall
retain a copy of each Lender Assignment Agreement delivered to
the Administrative Agent pursuant to Section 10.11.1. Failure to
make any recordation, or any error in such recordation, shall not
affect the Borrowers' obligations in respect of such Loans. The
entries in the Register shall be conclusive, in the absence of
demonstrable error, and the Borrowers, the Administrative Agent
and the Lenders shall treat each Person in whose name a Loan (and
as provided in clause (ii) the Note evidencing such Loan, if any)
is registered as the owner thereof for all purposes of this
Agreement, notwithstanding notice or any provision herein to the
contrary. A Lender's Commitment and the Loans made pursuant
thereto may be assigned or otherwise transferred in whole or in
part only by registration of such assignment or transfer in the
Register. Any assignment or transfer of a Lender's Commitment or
the Loans made pursuant thereto shall be registered in the
Register only upon delivery to the Administrative Agent of a
Lender Assignment Agreement duly executed by the Assignor there-
of. No assignment or transfer of a Lender's Commitment or
the Loans made pursuant thereto shall be effective unless
such assignment or transfer shall have been recorded in
the Register by the Administrative Agent as provided in this
Section 2.7.
(ii) The Borrowers agree that, upon the request to the
Administrative Agent by any Lender, the Borrowers will execute
and deliver to such Lender, as applicable, a Note evidencing the
Loans made by such Lender. The Borrowers hereby irrevocably
authorize each Lender to make (or cause to be made) appropriate
notations on the grid attached to such Lender's Notes (or on any
continuation of such grid), which notations, if made, shall
evidence, inter alia, the Borrower that has requested the Loan,
the date of, the outstanding principal amount of, and the
interest rate and Interest Period applicable to the Loans
evidenced thereby. Such notations shall, to the extent not
inconsistent with the notations made by the Administrative Agent
in the Register, be conclusive and binding on the Borrowers
absent demonstrable error; provided, however, that the failure of
any Lender to make any such notations shall not limit or
otherwise affect any Obligations of the Borrowers or any other
Obligor. The Loans evidenced by any such Note and interest
thereon shall at all times (including after assignment pursuant
to Section 10.11.1) be payable to the order of the payee named
therein and its registered assigns. Subject to the provisions of
Section 10.11.1, a Note and the obligation evidenced thereby may
be assigned or otherwise transferred in whole or in part only by
registration of such assignment or transfer of such Note and the
obligation evidenced thereby in the Register (and each Note shall
expressly so provide). Any assignment or transfer of all or part
of an obligation evidenced by a Note shall be registered in the
Register only upon surrender for registration of assignment or
transfer of the Note evidencing such obligation, accompanied by a
Lender Assignment Agreement duly executed by the parties thereto
and the compliance by the parties thereto with the other
requirements of Section 10.11.1, and thereupon, if requested by
the assignee, one or more new Notes shall be issued to the
designated assignee and the old Note shall be returned by the
Administrative Agent to the Borrowers marked "exchanged". No
assignment of a Note and the obligation evidenced thereby shall
be effective unless it shall have been recorded in the Register
by the Administrative Agent as provided in this Section.
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments and Prepayments; Application.
SECTION 3.1.1. Repayments and Prepayments. The Borrowers shall be
jointly and severally obligated to repay in full the unpaid principal amount of
each Loan upon the Stated Maturity Date therefor. Prior thereto, the Borrowers
jointly and severally acknowledge, covenant and agree that any Borrower:
(a) may, from time to time on any Business Day, make a
voluntary prepayment, in whole or in part, of the outstanding
principal amount of any
(i) Loans (other than Swing Line Loans); provided, how-
ever, that
(A) (1) subject to clause (b) of Section 3.1.2,
any such prepayment of Term A Loans, Term B Loans or
Term C Loans shall be made pro rata, based on
outstanding principal amount, among Term A Loans, Term B
Loans and Term C Loans, as applicable, of the same type
and, if applicable, having the same Interest Period of
all Lenders that have made such Term A Loans, Term B
Loans or Term C Loans, and (2) any such prepayment of
Revolving Loans shall be made pro rata among the
Revolving Loans of the same type and, if applicable,
having the same Interest Period of all Lenders that have
made such Revolving Loans;
(B) with respect to Term B Loans and Term C Loans,
there shall be a prepayment fee on the principal amount
of Loans so prepaid,
(1) with respect to Term B Loans, of (x)
2.0% of the principal amount of such Loans prepaid
for any prepayment of such Loans made on or prior
to the first anniversary of the Closing Date, (y)
1.0% of the principal amount of such Loans prepaid
for any prepayment of such Loans made after the
first anniversary but on or prior to the second
anniversary of the Closing Date, and (z) 0%
thereafter; and
(2) with respect to Term C Loans, of (x)
3.0% of the principal amount of such Loans prepaid
for any prepayment of such Loans made on or prior
to the first anniversary of the Closing Date, (y)
1.5% of the principal amount of such Loans prepaid
for any prepayment of such Loans made after the
first anniversary but on or prior to the second
anniversary of the Closing Date, and (z) 0%
thereafter;
(C) the Borrowers shall comply with Section 4.4 in
the event that any LIBO Rate Loan is prepaid on any day
other than the last day of the Interest Period for such
Loan;
(D) all such voluntary prepayments of LIBO Rate
Loans shall require prior written notice to the
Administrative Agent by 11:00 a.m. (New York Time) at
least three Business Days prior to such prepayment;
(E) all such voluntary prepayments of Base Rate
Loans shall require (i) in the case of Term Loans at
least two but no more than five Business Days' prior
written notice to the Administrative Agent or (ii) in
the case of Revolving Loans at least one but no more
than five Business Days' prior written notice to the
Administrative Agent; and
(F) all such voluntary partial prepayments shall
be, in the case of LIBO Rate Loans, in an aggregate
minimum amount of $5,000,000 and an integral multiple of
$1,000,000 and, in the case of Base Rate Loans, in an
aggregate minimum amount of $1,000,000 and an integral
multiple of $500,000; or
(ii) Swing Line Loans, provided that (x) all such
voluntary prepayments shall require prior telephonic notice
to the Swing Line Lender on or before 1:00 p.m., New York
time, on the day of such prepayment (such notice to be
confirmed in writing within 24 hours thereafter) and (y) all
such voluntary prepayments shall be in an aggregate minimum
amount of $250,000 and an integral multiple of $100,000;
(b) shall, on each date when any reduction in the then
existing Borrowing Base Amount shall become effective, make a
mandatory prepayment of Revolving Loans and (if necessary) Swing
Line Loans and (if necessary) deposit with the Administrative
Agent cash collateral for Letter of Credit Outstandings, in an
aggregate amount equal to the excess, if any, of the aggregate,
outstanding principal amount of all Revolving Loans, Swing Line
Loans and Letter of Credit Outstandings over the then existing
Borrowing Base Amount, to be applied as set forth in Section
3.1.2;
(c) shall, no later than three Business Days following the
receipt of any Net Disposition Proceeds or Net Debt Proceeds by
Holdco or any of its Subsidiaries, deliver to the Administrative
Agent a calculation of the amount of such Net Disposition
Proceeds or Net Debt Proceeds, as the case may be, and make a
mandatory prepayment of the Term Loans in an amount equal to 100%
of such Net Disposition Proceeds or Net Debt Proceeds, as the
case may be, to be applied as set forth in Section 3.1.2;
provided, that no such mandatory prepayment of Net Disposition
Proceeds received in connection with clauses (b) or (e) of
Section 7.2.9 shall be required under this clause (c) if (i) such
Person notifies the Agents no later than 15 days following the
execution and delivery of a definitive agreement for the sale,
transfer or other disposition of such assets that it is such
Person's good faith intention to apply such Net Disposition
Proceeds toward the acquisition of replacement assets or other
assets or property used in the Business or the Capital Stock of a
Person that becomes a Subsidiary and is engaged in the Business
and (ii) such Person in fact so uses such Net Disposition
Proceeds within 180 days following the receipt by such Person of
Net Disposition Proceeds, or such Person executes and delivers a
definitive agreement within such 180-day period to use such Net
Disposition Proceeds within 270 days following the receipt by
such Person of Net Disposition Proceeds, to acquire such
replacement assets or other assets or property, or such Capital
Stock, with the amount of Net Disposition Proceeds unused after
such 180-day or 270-day period, as the case may be, being applied
to prepay the Loans pursuant to Section 3.1.2; provided, however,
that only the Net Disposition Proceeds from the first
$350,000,000 (as such amount may be increased pursuant to clause
(d)(iii) of Section 7.2.9) of gross cash proceeds received in
connection with the Arby's Securitization shall be applied as a
mandatory prepayment of the Term Loans, to be applied as set
forth in Section 3.1.2;
(d) shall, no later than five Business Days following the
delivery of the annual audited financial reports required
pursuant to clause (c) of Section 7.1.1 (beginning with the
financial reports delivered in respect of the 1999 Fiscal Year),
deliver to the Administrative Agent a calculation of the Excess
Cash Flow for the prior Fiscal Year and, no later than five
Business Days following the delivery of such calculation, make a
mandatory prepayment of the Term Loans in an amount equal to 75%
of Excess Cash Flow (if any) for such Fiscal Year (or in the case
of the 1999 Fiscal Year, the portion of such Fiscal Year
following the Closing Date, as determined in good faith by the
chief financial officer of Holdco) to be applied as set forth in
Section 3.1.2; provided, however, that the amount of such
prepayment shall be reduced to 50% of Excess Cash Flow if the
Leverage Ratio on the last day of such Fiscal Year is less than
4.0:1;
(e) shall, concurrently with the receipt of any Net Equity
Proceeds by Holdco or any of its Subsidiaries, deliver to the
Administrative Agent a calculation of the amount of such Net
Equity Proceeds, and no later than five Business Days following
the delivery of such calculation, make a mandatory prepayment of
the Term Loans in an amount equal to 50% of such Net Equity
Proceeds, to be applied as set forth in Section 3.1.2;
(f) shall, within 60 days following the receipt by Holdco or
any of its Subsidiaries of any Net Casualty Proceeds in excess of
$500,000 (individually or in the aggregate over the course of a
Fiscal Year), make a mandatory prepayment of the Term Loans in an
amount equal to 100% of such Net Casualty Proceeds, to be applied
as set forth in Section 3.1.2; provided, that no mandatory
prepayment of Net Casualty Proceeds shall be required under this
clause (f) (i) if such Person notifies the Agents no later than
60 days following the receipt of such Net Casualty Proceeds of
such Person's good faith intention to apply such Net Casualty
Proceeds to the rebuilding or replacement of such damaged,
destroyed or condemned assets or property and (ii) to the extent
such Person in fact uses such Net Casualty Proceeds to begin
rebuilding or replacing the damaged, destroyed or condemned
assets or property within 180 days following the receipt of such
Net Casualty Proceeds and continues diligently to complete such
rebuilding or replacement of such damaged, destroyed or condemned
assets or property within the time reasonably required therefore
(the "Rebuilding and Replacement Work"), with the amount of Net
Casualty Proceeds unused after the completion of such Rebuilding
and Replacement Work being applied to the Loans pursuant to
Section 3.1.2;
(g) shall, to the extent the Acquisition shall not have been
consummated on or prior to the Consummation Date, not later than
one Business Day after the Consummation Date, use the cash
proceeds that have been deposited in the Acquisition Escrow
Account to make a mandatory prepayment of the Term C Loans in an
amount equal to the amount of the cash proceeds deposited in the
Acquisition Escrow Account, to be applied as set forth in clause
(c) of Section 3.1.2;
(h) shall, on the Stated Maturity Date and on each Quarterly
Payment Date occurring during any period set forth below, make a
scheduled repayment of the aggregate outstanding principal
amount, if any, of all Term A Loans in an amount equal to the
amount set forth below opposite the Stated Maturity Date or such
period, as applicable (as such amounts may have otherwise been
reduced pursuant to this Agreement):
Scheduled
Term A Principal
Quarterly Payment Date Repayment
---------------------- ---------
June 15, 1999 to March 15, 2000 $562,500
June 15, 2000 to March 15, 2001 $1,125,000
June 15, 2001 to March 15, 2002 $1,687,500
June 15, 2002 to March 15, 2003 $2,250,000
June 15, 2003 to Stated Maturity Date $2,812,500
TOTAL: $45,000,000
(i) shall, on the Stated Maturity Date and on each Quarterly
Payment Date occurring during any period set forth below, make a
scheduled repayment of the aggregate outstanding principal
amount, if any, of all Term B Loans in an amount equal to the
amount set forth below opposite the Stated Maturity Date or such
period, as applicable (as such amounts may have otherwise been
reduced pursuant to this Agreement):
Scheduled
Term B Principal
Quarterly Payment Date Repayment
---------------------- ---------
June 15, 1999 to March 15, 2005 $312,500
June 15, 2005 to Stated Maturity Date $29,375,000
TOTAL: $125,000,000
(j) shall, on the Stated Maturity Date and on each Quarterly
Payment Date occurring during any period set forth below, make a
scheduled repayment of the aggregate outstanding principal
amount, if any, of all Term C Loans in an amount equal to the
amount set forth below opposite the Stated Maturity Date or such
period, as applicable (as such amounts may have otherwise been
reduced pursuant to this Agreement):
Scheduled
Term C Principal
Quarterly Payment Date Repayment
---------------------- ---------
June 15, 1999 to March 15, 2006 $762,500
June 15, 2006 to Stated Maturity Date $70,912,500
TOTAL $305,000,000
(k) shall, on each date when a reduction in the Revolving
Loan Commitment Amount or the Swing Line Loan Commitment Amount
shall become effective pursuant to Section 2.2, make a mandatory
prepayment of Revolving Loans or Swing Line Loans (as the case
may be) and (if necessary) deposit with the Administrative Agent
cash collateral for Letter of Credit Outstandings in an aggregate
amount equal to the excess, if any, of the aggregate outstanding
principal amount of all Revolving Loans, Swing Line Loans and
Letter of Credit Outstandings over the Revolving Loan Commitment
Amount or Swing Line Loan Commitment Amount as so reduced; and
(l) shall, immediately upon any acceleration of the Stated
Maturity Date of any Loans or Obligations pursuant to Section 8.2
or Section 8.3, repay all Loans and provide the Administrative
Agent with cash collateral in an amount equal to the Letter of
Credit Outstandings, unless, pursuant to Section 8.3, only a
portion of all Loans and Obligations are so accelerated (in which
case the portion so accelerated shall be so prepaid or cash
collateralized with the Administrative Agent).
Each prepayment of any Loans made pursuant to this Section shall
be without premium or penalty, except as may be required by clause (a)(i)(B) of
this Section or Section 4.4.
SECTION 3.1.2. Application.
(a) Subject to clauses (b) and (c) below, each prepayment or
repayment of the principal of the Loans shall be applied, to the
extent of such prepayment or repayment, first, to the principal
amount thereof being maintained as Base Rate Loans, and second,
to the principal amount thereof being maintained as LIBO Rate
Loans.
(b) (i) Each voluntary prepayment of Term Loans and each
mandatory prepayment of Term Loans made pursuant to clauses (c)
(other than with respect to any prepayment resulting from the
Arby's Securitization or the Royal Crown Disposition), (d), (e),
and (f) of Section 3.1.1 shall be applied pro rata to the
prepayment of the outstanding principal amount of all
Term Loans, until paid in full, and (ii) each mandatory
prepayment of Term Loans made pursuant to clause (c) of Section
3.1.1 with respect to the Arby's Securitization or the Royal
Crown Disposition shall be applied to the prepayment of the
outstanding principal amount of all Term A Loans, until paid in
full, then applied pro rata to the mandatory prepayment of the
outstanding principal amount of all Term B Loans and Term C
Loans, with, in the case of each of clauses (i) and (ii), the
amount of such prepayment of the Term Loans being applied to the
applicable remaining Term Loan amortization payments required
pursuant to clauses (h), (i) and (j) of Section 3.1.1, in each
case pro rata in accordance with the amount of each such
remaining Term Loan amortization payment, until all such Term
Loans have been paid in full; provided, however, that (A) during
the first two years following the Closing Date, voluntary
prepayments of Term Loans may, at the Borrowers' discretion, be
applied to the outstanding principal amount of Term A Loans only,
and (B) with respect to any mandatory prepayment of Term Loans
made pursuant to clauses (c) (other than with respect to any
prepayment resulting from the Arby's Securitization or the Royal
Crown Disposition), (d), (e), and (f) of Section 3.1.1, any
Lender that has Term B Loans or Term C Loans outstanding may, by
delivering a notice to the Administrative Agent by 11:00 a.m.
(New York time), at least three Business Days prior to the date
that such mandatory prepayment is to be made in the case of Term
B Loans or Term C Loans that are LIBO Rate Loans or at least two
Business Days prior to the date that such mandatory prepayment is
to be made in the case of Term B Loans or Term C Loans that are
Base Rate Loans, elect not to have its pro rata share of such
Term Loans prepaid, and upon any such election the Administrative
Agent shall apply the amount that otherwise would have prepaid
such Lender's Term Loans to the prepayment of Term A Loans, until
paid in full, and then to the prepayment of outstanding Revolving
Loans, if any (without any corresponding reduction of the
Revolving Loan Commitment Amount), and then return any unused
amounts to the Borrowers. The Administrative Agent shall, no
later than two Business Days prior to the prepayment of a Term B
Loan or Term C Loan that is a LIBO Rate Loan or one Business Day
prior to the prepayment of a Term B Loan or Term C Loan that is a
Base Rate Loan, send a notice to each Lender detailing the
amounts each Lender is to receive on the date of such prepayment
and to which Loans such amounts shall apply.
(c) The prepayment of Term C Loans made pursuant to clause
(g) of Section 3.1.1 shall be applied to a mandatory prepayment
of the outstanding principal amount of all Term C Loans (with the
amount of such prepayment of the Term C Loans being applied to
the remaining Term C Loan amortization payments required pursuant
to clause (j) of Section 3.1.1, pro rata in accordance with the
amount of each such remaining Term C Loan amortization payment).
SECTION 3.1.3. Cash Collateral. In the event the amount of any
prepayment of Loans required to be made under clauses (c), (d), (e) or (f) of
Section 3.1.1 shall exceed the aggregate principal amount of such Loans which
are Base Rate Loans (the amount of any such excess being called the "Excess
Amount"), the Borrowers shall have the right, in lieu of making such prepayment
in full, to prepay all such outstanding Base Rate Loans when due and to deposit
on the date of the required prepayment an amount equal to the Excess Amount with
the Administrative Agent in a cash collateral account maintained by and in the
sole dominion and control of the Administrative Agent. Any amounts so deposited
shall be held by the Administrative Agent as collateral security for the
Obligations and applied to the prepayment of the applicable LIBO Rate Loans on
the earlier of 45 days from such deposit and the end of the current Interest
Periods applicable thereto. On any Business Day on which (a) collected amounts
remain on deposit in or to the credit of such cash collateral account after
giving effect to the payments made on such day pursuant to this Section 3.1.3
and (b) the Borrowers shall have delivered to the Administrative Agent a written
request or a telephonic request (which shall be promptly confirmed in writing)
that such remaining collected amounts be invested in the Cash Equivalent
Investments specified in such request, the Administrative Agent shall invest
such remaining collected amounts in such Cash Equivalent Investments on an
overnight basis; provided, however, that the Administrative Agent shall have
continuous dominion and full control over any such investments (and over any
interest that accrues thereon) to the same extent that it has dominion and
control over such cash collateral account.
SECTION 3.2. Interest Provisions. Interest on the outstanding
principal amount of Loans shall accrue and be payable in accordance with this
Section 3.2.
SECTION 3.2.1. Rates. Pursuant to an appropriately delivered
Borrowing Request or Continuation/Conversion Notice, the Borrowers may elect
that Loans comprising a Borrowing accrue interest at a rate per annum:
(a) on that portion maintained from time to time as a Base
Rate Loan, equal to the sum of the Alternate Base Rate from time
to time in effect plus the Applicable Margin for Base Rate Loans;
(b) on that portion maintained as a LIBO Rate Loan, during
each Interest Period applicable thereto, equal to the sum of the
LIBO Rate (Reserve Adjusted) for such Interest Period plus the
Applicable Margin for LIBO Rate Loans; and
(c) with respect to Swing Line Loans, equal to the sum of
the Alternate Base Rate from time to time in effect plus the
Applicable Margin for Revolving Loans.
SECTION 3.2.2. Post-Maturity Rates. After the date any principal
amount of any Loan is due and payable (whether on the Stated Maturity Date, upon
acceleration or otherwise), or after any other monetary Obligation (other than
overdue Reimbursement Obligations, which shall bear interest as provided in
Section 2.6.2) of the Borrowers shall have become due and payable, the Borrowers
shall be obligated, on a joint and several basis, to pay, but only to the extent
permitted by law, interest (after as well as before judgment) on such amounts at
a rate per annum equal to the Alternate Base Rate plus a margin of 2%.
SECTION 3.2.3. Payment Dates. Interest accrued on each Loan
shall be payable, without duplication:
(a) on the Stated Maturity Date therefor;
(b) on the date of any payment or prepayment, in whole or in
part, of principal outstanding on such Loan;
(c) with respect to Base Rate Loans, on each Quarterly
Payment Date occurring after the date of the initial Borrowing
hereunder;
(d) with respect to LIBO Rate Loans, on the last day of each
applicable Interest Period (and, if such Interest Period shall
exceed three months, on the third month anniversary of such
Interest Period);
(e) with respect to any Base Rate Loans converted into LIBO
Rate Loans on a day when interest would not otherwise have been
payable pursuant to clause (c), on the date of such conversion;
and
(f) on that portion of any Loans the Stated Maturity Date of
which is accelerated pursuant to Section 8.2 or Section 8.3,
immediately upon such acceleration.
Interest accrued on Loans, Reimbursement Obligations or other monetary
Obligations arising under this Agreement or any other Loan Document after the
date such amount is due and payable (whether on the Stated Maturity Date, upon
acceleration or otherwise) shall be payable upon demand.
SECTION 3.3. Fees. The Borrowers, jointly and severally, agree
to pay the fees set forth in this Section 3.3. All such fees shall be non-
refundable.
SECTION 3.3.1. Commitment Fee. The Borrowers, jointly and
severally, agree to pay to the Administrative Agent for the account of each
Lender that has a Revolving Loan Commitment, for the period (including any
portion thereof when any of its Commitments are suspended by reason of the
Borrowers' inability to satisfy any condition of Article V) commencing
on the Closing Date and continuing through the Revolving Loan
Commitment Termination Date, a commitment fee at the rate of the Applicable
Commitment Fee on such Lender's Percentage of the sum of the average daily
unused portion of the Revolving Loan Commitment Amount, whether or not then
available. Such commitment fees shall be payable in arrears on each Quarterly
Payment Date and on the Revolving Loan Commitment Termination Date. The making
of Swing Line Loans by the Swing Line Lender shall not constitute usage under
the Revolving Loan Commitment for the purpose of calculation of the commitment
fees to be paid by the Borrowers to the Lenders pursuant to this Section 3.3.1.
SECTION 3.3.2. Agents' and Arrangers' Fees. The Borrowers,
jointly and severally, agree to pay to each of the Agents and each Arranger for
their own respective accounts, the non-refundable fees in the amounts and on the
dates set forth in the Fee Letters.
SECTION 3.3.3. Letter of Credit Fees. The Borrowers, jointly and
severally, agree to pay to the Administrative Agent, for the pro rata account of
the Issuer and each Lender that has a Revolving Loan Commitment, a Letter of
Credit fee for each day on which there shall be any Letters of Credit
outstanding on the aggregate undrawn amount of all Letters of Credit outstanding
on such day, at a rate per annum equal to the Applicable Margin for such day for
Revolving Loans that are maintained as LIBO Rate Loans. The Borrowers further,
jointly and severally, agree to pay to the Issuer for its own account, for each
day on which there shall be any Letters of Credit outstanding, an issuance fee
in an amount equal to 1/4 of 1% per annum of the Stated Amount of such Letters
of Credit. All such fees shall be payable in arrears on each Quarterly Payment
Date and on the Revolving Loan Commitment Termination Date for any period then
ending for which such fee shall not theretofore have been paid, commencing on
the first such date after the issuance of such Letter of Credit.
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION 4.1. LIBO Rate Lending Unlawful. If any Lender shall in
good faith determine (which determination shall, upon notice thereof to the
Borrowers and the Lenders, be conclusive and binding on the Borrowers) that the
introduction of or any change in or in the interpretation of any law makes it
unlawful, or any central bank or other governmental authority asserts that it is
unlawful, for such Lender to make, continue or maintain any Loan as, or to
convert any Loan into, a LIBO Rate Loan of a certain type, the obligation of
such Lender to make, continue, maintain or convert into any such Loans shall,
upon such determination, forthwith be suspended until such Lender shall notify
the Administrative Agent that the circumstances causing such suspension no
longer exist, and all LIBO Rate Loans of such type shall automatically convert
into Base Rate Loans at the end of the then current Interest Periods with
respect thereto or sooner, if required by such law or assertion.
SECTION 4.2. Deposits Unavailable. If the Administrative Agent
shall have reasonably determined that
(a) Dollar certificates of deposit or Dollar deposits, as
the case may be, in the relevant amount and for the relevant
Interest Period are not available to the Administrative Agent in
its relevant market; or
(b) by reason of circumstances affecting the Administrative
Agent's relevant market, adequate means do not exist for
ascertaining the interest rate applicable hereunder to LIBO Rate
Loans of such type,
then, upon notice from the Administrative Agent to the Borrowers and the
Lenders, the obligations of all Lenders under Section 2.3 and Section 2.4 to
make or continue any Loans as, or to convert any Loans into, LIBO Rate Loans of
such type shall forthwith be suspended until the Administrative Agent shall
notify the Borrowers and the Lenders that the circumstances causing such
suspension no longer exist. The Administrative Agent agrees to withdraw any such
notice as soon as reasonably practicable after there is a change in
circumstances which makes such notice inapplicable.
SECTION 4.3. Increased LIBO Rate Loan Costs, etc. The Borrowers,
jointly and severally, agree to reimburse each Lender for any increase in the
cost to such Lender of, or any reduction in the amount of any sum receivable by
such Lender in respect of, making, continuing or maintaining (or of its
obligation to make, continue or maintain) any Loans as, or of converting (or of
its obligation to convert) any Loans into, LIBO Rate Loans. Such Lender shall
promptly notify the Administrative Agent and the Borrowers in writing of the
occurrence of any such event, such notice to state, in reasonable detail, the
reasons therefor and the additional amount required fully to compensate such
Lender for such increased cost or reduced amount. Such additional amounts shall
be payable by the Borrowers, and the Borrowers hereby acknowledge and agree that
they are jointly and severally liable to pay such additional amounts, directly
to such Lender within five days of its receipt of such notice, and such notice
shall, in the absence of demonstrable error, be conclusive and binding on the
Borrowers.
SECTION 4.4. Funding Losses. In the event any Lender shall incur
any loss or expense (including any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to make, continue or maintain any portion of the principal amount of any Loan
as, or to convert any portion of the principal amount of any Loan into, a LIBO
Rate Loan) as a result of
(a) any conversion or repayment or prepayment of the
principal amount of any LIBO Rate Loans on a date other than the
scheduled last day of the Interest Period applicable thereto,
whether pursuant to Section 3.1 or otherwise;
(b) any Loans not being made as LIBO Rate Loans in
accordance with the Borrowing Request therefor; or
(c) any Loans not being continued as, or converted into,
LIBO Rate Loans in accordance with the Continuation/Conversion
Notice therefor,
then, upon the written notice of such Lender to the Borrowers (with a copy to
the Administrative Agent), the Borrowers shall, and the Borrowers hereby
acknowledge and agree that they are jointly and severally liable to pay, within
five days of its receipt thereof, directly to such Lender such amount as will
(in the reasonable determination of such Lender) reimburse such Lender for such
loss or expense. Such written notice (which shall include calculations in
reasonable detail) shall, in the absence of demonstrable error, be conclusive
and binding on the Borrowers.
SECTION 4.5. Increased Capital Costs. If any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank, regulator
or other governmental authority affects or would affect the amount of capital
required or expected to be maintained by any Lender (including as Issuer) or any
Person controlling such Lender, and such Lender determines (in its reasonable
business judgement) that the rate of return on its or such controlling Person's
capital as a consequence of its Commitments, issuance of or participation in
Letters of Credit or the Loans made by such Lender is reduced to a level below
that which such Lender or such controlling Person could have achieved but for
the occurrence of any such circumstance, then, in any such case upon notice from
time to time by such Lender to the Borrowers, the Borrowers shall be jointly and
severally obligated to immediately pay directly to such Lender additional
amounts sufficient to compensate such Lender or such controlling Person for such
reduction in rate of return. A statement of such Lender as to any such
additional amount or amounts (including calculations thereof in reasonable
detail) shall, in the absence of demonstrable error, be conclusive and binding
on the Borrowers. In determining such amount, such Lender may use any method of
averaging and attribution that it (in its reasonable business judgement) shall
deem applicable.
SECTION 4.6. Taxes.
(a) All payments by a Borrower of principal of, and interest
on, the Loans and all other amounts payable hereunder shall be
made free and clear of and without deduction for any present or
future income, excise, stamp or franchise taxes and other taxes,
fees, duties, withholdings or other charges of any nature
whatsoever imposed by any taxing authority, but excluding
franchise taxes and taxes imposed on or measured by any Lender's
net income or receipts, in the case of each such exclusion as a
result of a connection between such Lender and the relevant
taxing jurisdiction other than solely by reason of such Lender
having performed its obligations under this Agreement or any Note
(not including by having a lending or similar office in the rele-
vant taxing jurisdiction) (such non-excluded items being called
"Taxes"). In the event that any withholding or deduction from any
payment to be made by a Borrower hereunder is required in respect
of any Taxes pursuant to any applicable law, rule or regulation,
then the Borrowers shall be jointly and severally obligated to
(i) pay directly to the relevant authority the full
amount required to be so withheld or deducted;
(ii) promptly forward to the Administrative Agent an
official receipt or other documentation satisfactory to the
Administrative Agent evidencing such payment to such
authority; and
(iii) pay to the Administrative Agent for the account of
the Lenders such additional amount or amounts as is
necessary to ensure that the net amount actually received by
each Lender will equal the full amount such Lender would
have received had no such withholding or deduction been
required.
Moreover, if any Taxes are directly asserted against any Agent or any Lender
with respect to any payment received by any such Agent or such Lender hereunder,
such Agent or such Lender may pay such Taxes and the Borrowers shall be jointly
and severally obligated to promptly pay such additional amounts (including any
penalties, interest or expenses) as is necessary in order that the net amount
received by such Person after the payment of such Taxes (including any Taxes on
such additional amount) shall equal the amount such Person would have received
had not such Taxes been asserted.
(b) Notwithstanding any other provision of this Section 4.6,
(i) the Borrowers shall not be required to pay any amounts
pursuant to this Section 4.6 in respect of U.S. federal
withholding taxes (other than to the extent imposed as a result
of a change in law enacted after the date hereof) and (ii) the
Borrowers shall have no obligation to make any greater payment
under this Section 4.6 to or with respect to any Assignee Lender
than the Borrowers would have been obligated to make to or with
respect to the relevant assignor or transferor Lender with
respect to the rights assigned or transferred (other than as a
result of a change in law enacted after the time of the
assignment or transfer).
(c) If any Borrower fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to the
Administrative Agent, for the account of the respective Lenders,
the required receipts or other required documentary evidence, the
Borrowers shall, jointly and severally, indemnify the Lenders for
any incremental Taxes, interest or penalties that may become
payable by any Lender as a result of any such failure. For
purposes of this Section 4.6, a distribution hereunder by the
Administrative Agent or any Lender to or for the account of any
Lender shall be deemed a payment by the Borrowers.
(d) Each Lender shall, prior to the due date of any payments
in respect of the Loans, execute and deliver to the Borrowers and
the Administrative Agent, one or more (as the Borrowers or the
Administrative Agent may reasonably request) (i) either (x) if
such Lender is organized under the laws of a jurisdiction other
than the United States or a State thereof, then (x) if such
Lender is a "bank" within the meaning of Section 881(c)(3)(A) of
the Code, (A) United States Internal Revenue Service Form 1001 or
4224, or successor applicable form, as the case may be, and (B)
United States Internal Revenue Service Form W-8, or successor
applicable form, as the case may be or, if such Lender is not a
"bank" within the meaning of Section 881(c)(3)(A) of the Code and
is claiming exemption from U.S. Federal withholding tax under
Section 871(h) or 881(c) of the Code with respect to payments of
"portfolio interest", a Form W-8, or any subsequent versions
thereof or successors thereto (and, if such Lender delivers a
Form W-8, a certificate representing that such Lender is not a
bank for purposes of Section 881(c) of the Code, is not a
10-percent shareholder (within the meaning of Section
871(h)(3)(B) of the Code) of any Borrower and is not a controlled
foreign corporation related to any Borrower (within the meaning
of Section 864(d)(4) of the Code)), properly completed and duly
executed by such Lender claiming complete exemption from, or a
reduced rate of, U.S. Federal withholding tax on payments of
interest by any Borrower under this Agreement and the other Loan
Documents; or (y) if such Lender is organized under the laws of
the United States or a State thereof, then United States Internal
Revenue Service Form W-9, or successor applicable form, as the
case may be, and (ii) copies of replacements of any such forms on
or before the date that any such forms expire or after the
occurrence of any event requiring a change in the most recent
form previously delivered by it hereunder. Each Person that shall
become a Lender shall, upon the effectiveness of the related
transfer, be required to provide all of the forms required
pursuant to this Section 4.6.
(e) To the extent that any Borrower pays any indemnity
payment or additional amount pursuant to Section 4.6(a) and any
Lender receives a refund of the Tax that such Lender determines,
in its good faith judgment, is allocable to any or all such sums,
then such Lender shall promptly pay over all such refunded sums
to such Borrower. Nothing in this Section 4.6 shall require a
Lender to disclose or detail the basis of its determination of
the amount of any such refund that is allocable to an indemnity
payment or additional amount paid by any Borrower hereunder, or
otherwise to disclose to any Borrower its tax returns or other
confidential or proprietary fiscal information.
(f) Any Lender claiming any indemnity payment or additional
amounts payable pursuant to this Section 4.6 shall use reasonable
efforts (consistent with legal and regulatory restrictions) to
file any certificate or document reasonably requested in writing
by the Borrowers or to change the jurisdiction of its applicable
lending office if the making of such a filing or change would
avoid the need for or reduce the amount of any such indemnity
payment or additional amounts that may thereafter accrue and
would not, in the sole determination of such Lender, be otherwise
disadvantageous to such Lender.
SECTION 4.7. Payments, Computations, etc. Unless otherwise
expressly provided, all payments by or on behalf of each Borrower pursuant to
this Agreement or any other Loan Document shall be made by such Borrower to the
Administrative Agent for the pro rata account of the Lenders entitled to receive
such payment. All such payments required to be made to the Administrative Agent
shall be made, without setoff, deduction or counterclaim, not later than 11:00
a.m., New York time, on the date due, in same day or immediately available
funds, to such account as the Administrative Agent shall specify from time to
time by notice to the Borrowers. Funds received after that time shall be deemed
to have been received by the Administrative Agent on the next succeeding
Business Day. The Administrative Agent shall promptly remit in same day funds to
each Lender its share, if any, of such payments received by the Administrative
Agent for the account of such Lender. All interest and fees shall be computed on
the basis of the actual number of days (including the first day but excluding
the last day) occurring during the period for which such interest or fee is
payable over a year comprised of 360 days (or, in the case of interest on a Base
Rate Loan (other than when calculated with respect to the Federal Funds Rate),
365 days or, if appropriate, 366 days). Whenever any payment to be made shall
otherwise be due on a day which is not a Business Day, such payment shall
(except as otherwise required by clause (c) of the definition of the term
"Interest Period") be made on the next succeeding Business Day and such
extension of time shall be included in computing interest and fees, if any, in
connection with such payment.
SECTION 4.8. Sharing of Payments. If any Lender shall obtain any
payment or other recovery (whether voluntary, involuntary, by application of
setoff or otherwise) on account of any Loan (other than pursuant to the terms of
Sections 4.3, 4.4 and 4.5) or Letter of Credit in excess of its pro rata share
of payments then or therewith obtained by all Lenders, such Lender shall
purchase from the other Lenders such participation in Loans made by them and/or
Letters of Credit as shall be necessary to cause such purchasing Lender to share
the excess payment or other recovery ratably with each of them; provided,
however, that if all or any portion of the excess payment or other recovery is
thereafter recovered from such purchasing Lender, the purchase shall be
rescinded and each Lender which has sold a participation to the purchasing
Lender shall repay to the purchasing Lender the purchase price to the ratable
extent of such recovery together with an amount equal to such selling Lender's
ratable share (according to the proportion of
(a) the amount of such selling Lender's required repayment
to the purchasing Lender
to
- --
(b) the total amount so recovered from the purchasing
Lender)
of any interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. Each Borrower agrees that any Lender
so purchasing a participation from another Lender pursuant to this Section may,
to the fullest extent permitted by law, exercise all its rights of payment
(including pursuant to Section 4.9) with respect to such participation as fully
as if such Lender were the direct creditor of such Borrower in the amount of
such participation. If under any applicable bankruptcy, insolvency or other
similar law, any Lender receives a secured claim in lieu of a setoff to which
this Section applies, such Lender shall, to the extent practicable, exercise its
rights in respect of such secured claim in a manner consistent with the rights
of the Lenders entitled under this Section to share in the benefits of any
recovery on such secured claim.
SECTION 4.9. Setoff. Each Lender shall, upon the occurrence of
any Default described in clauses (a) through (d) of Section 8.1.9 or, with the
consent of the Required Lenders, upon the occurrence and during the continuation
of any other Event of Default, have the right to appropriate and apply to the
payment of the Obligations owing to it (whether or not then due), and (as
security for such Obligations) such Borrower hereby grants to each Lender a
continuing security interest in, any and all balances, credits, deposits,
accounts or moneys of each Borrower then or thereafter maintained with or
otherwise held by such Lender; provided, however, that any such appropriation
and application shall be subject to the provisions of Section 4.8. Each Lender
agrees promptly to notify the Borrowers and the Administrative Agent after any
such setoff and application made by such Lender; provided, however, that the
failure to give such notice shall not affect the validity of such setoff and
application. The rights of each Lender under this Section are in addition to
other rights and remedies (including other rights of setoff under applicable law
or otherwise) which such Lender may have.
SECTION 4.10. Change of Lending Office. Each Lender agrees that,
if it makes any demand for payment under Section 4.3, 4.4, 4.5 or 4.6, or if any
adoption or change of the type described in Section 4.1 shall occur with respect
to it, it will, if requested by the Borrowers, use its reasonable efforts
(consistent with its internal policy and economic, legal and regulatory
restrictions and so long as such efforts would not be disadvantageous to it, as
determined in its sole discretion) to designate a different lending office if
the making of such a designation would reduce the need for the Borrowers to make
payments under Section 4.3, 4.4, 4.5 or 4.6, or would eliminate or reduce the
effect of any adoption or change of the type described in Section 4.1.
SECTION 4.11. Replacement of Lenders. If any Lender (a "Subject
Lender") makes demand upon the Borrowers for (or if the Borrowers are otherwise
required to pay) amounts pursuant to Section 4.3, 4.5 or 4.6, or gives notice
pursuant to Section 4.1 requiring conversion of such Subject Lender's LIBO Rate
Loans to Base Rate Loans or suspending such Subject Lender's obligation to make
Loans as, or to convert Loans into, LIBO Rate Loans, the Borrowers may, within
30 days of receipt by the Borrowers of such demand or notice (or the occurrence
of such other event causing the Borrowers to be required to pay such
compensation), as the case may be, give notice (a "Replacement Notice") in
writing to the Agents and such Subject Lender of its intention to replace such
Subject Lender with a financial institution (a "Replacement Lender") designated
in such Replacement Notice. If the Agents shall, in the exercise of their
reasonable discretion and within 30 days of their receipt of such Replacement
Notice, notify the Borrowers and such Subject Lender in writing that the
Replacement Lender is satisfactory to the Agents (such consent not being
required where the Replacement Lender is already a Lender), then such Subject
Lender shall, subject to the payment of any amounts due pursuant to Section 4.4,
assign, in accordance with Section 10.11.1, all of its Commitments, Loans, Notes
and other rights and obligations under this Agreement and all other Loan
Documents (including, without limitation, Reimbursement Obligations) to such
Replacement Lender; provided, however, that (i) such assignment shall be without
recourse, representation or warranty and shall be on terms and conditions
reasonably satisfactory to such Subject Lender and such Replacement Lender and
(ii) the purchase price paid by such Replacement Lender shall be in the amount
of such Subject Lender's Loans and its Percentage of outstanding Reimbursement
Obligations, together with all accrued and unpaid interest and fees in respect
thereof, plus all other amounts (including the amounts demanded and unreimbursed
under Section 4.3, 4.5 and 4.6), owing to such Subject Lender hereunder. Upon
the effective date of an assignment described above, the Borrowers shall issue
replacement Note(s) (to the extent such Replacement Lender shall have requested
replacement Note(s) pursuant to Sections 2.7 and 10.11.1) to such Replacement
Lender and such institution shall become a "Lender" for all purposes under this
Agreement and the other Loan Documents.
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.1. Initial Credit Extension. The obligations of the
Lenders to make the initial Credit Extension shall be subject to the prior or
concurrent satisfaction of each of the conditions precedent set forth in this
Section 5.1.
SECTION 5.1.1. Resolutions, etc. The Arrangers shall have
received from each Obligor (other than RC/Arby's and its Subsidiaries) a
certificate, dated the Closing Date, of its Secretary, Assistant Secretary,
general partner or member or manager, as applicable, as to (i) resolutions of
its board of directors (or other managing body, in the case of an entity other
than a corporation) or committee of such board of directors or managing body
then in full force and effect authorizing the execution, delivery and per-
formance of this Agreement and each other Loan Document to be executed by it,
and (ii) the incumbency and signatures of those of its officers or members
authorized to act with respect to this Agreement and each other Loan
Document executed by it, upon which certificate each Arranger, each Agent,
each Lender and each Issuer may conclusively rely until it shall have received
a further certificate of the Secretary, Assistant Secretary, general partner,
member or manager, as applicable, of an Obligor canceling or amending such
prior certificate with respect to such Obligor.
SECTION 5.1.2. Delivery of Notes. The Arrangers shall have
received, for the account of each Lender that shall have requested a Note or
Notes not less than three Business Days prior to the Closing Date, such Lender's
Notes duly executed and delivered by the Borrowers.
SECTION 5.1.3. Transaction Consummated. The Arrangers shall have
received evidence satisfactory to each of them that all actions necessary to (i)
consummate the Refinancing, (ii) establish and fund, in full, the RC/Arby's
Notes Repayment Pledge Account and the Acquisition Escrow Account, (iii)
consummate the Subordinated Notes Offering from which Holdco and Triarc Beverage
shall receive gross proceeds of at least $300,000,000 and (iv) make the Triarc
Dividend (to the extent to be made on the Closing Date) shall have been taken or
completed in accordance with applicable law and the applicable Transaction
Documents.
SECTION 5.1.4. Closing Date Certificate. The Arrangers shall have
received, with counterparts for each Lender, the Closing Date Certificate, dated
the Closing Date and duly executed and delivered by the president, the chief
executive, financial or accounting (or equivalent) Authorized Officer of each
Borrower, in which certificate each Borrower shall agree and acknowledge that
the statements made therein shall be deemed to be true and correct
representations and warranties of the Borrowers made as of such date, and, at
the time of delivery of such certificate, such statements shall in fact be true
and correct in all material respects, together with all documents required to be
attached thereto.
SECTION 5.1.5. Transaction Documents, etc. The Arrangers shall
have received fully executed copies of the Transaction Documents executed before
or as of the Closing Date and drafts of the Transaction Documents to be executed
after the Closing Date (together with certified executed copies as soon as
available, which shall in each case not be materially different than such
drafts), and, with respect to executed Transaction Documents, certified to be
true and complete by an Authorized Officer of each Borrower. As of the Closing
Date, the executed Transaction Documents shall have been in full force and
effect and shall not have been modified or waived in any material respect, nor
shall there have been any forbearance to exercise any material rights with
respect to any of the terms or provisions relating to the conditions to the
consummation of the Transaction set forth in the Transaction Documents unless
otherwise agreed to by the Arrangers.
SECTION 5.1.6. Payment of Outstanding Indebtedness, etc. All
Indebtedness identified in Item 7.2.2(b) ("Indebtedness to be Paid") of the
Disclosure Schedule, together with all interest, all prepayment premiums and
other amounts due and payable with respect thereto, shall have been paid in full
(including, to the extent necessary, from proceeds of the initial Credit
Extension); and all Liens securing payment of any such Indebtedness have been
released and the Arrangers shall have received all UCC Form UCC-3 termination
statements or other instruments as may be suitable or appropriate in connection
therewith.
SECTION 5.1.7. Subsidiary Guaranty. The Arrangers shall have
received executed counterparts of the Subsidiary Guaranty, dated as of the
Closing Date, duly executed by an Authorized Officer of each Subsidiary
Guarantor (other than Subsidiaries of RC/Arby's) in existence on the Closing
Date (after giving effect to the Transaction).
SECTION 5.1.8. Pledge Agreements. The Arrangers shall have re-
ceived executed counterparts of
(a) the Holdco/Triarc Beverage Guaranty and Pledge
Agreement, dated as of the Closing Date, duly executed by an
Authorized Officer of each of Holdco and Triarc Beverage,
together with
(i) certificates evidencing all of the issued and
outstanding shares of Capital Stock of Triarc Beverage,
Snapple, Mistic and Cable Car, which certificates shall in
each case be accompanied by undated stock powers duly
executed in blank; and
(ii) all Pledged Notes (as defined in such Pledge
Agreement), if any, evidencing Indebtedness payable to
Holdco and Triarc Beverage, accompanied by undated note
powers duly executed in blank, together with UCC financing
statements (Form UCC-1) (or similar instruments) in respect
of such Pledged Notes executed by each payee of a Pledged
Note to be filed in such jurisdictions as the Agents may
reasonably request;
(b) the Borrower Pledge Agreement, dated as of the Closing
Date, duly executed by an Authorized Officer of each Borrower,
together with
(i) certificates evidencing (A) all of the issued and
outstanding shares of Capital Stock of each direct U.S.
Subsidiary of each Borrower (other than Subsidiaries of
RC/Arby's) and (B) 65% of the total combined voting power of
all classes of Capital Stock entitled to vote of each direct
non-U.S. Subsidiary of each Borrower, in each case
accompanied by undated stock powers duly executed in blank;
and
(ii) all Pledged Notes (as defined in such Pledge
Agreement), if any, evidencing Indebtedness payable to the
Borrowers, accompanied by undated note powers duly executed
in blank, together with UCC financing statements (Form
UCC-1) (or similar instruments) in respect of such Pledged
Notes executed by each payee of a Pledged Note to be filed
in such jurisdictions as the Agents may reasonably request;
(c) the Subsidiary Pledge Agreement, dated as of the Closing
Date, duly executed by an Authorized Officer of each Subsidiary
Guarantor (other than Subsidiaries of RC/Arby's) in existence on
the Closing Date (after giving effect to the Transaction) which
in turn has any Subsidiary or Subsidiaries, together with
(i) certificates evidencing (A) all of the issued and
outstanding shares of Capital Stock of each direct U.S.
Subsidiary of each Subsidiary Guarantor and (B) 65% of the
total combined voting power of all classes of Capital Stock
entitled to vote of each direct non-U.S. Subsidiary of each
Subsidiary Guarantor, in each case accompanied by undated
stock powers duly executed in blank; and
(ii) all Pledged Notes (as defined in such Pledge
Agreement), if any, evidencing Indebtedness payable to such
Subsidiary Guarantors, accompanied by undated note powers
duly executed in blank, together with UCC financing
statements (Form UCC-1) (or similar instruments) in respect
of such Pledged Notes executed by each payee of a Pledged
Note to be filed in such jurisdictions as the Agents may
reasonably request;
provided, however, that if any securities pledged pursuant to a Pledge Agreement
are uncertificated securities, the Arrangers shall have received confirmation
and evidence satisfactory to each of them that appropriate book entries have
been made in the relevant books or records of a financial intermediary or the
issuer of such securities, as the case may be, or other appropriate steps have
been taken under applicable law resulting in the perfection of the security
interest granted in favor of the Administrative Agent in such securities
pursuant to the terms of the applicable Pledge Agreement.
SECTION 5.1.9. Security Agreements. The Arrangers shall have
received executed counterparts of the Borrower Security Agreement and the Sub-
sidiary Security Agreement, each dated as of the Closing Date, duly executed by
the applicable Obligors, together with
(a) acknowledgment copies of properly filed UCC financing
statements (Form UCC-1) or such other evidence of filing as may
be acceptable to the Arrangers, naming such Obligors as the
debtors and the Administrative Agent (on behalf of the Secured
Parties) as the secured party, or other similar instruments or
documents, filed under the UCC of all jurisdictions as may be
necessary or, in the opinion of the Arrangers, desirable to
perfect the security interest of the Administrative Agent
pursuant to the Security Agreements;
(b) executed copies of proper UCC termination statements
(Form UCC-3), if any, necessary to release all Liens (other than
Liens permitted to exist under the Loan Documents) of any Person
(i) in any collateral described in the Security Agree-
ments previously granted by any Person, and
(ii) securing any of the Indebtedness identified in Item
7.2.2(b) ("Indebtedness to be Paid") of the Disclosure
Schedule,
together with such other UCC termination statements (Form UCC-3)
as the Arrangers may reasonably request from such Obligors; and
(c) certified copies of UCC Requests for Information or
Copies (Form UCC-11), or a similar search report certified by a
party acceptable to the Arrangers, dated a date reasonably near
to the Closing Date, listing all effective financing statements
which name such Obligors (under their present names and any
previous names) as the debtors and which are filed in the
jurisdictions in which filings were made pursuant to clause (a)
above, together with copies of such financing statements.
SECTION 5.1.10. UCC Filing Service. All UCC financing statements
(Form UCC-1), termination statements (Form UCC-3) or other similar financing
statements required pursuant to the Loan Documents (collectively, the "Filing
Statements") shall have been delivered to CT Corporation System or another
similar filing service company reasonably acceptable to the Arrangers (the
"Filing Agent"). The Filing Agent shall have acknowledged in writing reasonably
satisfactory to the Arrangers and their counsel (i) the Filing Agent's receipt
of all such Filing Statements, (ii) that such Filing Statements have either been
submitted for filing with appropriate filing offices therefor or will be
submitted for filing in such appropriate offices within 10 days of the Closing
Date and (iii) that the Filing Agent will notify the Arrangers and their counsel
of the result of such submissions within 30 days of the Closing Date.
SECTION 5.1.11. Financial Information, etc. The Arrangers shall
have received, with counterparts for each Lender,
(a) (i) the audited consolidated income and cash flow
statements and balance sheets of RC/Arby's for the fiscal years
ended December 31, 1995 (with respect to the income and cash flow
statements only), December 31, 1996 and December 28, 1997, and of
Triarc Beverage for the fiscal year ended December 28, 1997;
(ii) the audited combined income and cash flow statements and
balance sheets of Holdco, RC/Arby's, Triarc Beverage and Cable
Car and their respective Subsidiaries for the fiscal years ended
December 31, 1995 (with respect to the income and cash flow
statements only), December 31, 1996 and December 28, 1997;
(iii) the unaudited combined income and cash flow statements
and balance sheet of Holdco, RC/Arby's, Triarc Beverage and
Cable Car and their respective Subsidiaries for the nine month
period ended September 27, 1998; (iv) the unaudited consolidated
income and cash flow statements and balance sheets of each of
RC/Arby's, Triarc Beverage and Cable Car for the nine month
period ended September 27, 1998; and (v) the unaudited internal
consolidated income statements and balance sheets of each of
Arby's and Royal Crown for the nine month period ended September
27, 1998;
(b) a pro forma combined balance sheet of Holdco and its
Subsidiaries as of November 22, 1998 (the "Pro Forma Balance
Sheet"), certified by the chief financial Authorized Officer of
Holdco, giving effect to the consummation of the Transaction and
reflecting the proposed legal and capital structures of Holdco
and its Subsidiaries, which legal and capital structures shall be
satisfactory in all respects to the Arrangers; and
(c) a Borrowing Base Certificate calculated as of January
31, 1999.
SECTION 5.1.12. Solvency, etc. The Arrangers shall have received
(a) an opinion letter from Valuation Research Corporation or
another independent valuation firm reasonably satisfactory to the
Arrangers, addressed to the Arrangers, the Agents and the Lenders
and dated the Closing Date, as to the solvency of each of Holdco
and its Subsidiaries, taken as a whole, and the Beverage
Companies and their respective Subsidiaries, taken as a whole,
immediately after giving effect to the Transaction and the
initial Credit Extension, which opinion letter shall be in form,
substance and scope reasonably satisfactory to the Arrangers; and
(b) a Solvency Certificate, dated the Closing Date, in form
and substance reasonably satisfactory to the Arrangers, duly
executed by the president, the chief executive or the chief
financial Authorized Officer of Holdco.
SECTION 5.1.13. Opinions of Counsel. The Arrangers shall have
received opinions, addressed to the Arrangers, the Agents and the Lenders, from
(a) Paul, Weiss, Rifkind, Wharton & Garrison, counsel to the
Obligors, in form and substance reasonably satisfactory to the
Arrangers;
(b) Fish & Neave, intellectual property counsel to the
Obligors, in form and substance reasonably satisfactory to the
Arrangers; and
(c) Sonnenschein, Nath & Rosenthal, California counsel to
the Obligors, in form and substance reasonably satisfactory to
the Arrangers;
(d) Holland & Knight, Florida counsel to the Obligors, in
form and substance reasonably satisfactory to the Arrangers;
(e) Piper & Marbury, Maryland counsel to the Obligors, in
form and substance reasonably satisfactory to the Arrangers;
(f) Kirkpatrick, Lockhart, Johnson and Hutchinson,
Pennsylvania counsel to the Obligors, in form and substance
reasonably satisfactory to the Arrangers;
(g) Honigman Miller Schwartz, Michigan counsel to the
Obligors, in form and substance reasonably satisfactory to the
Arrangers;
(h) Riker, Danzig, Scherer, Hyland & Perretti LLP, New
Jersey counsel to the Obligors, in form and substance reasonably
satisfactory to the Arrangers; and
(i) Gary Lyons, General Counsel to certain of the Obligors,
in form and substance reasonably satisfactory to the Arrangers.
SECTION 5.1.14. Reliance Letters. The Arrangers shall have
received reliance letters, each dated the Closing Date and addressed to the
Arrangers, the Agents and the Lenders, in respect of each of the legal opinions
delivered by issuers' counsel in connection with the Subordinated Notes
Offering.
SECTION 5.1.15. Insurance. The Arrangers shall have received
evidence satisfactory to each of them of the existence of insurance maintained
in compliance with Section 7.1.4 (including all endorsements included therein),
and the Administrative Agent shall be named additional insured or loss payee, on
behalf of the Secured Parties, in respect of all proceeds payable in respect of
such insurance, pursuant to documentation reasonably satisfactory to the
Arrangers.
SECTION 5.1.16. RC/Arby's Notes Repayment. The Arrangers shall
have received evidence satisfactory to each of them that, in connection with the
RC/Arby's Notes Repayment, (i) notice thereof has been properly delivered to the
trustee on behalf of the holders of the RC/Arby's Notes, (ii) sufficient funds
therefor have been placed in the RC/Arby's Notes Repayment Pledge Account in
accordance with the terms of the RC/Arby's Notes Repayment Pledge Agreement,
(iii) the date of the RC/Arby's Notes Repayment in such notice is a date
occurring no later than 35 days subsequent to the Closing Date, and (iv) the
Administrative Agent, on behalf of the Secured Parties, shall have received a
first priority, perfected security interest in the amounts held in the RC/Arby's
Notes Repayment Pledge Account.
SECTION 5.1.17. Closing Fees, Expenses, etc. The Arrangers shall
have received for their own accounts, or for the account of each Lender, as the
case may be, all fees, costs and expenses due and payable under the Fee Letters
or pursuant to Sections 3.3 and 10.3, if then invoiced.
SECTION 5.2. All Credit Extensions. The obligation of each Lender
to make any Credit Extension (including the initial Credit Extension) shall be
subject to the satisfaction of each of the conditions precedent set forth in
this Section 5.2.
SECTION 5.2.1. Compliance with Warranties, No Default, etc. Both
before and after giving effect to any Credit Extension, the following statements
shall be true and correct:
(a) the representations and warranties set forth in Article
VI (excluding, however, those contained in Section 6.7) and in
each other Loan Document shall be true and correct in all
material respects with the same effect as if then made (unless
stated to relate solely to an early date, in which case such
representations and warranties shall be true and correct in all
material respects as of such earlier date);
(b) (i) except as disclosed by the Borrowers to the Agents
and the Lenders pursuant to Section 6.7(i), no labor controversy,
litigation, arbitration, action or governmental investigation or
proceeding shall be pending or, to the knowledge of any Borrower,
overtly threatened against any Borrower or any of its
Subsidiaries, or any of their respective properties, which could
reasonably be expected to have a Material Adverse Effect, and
(ii) no development shall have occurred in any labor controversy,
litigation, arbitration, action or governmental investigation or
proceeding disclosed pursuant to Section 6.7 which could
reasonably be expected to have a Material Adverse Effect;
(c) the sum of (x) the aggregate outstanding principal
amount of all Revolving Loans and Swing Line Loans and (y) the
Letter of Credit Outstandings does not exceed the lesser of the
Revolving Loan Commitment Amount (as then in effect) or the then
existing Borrowing Base Amount; and
(d) no Default shall have then occurred and be continuing,
and no Borrower or any other Material Obligor is in material
violation of any material law or governmental regulation or court
order or decree.
SECTION 5.2.2. Credit Extension Request. The Administrative Agent
shall have received a Borrowing Request or an Issuance Request, as the case may
be, for such Credit Extension. Each of the delivery of a Borrowing Request or an
Issuance Request and the acceptance by the applicable Borrower of the proceeds
of the Borrowing or the issuance of the Letter of Credit, as applicable, shall
constitute a representation and warranty by the Borrowers that on the date of
such Borrowing (both immediately before and after giving effect to such
Borrowing and the application of the proceeds thereof) or the issuance of the
Letter of Credit, as applicable, the statements made in Section 5.2.1 are true
and correct.
SECTION 5.2.3. Satisfactory Legal Form. All documents executed or
submitted pursuant hereto by or on behalf of the Borrowers or any of their
Subsidiaries or any other Obligors shall be satisfactory in form and substance
to the Arrangers and their counsel; and the Arrangers and their counsel shall
have received all information, approvals, opinions, documents or instruments as
the Arrangers or their counsel may reasonably request.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders, the Issuers and the Agents to
enter into this Agreement and to make Loans and issue Letters of Credit
hereunder, the Borrowers jointly and severally represent and warrant unto the
Agents, each Issuer, and each Lender as set forth in this Article VI.
SECTION 6.1. Organization, etc. Each Borrower and each of its
Subsidiaries is validly organized and existing and in good standing under the
laws of the jurisdiction of its organization (except no representation is made
as to the good standing of any Subsidiary organized under the laws of any
jurisdiction in which there is no concept of good standing), is duly qualified
to do business and is in good standing as a foreign entity in each jurisdiction
where the nature of its business requires such qualification, except where the
failure to be so qualified could not reasonably be expected to have a Material
Adverse Effect, and has full power and authority and holds all requisite
governmental licenses, permits and other approvals to enter into and perform its
Obligations under this Agreement and each other Loan Document to which it is a
party and to own and hold under lease its property and to conduct its business
substantially as currently conducted by it, except where the failure to hold
such governmental licenses, permits and approvals could not reasonably be
expected to have a Material Adverse Effect.
SECTION 6.2. Due Authorization, Non-Contravention, etc. The
execution, delivery and performance by each Borrower of this Agreement and each
other Loan Document executed or to be executed by it, and the execution,
delivery and performance by each other Obligor of each Loan Document executed or
to be executed by it and each such other Obligor's participation in the
consummation of the Transaction are within each such Borrower's and each such
Obligor's powers, have been duly authorized by all necessary corporate or
limited liability company action, and do not
(a) contravene such Borrower's or any such Obligor's Or-
ganic Documents;
(b) contravene any material contractual restriction, law or
governmental regulation or court decree or order binding on or
affecting such Borrower or any such Obligor; or
(c) result in, or require the creation or imposition of, any
Lien (other than Liens permitted under the Loan Documents) on any
of such Borrower's or any other Obligor's properties.
SECTION 6.3. Government Approval, Regulation, etc. No material
authorization or approval or other action by, and no material notice to or
filing with, any governmental authority or regulatory body or other Person is
required for the due execution, delivery or performance by any Borrower or any
other Obligor of this Agreement or any other Loan Document to which it is a
party, or for such Borrower's and each such other Obligor's participation in the
consummation of the Transaction (and, on the Closing Date, only with respect to
the parts of the Transaction to be completed on or prior to the Closing Date),
except as have been duly obtained or made and are in full force and effect. None
of the Borrowers nor any of their Subsidiaries is an "investment company" within
the meaning of the Investment Company Act of 1940, as amended, or a "holding
company", or a "subsidiary company" of a "holding company", or an "affiliate" of
a "holding company" or of a "subsidiary company" of a "holding company", within
the meaning of the Public Utility Holding Company Act of 1935, as amended.
SECTION 6.4. Validity, etc. This Agreement constitutes, and each
Loan Document executed by each Borrower will, on the due execution and delivery
thereof, constitute the legal, valid and binding obligations of such Borrower
enforceable in accordance with their respective terms; and each Loan Document
executed pursuant hereto by each other Obligor will, on the due execution and
delivery thereof by such Obligor, be the legal, valid and binding obligation of
such Obligor enforceable in accordance with its terms, in each case subject to
the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general principles (whether considered in a proceeding in equity or
at law) and an implied covenant of good faith and fair dealing.
SECTION 6.5. Financial Information. Each of the financial
statements delivered pursuant to clauses (a) and (b) of Section 5.1.11 has been
prepared in accordance with GAAP consistently applied (other than clause (a)(v)
of Section 5.1.11), and presents fairly the consolidated financial condition of
the Persons covered thereby as at the date thereof or the results of their
operations for the periods then ended, subject in the case of interim financial
statements to the lack of footnotes and to normal year end audit adjustments.
SECTION 6.6. No Material Adverse Effect. Since December 31, 1997,
there has been no event, circumstance or condition which could reasonably be
expected to have a Material Adverse Effect.
SECTION 6.7. Litigation, Labor Controversies, etc. There is no
pending or, to the knowledge of any Borrower, overtly threatened labor
controversy, litigation, arbitration, action or governmental investigation or
proceeding affecting any Borrower or any of its Subsidiaries, or any of their
respective properties, businesses, assets or revenues which (i) would contest
the consummation of the Transaction or (ii) could reasonably be expected to have
a Material Adverse Effect, except as disclosed in Item 6.7 ("Litigation") of the
Disclosure Schedule. No materially adverse development has occurred in any labor
controversy, litigation, arbitration, action or governmental investigation or
proceeding disclosed in Item 6.7 ("Litigation") of the Disclosure Schedule.
SECTION 6.8. Subsidiaries. The Borrowers have no Subsidiaries,
except those Subsidiaries (i) which are identified in Item 6.8 ("Existing
Subsidiaries") of the Disclosure Schedule, or (ii) which are created or
permitted to have been acquired in accordance with Section 7.2.5.
SECTION 6.9. Ownership of Properties. Each Borrower and each of
its Subsidiaries owns good and marketable title to all of its properties and
assets, real and personal, tangible and intangible, of any nature whatsoever
(including patents, trademarks, trade names, service marks and copyrights), free
and clear of all Liens, charges or claims (including infringement claims with
respect to patents, trademarks, copyrights and the like) other than any Lien,
charge or claim (i) which is permitted under Section 7.2.3 or (ii) which
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
SECTION 6.10. Taxes. Each Borrower and each of its Subsidiaries
has filed all material tax returns and reports required by law to have been
filed by it and has paid all taxes and governmental charges thereby shown to be
owing, except any such taxes or charges which are being diligently contested in
good faith by appropriate proceedings and for which adequate reserves in
accordance with GAAP shall have been set aside on its books.
SECTION 6.11. Pension and Welfare Plans. Except as disclosed in
Item 6.11 ("Employee Benefit Plans") of the Disclosure Schedule, during
the twelve-consecutive-month period prior to the date of the execution
and delivery of this Agreement, no steps have been taken to terminate
any Pension Plan, and no contribution failure has occurred with
respect to any Pension Plan sufficient to give rise to a Lien under section
302(f) of ERISA. No condition exists or event or transaction has occurred with
respect to any Pension Plan which might result in the incurrence by any Borrower
or any member of the Controlled Group of any liability, fine or penalty which
could reasonably be expected to have a Material Adverse Effect. Except as
disclosed in Item 6.11 ("Employee Benefit Plans") of the Disclosure Schedule,
neither the Borrowers nor any member of the Controlled Group has any contingent
liability with respect to any post-retirement medical benefits under a Welfare
Plan, other than liability for continuation coverage described in Part 6 of
Subtitle B of Title I of ERISA or other applicable continuation of coverage
laws.
SECTION 6.12. Environmental Warranties. Except as set forth in
Item 6.12 ("Environmental Matters") of the Disclosure Schedule:
(a) all facilities and property (including underlying
groundwater) owned or leased by any Borrower or any of its
Subsidiaries have been, and continue to be, owned or leased by
such Borrower or its Subsidiaries in material compliance with all
Environmental Laws;
(b) there have been no past, and there are no pending or, to
the knowledge of any Borrower, threatened (i) claims, complaints,
notices or requests for information received by any Borrower or
any of its Subsidiaries with respect to any alleged material
violation of any Environmental Law, or (ii) complaints, notices
or inquiries to any Borrower or any of its Subsidiaries regarding
potential material liability under any Environmental Law, in each
case which have not been disclosed in writing and in reasonable
detail to the Arrangers;
(c) there have been no Releases of Hazardous Materials at,
on or under any property now or previously owned or leased by any
Borrower or any of its Subsidiaries that, singly or in the
aggregate, have, or may reasonably be expected to have, a
Material Adverse Effect;
(d) the Borrowers and their Subsidiaries have been issued
and are in material compliance with all material permits,
certificates, approvals, licenses and other authorizations
relating to environmental matters and necessary for their
businesses;
(e) no property now or previously owned or leased by any
Borrower or any of its Subsidiaries is listed or proposed for
listing (with respect to owned property only) on (x) the National
Priorities List pursuant to CERCLA, or (y) on the CERCLIS or on
any similar state list of sites requiring investigation or
clean-up to the extent, in the case of this clause (y), such
listing or proposed listing could reasonably be expected to have
a Material Adverse Effect;
(f) there are no underground storage tanks, active or
abandoned, including petroleum storage tanks, on or under any
property now or previously owned or leased by any Borrower or any
of its Subsidiaries that, singly or in the aggregate, have, or
may reasonably be expected to have, a Material Adverse Effect;
(g) no Subsidiary of any Borrower has directly transported
or directly arranged for the transportation of any Hazardous
Material to any location which is listed or proposed for listing
on the National Priorities List pursuant to CERCLA, on the
CERCLIS or on any similar state list or which is the subject of
federal, state or local enforcement actions or other
investigations which may lead to material claims against such
Borrower or such Subsidiary thereof for any remedial work, damage
to natural resources or personal injury, including claims under
CERCLA;
(h) there are no polychlorinated biphenyls or friable
asbestos present at any property now or previously owned or
leased by any Borrower or any Subsidiary of any Borrower that,
singly or in the aggregate, have, or may reasonably be expected
to have, a Material Adverse Effect; and
(i) no conditions exist at, on or under any property now or
previously owned or leased by any Borrower or any of its
Subsidiaries which, with the passage of time, or the giving of
notice or both, would give rise to liability under any
Environmental Law which, singly or in the aggregate, have, or may
reasonably be expected to have, a Material Adverse Effect.
SECTION 6.13. Regulations U and X. None of the Borrowers is
engaged in the business of extending credit for the purpose of purchasing or
carrying margin stock, and no proceeds of any Loans will be used for a purpose
which violates, or would be inconsistent with, F.R.S. Board Regulation U or X.
Terms for which meanings are provided in F.R.S. Board Regulation U or X or any
regulations substituted therefor, as from time to time in effect, are used in
this Section with such meanings.
SECTION 6.14. Accuracy of Information. All factual information
heretofore or contemporaneously furnished by or on behalf of any Borrower in
writing to the Arrangers or any Lender for purposes of or in connection with
this Agreement or any transaction contemplated hereby or with respect to the
Transaction is, and all other such factual information hereafter furnished by or
on behalf of any Borrower to the Arrangers or any Lender will be true and
accurate in every material respect on the date as of which such information is
dated or certified, and such information is not, or shall not be, as the case
may be, incomplete by omitting to state any material fact necessary to make
such information in light of the circumstances when made not materially mislead-
ing.
SECTION 6.15. Solvency. The Transaction (including the incurrence
of the initial Credit Extension hereunder, the execution and delivery by the
Subsidiary Guarantors of the Subsidiary Guaranty and the application of the
proceeds of the Credit Extensions), will not involve or result in any fraudulent
transfer or fraudulent conveyance under the provisions of Section 548 of the
Bankruptcy Code (11 U.S.C. ss. 101 et seq., as from time to time hereafter
amended, and any successor or similar statute) or any applicable state law
respecting fraudulent transfers or fraudulent conveyances. On the Closing Date,
after giving effect to the Transaction, each Borrower and each Subsidiary
Guarantor is Solvent.
SECTION 6.16. Year 2000. Each Borrower has reviewed the areas
within its business and operations which could be adversely affected by, and has
developed or is developing a program (which program is expected to be completed
and in place by January 1, 2000) to address on a timely basis, the "Year 2000
Problem" (that is, the risk that computer applications used by such Borrower or
its Subsidiaries may be unable to recognize and properly perform date-sensitive
functions involving certain dates prior to and any date after December 31,
1999). Based on such review and program, the Year 2000 Problem could not
reasonably be expected to have a Material Adverse Effect.
ARTICLE VII
COVENANTS
SECTION 7.1. Affirmative Covenants. The Borrowers jointly and
severally agree with each of the Agents, each Arranger, each Issuer and each
Lender that, until all Commitments have terminated and all Obligations have been
paid and performed in full, each Borrower will perform the obligations set forth
in this Section 7.1.
SECTION 7.1.1. Financial Information, Reports, Notices, etc. The
Borrowers will furnish, or will cause to be furnished, to each Lender and the
Agents copies of the following financial statements, reports, notices and
information:
(a) as soon as available and in any event within 20 days
after the end of each Fiscal Month of each Fiscal Year of Holdco,
(i) with respect to each of the Beverage Companies, case sales
and revenues for such Fiscal Month, and (ii) with respect to
Arby's and its Subsidiaries, revenues and total units open
(including the number of units opened and closed for each brand)
for such Fiscal Month, in each case certified by the chief
financial or chief accounting Authorized Officer of Holdco;
(b) as soon as available and in any event within 55 days
after the end of the first three Fiscal Quarters of each Fiscal
Year of Holdco, consolidated (and consolidating, but only with
respect to (i) Triarc Beverage, Snapple, Mistic, Cable Car and
each of their Subsidiaries, taken as a whole, (ii) Royal Crown
and its Subsidiaries, taken as a whole, and (iii) Arby's and its
Subsidiaries, taken as a whole) balance sheets of Holdco and its
Subsidiaries as at the end of such Fiscal Quarter and
consolidated (and consolidating, but only with respect to (i)
Triarc Beverage, Snapple, Mistic, Cable Car and each of their
Subsidiaries, taken as a whole, (ii) Royal Crown and its
Subsidiaries, taken as a whole, and (iii) Arby's and its
Subsidiaries, taken as a whole) statements of earnings and cash
flow of Holdco and its Subsidiaries for such Fiscal Quarter and
for the period commencing at the end of the previous Fiscal Year
and ending with the end of such Fiscal Quarter, certified by the
chief financial or chief accounting Authorized Officer of Holdco;
(c) as soon as available and in any event within 110 days
after the end of each Fiscal Year of Holdco, a copy of the annual
audit report for such Fiscal Year for Holdco and its
Subsidiaries, including therein consolidated balance sheets of
Holdco and its Subsidiaries as of the end of such Fiscal Year and
consolidated statements of earnings and cash flow of Holdco and
its Subsidiaries for such Fiscal Year, in each case certified
(without any Impermissible Qualification) in a manner reasonably
acceptable to the Arrangers and the Required Lenders by Deloitte
& Touche LLP or other independent public accountants reasonably
acceptable to the Arrangers and the Required Lenders, together
with a report from such accountants containing a computation of,
and showing compliance with, each of the financial ratios and
restrictions contained in Section 7.2.4 and to the effect that,
in making the examination necessary for the signing of such
annual report by such accountants, they have not become aware of
any Default that has occurred and is continuing, or, if they have
become aware of such Default, describing such Default and the
steps, if any, being taken to cure it, together with copies of
unaudited consolidating balance sheets and consolidating
statements of earnings and cash flows for such Fiscal Year of (i)
Triarc Beverage, Snapple, Mistic, Cable Car and each of their
Subsidiaries, taken as a whole, (ii) Royal Crown and its
Subsidiaries, taken as a whole, and (iii) Arby's and its
Subsidiaries, taken as a whole;
(d) together with the delivery of the financial information
required pursuant to clause (b) or clause (c), a Compliance
Certificate, executed by the chief financial or chief accounting
Authorized Officer of Holdco, showing (in reasonable detail and
with appropriate calculations and computations in all respects
satisfactory to the Arrangers) compliance with the financial
covenants set forth in Section 7.2.4;
(e) as soon as possible and in any event within three
Business Days after any Borrower has knowledge (or could
reasonably be expected to have knowledge) of the occurrence of
any Default, a statement of the chief financial Authorized
Officer of such Borrower setting forth details of such Default
and the action which such Borrower has taken and proposes to take
with respect thereto;
(f) as soon as possible and in any event within three
Business Days after (x) the occurrence of any materially adverse
development with respect to any litigation, action, proceeding,
or labor controversy described in Section 6.7 or (y) the
commencement of any labor controversy, litigation, action or
proceeding of the type described in Section 6.7, notice thereof
and copies of all documentation relating thereto;
(g) promptly after the sending or filing thereof, copies of
all reports which any Borrower, Triarc Beverage or Holdco sends
to any of the holders of any class of its debt securities or
public equity securities, and all reports and registration
statements which any Borrower, Triarc Beverage or Holdco or any
of their respective Subsidiaries files with the Securities and
Exchange Commission or any national securities exchange;
(h) promptly upon becoming aware of the institution of any
steps by any Borrower, Triarc Beverage, Holdco or any other
Person to terminate any Pension Plan, or the failure to make a
required contribution to any Pension Plan if such failure is
sufficient to give rise to a Lien under section 302(f) of ERISA,
or the taking of any action with respect to a Pension Plan which
could reasonably be expected to result in the requirement that
any Borrower, Triarc Beverage or Holdco furnish a bond or other
security to the PBGC or such Pension Plan, or the occurrence of
any event with respect to any Pension Plan which could reasonably
be expected to result in the incurrence by any Borrower, Triarc
Beverage or Holdco of any material liability, fine or penalty, or
any material increase in the contingent liability of any
Borrower, Triarc Beverage or Holdco with respect to any
post-retirement Welfare Plan benefit, notice thereof and copies
of all documentation relating thereto;
(i) promptly when available and in any event within 60 days
following the last day of each Fiscal Year of Holdco, quarterly
financial projections for Holdco and its Subsidiaries (including
case sales for each of the Beverage Companies), on a consolidated
(and consolidating, but only with respect to (i) Triarc Beverage,
Snapple, Mistic, Cable Car and each of their Subsidiaries, taken
as a whole, (ii) Royal Crown and its Subsidiaries, taken as a
whole, and (iii) Arby's and its Subsidiaries, taken as a whole)
basis (including an operating budget), for the current Fiscal
Year, prepared in reasonable detail by the chief accounting,
financial or operating officer of Holdco;
(j) within 20 days after the end of each Fiscal Month, a
Borrowing Base Certificate that is calculated as of the last day
of such Fiscal Month; and
(k) such other information respecting the condition or
operations, financial or otherwise, of Holdco, Triarc Beverage,
any Borrower or any of its Subsidiaries as any Lender through any
Agent may from time to time reasonably request.
SECTION 7.1.2. Compliance with Laws, etc. Each Borrower will, and
will cause each of its Subsidiaries to, comply in all material respects with all
applicable laws, rules, regulations and orders, such compliance to include
(without limitation) (i) the maintenance and preservation of its legal existence
and qualification as a foreign entity, except where the failure to so qualify
could not reasonably be expected to have a Material Adverse Effect, and (ii) the
payment, before the same become delinquent, of all taxes, assessments and
governmental charges imposed upon it or upon its property except to the extent
being diligently contested in good faith by appropriate proceedings and for
which adequate reserves in accordance with GAAP shall have been set aside on its
books.
SECTION 7.1.3. Maintenance of Properties. Each Borrower will, and
will cause each of its Subsidiaries to, maintain, preserve, protect and keep its
properties necessary and useful in the conduct of its business in good repair,
working order and condition (subject to normal wear and tear), and make
necessary and proper repairs, renewals and replacements so that its business
carried on in connection therewith may be properly conducted at all times unless
such Borrower determines in good faith that the continued maintenance of any of
its properties is no longer economically desirable, except when the failure to
maintain, preserve, protect and keep its properties could not reasonably be
expected to have a Material Adverse Effect.
SECTION 7.1.4. Insurance. Each Borrower will, and will cause each
of its Subsidiaries to, maintain or cause to be maintained with responsible
insurance companies insurance with respect to its properties and business
against such casualties and contingencies and of such types and in such amounts
as is customary in the case of similar businesses and will, upon written request
of the Agents, furnish to each Lender at reasonable intervals a certificate of
an Authorized Officer of such Borrower setting forth the nature and extent of
all insurance maintained by such Borrower and its Subsidiaries in accordance
with this Section.
SECTION 7.1.5. Books and Records. Each Borrower will, and will
cause each of its Subsidiaries to, keep books and records which accurately
reflect in all material respects all of its business affairs and transactions
and permit the Agents and each Lender or any of their respective
representatives, at reasonable times and intervals, during normal business hours
to visit all of its offices, to discuss its financial matters with its officers
and independent public accountant (and each Borrower hereby authorizes such in-
dependent public accountant, upon the occurrence and during the continuance
of any Default or Event of Default, to discuss such Borrower's financial matters
with each Lender or its representatives whether or not any representative of
such Borrower is present, and if no Default or Event of Default has occurred
and is continuing, only if a representative of such Borrower is present) and to
examine (and, at the expense of such Borrower, photocopy extracts from) any of
its books or other records. The Borrowers shall pay any fees of such indepen-
dent public accountant incurred in connection with any Agent's or any Lender's
exercise of its rights pursuant to this Section. The Agents and the Lenders
agree that they shall use reasonable efforts to minimize interference with the
business of any Borrower or any of its Subsidiaries.
SECTION 7.1.6. Environmental Covenant. Each Borrower will, and
will cause each of its Subsidiaries to,
(a) use and operate all of its facilities and properties in
material compliance with all Environmental Laws, keep all
necessary permits, approvals, certificates, licenses and other
authorizations relating to environmental matters in effect and
remain in material compliance therewith, and handle all Hazardous
Materials in material compliance with all applicable
Environmental Laws;
(b) promptly notify the Agents and provide copies upon
receipt of all written claims, complaints, notices or inquiries
relating to the condition of its facilities and properties or
compliance with Environmental Laws which could reasonably be
expected to have a Material Adverse Effect; and
(c) provide such information and certifications which the
Agents may reasonably request from time to time to evidence
compliance with this Section 7.1.6.
SECTION 7.1.7. Future Subsidiaries. Upon any Person becoming,
after the Closing Date, a Subsidiary of any Borrower or Triarc Beverage, or upon
any Obligor acquiring additional Capital Stock of any existing Subsidiary of any
Borrower or Triarc Beverage, the Borrowers shall notify the Agents of such
acquisition, and
(a) the Borrowers shall promptly cause such Subsidiary to
execute and deliver to the Agents, with counterparts for each
Lender, a supplement to the Subsidiary Guaranty and a supplement
to the Subsidiary Security Agreement (and, if such Subsidiary
owns any real property with a fair market value in excess of
$1,500,000, a Mortgage), together with acknowledgment copies of
UCC financing statements (Form UCC-1) executed and delivered by
the Subsidiary naming the Subsidiary as the debtor and the
Administrative Agent as the secured party, or other similar
instruments or documents, filed under the UCC and any
other applicable recording statutes, in the case of
real property, of all jurisdictions as may be necessary or, in
the reasonable opinion of the Agents, desirable to perfect the
security interest of the Administrative Agent pursuant to the
Subsidiary Security Agreement or a Mortgage, as the case may be
(other than the perfection of security interests in motor
vehicles owned as of the date such entity becomes a Subsidiary);
provided, however, that, subject to clause (l) of Section 7.2.2,
in the event that any newly-acquired Subsidiary has any
outstanding Indebtedness which is secured by a Lien or is subject
to a negative pledge ("Assumed Restricted Debt") which
Indebtedness, Lien or negative pledge, as the case may be, was in
existence prior to the time such Person became a Subsidiary (and
which was not created in contemplation of this Section), no such
security interest or other Lien shall be required hereunder in
respect of such Subsidiary's assets subject to such negative
pledge; and
(b) the Borrowers shall promptly deliver, or cause to be
delivered, to the Administrative Agent under a Pledge Agreement
(or a supplement thereto) certificates (if any) representing all
of the issued and outstanding shares of Capital Stock of such
Subsidiary owned by Holdco, Triarc Beverage, such Borrower or any
Subsidiary of Holdco, as the case may be, along with undated
stock powers for such certificates, executed in blank, or, if any
securities subject thereto are uncertificated securities,
confirmation and evidence satisfactory to the Agents that
appropriate book entries have been made in the relevant books or
records of a financial intermediary or the issuer of such
securities, as the case may be, or other appropriate steps shall
have been taken under applicable law resulting in the perfection
of the security interest granted in favor of the Administrative
Agent pursuant to the terms of a Pledge Agreement;
together, in each case, with such opinions, in form and substance and from
counsel reasonably satisfactory to the Agents, as the Agents may reasonably
require; provided, however, that notwithstanding the foregoing, no Non-U.S.
Subsidiary shall be required to execute and deliver a Mortgage, a supplement to
the Subsidiary Guaranty or a supplement to the Subsidiary Security Agreement,
nor will Holdco, Triarc Beverage, such Borrower or any Subsidiary of Holdco be
required to deliver in pledge pursuant to a Pledge Agreement in excess of 65% of
the total combined voting power of all classes of Capital Stock of a first tier
Non-U.S. Subsidiary entitled to vote.
SECTION 7.1.8. Future Leased Property and Future Acquisitions of
Real Property; Future Acquisition of Other Property.
(a) Prior to entering into any new lease (as lessee) of real
property or renewing any existing lease as lessee of real
property following the Closing Date, each Borrower shall, and
shall cause each of its U.S. Subsidiaries to, use
all commercially reasonable efforts (which shall not require the
expenditure of cash or the making of any material concessions
under the relevant lease) to deliver to the Administrative Agent
a Waiver executed by the lessor of any real property that is to
be leased by such Borrower or such U.S. Subsidiary for a term in
excess of one year in any state which by statute grants such
lessor a "landlord's" (or similar) Lien which is superior to the
Administrative Agent's, to the extent the value of any personal
property of such Borrower or its U.S. Subsidiaries to be held at
such leased property exceeds (or it is anticipated that the value
of such personal property will, at any point in time during the
term of such leasehold term, exceed) $1,500,000.
(b) In the event that any Borrower or any of their U.S.
Subsidiaries shall acquire any real property having a value as
determined in good faith by the Agents in excess of $1,500,000 in
the aggregate, such Borrower or the applicable U.S. Subsidiary
shall, promptly after such acquisition, execute a Mortgage and
provide the Agents with
(i) evidence of the completion (or satisfactory
arrangements for the completion) of all recordings and
filings of such Mortgage as may be necessary or, in the
reasonable opinion of the Agents, desirable effectively to
create a valid, perfected first priority Lien, subject to
Liens permitted by Section 7.2.3, against the properties
purported to be covered thereby;
(ii) mortgagee's title insurance policies in favor of
the Administrative Agent and the Lenders in amounts and in
form and substance and issued by insurers, reasonably
satisfactory to the Agents, with respect to the property
purported to be covered by such Mortgage, insuring that
title to such property is marketable and that the interests
created by the Mortgage constitute valid first Liens thereon
free and clear of all defects and encumbrances other than as
permitted under Section 7.2.3 or as approved by the Agents,
and such policies shall also include a revolving credit
endorsement and such other endorsements as the Agents shall
request and shall be accompanied by evidence of the payment
in full of all premiums thereon; and
(iii) such other approvals, opinions, or documents as
the Agents may reasonably request; and
(c) In accordance with the terms and provisions of this
Agreement and the other Loan Documents, provide the Agents with
evidence of all recordings and filings as may be necessary or, in
the reasonable opinion of the Agents, desirable to create a
valid, perfected first priority Lien, subject to the Liens
permitted by Section 7.2.3, against all property acquired after
the Closing Date (including motor vehicles but excluding leases
of real property).
SECTION 7.1.9. Use of Proceeds, etc. The Borrowers shall apply
the proceeds of
(a) the Term Loans
(i) in connection with the Refinancing and concurrently
with the initial Credit Extension hereunder, to make
payment, together with the funds made available from the
proceeds of the Subordinated Notes Offering, in full of all
Indebtedness identified in Item 7.2.2(b) ("Indebtedness to
be Paid") of the Disclosure Schedule;
(ii) in connection with the Acquisition, to make payment
in full of the Borrowers' obligations under the Acquisition
Agreement; provided, however, that, to the extent the
Acquisition is not consummated on or prior to the Closing
Date, a portion (which shall not exceed $17,250,000) of the
Term C Loans otherwise allocable to the Borrowers for use in
connection with the Acquisition shall be funded into the
Acquisition Escrow Account to be used by the Borrowers in
accordance with Section 7.1.12;
(iii) to fund a portion of the Triarc Dividend;
(iv) in connection with the RC/Arby's Notes Repayment,
together with funds made available from the proceeds of the
Subordinated Notes Offering, to fund the RC/Arby's Notes
Repayment Pledge Account to be used to redeem the RC/Arby's
Notes;
(v) to pay reasonable costs, fees and expenses related
to the Transaction (provided, that the aggregate amount of
such costs, fees and expenses shall not exceed $35,000,000);
and
(b) the Revolving Loans, Swing Line Loans, Letters of Credit
and any immaterial excess proceeds of the Term Loans not
otherwise used in accordance with clause (a) above, for general
corporate and working capital purposes of the Borrowers and their
Subsidiaries.
SECTION 7.1.10. Hedging Obligations. Within six months following
the Closing Date, the Borrowers shall provide the Arrangers with evidence
reasonably satisfactory to them that the Borrowers have entered into interest
rate swap, cap, collar or similar arrangements designed to protect such
Borrowers against fluctuations in interest rates with respect to at least
50% of the then outstanding aggregate principal amount of the Term Loans for a
minimum period of three years with terms reasonably satisfactory to such
Borrowers and the Arrangers.
SECTION 7.1.11. RC/Arby's Notes Repayment; Execution and De-
livery of Loan Documents. (a) Within 35 days of the Closing Date, the Borrowers
shall consummate the RC/Arby's Notes Repayment.
(b) Upon the consummation of the RC/Arby's Notes Repayment, each
Borrower shall, and shall cause RC/Arby's and each of its Subsidiaries to, (i)
execute and deliver all appropriate Loan Documents and (ii) take all other
necessary and appropriate actions, in each case in accordance with Sections
7.1.7 and 7.1.8, as if RC/Arby's and each such Subsidiary were a newly-acquired
Subsidiary, including the delivery of legal opinions in form and substance
reasonably satisfactory to the Arrangers.
SECTION 7.1.12. Consummation of Acquisition; Prepayment of Term C
Loans. If the Acquisition is not completed on or prior to the Closing Date,
within 45 days of the Closing Date (the "Consummation Date"), the Borrowers
shall, in accordance with the terms hereof and of the Acquisition Agreement and
the Acquisition Escrow Agreement, use the amounts deposited in the Acquisition
Escrow Account to consummate the Acquisition; provided, however, that, to the
extent the Borrowers shall not have consummated the Acquisition on or prior to
the Consummation Date, the Borrowers shall use the amounts deposited in the
Acquisition Escrow Account to prepay the Term C Loans pursuant to clause (g) of
Section 3.1.1.
SECTION 7.1.13. Additional Post-Closing Items. Within 45 days of
the Closing Date, the Borrowers shall deliver or shall caused to be delivered to
the Agents a Mortgage on the concentrate manufacturing facility owned by Royal
Crown located in Columbus, Georgia, together with legal opinions and other
documentation reasonably requested by the Agents in connection therewith.
SECTION 7.2. Negative Covenants. The Borrowers jointly and
severally agree with each of the Agents, each Arranger, each Issuer and each
Lender that, until all Commitments have terminated and all Obligations have been
paid and performed in full, each of Borrowers will perform the obligations set
forth in this Section 7.2.
SECTION 7.2.1. Business Activities. The Borrowers will not, and
will not permit any of their Subsidiaries to, engage in any business activity,
except for the Business.
SECTION 7.2.2. Indebtedness. The Borrowers will not, and will not
permit any of their Subsidiaries to, create, incur, assume or suffer to exist or
otherwise become or be liable in respect of any Indebtedness, other than,
without duplication, the following:
(a) Indebtedness in respect of the Loans and other Obliga-
tions;
(b) until the Closing Date, Indebtedness identified in Item
7.2.2(b) ("Indebtedness to be Paid") of the Disclosure Schedule;
(c) Indebtedness existing as of the Closing Date which is
identified in Item 7.2.2(c) ("Ongoing Indebtedness") of the
Disclosure Schedule;
(d) Indebtedness existing as of the Closing Date arising
pursuant to the take-or-pay contracts identified in Item 7.2.2(d)
("Take-or-Pay Liabilities") of the Disclosure Schedule and
arising from future take-or-pay contracts; provided that the
aggregate amount in respect of such Indebtedness at any time
outstanding shall not exceed $5,000,000;
(e) Indebtedness in respect of (i) the senior subordinated
guarantees provided in connection with the Subordinated Notes;
provided that the aggregate principal amount in respect of such
Indebtedness at any time outstanding shall not exceed
$300,000,000 and (ii) subordinated intercompany loans made by
Holdco and Triarc Beverage in an aggregate principal amount not
to exceed the gross proceeds of the Subordinated Notes;
(f) Hedging Obligations of the Borrowers or any of their
Subsidiaries in respect of the Loans;
(g) Indebtedness in an aggregate principal amount not to
exceed $10,000,000 at any time outstanding which is incurred by
the Borrowers or any of their Subsidiaries (i) to finance the
acquisition of any assets permitted to be acquired pursuant to
Section 7.2.7, (ii) in respect of Capitalized Lease Liabilities
(but only to the extent otherwise permitted by Section 7.2.7) or
(iii) in respect of purchase money obligations;
(h) unsecured Indebtedness incurred in the ordinary course
of business (including open accounts extended by suppliers on
normal trade terms in connection with purchases of goods and
services, but excluding Indebtedness incurred through the
borrowing of money or Contingent Liabilities);
(i) unsecured intercompany Indebtedness of any Borrower
owing to any other Borrower or to any Subsidiary Guarantor, or
Indebtedness of any wholly-owned U.S. Subsidiary of any Borrower
or, so long as the Arby's Securitization Residual Payment has not
been made, Arby's or any of its wholly-owned U.S. Subsidiaries,
owing to any Borrower or any Subsidiary Guarantor; provided, that
any Indebtedness of Arby's and its Subsidiaries or Royal Crown
and its Subsidiaries, as the case may be, to any Borrower or any
such Subsidiary Guarantor incurred after the Closing Date shall,
upon consummation of the Arby's Securitization Residual Payment
or the Royal Crown Disposition, as applicable, be either (x) re-
paid in full or (y) to the extent not so repaid be deemed an In-
vestment in such entities if such Investment would be permit-
ted under Section 7.2.5;
(j) other Indebtedness of the Borrowers and their
Subsidiaries in an aggregate amount at any time outstanding not
to exceed (x) $15,000,000 during the first four full Fiscal
Quarters following the Closing Date and (y) without duplication,
$30,000,000 thereafter;
(k) unsecured obligations of Arby's in respect of amounts
due and owing from Arby's to holders of stock options issued
pursuant to the Arby's Stock Option Plan; and
(l) Indebtedness representing Assumed Restricted Debt and
assumed unsecured Indebtedness of a newly-acquired Subsidiary
that was in existence prior to the time such Person became a
Subsidiary; provided that the aggregate principal amount in
respect of such Indebtedness at any time outstanding shall not
exceed $10,000,000;
provided, however, that in any such case (i) no Indebtedness otherwise permitted
by clauses (g), (h), (i), (j) or (l) shall be permitted if, after giving effect
to the incurrence thereof, any Default shall have occurred and be continuing and
(ii) any Indebtedness permitted by clauses (c) and (e) may be refinanced,
refunded, renewed or extended, provided that, in either such case, (A) the
principal amount of outstanding Indebtedness is not increased, (B) neither the
tenor nor the average life thereof is reduced, (C) the respective primary
obligor(s) shall be the same on the refinancing Indebtedness as on the
Indebtedness being refinanced, (D) the security, if any, for the refinancing
Indebtedness shall be the same as that for the Indebtedness being refinanced
(except to the extent that less security is granted to holders of such
refinancing Indebtedness), (E) the refinancing Indebtedness is subordinated to
the same degree (including any defaults or conditions to an event of default
relating to any subordination provisions therein), if any, as the Indebtedness
being refinanced and (F) the holders of such refinancing Indebtedness are not
afforded other covenants, defaults, rights or remedies, taken as a whole, more
burdensome to the obligor or obligors than those contained in the Indebtedness
being refinanced.
SECTION 7.2.3. Liens. The Borrowers will not, and will not permit
any of their Subsidiaries to, create, incur, assume or suffer to exist any Lien
upon any of its property, revenues or assets, whether now owned or hereafter
acquired, except for the following:
(a) Liens securing payment of the Obligations or any Hedging
Obligations in respect of the Loans owed to any Lender or any
Affiliate of any Lender, granted pursuant to any Loan Document;
(b) (i) until the Closing Date, Liens securing payment of
Indebtedness of the type permitted and described in clause (b) of
Section 7.2.2, and (ii) Liens existing as of the Closing Date
which are identified in Item 7.2.3(b) ("Ongoing Liens") of the
Disclosure Schedule;
(c) Liens securing payment of Indebtedness of the type
permitted and described in clause (c) of Section 7.2.2 and
identified in Item 7.2.3(c) ("Additional Liens") of the
Disclosure Schedule, and replacement Liens securing any
Indebtedness refinanced as permitted by clause (ii) of the
proviso to Section 7.2.2 (provided that no such replacement Lien
shall cover any property in addition to the property covered by
the original Lien);
(d) Liens granted to secure payment of Indebtedness of the
type permitted and described in clause (g) of Section 7.2.2 and
covering only those assets acquired with the proceeds of such
Indebtedness;
(e) Liens for taxes, assessments or other governmental
charges or levies not at the time delinquent or thereafter
payable without penalty or being diligently contested in good
faith by appropriate proceedings and for which adequate reserves
in accordance with GAAP shall have been set aside on the books of
such Person;
(f) Liens of suppliers, carriers, warehousemen, mechanics,
materialmen, repairmen and landlords incurred in the ordinary
course of business for sums not overdue for more than 30 days or
being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with
GAAP shall have been set aside on the books of such Person;
(g) Liens incurred in the ordinary course of business in
connection with workmen's compensation, unemployment insurance or
other forms of governmental insurance or benefits, or to secure
performance of tenders, statutory obligations, leases and
contracts (other than for borrowed money) entered into in the
ordinary course of business or to secure obligations on surety or
appeal bonds;
(h) attachment or judgment Liens in existence less than 15
days after the entry thereof or with respect to which execution
has been stayed or the payment of which is covered in full
(subject to a customary deductible) by insurance maintained with
responsible insurance companies;
(i) Liens with respect to leases, subleases, easements,
rights-of-way, restrictions and other similar encumbrances which,
individually or in the aggregate, do not materially interfere
with the occupation, use and enjoyment by any Borrower or any of
its Subsidiaries of the properties encumbered thereby in the or-
dinary course of their business; and
(j) Liens in respect of any Assumed Restricted Debt
permitted pursuant to clause (l) of Section 7.2.2.
SECTION 7.2.4. Financial Covenants.
(a) Minimum Net Worth. The Borrowers will not permit Net
Worth at any time to be less than an aggregate amount equal to
negative $189,000,000, plus an amount equal to 50% of cumulative
Net Income from the Closing Date to the date of determination,
less the amount by which stockholders equity of Holdco is reduced
in accordance with GAAP as a result of the Arby's Securitization
Residual Payment, if made.
(b) Leverage Ratio. The Borrowers will not permit the
Leverage Ratio as of the end of any Fiscal Quarter occurring
during any period set forth below to be greater than the ratio
set forth opposite such period:
Period Leverage Ratio
------ --------------
1st Fiscal Quarter of
1999 Fiscal Year 6.00:1
2nd Fiscal Quarter
of 5.85:1
1999 Fiscal Year
3rd Fiscal Quarter
of 5.75:1
1999 Fiscal Year
4th Fiscal Quarter of
1999 Fiscal Year
through
3rd Fiscal Quarter 5.60:1
of
2000 Fiscal Year
4th Fiscal Quarter of
2000 Fiscal Year
through
5.00:1
3rd Fiscal Quarter
of
2001 Fiscal Year
4th Fiscal Quarter of
2001 Fiscal Year
through
3rd Fiscal Quarter 4.25:1
of
2002 Fiscal Year
4th Fiscal Quarter of
2002 Fiscal Year
through
3rd Fiscal Quarter 3.75:1
of
2003 Fiscal Year
4th Fiscal Quarter of
2003 Fiscal Year
through
3rd Fiscal Quarter 3.25:1
of
2004 Fiscal Year
4th Fiscal Quarter of
2004 Fiscal Year
and each 3.00:1
Fiscal Quarter
thereafter
(c) Interest Coverage Ratio. The Borrowers will not permit the
Interest Coverage Ratio as of the end of any Fiscal Quarter occurring
during any period set forth below to be less than the ratio set forth
opposite such period:
Interest Coverage
Period Ratio
------ -----------------
1st Fiscal Quarter of
1999 Fiscal Year through
3rd Fiscal Quarter of
1999 Fiscal Year 1.80:1
4th Fiscal Quarter of
1999 Fiscal Year through
3rd Fiscal Quarter of
2000 Fiscal Year 1.85:1
4th Fiscal Quarter of 2000
Fiscal Year through
3rd Fiscal Quarter of
2001 Fiscal Year 2.10:1
4th Fiscal Quarter of
2001 Fiscal Year through
3rd Fiscal Quarter of
2002 Fiscal Year 2.40:1
4th Fiscal Quarter of
2002 Fiscal Year through
3rd Fiscal Quarter of
2003 Fiscal Year 2.75:1
4th Fiscal Quarter of
2003 Fiscal Year through
3rd Fiscal Quarter of
2004 Fiscal Year 3.25:1
4th Fiscal Quarter of
2004 Fiscal Year and each
Fiscal Quarter thereafter 3.50:1
(d) Fixed Charge Coverage Ratio. The Borrowers will not permit the
Fixed Charge Coverage Ratio as of the end of any Fiscal Quarter occurring
during any period set forth below to be less than the ratio set forth
opposite such period:
Fixed Charge Coverage
Period Ratio
------ ---------------------
1st Fiscal Quarter of
1999 Fiscal Year through
3rd Fiscal Quarter of
1999 Fiscal Year 1.00:1
4th Fiscal Quarter of
1999 Fiscal Year through
3rd Fiscal Quarter of
2000 Fiscal Year 1.05:1
4th Fiscal Quarter of
2000 Fiscal Year through
3rd Fiscal Quarter of
2001 Fiscal Year 1.10:1
4th Fiscal Quarter of
2001 Fiscal Year and each
Fiscal Quarter thereafter 1.15:1
SECTION 7.2.5. Investments. The Borrowers will not, and will not permit
any of their Subsidiaries to, make, incur, assume or suffer to exist any Invest-
ment in any other Person, except:
(a) Investments existing on the Closing Date and identified in Item
7.2.5(a) ("Ongoing Investments") of the Disclosure Schedule;
(b) Cash Equivalent Investments;
(c) Investments by any Borrower in any other Borrower, in any
wholly-owned U.S. Subsidiary of any Borrower or, so long as the Arby's
Securitization Residual Payment has not been made, in Arby's or any of its
wholly-owned U.S. Subsidiaries, or by any Subsidiary Guarantor in any
Borrower or in any wholly-owned U.S. Subsidiary of any Borrower
(including, in each case, Investments made for purposes of creating newly
formed wholly-owned U.S. Subsidiaries); provided, that any Investments in
Arby's and its Subsidiaries or Royal Crown and its Subsidiaries incurred
after the Closing Date shall, upon consummation of the Arby's
Securitization Residual Payment or the Royal Crown Disposition, as
applicable, be either (x) repaid in full or (y) to the extent not so
repaid be deemed an Investment in such entities if such Investment would
be otherwise permitted under this Section 7.2.5;
(d) other Investments, together with the amount of any purchases
made pursuant to clause (b)(ii) of Section 7.2.8, in an aggregate
principal amount not to exceed $20,000,000 at any time outstanding;
(e) Investments in the form of advances or loans to employees in an
aggregate principal amount not to exceed $2,000,000 at any time
outstanding;
(f) the Acquisition;
(g) (i) Investments by Arby's or any of its Subsidiaries in one or
more Arby's Securitization Entities (including the creation of such Arby's
Securitization Entities) on or prior to the consummation of the Arby's
Securitization in an amount that, together with all other Investments made
pursuant to this clause (g)(i) from the Effective Date, does not exceed
$15,000,000 in the aggregate; and (ii) non-cash Investments by Arby's or
any of its Subsidiaries in any Arby's Securitization Residual Note and any
contribution by Arby's or any of its Subsidiaries of Arby's Securitization
Assets to any Arby's Securitization Entity;
(h) Investments in any Person with any Net Disposition Proceeds
permitted to be so invested pursuant to clause (c) of Section 3.1.1 and
Investments in any Person with any Net Casualty Proceeds permitted to be
so invested pursuant to clause (f) of Section 3.1.1;
(i) stock, obligations or securities received in settlement of
Indebtedness created in the ordinary course of business of up to $500,000
in aggregate principal amount in any Fiscal Year and owing to a Borrower
or any Subsidiary of any Borrower or in satisfaction of judgments relating
to such Indebtedness;
(j) Investments in any Person to the extent such Investment
represents the non-cash portion of the consideration received pursuant to
clause (b) of Section 7.2.9;
provided, however, that (i) any Investment which when made complies with the
requirements of the definition of the term "Cash Equivalent Investment" may
continue to be held notwithstanding that such Investment if made thereafter
would not comply with such requirements, and (ii) no Investment otherwise
permitted by clause (c), (d), (e), (g), (h), (i) or (j) shall be permitted to be
made if, immediately before or after giving effect thereto, any Default shall
have occurred and be continuing.
SECTION 7.2.6. Restricted Payments, etc. On and at all times after the
Effective Date:
(a) no Borrower will declare, pay or make any payment, dividend or
distribution (in cash, property or obligations) on any shares of any class
of its Capital Stock (now or hereafter outstanding) or on or in respect of
any warrants, options or other rights with respect to any shares of any
class of its Capital Stock (now or hereafter outstanding) (other than
dividends or distributions (i) payable in its Capital Stock or warrants to
purchase its Capital Stock or splitups or reclassifications of its Capital
Stock into additional or other shares of its Capital Stock or (ii)
declared, payable or made to another Borrower) or apply, or permit any of
its Subsidiaries to apply, any of its funds, property or assets to the
purchase, redemption, sinking fund or other retirement of, or agree or
permit any of its Subsidiaries to purchase or redeem, any shares of any
class of its Capital Stock (now or hereafter outstanding), or warrants,
options or other rights with respect to any shares of any class of its
Capital Stock (now or hereafter outstanding);
(b) no Borrowers will, nor will it permit any of its Subsidiaries
to, (i) make any payment or prepayment of principal of, or make any
payment of interest on, any Subordinated Debt on any day other than the
stated, scheduled date for such payment or prepayment set forth in the
documents and instruments memorializing such Subordinated Debt, or which
would violate the subordination provisions of such Subordinated Debt, or
(ii) redeem, purchase or defease, any Subordinated Debt; and
(c) no Borrower will, nor will it permit any of its Subsidiaries to,
make any deposit for any of the foregoing purposes;
provided, however, that notwithstanding the foregoing,
(d) (x) the Borrowers may make payments to Triarc Beverage to allow
Triarc Beverage to make payments in respect of stock options or in respect
of the Capital Stock of Triarc Beverage issued upon the exercise of such
stock options to the holders thereof pursuant to the Triarc Beverage Stock
Option Plan and (y) Arby's may make payments in respect of stock options
or in respect of the Capital Stock of Arby's issued upon the exercise of
such stock options to the holders thereof pursuant to the Arby's Stock
Option Plan, in each case if (i) the aggregate amount of all payments made
pursuant to this clause (d) would not exceed (A) $5,000,000 in the twelve
month period beginning on the Closing Date, (B) $7,500,000 in the twelve
month period beginning on the first anniversary of the Closing Date and
(C) $10,000,000 in each twelve month period beginning on the second
anniversary of the Closing Date and each anniversary of the Closing Date
thereafter; provided, however, that the aggregate amount of all such
payments on and after the Closing Date shall not exceed $25,000,000 plus
an amount equal to the net proceeds received by Triarc Beverage or Arby's
after the Closing Date from the sale of Capital Stock (other than
disqualified stock) pursuant to the Arby's Stock Option Plan or the Triarc
Beverage Stock Option Plan; and (ii) no Default has occurred and is
continuing or would occur as a result of any such payment;
(e) the Borrowers may make payments to Triarc directly, or through
Holdco and/or Triarc Beverage, which will forward such payments to Triarc,
in such amounts as may be required pursuant to the Tax Sharing Agreement;
(f) so long as no Default has occurred and is continuing or would
occur after giving effect thereto, the Borrowers may make the Arby's
Securitization Residual Payment to Triarc;
(g) so long as no Default has occurred and is continuing or would
occur after giving effect thereto, the Borrowers may declare and pay cash
dividends to (i) Holdco and/or Triarc Beverage to the extent necessary to
allow Holdco and/or Triarc Beverage to make scheduled interest payments on
the Subordinated Notes (provided that any portion of the amounts required
to pay such scheduled interest payments may be paid by the
Borrowers to Holdco and/or Triarc Beverage as payments of interest on
subordinated intercompany Indebtedness owed to Holdco and/or Triarc
Beverage permitted pursuant to clause (e)(ii) of Section 7.2.2; and
provided, further, that Holdco and/or Triarc Beverage promptly (and in any
event within three Business Days following the payment of such cash
dividend) applies any such cash dividend to such scheduled interest
payment on the Subordinated Notes), and (ii) Holdco and Triarc Beverage,
in an amount not to exceed $250,000 in any Fiscal Year, to the extent
necessary to allow Holdco and Triarc Beverage to pay accounting and audit
expenses, franchise taxes and other expenses (provided that any portion of
the amount required to pay such expenses may be paid by the Borrowers to
Holdco and/or Triarc Beverage on or prior to the date of such payment as
payments of interest on subordinated intercompany Indebtedness owed to
Holdco and/or Triarc Beverage);
(h) so long as no Default has occurred or is continuing or would
occur after giving effect thereto, the Borrowers and their Subsidiaries
may make any and all payments, dividends or distributions contemplated in
the Transaction including, without limitation, to Holdco (through Triarc
Beverage if necessary) to allow Holdco to make the Triarc Dividend; and
(i) Arby's may make non-cash repurchases of Capital Stock under the
Arby's Stock Option Plan deemed to occur upon exercise of stock options
under the Arby's Stock Option Plan to the extent that such Capital Stock
represents a portion of the exercise price of such options.
SECTION 7.2.7. Capital Expenditures, etc. The Borrowers will not, and will
not permit any of their Subsidiaries to, make or commit to make Capital
Expenditures in any fiscal period set forth below, except Capital Expenditures
which do not aggregate in excess of the amount set forth below opposite such
fiscal period:
Closing Date
through 1999 Fiscal Year $9,500,000
2000 Fiscal Year
through 2001 Fiscal Year $10,000,000 ($9,500,000 if the
Arby's Securitization Residual
Payment has been made)
2002 Fiscal Year and each
Fiscal Year thereafter $11,000,000 ($10,500,000 if the
Arby's Securitization Residual
Payment has been made);
provided, however, that to the extent the amount of Capital Expenditures
permitted to be made in any Fiscal Year pursuant to this Section exceeds the
aggregate amount of Capital Expenditures actually made during such Fiscal Year,
such excess amount (up to 50% of the total amount of Capital Expenditures
permitted to be made in such Fiscal Year, without giving effect to any
carry-forward) may be carried forward to (but only to) the next succeeding
Fiscal Year (any such amount to be certified by the Borrowers to the Agents in
the Compliance Certificate delivered for the last Fiscal Quarter of such Fiscal
Year, and any such amount carried forward to a succeeding Fiscal Year shall be
deemed to be used prior to the Borrowers and their Subsidiaries using the amount
of Capital Expenditures permitted by this Section in such succeeding Fiscal Year
without giving effect to such carry-forward).
SECTION 7.2.8. Consolidation, Merger, Acquisitions, etc. The Borrowers
will not, and will not permit any of their Subsidiaries to, liquidate or
dissolve, consolidate with, or merge into or with, any other Person, or purchase
or otherwise acquire all or substantially all of the assets of any Person (or of
any division thereof) except
(a) any such Subsidiary may liquidate or dissolve voluntarily into,
and may consolidate with or merge with and into, any Borrower, any
wholly-owned U.S. Subsidiary of any Borrower or, so long as the Arby's
Securitization Residual Payment has not been made, Arby's or any of its
wholly-owned U.S. Subsidiaries, and the assets or stock of any such
Subsidiary may be purchased or otherwise acquired by any Borrower, any
wholly-owned U.S. Subsidiary of any Borrower or, so long as the Arby's
Securitization Residual Payment has not been made, Arby's or any of its
wholly-owned U.S. Subsidiaries;
(b) so long as no Default has occurred and is continuing or would
occur after giving effect thereto, the Borrowers or any of their
Subsidiaries may purchase all or substantially all of the assets of any
Person, or acquire such Person by merger, if (i) permitted (without
duplication) by Section 7.2.7 to be made as a Capital Expenditure, or if
permitted (without duplication) by Section 7.2.5 to be made as an
Investment, (ii) such purchase, together with any Investments made
pursuant to clause (d) of Section 7.2.5, shall not at any one time
outstanding exceed $20,000,000, or (iii) such purchase is made with Net
Disposition Proceeds permitted pursuant to clause (c) of Section 3.1.1 or
Net Casualty Proceeds permitted pursuant to clause (f) of Section 3.1.1;
and
(c) as permitted pursuant to Section 7.2.9.
SECTION 7.2.9. Asset Dispositions, etc. The Borrowers will not, and will
not permit any of their Subsidiaries to, sell, transfer, lease, contribute or
otherwise convey, or grant options, warrants or other rights with respect to,
any of their assets (including accounts receivable and Capital Stock of
Subsidiaries (other than directors' qualifying shares)) to any Person, except
for any such sale, transfer, lease, contribution or conveyance that is:
(a) (i) in the ordinary course of its business, (ii) of obsolete or
worn-out property, (iii) permitted by Section 7.2.8 or (iv) to another
Borrower or a wholly-owned U.S.
Subsidiary of any Borrower;
(b) for fair market value and the consideration consists of no less
than 80% in cash, cash equivalents or the assumption by the purchaser of
Indebtedness of such Borrower or Subsidiary; provided that (i) the net
book value of such assets, together with the net book value of all other
assets sold, transferred, leased, contributed or conveyed pursuant to this
clause (b) does not exceed (individually or in the aggregate) $30,000,000
over the term of this Agreement and (ii) the Net Disposition Proceeds
generated from such sale, transfer, lease, contribution or conveyance are
applied as a mandatory prepayment of the Loans to the extent required
pursuant to clause (c) of Section 3.1.1;
(c) (i) the issuance of Capital Stock and options pursuant to the
Arby's Stock Option Plan or (ii) a payment on or in respect of stock
options issued pursuant to the Arby's Stock Option Plan and is of the type
described in clause (k) of Section 7.2.2 or is permitted pursuant to
clause (d) of Section 7.2.6;
(d) so long as no Default has occurred or is continuing or would
occur after giving effect thereto, in connection with the consummation of
the Arby's Securitization; provided that (i) the Arby's Securitization is
consummated within nine months of the Closing Date; (ii) the Borrowers
receive Net Disposition Proceeds of at least $300,000,000 (provided that
such amount shall be increased, Dollar for Dollar, by the amount of
Investments in excess of $5,000,000 made pursuant to clause (g)(i) of
Section 7.2.5), by from the Arby's Securitization; (iii) all Net
Disposition Proceeds from the first $350,000,000 (provided that such
amount shall be increased, Dollar for Dollar, by the amount of Investments
in excess of $5,000,000 made pursuant to clause (g)(i) of Section 7.2.5)
of gross cash proceeds from the Arby's Securitization are applied as a
mandatory prepayment of the Loans pursuant to clause (c) of Section 3.1.1;
(iv) after giving effect to the Arby's Securitization including the use of
proceeds thereunder, the Borrowers shall be in pro forma compliance with
the covenants set forth in Section 7.2.4 for the most recent full Fiscal
Quarter immediately preceding the date of the consummation of the Arby's
Securitization for which the relevant financial information has been
delivered pursuant to clause (b) or clause (c) of Section 7.1.1; (v) an
Authorized Officer of Holdco shall have delivered a certificate to the
Agents in form and substance satisfactory to the Agents (including a
calculation of the Borrowers' compliance with the covenants set forth in
Section 7.2.4 in reasonable detail) certifying as to the accuracy of
clause (iv) above; (vi) the aggregate consideration received in such sale
is at least equal to the aggregate fair market value of the assets sold,
as determined by Holdco's board of directors in good faith; (vii) (A)
neither Holdco nor any Subsidiary of Holdco retains any obligation
(contingent or otherwise) (x) with respect to the assets so sold, (y) for
the Indebtedness or other liabilities (contingent or otherwise) of any
Arby's Securitization Entity purchasing such assets or (z) to subscribe
for additional shares of Capital Stock or make any addi-
tional capital contribution or similar payment or transfer to any
Arby's Securitization Entity or any other Person purchasing such assets or
to maintain or preserve the solvency, financial condition, level of income
or results of operations thereof and (B) no property of Holdco or any
Subsidiary of Holdco is subject, directly or indirectly, to the
satisfaction therefor (other than any such obligations or subjecting of
property of Arby's or any Subsidiary of Arby's pursuant to customary
representations, warranties and covenants made in connection with the sale
of such assets and other than obligations to service such assets); and
(viii) if the Arby's Securitization Residual Payment is not made, Arby's
shall retain the right to license, on a non-exclusive royalty free basis,
the trademarks included in the Arby's Securitization Assets, together with
all rights listed in the definition of "Arby's Securitization Assets" with
respect to such trademarks (other than ownership of such trademarks) in
connection with franchise agreements not owned by any Arby's
Securitization Entity;
(e) of any of the assets identified in Item 7.2.9(e) ("Specified
Assets") of the Disclosure Schedule for fair market value; provided,
however, that if the Net Disposition Proceeds generated from the sale,
transfer, lease, contribution or conveyance of any individual asset
identified therein does not exceed $250,000, such Net Disposition Proceeds
shall not be applied as a mandatory prepayment of the Loans pursuant to
clause (c) of Section 3.1.1; or
(f) so long as no Default has occurred or is continuing or would
occur after giving effect thereto, (i) of the Capital Stock of Royal Crown
to Triarc Beverage or (ii) the Royal Crown Disposition; provided that, in
the case of this clause (ii), (A) the Net Disposition Proceeds generated
thereby exceed $120,000,000 and such Net Disposition Proceeds are applied
as a mandatory prepayment of the Loans to the extent required pursuant to
clause (c) of Section 3.1.1, (B) after giving effect thereto, the
Borrowers shall be in pro forma compliance with the covenants set forth in
Section 7.2.4 for the most recent full Fiscal Quarter immediately
preceding the date thereof for which the relevant financial information
has been delivered pursuant to clause (b) or clause (c) of Section 7.1.1,
(C) an Authorized Officer of Holdco shall have delivered a certificate to
the Agents in form and substance satisfactory to the Agents (including a
calculation of the Borrowers' compliance with the covenants set forth in
Section 7.2.4 in reasonable detail) certifying as to the accuracy of
clause (B) above, (D) the aggregate consideration received in such sale is
at least equal to the aggregate fair market value of the Capital Stock or
assets sold, as determined by Holdco's board of directors in good faith,
(E) (1) neither Holdco nor any Subsidiary of Holdco retains any obligation
(contingent or otherwise) (x) with respect to the assets so sold or (y)
for the Indebtedness or other liabilities (contingent or otherwise) of any
Person purchasing such assets and (2) no property of Holdco or any
Subsidiary of Holdco is subject, directly or indirectly, to the
satisfaction therefor (other than, in each case, any such obligations or
subjecting of property of Holdco or any Subsidiary of Holdco (x) pursuant
to customary representations, warranties, covenants and indemnities made
in connection with the sale of such assets and (y) arising by operation
of law or pursuant to any statutory requirements).
SECTION 7.2.10. Modification of Certain Agreements. The Borrowers will
not, and will not permit any of their Subsidiaries to, consent to any amendment,
supplement, amendment and restatement, waiver or other modification of any of
the terms or provisions contained in, or applicable to, any of the Transaction
Documents, the Tax Sharing Agreement, the Arby's Stock Option Plan, the Triarc
Beverage Stock Option Plan or any document or instrument evidencing or
applicable to any Subordinated Debt, in each case which would (a) materially
adversely affect the rights or remedies of the Secured Parties, or materially
increase the financial obligations of Holdco or any of its Subsidiaries
thereunder, or any other Obligor's ability to perform its obligations hereunder
or under any Loan Document, or (b) with respect to any Subordinated Debt, (i)
increase the principal amount thereof, or increase the interest rate on, or add
or increase any fee with respect thereto, (ii) reduce either the tenor or the
average life thereof, (iii) change the respective primary obligor(s) thereto,
(iv) change the security, if any, therefor (except to the extent that less
security is granted to holders of such Subordinated Debt), (v) modify the
subordination provisions, if any, thereof (including any defaults or conditions
to an event of default relating thereto) in such a manner that, after giving
effect to any such modification, such Subordinated Debt would not be
subordinated to the same degree as it was prior to any such modifications, or
(vi) modify any of the covenants, defaults, rights or remedies contained therein
which would make such covenants, defaults, rights or remedies, taken as a whole,
more burdensome to the obligor or obligors thereto.
SECTION 7.2.11. Transactions with Affiliates. The Borrowers will not, and
will not permit any of their Subsidiaries to, enter into, or cause, suffer or
permit to exist any arrangement or contract with any of their Affiliates (other
than any Borrower or any Subsidiary Guarantor) unless such arrangement or
contract is fair and equitable to such Borrower or such Subsidiary and is an
arrangement or contract of the kind which would be entered into by a prudent
Person in the position of such Borrower or such Subsidiary with a Person which
is not one of its Affiliates; provided, however, that
(a) as to the first three Fiscal Quarters of any Fiscal Year, after
delivery of the financial statements and Compliance Certificate for the
end of any Fiscal Quarter pursuant to Section 7.1.1 and, as to the fourth
Fiscal Quarter of any Fiscal Year, after delivery of a certificate of the
chief financial Authorized Officer of Holdco certifying that no Default or
Event of Default has occurred or is continuing or would result from the
making of such payment, together with a draft of the Compliance
Certificate to be delivered with respect to such Fiscal Quarter, the
Borrowers may pay management fees to Triarc for management services
rendered during such Fiscal Quarter in an amount, subject to the provisos
below, not in excess of (i) $1,125,000 for the first Fiscal Quarter of the
1999 Fiscal Year and (ii) $2,625,000 for any Fiscal Quarter thereafter
(provided that if the Arby's Securitization Residual Payment has been
made, such management fees shall not exceed $1,675,000 for any such Fiscal
Quarter thereafter); provided that to the extent the amount
of management fees permitted to be paid in any Fiscal
Quarter pursuant to this clause (a) exceeds the aggregate amount of
management fees actually paid during such Fiscal Quarter, such excess
amount may be carried forward to (but only to) the next succeeding Fiscal
Quarter (any such amount carried forward to a succeeding Fiscal Quarter
shall be deemed to be paid to Triarc prior to the Borrowers paying the
amount of management fees permitted by this clause (a) in such succeeding
Fiscal Quarter without giving effect to such carry-forward), in each case
as such amounts may be increased, but not decreased, to account for
increases in the Consumer Price Index; provided, further, that (x) no
Default shall have occurred and be continuing on the date any such payment
is made or would result from the making of any such payment, (y) after
giving effect to any such payment the Borrowers would be in pro forma
compliance with the covenants set forth in Section 7.2.4 for the most
recent full Fiscal Quarter immediately preceding the date of such payment,
and (z) an Authorized Officer of each Borrower shall have delivered a
certificate to the Agents in form and substance satisfactory to the Agents
(including a calculation of the compliance with the covenants set forth in
Section 7.2.4) certifying as to the accuracy of clauses (x) and (y) above;
provided, further, that. with respect to any management fees paid for the
fourth Fiscal Quarter of any Fiscal Year, if the Compliance Certificate
delivered in respect of such Fiscal Quarter reflects any Default of any of
the covenants set forth in Section 7.2.4 that were not reflected on the
draft Compliance Certificate delivered in respect of such Fiscal Quarter,
such management fees shall be refunded to the Borrowers;
(b) the Borrowers and their Subsidiaries may make any payments or
distributions permitted under Section 7.2.6 and in connection with the Tax
Sharing Agreement; and
(c) in any event, (i) the issuance of Capital Stock and options
pursuant to the Arby's Stock Option Plan, (ii) the Transaction and (iii)
the Arby's Securitization made on the terms set forth in this Agreement
shall each be permitted.
SECTION 7.2.12. Negative Pledges, Restrictive Agreements, etc. The
Borrowers will not, and will not permit any of their Subsidiaries to, enter into
any agreement (excluding this Agreement, any other Loan Document, the Indenture,
any agreement governing any Indebtedness permitted by clause (c) of Section
7.2.2 as in effect on the Closing Date or by clause (g) of Section 7.2.2 as to
the assets financed with the proceeds of such Indebtedness and any agreement in
respect of any Assumed Restricted Debt permitted pursuant to clause (l) of
Section 7.2.2) prohibiting (i) the creation or assumption of any Lien upon its
properties, revenues or assets, whether now owned or hereafter acquired, or the
ability of any Borrower or any other Obligor to amend or otherwise modify this
Agreement or any other Loan Document, or (ii) the ability of any Subsidiary to
make any payments, directly or indirectly, to any Borrower by way of dividends,
advances, repayments of loans or advances, reimbursements of management and
other intercompany charges, expenses and accruals or other returns on
investments, or any other agreement or arrangement which restricts the ability
of any such Subsidiary to make any payment, directly or indirectly, to any
Borrower.
SECTION 7.2.13. Sale and Leaseback. The Borrowers will not, and will not
permit any of their Subsidiaries to, enter into any agreement or arrangement
with any other Person providing for the leasing by any Borrower or any of its
Subsidiaries of real or personal property having a fair market value of more
than $7,500,000 in the aggregate at any time outstanding which has been or is to
be sold or transferred by any Borrower or any of its Subsidiaries to such other
Person or to any other Person to whom funds have been or are to be advanced by
such Person on the security of such property or rental obligations of any
Borrower or any of its Subsidiaries.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. Listing of Events of Default. Each of the following events
or occurrences described in this Section 8.1 shall constitute an "Event of De-
fault".
SECTION 8.1.1. Non-Payment of Obligations. (a) Any Borrower shall default
in the payment or prepayment when due of any principal of any Loan, (b) any
Borrower shall default (and such default shall continue unremedied for a period
of five days) in the payment when due of any interest on any Loan, (c) any
Borrower shall default in the payment when due of any Reimbursement Obligation,
or (d) any Borrower shall default (and such default shall continue unremedied
for a period of five days) in the payment when due of any fee or the payment of
any other Obligation.
SECTION 8.1.2. Breach of Warranty. Any representation or warranty of any
Borrower or any other Obligor made or deemed to be made hereunder or in any
other Loan Document executed by it or any other writing or certificate furnished
by or on behalf of any Borrower or any other Obligor to the Agents or any Lender
for the purposes of or in connection with this Agreement or any such other Loan
Document (including any certificates delivered pursuant to Article V) is or
shall be incorrect when made in any material respect.
SECTION 8.1.3. Non-Performance of Certain Covenants and Obligations. Any
Borrower shall default in the due performance and observance of any of its
obligations under Sections 7.1.1, 7.1.9, 7.1.11, 7.1.12, 7.1.13 or 7.2.
SECTION 8.1.4. Non-Performance of Other Covenants and Obligations. Any
Borrower or any other Obligor shall default in the due performance and
observance of any other agreement contained herein or in any other Loan Document
executed by it, and such default shall continue unremedied for a period of 30
days after notice thereof shall have been given to any Borrower by the
Administrative Agent or any Lender.
SECTION 8.1.5. Default on Other Indebtedness. A default shall occur
in the payment when due (subject to any applicable grace period),
whether by acceleration or otherwise, of any Indebtedbess
(other than Indebtedness described in Section 8.1.1) of any
Borrower or any of its Subsidiaries or any other Obligor having a principal
amount, individually or in the aggregate, in excess of $10,000,000, or a default
shall occur in the performance or observance of any obligation or condition with
respect to such Indebtedness if the effect of such default is to accelerate the
maturity of any such Indebtedness or such default shall continue unremedied for
any applicable period of time sufficient to permit the holder or holders of such
Indebtedness, or any trustee or agent for such holders, to cause such
Indebtedness to become due and payable prior to its expressed maturity.
SECTION 8.1.6. Judgments. Any judgment or order for the payment of money
in excess of $7,500,000 shall be rendered against any Borrower or any of its
Subsidiaries or any other Obligor and either (i) enforcement proceedings shall
have been commenced by any creditor upon such judgment or order, or (ii) there
shall be any period of 30 consecutive days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise, shall not be
in effect.
SECTION 8.1.7. Pension Plans. Any of the following events shall occur with
respect to any Pension Plan: (i) the institution of any steps by any Borrower,
any member of its Controlled Group or any other Person to terminate a Pension
Plan if, as a result of such termination, such Borrower or any such member could
reasonably be expected to be required to make a contribution to such Pension
Plan, or could reasonably expect to incur a liability or obligation to such
Pension Plan, in excess of $7,500,000, or (ii) a contribution failure with
respect to any Pension Plan sufficient to give rise to a Lien under Section
302(f) of ERISA.
SECTION 8.1.8. Change in Control. Any Change in Control shall occur.
SECTION 8.1.9. Bankruptcy, Insolvency, etc. Any Material Obligor shall
(a) become insolvent or generally fail to pay, or admit in writing
its inability or unwillingness to pay, debts as they become due;
(b) apply for, consent to, or acquiesce in, the appointment of a
trustee, receiver, sequestrator or other custodian for such Material
Obligor any property of any thereof, or make a general assignment for the
benefit of creditors;
(c) in the absence of such application, consent or acquiescence,
permit or suffer to exist the appointment of a trustee, receiver,
sequestrator or other custodian for such Material Obligor or for a
substantial part of the property of any thereof, and such trustee,
receiver, sequestrator or other custodian shall not be discharged within
60 days, provided that each Material Obligor hereby expressly authorizes
the Administrative Agent and each Lender to appear in any court conducting
any relevant proceeding during such 60- day period to preserve, protect
and defend their rights under the Loan Documents;
(d) permit or suffer to exist the commencement of any bankruptcy,
reorganization, debt arrangement or other case or proceeding under any
bankruptcy or insolvency law, or any dissolution, winding up or
liquidation proceeding, in respect of such Material Obligor, and, if any
such case or proceeding is not commenced by such Material Obligor, such
case or proceeding shall be consented to or acquiesced in by such Person
or shall result in the entry of an order for relief or shall remain for 60
days undismissed, provided that each Material Obligor hereby expressly
authorizes the Administrative Agent and each Lender to appear in any court
conducting any such case or proceeding during such 60-day period to
preserve, protect and defend their rights under the Loan Documents; or
(e) take any action authorizing, or in furtherance of, any of the
foregoing;
provided, however, that for purposes of this Section 8.1.9 only, Material
Obligor shall also include direct and indirect Subsidiaries of Holdco that are
not otherwise Material Obligors which, in the aggregate, (a) accounted for 15%
or more of the EBITDA of Holdco and its Subsidiaries on a consolidated basis or
(b) have assets which represent 15% or more of the consolidated gross assets of
Holdco and its Subsidiaries, in each case as determined in accordance with the
definition of "Material Subsidiary".
SECTION 8.1.10. Impairment of Security, etc. (a) Any Loan Document, or any
Lien granted thereunder, shall (except in accordance with its terms), in whole
or in part, terminate, cease to be effective or cease to be the legally valid,
binding and enforceable obligation of any Obligor party thereto; (b) any
Borrower, any other Obligor or any other party shall, directly or indirectly,
contest in any manner such effectiveness, validity, binding nature or
enforceability; or (c) any Lien securing any Obligation shall, in whole or in
part, cease to be a perfected first priority Lien, subject only to those
exceptions expressly permitted by this Agreement or such Loan Document.
SECTION 8.2. Action if Bankruptcy. If any Event of Default described in
clauses (a) through (d) of Section 8.1.9 shall occur, the Commitments (if not
theretofore terminated) shall automatically terminate and the outstanding
principal amount of all outstanding Loans and all other Obligations shall
automatically be and become immediately due and payable, without notice or
demand.
SECTION 8.3. Action if Other Event of Default. If any Event of Default
(other than any Event of Default described in clauses (a) through (d) of Section
8.1.9) shall occur for any reason, whether voluntary or involuntary, and be
continuing, the Administrative Agent, upon the direction of the Required
Lenders, shall by notice to the Borrowers declare all or any portion of the
outstanding principal amount of the Loans and other Obligations to be due and
payable, require the Borrowers to provide cash collateral to be deposited with
the Administrative Agent in an amount equal to the Letter of Credit Outstandings
and/or declare the Commitments (if not theretofore terminated) to be terminated,
whereupon the full unpaid amount of such Loans and other Obligations which shall
be so declared due and payable shall be and become immediately due and payable,
without further notice, demand or presentment, the Borrowers shall deposit
with the Administrative Agent cash collateral in an amount equal to the Letter
of Credit Outstandings and/or, as the case may be, the Commitments shall ter-
minate.
ARTICLE IX
THE AGENTS
SECTION 9.1. Actions. Each Lender hereby appoints DLJ as its Syndication
Agent, Morgan Stanley as its Documentation Agent and BNY as its Administrative
Agent under and for purposes of this Agreement and each other Loan Document.
Each Lender authorizes the Agents to act on behalf of such Lender under this
Agreement and each other Loan Document and, in the absence of other written
instructions from the Required Lenders received from time to time by the Agents
(with respect to which each of the Agents agrees that it will comply, except as
otherwise provided in this Section or as otherwise advised by counsel), to
exercise such powers hereunder and thereunder as are specifically delegated to
or required of the Agents by the terms hereof and thereof, together with such
powers as may be reasonably incidental thereto. The Agents shall in all cases be
fully protected in acting, or refraining from acting, in accordance with written
instructions signed by the Required Lenders and except as otherwise specifically
provided herein, such instructions and any action or inaction pursuant thereto
shall be binding on all the Lenders. No Agent nor any of its directors,
officers, employees or agents shall have any responsibility to the Borrowers on
account of the failure of or delay in performance or breach by any other Agent
or any Lender of any of its obligations hereunder or to any Lender on account of
the failure of or delay in performance or breach by any Lender, any other Agent
or any Borrower of any of their respective obligations hereunder or under any
other Loan Document or in connection herewith or therewith. Each Lender hereby
indemnifies (which indemnity shall survive any termination of this Agreement)
the Agents, pro rata according to such Lender's percentage of the Total Exposure
Amount, from and against any and all liabilities, obligations, losses, damages,
claims, costs or expenses of any kind or nature whatsoever which may at any time
be imposed on, incurred by, or asserted against, any of the Agents in any way
relating to or arising out of this Agreement and any other Loan Document,
including reasonable attorneys' fees, and as to which any Agent is not
reimbursed by the Borrowers; provided, however, that no Lender shall be liable
for the payment of any portion of such liabilities, obligations, losses,
damages, claims, costs or expenses to the extent determined by a court of
competent jurisdiction in a final proceeding to have resulted solely from such
Agent's gross negligence or wilful misconduct. The Agents shall not be required
to take any action hereunder or under any other Loan Document, or to prosecute
or defend any suit in respect of this Agreement or any other Loan Document,
unless each Agent is indemnified hereunder to its satisfaction. If any indemnity
in favor of any of the Agents shall be or become, in such Agent's determination,
inadequate, such Agent may call for additional indemnification from the Lenders
and cease to do the acts indemnified against hereunder until such additional
indemnity is given. Each Agent may execute any and all duties
hereunder by or through agents, attorneys-in-fact or employees
and shall be entitled to rely upon the advice of legal counsel,
accountants or experts selected by each of them in good faith and with
reasonable care with respect to all matters arising hereunder. The Lenders and
the Agents hereby acknowledge that no Agent shall be under any duty to take any
discretionary action permitted to be taken by it pursuant to the provisions of
this Agreement unless it shall be requested in writing to do so by the Required
Lenders. The Issuer shall act on behalf of the Secured Parties with respect to
all Letters of Credit and the documents associated therewith until such time and
except for so long as the Administrative Agent may agree at the request of the
Lenders to act for the Issuer with respect thereto.
SECTION 9.2. Funding Reliance, etc. Unless the Administrative Agent shall
have been notified by telephone, confirmed in writing, by any Lender by 5:00
p.m., New York time, on the day prior to a Borrowing that such Lender will not
make available the amount which would constitute its Percentage of such
Borrowing on the date specified therefor, the Administrative Agent may assume
that such Lender has made such amount available to the Administrative Agent and,
in reliance upon such assumption, make available to the Borrowers a
corresponding amount. If and to the extent that such Lender shall not have made
such amount available to the Administrative Agent, such Lender and each Borrower
severally agree to repay the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
the Administrative Agent made such amount available to the Borrowers to the date
such amount is repaid to the Administrative Agent, (i) if from a Lender, at the
Federal Funds Rate for the first three days and thereafter at the Alternate Base
Rate, and (ii) if from the Borrowers, at the interest rate applicable at the
time to Loans comprising such Borrowing.
SECTION 9.3. Exculpation. Neither the Agents, the Arrangers nor any of
their respective directors, officers, employees or agents shall be liable to any
Lender for any action taken or omitted to be taken by it under this Agreement or
any other Loan Document, or in connection herewith or therewith, except for its
own wilful misconduct or gross negligence, nor responsible for any recitals or
warranties herein or therein, nor for the effectiveness, enforceability,
validity or due execution of this Agreement or any other Loan Document, nor for
the creation, perfection or priority of any Liens purported to be created by any
of the Loan Documents, or the validity, genuineness, enforceability, existence,
value or sufficiency of any collateral security, nor to make any inquiry
respecting the performance by the Borrowers or any Obligor of its obligations
hereunder or under any other Loan Document. Any such inquiry which may be made
by any Agent shall not obligate it to make any further inquiry or to take any
action. The Issuer shall have all the benefits and immunities (i) provided to
the Agents in this Article IX with respect to any acts taken or omissions
suffered by the Issuer in connection with Letters of Credit issued or proposed
to be issued by it and the Letter of Credit applications and related documents
as fully as if the term "Agents", as used in this Article IX, included the
Issuer with respect to such acts or omissions and (ii) as additionally provided
in this Agreement with respect to the Issuer. The Agents shall be entitled to
rely upon advice of counsel concerning legal matters and upon any notice, con-
sent, certificate, statement or writing which each Agent believes to be
genuine and to have been presented by a proper Person.
SECTION 9.4. Successor. The Syndication Agent may resign as such upon one
Business Day's notice to the Borrowers and the Administrative Agent. The
Documentation Agent may resign as such upon one Business Day's notice to the
Borrowers, the Syndication Agent and the Administrative Agent. The
Administrative Agent may resign as such at any time upon at least 30 days' prior
notice to the Borrowers, the Syndication Agent, the Documentation Agent and all
Lenders. If the Administrative Agent at any time shall resign, the Required
Lenders may, with the prior consent of the Borrowers (which consent shall not be
unreasonably withheld or delayed), appoint another Lender as a successor
Administrative Agent which shall thereupon become the Administrative Agent
hereunder. If no successor Administrative Agent shall have been so appointed,
and shall have accepted such appointment, within 30 days after the retiring
Administrative Agent's giving notice of resignation, then the retiring
Administrative Agent may, on behalf of the Secured Parties, appoint a successor
Administrative Agent, which shall be one of the Lenders or a commercial banking
institution organized under the laws of the U.S. (or any State thereof) or a
U.S. branch or agency of a commercial banking institution, and having a combined
capital and surplus of at least $500,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall be entitled to receive from the
retiring Administrative Agent such documents of transfer and assignment as such
successor Administrative Agent may reasonably request, and shall thereupon
succeed to and become vested with all rights, powers, privileges and duties of
the retiring Administrative Agent, and the retiring Administrative Agent shall
be discharged from its duties and obligations under this Agreement. After any
retiring Agent's resignation hereunder as an Agent, the provisions of
(a) this Article IX shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was an Agent under this
Agreement; and
(b) Section 10.3 and Section 10.4 shall continue to inure to its
benefit.
SECTION 9.5. Loans or Letters of Credit Issued by the Agents. Each Agent
shall have the same rights and powers with respect to (x) the Loans made by it
or any of its Affiliates, (y) the Notes held by it or any of its Affiliates, and
(z) its participating interests in the Letters of Credit as any other Lender and
may exercise the same as if it were not an Agent. Each Agent and each of their
respective Affiliates may accept deposits from, lend money to, and generally
engage in any kind of business with the Borrowers or any Subsidiary or Affiliate
of the Borrowers as if such Agent were not an Agent hereunder.
SECTION 9.6. Credit Decisions. Each Lender acknowledges that it has,
independently of the Agents, the Arrangers and each other Lender, and based on
such Lender's review of the financial information of Holdco and each of the
Borrowers, this Agreement, the other Loan Documents (the terms and provisions of
which being satisfactory to such Lender) and such other docu-
ments, information and investigations as such Lender has deemed appropriate,
made its own credit decision to extend its Commitments. Each Lender also
acknowledges that it will, independently of the Agents, the Arrangers and each
other Lender, and based on such other documents, information and investigations
as it shall deem appropriate at any time, continue to make its own credit
decisions as to exercising or not exercising from time to time any rights and
privileges available to it under this Agreement or any other Loan Document.
SECTION 9.7. Copies, etc. The Administrative Agent shall give prompt
notice to each Lender of each notice or request required or permitted to be
given to the Administrative Agent by the Borrowers pursuant to the terms of this
Agreement (unless concurrently required to be delivered to the Lenders by the
Borrowers). The Administrative Agent will distribute to each Lender each
document or instrument received for its account and copies of all other
communications received by the Administrative Agent from the Borrowers for
distribution to the Lenders by the Administrative Agent in accordance with the
terms of this Agreement.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Waivers, Amendments, etc. The provisions of this Agreement
and of each other Loan Document may from time to time be amended, modified or
waived, if such amendment, modification or waiver is in writing and consented to
by the Borrowers and the Required Lenders; provided, however, that no such
amendment, modification or waiver which would:
(a) modify any requirement hereunder that any particular action be
taken by all the Lenders or by the Required Lenders shall be effective
unless consented to by each Lender;
(b) modify this Section 10.1, change the definition of "Required
Lenders", increase any Commitment Amount or the Percentage of any Lender,
reduce any fees described in Article III other than in Section 3.3.2,
release Holdco, Triarc Beverage or any Subsidiary Guarantor from its
guaranty obligations under any Loan Document or release all or
substantially all of the collateral security, except as otherwise
specifically provided in this Agreement or in any other Loan Document (it
being understood that no consent of any Lender shall be required in
connection with the release of any Subsidiary Guarantor from its
obligations under the Subsidiary Guaranty or any release of any collateral
security, in each case, in connection with the Arby's Securitization, the
Arby's Securitization Residual Payment and the Royal Crown Disposition),
or extend the Revolving Loan Commitment Termination Date shall be made
without the consent of each Lender adversely affected thereby;
(c) extend the due date for, or reduce the amount of, any scheduled
repayment or prepayment of principal of or interest on any Loan or any
Reimbursement Obligation (or reduce the principal amount of or rate of
interest on any Loan or any Reimbursement Obligation) shall be made
without the consent of the holder of such Loan or, in the case of a
Reimbursement Obligation, the Issuer owed, and those Lenders participating
in, such Reimbursement Obligation;
(d) affect adversely the interests, rights or obligations of the
Issuer qua the Issuer shall be made without the consent of the Issuer;
(e) affect adversely the interests, rights or obligations of any
Agent or Arranger (in its capacity as such) shall be made without consent
of such Agent or such Arranger, as the case may be;
(f) (i) amend, modify or waive the provisions of clause (a)(i) of
Section 3.1.1 or clause (b) of Section 3.1.2 or (ii) by its terms,
adversely affect the rights of Lenders participating in any Tranche
differently from those of Lenders participating in other Tranches, in
either case shall be made without the consent of Lenders holding more than
50% of the aggregate amount of Loans outstanding under the Tranche or
Tranches affected by such modification, or, in the case of a modification
affecting the Revolving Loan Commitment Amount, the Lenders holding more
than 50% of the Revolving Loan Commitments;
(g) (i) change the definition of "Borrowing Base Amount", "Eligible
Account", "Eligible Inventory" or "Net Asset Value", in each case if
the effect of such change would be to require a Lender to make or
participate in a Credit Extension in an amount that is greater than
such Lender would have had to make or participate in immediately
prior to such change, shall be made without the consent of Lenders
holding more than 50% of the Revolving Loan Commitments;
(ii) waive any Default that has occurred and is continuing
shall be made without the consent of Lenders holding more than 50%
of the Revolving Loan Commitments;
(iii) amend, modify or waive any of the provisions of Section
7.2.4 in any manner shall be made without the consent of Lenders
holding more than 50% of the Revolving Loan Commitments unless each
of the following conditions is satisfied: (A) immediately prior to
the effective date of such amendment, modification or waiver, no
Default shall have occurred and be continuing and (B) the effect of
any such amendment, modification or waiver does not by itself enable
the Borrowers to satisfy the conditions precedent set forth in
Section 5.2.1 to the making of a Revolving Loan or the issuance of a
Letter of Credit either immediately or at any time within three
months following the earlier of (x) three weeks from the date the
request for such amendment, modification or waiver is delivered
to the Administrative Agent and (y) the effective date of such
amendment, modification or waiver; or
(iv) amend, modify or waive any of the provisions of Section
7.2.4 to permit the Borrowers to take (or cause to be taken) any
action (including, without limitation, any acquisition or
disposition of any Person or any properties or assets) which is
reasonably expected to result in the Borrowers' failure to comply
with any provision of Section 7.2.4 (a "Contemplated Transaction")
shall be made without the consent of Lenders holding more than 50%
of the Revolving Loan Commitments unless each of the following
conditions is satisfied: (A) immediately prior to the effective date
of any such amendment, modification or waiver, no Default shall have
occurred and be continuing and (B) the Contemplated Transaction is
to be consummated after three months following the earlier of (x)
three weeks from the date the request for such amendment,
modification or waiver is delivered to the Administrative Agent and
(y) the effective date of such amendment, modification or waiver.
No failure or delay on the part of any Agent, the Issuer, any Lender or the
holder of any Note in exercising any power or right under this Agreement or any
other Loan Document shall operate as a waiver thereof, nor shall any single or
partial exercise of any such power or right preclude any other or further
exercise thereof or the exercise of any other power or right. No notice to or
demand on any Borrower in any case shall entitle it to any notice or demand in
similar or other circumstances. No waiver or approval by any Agent, the Issuer,
any Lender or the holder of any Note under this Agreement or any other Loan
Document shall, except as may be otherwise stated in such waiver or approval, be
applicable to subsequent transactions. No waiver or approval hereunder shall
require any similar or dissimilar waiver or approval thereafter to be granted
hereunder.
For purposes of this Section 10.1, the Syndication Agent, in coordination
with the Administrative Agent, shall have primary responsibility, together with
the Borrowers, in the negotiation, preparation, and documentation relating to
any amendment, modification or waiver of this Agreement, any other Loan Document
or any other agreement or document related hereto or thereto contemplated
pursuant to this Section.
SECTION 10.2. Notices. All notices and other communications provided to
any party under this Agreement or any other Loan Document shall be in writing or
by facsimile and addressed, delivered or transmitted to such party (a) in the
case of any Lender, at its address or facsimile number set forth opposite its
name on Schedule II hereto under the applicable column heading or as set forth
in the Lender Assignment Agreement, (b) in the case of any Agent, at its address
or facsimile number set forth below its signature hereto, and (c) in the case of
Holdco, Triarc Beverage, any Borrower or any other Subsidiary of Holdco, to such
Person in care of Triarc Companies, Inc., 280 Park Avenue -- 41st Floor, New
York, NY 10017, Attention: General Counsel, Facsimile: (212) 451-3216, or, in
any case, at such address or facsimile number as may be designated by such
party in a notice to the other parties. Any notice, if mailed and properly
addressed with postage prepaid or if properly addressed and sent by pre-paid
courier service, shall be deemed given when received; any notice, if transmit-
ted by facsimile, shall be deemed given when transmitted (receipt acknowledged).
SECTION 10.3. Payment of Costs and Expenses. The Borrowers hereby jointly
and severally agree to pay on demand all expenses of each of the Agents (includ-
ing the reasonable fees and out-of-pocket expenses of counsel to the Agents) in
connection with
(a) the syndication by the Syndication Agent, the Arrangers of the
Loans, the negotiation, preparation, execution and delivery of this
Agreement and of each other Loan Document, including schedules and
exhibits, and any amendments, waivers, consents, supplements or other
modifications to this Agreement or any other Loan Document as may from
time to time hereafter be required, whether or not the transactions
contemplated hereby are consummated;
(b) the filing, recording, refiling or rerecording of each Mortgage,
each Pledge Agreement and each Security Agreement and/or any UCC financing
statements relating thereto and all amendments, supplements and
modifications to any thereof and any and all other documents or
instruments of further assurance required to be filed or recorded or
refiled or rerecorded by the terms hereof or of any Mortgage, Pledge
Agreement or Security Agreement; and
(c) the preparation and review of the form of any document or
instrument relevant to this Agreement or any other Loan Document.
The Borrowers further jointly and severally agree to pay, and to save the Agents
and the Lenders harmless from all liability for, any stamp or other taxes which
may be payable in connection with the execution or delivery of this Agreement,
the Borrowings hereunder, the issuance of the Notes, the issuance of the Letters
of Credit, or any other Loan Documents. The Borrowers jointly and severally
agree to reimburse each Agent and each Lender upon demand for all reasonable
out-of-pocket expenses (including reasonable attorneys' fees and legal expenses)
incurred by such Agent or such Lender in connection with (x) the negotiation of
any restructuring or "work-out", whether or not consummated, of any Obligations
and (y) the enforcement of any Obligations.
SECTION 10.4. Indemnification. In consideration of the execution and
delivery of this Agreement by each Lender and the extension of the Commitments,
the Borrowers hereby jointly and severally indemnify, exonerate and hold each
Agent, the Arrangers, the Issuer and each Lender and each of their respective
partners, trustees, officers, directors, employees and agents (collectively, the
"Indemnified Parties") free and harmless from and against any and all actions,
causes of action, suits, losses, costs, liabilities and damages, and expenses
incurred in connection therewith (irrespective of whether any such Indemnified
Party is a party to the action for which indemnification hereunder is sought),
including reasonable attorneys' fees and disbursements (collectively, the
"Indemnified Liabilities"), incurred by the Indemnified Parties or any of
them as a result of, or arising out of, or relating to
(a) any transaction financed or to be financed in whole or in part,
directly or indirectly, with the proceeds of any Loan or the use of any
Letter of Credit;
(b) the entering into and performance of this Agreement and any
other Loan Document by any of the Indemnified Parties (including any
action brought by or on behalf of any Borrower as the result of any
determination by the Required Lenders pursuant to Article V not to make
any Credit Extension);
(c) any investigation, litigation or proceeding related to any
acquisition or proposed acquisition by any Borrower or any of its
Subsidiaries of all or any portion of the stock or assets of any Person,
whether or not such Agent, such Arranger, the Issuer or such Lender is
party thereto;
(d) any investigation, litigation or proceeding related to any
environmental cleanup, audit, compliance or other matter relating to the
protection of the environment or the Release by any Borrower or any of its
Subsidiaries of any Hazardous Material; or
(e) the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission, discharging or releases from, any real
property owned or operated by any Borrower or any Subsidiary thereof of
any Hazardous Material (including any losses, liabilities, damages,
injuries, costs, expenses or claims asserted or arising under any
Environmental Law), regardless of whether caused by, or within the control
of, such Borrower or such Subsidiary,
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's gross
negligence or wilful misconduct. Each Obligor and its permitted successors and
assigns hereby waive, release and agree not to make any claim, or bring any cost
recovery action against, any Agent, any Arranger or any Lender under CERCLA or
any state equivalent, or any similar law now existing or hereafter enacted,
except to the extent arising out of the gross negligence or wilful misconduct of
any Indemnified Party. It is expressly understood and agreed that to the extent
that any of such Persons is strictly liable under any Environmental Laws, such
Obligor's obligation to such Person under this indemnity shall likewise be
without regard to fault on the part of such Obligor, to the extent permitted
under applicable law, with respect to the violation or condition which results
in liability of such Person. If and to the extent that the foregoing undertaking
may be unenforceable for any reason, such Obligor hereby agrees to make the
maximum contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law.
SECTION 10.5. Survival. The obligations of the Borrowers under Sections
4.3, 4.4, 4.5, 4.6, 10.3 and 10.4, and the obligations of the Lenders under
Section 4.6, Section 4.8, Section 9.1 and Section 10.12, shall in each case
survive any termination of this Agreement, the payment in full of all
Obligations and the termination of all Commitments. The representations and
warranties made by each Borrower and each other Obligor in this Agreement and in
each other Loan Document shall survive the execution and delivery of this
Agreement and each such other Loan Document.
SECTION 10.6. Severability. Any provision of this Agreement or any other
Loan Document which is prohibited or unenforceable in any jurisdiction shall, as
to such provision and such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions of
this Agreement or such Loan Document or affecting the validity or enforceability
of such provision in any other jurisdiction.
SECTION 10.7. Headings. The various headings of this Agreement and of each
other Loan Document are inserted for convenience only and shall not affect the
meaning or interpretation of this Agreement or such other Loan Document or any
provisions hereof or thereof.
SECTION 10.8. Execution in Counterparts, Effectiveness, etc. This
Agreement may be executed by the parties hereto in several counterparts, each of
which shall be deemed to be an original and all of which shall constitute
together but one and the same agreement. This Agreement shall become effective
when counterparts hereof executed on behalf of the Borrowers and each Lender (or
notice thereof satisfactory to the Agents) shall have been received by the
Syndication Agent and notice thereof shall have been given by the Administrative
Agent to the Borrowers and each Lender.
SECTION 10.9. Governing Law; Entire Agreement. THIS AGREEMENT AND EACH
OTHER LOAN DOCUMENT SHALL EACH BE DEEMED TO BE A CONTRACT MADE UNDER AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK. This Agreement and the
other Loan Documents constitute the entire understanding among the parties
hereto with respect to the subject matter hereof and supersede any prior
agreements, written or oral, with respect thereto.
SECTION 10.10. Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that:
(a) no Borrower may assign or transfer its rights or obligations
hereunder without the prior written consent of the Agents and all Lenders,
except as otherwise specifically provided in this Agreement or in any
other Loan Document; and
(b) the rights of sale, assignment and transfer of the Lenders are
subject to Section 10.11.
SECTION 10.11. Sale and Transfer of Loans and Notes; Participation in
Loans and Notes. Each Lender may assign, or sell participation in, its Loans and
Commitments to one or more other Persons in accordance with this Section 10.11.
SECTION 10.11.1. Assignments. Any Lender,
(a) with the prior written consents of the Borrowers, the Agents and
(in the case of any assignment of participations in Letters of Credit or
Revolving Loan Commitments) each Issuer (which consents shall not be
unreasonably delayed or withheld and which consents of the Agents and each
Issuer shall not be required in the case of assignments made by or to DLJ,
Morgan Stanley, the Administrative Agent or any of their Affiliates and
which consent of the Borrowers shall not be required if an Event of
Default under Section 8.1.1 or Section 8.1.9 shall have occurred and be
continuing) may at any time assign and delegate to one or more commercial
banks, other financial institutions, or funds which are primarily engaged
in making, purchasing or investing in loans of the type made pursuant to
this Agreement, and
(b) with notice to the Borrowers, the Agents and (in the case of any
assignment of participations in Letters of Credit or Revolving Loan
Commitments) each Issuer, but without the consent of the Borrowers, the
Agents or any Issuer, may assign and delegate to any of its Affiliates or
to any other Lender or to any Person whose investment manager or
investment advisor is the investment manager or investment advisor of such
Lender (a "Related Fund")
(each Person described in either of the foregoing clauses as being the Person to
whom such assignment and delegation is to be made, being hereinafter referred to
as an "Assignee Lender"), all or any fraction of such Lender's total Loans,
participations in Letters of Credit and Letter of Credit Outstandings with
respect thereto and Commitments (which assignment and delegation shall be, as
among Revolving Loan Commitments, Revolving Loans and participations in Letters
of Credit, of a constant, and not a varying, percentage), in a minimum aggregate
amount of (i) $1,000,000 (if such assignment and delegation is to a then
existing Lender or Affiliate or Related Fund of any Lender) and (ii) $2,000,000
(if such assignment and delegation is to a Person not then a Lender or Affiliate
or Related Fund of any Lender) or the then remaining amount of a Lender's Loans
and Commitments; provided, however, that any such Assignee Lender will comply,
if applicable, with the provisions contained in Section 4.6; provided, further,
however, that concurrent assignments to a Person and one or more of its
Affiliates or Related Funds shall be treated as one assignment for purposes of
the minimum aggregate amount set forth in clause (ii) above; and provided,
further, however, that the Borrowers, each other Obligor and the Agents shall be
entitled to continue to deal solely and directly with such Lender in connection
with the interests so assigned and delegated to an Assignee Lender until
(i) written notice of such assignment and delegation, together
with payment instructions, addresses and related information with
respect to such Assignee Lender, shall have been given to the
Borrowers and the Agents by such Lender and such Assignee Lender,
(ii) such Assignee Lender shall have executed and delivered to
the Borrowers and the Agents a Lender Assignment Agreement, accepted
by the Agents (if required),
(iii) the processing fees described below shall have been paid
(if required), and
(iv) such assignment and delegation shall have been delivered
to the Administrative Agent for registration in the Register
pursuant to clause (b) of Section 2.7.
From and after the date that the Agents accept such Lender Assignment Agreement
and such assignment and delegation is registered in the Register pursuant to
clause (b) of Section 2.7, (x) the Assignee Lender thereunder shall be deemed
automatically to have become a party hereto and to the extent that rights and
obligations hereunder have been assigned and delegated to such Assignee Lender
in connection with such Lender Assignment Agreement, shall have the rights and
obligations of a Lender hereunder and under the other Loan Documents, and (y)
the assignor Lender, to the extent that rights and obligations hereunder have
been assigned and delegated by it in connection with such Lender Assignment
Agreement, shall be released from its obligations hereunder and under the other
Loan Documents. Any assignor Lender that shall have previously requested and
received any Note or Notes to which such assignment applies shall, upon accep-
tance by the Administrative Agent of the applicable Lender Assignment Agreement,
mark such predecessor Note or Notes "exchanged" and deliver them to the Borrow-
ers (against, if the assignor Lender has retained Loans or Commitments and has
requested replacement Notes pursuant to clause (b)(ii) of Section 2.7, its re-
ceipt of replacement Notes in the principal amount of the Loans and Commitments
retained by it). The Borrowers shall execute and deliver to the Administrative
Agent (for delivery to the relevant Assignee Lender) new Notes evidencing such
Assignee Lender's assigned Loans and Commitments and, if the assignor Lender
has retained Loans and Commitments hereunder, replacement Notes in the principal
amount of the Loans and Commitments retained by the assignor Lender hereunder
(such Notes to be in exchange for, but not in payment of, those Notes then held
by such assignor Lender). Each such Note shall be dated the date of the prede-
cessor Notes. Accrued interest on that part of the predecessor Notes evidenced
by the new Notes, and accrued fees, shall be paid as provided in the Lender
Assignment Agreement. Accrued interest on that part of the predecessor Notes
evidenced by the replacement Notes shall be paid to the assignor Lender. Ac-
crued interest and accrued fees shall be paid at the same time or times provided
provided in the predecessor Notes and in this Agreement. Such assignor Lender or
such Assignee Lender must also pay a processing fee to the Administrative Agent
upon delivery of any Lender Assignment Agreement in the amount of $3,500, unless
such assignment and delegation by such assignor Lender is to its Affiliate or
Related Fund or if such assignment and delegation consists of a pledge by such
assignor Lender to a Federal Reserve Bank (or, in the case of an assignor Lender
who is an investment fund, to the trustee under the indenture to which such fund
is a party), as provided below or as otherwise consented to by the Administra-
tive Agent. Any attempted assignment and delegation not made in accordance with
this Section 10.11.1 shall be null and void. Nothing contained in this
Section 10.11.1 shall prevent or prohibit any Lender from pledging its rights
(but not its obligations to make Loans) under this Agreement and/or its Loans
and/or its Notes hereunder (i) to a Federal Reserve Bank in support of borrow-
ings made by such Lender from such Federal Reserve Bank or (ii) in the case of a
Lender that is an investment fund, to the trustee under the indenture to which
such fund is a party in support of its obligations to such trustee, in either
case without notice to or consent of the Borrowers or the Agents; provided, how-
ever, that (A) such Lender shall remain a "Lender" under this Agreement and
shall continue to be bound by the terms and conditions set forth in this Agree-
ment and the other Loan Documents, and (B) any assignment by such trustee shall
be subject to the provisions of clause (a) of this Section 10.11.1. In the event
that S&P, Moody's or Thompson's BankWatch (or InsuranceWatch Ratings Service,
in the case of Lenders that are insurance companies (or Best's Insurance
Watch Ratings Service)) shall, after the date that any Lender with a Com-
mitment to make Revolving Loans or participate in Letters of Credit becomes a
Lender, downgrade the long-term certificate of deposit rating or long-term
senior unsecured debt rating of such Lender, and the resulting rating shall be
below BBB-, Baa3 or C (or BB, in the case of Lender that is an insurance company
(or B, in the case of an insurance company not rated by InsuranceWatch Ratings
Service)), then the Issuer shall have the right, but not the obligation, upon
notice to such Lender and the Administrative Agent, to replace such Lender with
an Assignee Lender in accordance with and subject to the restrictions contained
in this Section, and such Lender hereby agrees to transfer and assign without
recourse (in accordance with and subject to the restrictions contained in
this Section) all its interests, rights and obligations in respect of its
Revolving Loan Commitment under this Agreement to such Assignee Lender; pro-
vided, however, that (i) no such assignment shall conflict with any law, rule
and regulation or order of any governmental authority and (ii) such Assignee
Lender shall pay to such Lender in immediately available funds on the date of
such assignment the principal of and interest and fees (if any) accrued to the
date of payment on the Loans made, and Letters of Credit participated in, by
such Lender hereunder and all other amounts accrued for such Lender's account
or owed to it hereunder.
SECTION 10.11.2. Participations. Any Lender may at any time sell to one or
more commercial banks, other financial institutions or funds which are primarily
engaged in making, purchasing or investing in loans of the type made pursuant to
this Agreement (each of such commercial banks, financial institutions or funds
being herein called a "Participant") participating interests (or a
sub-participating interest, in the case of a Lender's participating interest in
a Letter of Credit) in any of the Loans, Commitments, or other interests of such
Lender hereunder; provided, however, that
(a) no participation or sub-participation contemplated in this
Section 10.11.2 shall relieve such Lender from its Commitments or its
other obligations hereunder or under any other Loan Document,
(b) such Lender shall remain solely responsible for the performance
of its Commitments and such other obligations,
(c) the Borrowers and each other Obligor and the Agents shall
continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement and each of the
other Loan Documents,
(d) no Participant, unless such Participant is an Affiliate or
Related Fund of such Lender, or is itself a Lender, shall be entitled to
require such Lender to take or refrain from taking any action hereunder or
under any other Loan Document, except that such Lender may agree with any
Participant that such Lender will not, without such Participant's consent,
agree to (i) any reduction in the interest rate or in the amount of fees
that such Participant is otherwise entitled to, (ii) a decrease in the
principal amount, or an extension of the Stated Maturity Date, of any Loan
in which such Participant has purchased a participating interest or (iii)
release all or substantially all of the collateral security under the Loan
Documents or any Guarantor from its obligations under its Guaranty, in
each case except as otherwise specifically provided in a Loan Document,
and
(e) no Borrower shall be required to pay any amount under Sections
4.3, 4.4, 4.5, 4.6, 10.3 and 10.4 that is greater than the amount which it
would have been required to pay had no participating interest been sold.
The Borrowers acknowledge and agree, subject to clause (e) above, that each
Participant, for purposes of Sections 4.3, 4.4, 4.5, 4.6, 4.8, 4.9, 10.3, 10.4
and 10.12, shall be considered a Lender.
SECTION 10.12. Confidentiality. The Lenders shall hold all non-public
information obtained pursuant to the requirements of this Agreement in
accordance with their customary procedures for handling confidential information
of this nature and in accordance with safe and sound banking or investment
practices (as applicable) and in any event may make disclosure to any of their
examiners, Affiliates, outside auditors, counsel and other professional advisors
in connection with this Agreement or as reasonably required by any bona fide
transferee, participant or assignee or to any direct or indirect contractual
counterparties in swap agreements or such contractual counterparties'
professional advisors provided that such transferee, participant, assignee,
contractual counterparty or professional advisor to such contractual
counterparty agrees in writing to keep such information confidential to the same
extent required of the Lenders hereunder, or as required or requested by any
governmental agency, bank regulator or insurance company regulator or
representative thereof or pursuant to legal process; provided, however, that
(a) unless specifically prohibited by applicable law or court order,
each Lender shall notify the Borrowers of any request by any governmental
agency or representative thereof (other than any such request in
connection with an examination of such Lender by such governmental agency)
for disclosure of any such non-public information prior to disclosure of
such information;
(b) prior to any such disclosure pursuant to this Section 10.12,
each Lender shall require any such bona fide transferee, participant and
assignee receiving a disclosure of non-public information to agree in
writing
(i) to be bound by this Section 10.12; and
(ii) to require such Person to require any other Person to
whom such Person discloses such non-public information to be
similarly bound by this Section 10.12; and
(c) except as may be required by an order of a court of competent
jurisdiction and to the extent set forth therein, no Lender shall be
obligated or required to return any materials furnished by the Borrowers
or any Subsidiary.
SECTION 10.13. Other Transactions. Nothing contained herein shall preclude
the Agents, the Arrangers or any other Lender from engaging in any transaction,
in addition to those contemplated by this Agreement or any other Loan Document,
with any Borrower or any of its Affiliates in which such Borrower or such
Affiliate is not restricted hereby from engaging with any other Person.
SECTION 10.14. Forum Selection and Consent to Jurisdiction. ANY LITIGA-
TION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREE-
MENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE AGENTS, THE ISSUER, THE
ARRANGERS, THE LENDERS OR THE BORROWERS SHALL BE BROUGHT AND MAINTAINED
EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES DIS-
TRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT ANY
SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE
BROUGHT, AT THE ADMINISTRATIVE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION
WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. THE BORROWERS HEREBY EX-
PRESSLY AND IRREVOCABLY SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF
NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND IR-
REVOCABLY AGREE TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION
WITH SUCH LITIGATION. THE BORROWERS FURTHER IRREVOCABLY CONSENT TO THE SERVICE
OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE
WITHIN OR WITHOUT THE STATE OF NEW YORK AND EXPRESSLY AND IRREVOCABLY APPOINT
TRIARC AS THEIR AGENT FOR SERVICE OF PROCESS FOR PURPOSES OF ANY ACTION AS TO
WHICH THEY HAVE SUBMITTED TO JURISDICTION AS SET FORTH IN THIS SECTION 10.14,
AND AGREE THAT SERVICE UPON SUCH AUTHORIZED AGENT SHALL BE DEEMED IN EVERY
RESPECT SERVICE OF PROCESS UPON THE BORROWERS OR THEIR SUCCESSORS AND ASSIGNS,
AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, SHALL BE TAKEN
AND HELD TO BE VALID PERSONAL SERVICE UPON THEM. THE BORROWERS
HEREBY EXPRESSLY AND IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW,
ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF
ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM
THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE
EXTENT THAT ANY BORROWER HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM
JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR
NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR
OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, SUCH BORROWER HEREBY
IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS.
SECTION 10.15. Waiver of Jury Trial. THE AGENTS, THE ISSUER, THE
ARRANGERS, THE LENDERS AND THE BORROWERS HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH,
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE AGENTS, THE
ISSUER, THE ARRANGERS, THE LENDERS OR THE BORROWERS. THE BORROWERS ACKNOWLEDGE
AND AGREE THAT THEY HAVE RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS
PROVISION (AND EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH ANY
BORROWER IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE
AGENTS, THE ISSUER, THE ARRANGERS AND THE LENDERS ENTERING INTO THIS AGREEMENT
AND EACH SUCH OTHER LOAN DOCUMENT.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized as of the day
and year first above written.
MISTIC BRANDS, INC.
By: BRIAN L. SCHORR
Title: Executive Vice President
SNAPPLE BEVERAGE CORP.
By: BRIAN L. SCHORR
Title: Executive Vice President
CABLE CAR BEVERAGE CORPORATION
By: STUART I. ROSEN
Title: Vice President and Secretary
RC/ARBY'S CORPORATION
By: CURTIS S. GIMSON
Title: Senior Vice President
and Secretary
ROYAL CROWN COMPANY, INC.
By: STUART I. ROSEN
Title: Vice President and Secretary
DLJ CAPITAL FUNDING, INC.,
as Syndication Agent and as a Lender
By: HAROLD PHILIPPS
Title: Managing Director
Address: 277 Park Avenue
New York, NY 10172
Facsimile No.: 212-892-7542
Attention: Harold Philipps
MORGAN STANLEY SENIOR
FUNDING, INC.,
as Documentation Agent and as a Lender
By: MICHAEL HART
Title: Principal
Address: 1585 Broadway
New York, NY 10036
Facsimile No.: 212-761-0260
Attention: Michael Hart
THE BANK OF NEW YORK,
as Administrative Agent, as Issuer
and as a Lender
By: JAMES J. DUCEY
Title: Vice President
Address: One Wall Street
New York, NY 10286
Facsimile No.: 212-635-1480
Attention: James Ducey
List of Omitted Schedules and Exhibits
SCHEDULE I - Disclosure Schedule
SCHEDULE II - Percentages and Administrative Information
EXHIBIT A-1 - Form of Revolving Note
EXHIBIT A-2 - Form of Swing Line Note
EXHIBIT B-1 - Form of Term A Note
EXHIBIT B-2 - Form of Term B Note
EXHIBIT B-3 - Form of Term C Note
EXHIBIT C - Form of Borrowing Request
EXHIBIT D - Form of Issuance Request
EXHIBIT E - Form of Borrowing Base Certificate
EXHIBIT F - Form of Continuation/Conversion Notice
EXHIBIT G - Form of Closing Date Certificate
EXHIBIT H - Form of Compliance Certificate
EXHIBIT I - Form of Subsidiary Guaranty
EXHIBIT J-1 - Form of Holdco/Triarc Beverage Guaranty and Pledge Agreement
EXHIBIT J-2 - Form of Borrower Pledge Agreement
EXHIBIT J-3 - Form of Subsidiary Pledge Agreement
EXHIBIT K-1 - Form of Borrower Security Agreement
EXHIBIT K-2 - Form of Subsidiary Security Agreement
EXHIBIT L - Form of Lender Assignment Agreement
EXHIBIT M - Form of Solvency Certificate
The Registrant hereby agrees to furnish supplementally a copy of any omitted
schedule or exhibit to the Securities and Exchange Commission upon its request.
Exhibit 4.2
TRIARC CONSUMER PRODUCTS GROUP, LLC,
TRIARC BEVERAGE HOLDINGS CORP.,
AS ISSUERS,
THE SUBSIDIARY GUARANTORS PARTY HERETO
AND
THE BANK OF NEW YORK,
AS TRUSTEE
--------------
INDENTURE
DATED AS OF FEBRUARY 25, 1999
--------------
10-1/4% SENIOR SUBORDINATED NOTES DUE 2009
TABLE OF CONTENTS
------------------
PAGE
----
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions................................................
SECTION 1.02. Other Definitions..........................................
SECTION 1.03. Rules of Construction......................................
SECTION 1.04. Incorporation by Reference of TIA..........................
SECTION 1.05. Conflict with TIA..........................................
SECTION 1.06. Compliance Certificates and Opinions.......................
SECTION 1.07. Form of Documents Delivered to Trustee.....................
SECTION 1.08. Acts of Noteholders; Record Dates..........................
SECTION 1.09. Notices, Etc., to Trustee and Issuers......................
SECTION 1.10. Notices to Holders; Waivers................................
SECTION 1.11. Effect of Headings and Table of Contents...................
SECTION 1.12. Successors and Assigns.....................................
SECTION 1.13. Separability Clause........................................
SECTION 1.14. Benefits of Indenture......................................
SECTION 1.15. Governing Law..............................................
SECTION 1.16. Legal Holidays.............................................
SECTION 1.17. No Personal Liability of Directors, Officers, Employees,
Incorporators and Stockholders.............................
SECTION 1.18. Exhibits and Schedules.....................................
SECTION 1.19. Counterparts...............................................
ARTICLE 2
NOTE FORMS
SECTION 2.01. Forms Generally............................................
SECTION 2.02. Form of Trustee' Certificate of Authentication.............
SECTION 2.03. Restrictive Legends........................................
ARTICLE 3
THE NOTES
SECTION 3.01. Title and Terms............................................
SECTION 3.02. Denominations..............................................
SECTION 3.03. Execution, Authentication and Delivery and Dating..........
SECTION 3.04. Temporary Notes............................................
SECTION 3.05. Registration, Registration of Transfer and Exchange........
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Notes................
SECTION 3.07. Payment of Interest Rights Preserved.......................
SECTION 3.08. Persons Deemed Owners......................................
SECTION 3.09. Cancellation...............................................
SECTION 3.10. Computation of Interest....................................
SECTION 3.11. Payment of Additional Amounts..............................
SECTION 3.12. CUSIP Numbers..............................................
SECTION 3.13. Book-entry Provisions for Global Notes.....................
SECTION 3.14. Transfer Provisions........................................
ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Principal, Premium and Interest.................
SECTION 4.02. Maintenance of Office or Agency............................
SECTION 4.03. Money for Payments to Be Held in Trust.....................
SECTION 4.04. SEC Reports................................................
SECTION 4.05. Certificates to Trustee....................................
SECTION 4.06. Limitation on Indebtedness.................................
SECTION 4.07. Limitation on Restricted Payments..........................
SECTION 4.08. Limitation on Restrictions on Distributions from Restricted
Subsidiaries...............................................
SECTION 4.09. Limitation on Sales of Assets and Subsidiary Stock.........
SECTION 4.10. Limitation on Affiliate Transactions.......................
SECTION 4.11. Limitation on Liens........................................
SECTION 4.12. Limitation on Senior Subordinated Indebtedness.............
SECTION 4.13. Repurchase of Notes upon a Change in Control...............
SECTION 4.14. Limitation on the Sale or Issuance of Capital Stock of
Restricted Subsidiaries....................................
SECTION 4.15. Existence..................................................
SECTION 4.16. Payment of Taxes and Other Claims..........................
SECTION 4.17. Maintenance of Properties and Insurance....................
SECTION 4.18. Additional Subsidiary Guarantees...........................
ARTICLE 5
CONSOLIDATION, MERGER OR SALE OF ASSETS
SECTION 5.01. Consolidation, Merger or Sale of Assets by the Company.....
SECTION 5.02. Successor Company Substituted..............................
SECTION 5.03. Consolidation, Merger or Sale of Assets by a Material
Subsidiary Obligor.........................................
SECTION 5.04. Opinion of Counsel to Trustee..............................
ARTICLE 6
REMEDIES
SECTION 6.01. Events of Default..........................................
SECTION 6.02. Acceleration...............................................
SECTION 6.03. Other Remedies.............................................
SECTION 6.04. Waiver of Past Defaults....................................
SECTION 6.05. Control by Majority........................................
SECTION 6.06. Limitation on Suits........................................
SECTION 6.07. Rights of Holders to Receive Payment.......................
SECTION 6.08. Collection Suit by Trustee.................................
SECTION 6.09. Trustee May File Proofs of Claim...........................
SECTION 6.10. Priorities.................................................
SECTION 6.11. Undertaking for Costs......................................
SECTION 6.12. Restoration of Rights and Remedies.........................
SECTION 6.13. Rights and Remedies Cumulative.............................
SECTION 6.14. Waiver of Stay, Extension or Usury Laws....................
ARTICLE 7
THE TRUSTEE
SECTION 7.01. Certain Duties and Responsibilities........................
SECTION 7.02. Notice of Defaults.........................................
SECTION 7.03. Certain Rights of Trustees.................................
SECTION 7.04. Not Responsible for Recitals or Issuance of Notes..........
SECTION 7.05. Trustee's Disclaimer.......................................
SECTION 7.06. May Hold Notes.............................................
SECTION 7.07. Money Held in Trust........................................
SECTION 7.08. Compensation and Reimbursement.............................
SECTION 7.09. Conflicting Interests......................................
SECTION 7.10. Corporate Trustee Required; Eligibility....................
SECTION 7.11. Resignation and Removal; Appointment of Successor..........
SECTION 7.12. Acceptance of Appointment by Successor.....................
SECTION 7.13. Merger, Conversion, Consolidation or Succession to
Business...................................................
SECTION 7.14. Preferential Collection of Claims Against the Issuers......
SECTION 7.15. Appointment of Authenticating Agent........................
ARTICLE 8
HOLDERS' LIST AND REPORTS BY TRUSTEE AND THE ISSUERS
SECTION 8.01. The Issuers to Furnish Trustee Names and Addresses of
Holders....................................................
SECTION 8.02. Preservation of Information; Communications to Holders.....
SECTION 8.03. Reports by Trustee.........................................
ARTICLE 9
AMENDMENT, SUPPLEMENT OR WAIVER
SECTION 9.01. Without Consent of the Holders.............................
SECTION 9.02. With Consent of Holders....................................
SECTION 9.03. Execution of Amendments, Supplements or Waivers............
SECTION 9.04. Revocation and Effect of Consents..........................
SECTION 9.05. Conformity with TIA........................................
SECTION 9.06. Notation on or Exchange of Notes...........................
ARTICLE 10
REDEMPTION OF NOTES
SECTION 10.01. Right of Redemption.......................................
SECTION 10.02. Applicability of Article..................................
SECTION 10.03. Election to Redeem; Notice to Trustee.....................
SECTION 10.04. Selection by Trustee of Notes to Be Redeemed..............
SECTION 10.05. Notice of Redemption......................................
SECTION 10.06. Deposit of Redemption Price...............................
SECTION 10.07. Notes Payable on Redemption Date..........................
SECTION 10.08. Notes Redeemed in Part....................................
ARTICLE 11
SATISFACTION AND DISCHARGE
SECTION 11.01. Satisfaction and Discharges of Indenture..................
SECTION 11.02. Application of Trust Money................................
ARTICLE 12
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 12.01. Option of the Issuers to Effect Defeasance or Covenant
Defeasance................................................
SECTION 12.02. Legal Defeasance and Discharge............................
SECTION 12.03. Covenant Defeasance.......................................
SECTION 12.04. Conditions to Legal or Covenant Defeasance................
SECTION 12.05. Deposited Money and Government Securities to Be Held
in Trust; Other Miscellaneous Provisions..................
SECTION 12.06. Repayment to Issuers......................................
SECTION 12.07. Reinstatement.............................................
ARTICLE 13
SUBSIDIARY GUARANTEES
SECTION 13.01. The Guarantees............................................
SECTION 13.02. Guaranty Unconditional....................................
SECTION 13.03. Discharge; Reinstatement..................................
SECTION 13.04. Waiver by the Subsidiary Guarantors.......................
SECTION 13.05. Subrogation and Contribution..............................
SECTION 13.06. Stay of Acceleration......................................
SECTION 13.07. Subordination.............................................
SECTION 13.08. Limits of Guarantees......................................
SECTION 13.09. Execution and Delivery of Note Guarantee..................
ARTICLE 14
SUBORDINATION
SECTION 14.01. Agreement to Subordinate..................................
SECTION 14.02. Liquidation; Dissolution; Bankruptcy......................
SECTION 14.03. Default on Designated Senior Indebtedness.................
SECTION 14.04. When Distributions Must Be Paid Over......................
SECTION 14.05. Notice....................................................
SECTION 14.06. Subrogation...............................................
SECTION 14.07. Relative Rights...........................................
SECTION 14.08. The Issuers, Subsidiary Guarantors and Holders May Not
Impair Subordination......................................
SECTION 14.09. Distribution or Notice to Representative..................
SECTION 14.10. Rights of Trustee and Paying Agent........................
SECTION 14.11. Authorization to Effect Subordination.....................
SECTION 14.12. Payment...................................................
EXHIBIT A - Form of Note
EXHIBIT B - Form of Supplemental Indenture
EXHIBIT C - Form of Certificate of Beneficial Ownership EXHIBIT D - Form of
Regulation S Certificate EXHIBIT E - Form of Accredited Investor Certificate
INDENTURE, dated as of February 25, 1999 (as amended, supplemented or
otherwise modified from time to time, the "Indenture"), among TRIARC CONSUMER
PRODUCTS GROUP, LLC, a Delaware limited liability company (as further defined
below, the "Company"), TRIARC BEVERAGE HOLDINGS CORP., a Delaware corporation
(as further defined below, "Triarc Beverage", and together with the Company, the
"Issuers), the Subsidiary Guarantors party hereto and THE BANK OF NEW YORK, a
New York banking corporation, as trustee (the "Trustee").
RECITALS OF THE COMPANY
The Issuers and the Subsidiary Guarantors have duly authorized the
execution and delivery of this Indenture to provide for the issuance of (i)
initially, $300,000,000 aggregate principal amount of 10-1/4% Senior
Subordinated Notes due 2009 of the Issuers (the "Initial Notes" and, together
with any Exchange Notes issued in respect thereof, the "Original Notes") and
(ii) if and when issued, additional 10-1/4% Senior Subordinated Notes due 2009
of the Issuers (the "Initial Additional Notes" and, together with any Exchange
Notes issued in respect thereof, the "Additional Notes") issuable as provided in
this Indenture, in each case, guaranteed to the extent provided herein and in
the Notes by the Subsidiary Guarantors. All things necessary to make the
Original Notes, when duly issued, executed and delivered by the Issuers and
authenticated and delivered by the Trustee hereunder, the valid obligation of
the Issuers, and to make this Indenture a valid agreement of the Issuers and the
Subsidiary Guarantors as of the date hereof, in accordance with the terms of the
Original Notes and this Indenture, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes
by the Holders thereof, it is mutually agreed, for the equal and ratable benefit
of all Holders, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions.
"Additional Amounts" means additional interest owed to the Holders
pursuant to a Registration Rights Agreement.
"Additional Assets" means (i) any property, plant or equipment, other
tangible assets or intangible assets (if such assets are trademarks or
intellectual property used in connection with a brand), in each case used in a
Related Business; (ii) the Capital Stock of a Person that becomes a Restricted
Subsidiary as a result of the acquisition of such Capital Stock by the Company
or another Restricted Subsidiary or (iii) Capital Stock constituting a minority
interest in any Person that at such time is a Restricted Subsidiary; provided,
however, that any such Restricted Subsidiary described in clauses (ii) or (iii)
above is primarily engaged in a Related Business.
"Additional Notes" means any notes issued under this Indenture in
addition to the Original Notes, including any Exchange Notes issued in exchange
therefor.
"Affiliate" of any specified Person means any other Person, directly or
indirectly, controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Arby's" means Arby's, Inc., and its successors.
"Arby's Securitization Assets" means all right, title and interest to
the trademarks "Arby's," "T.J. Cinnamon's" and/or "Pasta Connection" or any
variations or successors thereto and the goodwill related to such trademarks,
all existing and future franchise, licensing and other rights to grant to any
Persons the right to use the names "Arby's," "T.J. Cinnamon's" and/or "Pasta
Connection" or operate restaurants identified with the names "Arby's," "T.J.
Cinnamon's" and/or "Pasta Connection" the right to enforce and take all other
actions with respect to such agreements and collect and receive all royalties,
fees and other amounts payable under such agreements, and all other assets of
Arby's and its Subsidiaries reasonably related to any of the foregoing.
"Arby's Securitization Entity" means any newly created Unrestricted
Subsidiary of the Company formed for the sole purpose of consummating the
Permitted Arby's Securitization.
"Arby's Securitization Notes" means the notes, certificates,
participation interests or other securities to be issued by an Arby's
Securitization Entity in connection with the Permitted Arby's Securitization.
"Arby's Securitization Residual Note" means a subordinated promissory
note payable by an Arby's Securitization Entity to Arby's in connection with the
Permitted Arby's Securitization.
"Asset Disposition" means any sale, lease, transfer or other disposition
(or series of related sales, leases, transfers or dispositions) by the Company
or any Restricted Subsidiary, including any disposition by means of a merger,
consolidation or similar transaction (each referred to for the purposes of this
definition as a "Disposition"), of (i) any shares of Capital Stock of a
Restricted Subsidiary (other than directors' qualifying shares or shares
required by applicable law to be held by a Person other than the Company or a
Restricted Subsidiary), (ii) all or substantially all the assets of any division
or line of business of the Company or any Restricted Subsidiary or (iii) any
other assets of the Company or any Restricted Subsidiary outside of the ordinary
course of business of the Company or such Restricted Subsidiary (other than, in
the case of (i), (ii) and (iii) above, (A) a disposition to the Company or a
Restricted Subsidiary, (B) a disposition that constitutes a Restricted Payment
permitted by Section 4.07 or a Permitted Investment, (C) sales or other
dispositions for consideration at least equal to the fair market value of the
assets sold or disposed of (as determined in good faith by the Board of
Directors), to the extent that the consideration received consists of property
or assets that are to be used in a Related Business or the Capital Stock of a
Person engaged in a Related Business if such Person becomes, or is merged or
consolidated into, a Restricted Subsidiary as a result of such receipt of
Capital Stock, (D) a Permitted Arby's Securitization, (E) a disposition covered
by and permitted under Article 5, (F) the sale or discount of accounts
receivable arising in the ordinary course of business, but only in connection
with the compromise or collection thereof, (G) a disposition of Capital Stock of
an Unrestricted Subsidiary, (H) a disposition of an Investment in any Person
made on or after the Closing Date that was not a Permitted Investment when made,
(I) disposals or replacements of obsolete or worn equipment in the ordinary
course of business, (J) a disposition of assets (including Capital Stock) in a
transaction or series of related transactions with a fair market value of less
than $1,000,000 and (K) the sale of Capital Stock of the Company or any of its
Restricted Subsidiaries to employees, managers, directors and consultants of the
Company and its Restricted Subsidiaries pursuant to plans approved by the Board
of Directors; provided that the net proceeds thereof, if any, are applied
pursuant to the provisions of Section 4.09.
"Attributable Debt" in respect of a Sale/Leaseback Transaction means, as
at the time of determination, the present value (discounted at the interest rate
borne by the Notes, compounded annually) of the total obligations of the lessee
for rental payments during the remaining term of the lease included in such
Sale/Leaseback Transaction (including any period for which such lease has been
extended).
"Authentication Agent" means any Person authorized by the Trustee
pursuant to Section 7.15 to act on behalf of the Trustee to authenticate Notes
of one or more series.
"Average Life" means, as of the date of determination, with respect to
any Indebtedness or Preferred Stock, the quotient obtained by dividing (i) the
sum of the products of numbers of years from the date of determination to the
dates of each successive scheduled principal payment of such Indebtedness or
redemption or similar payment with respect to such Preferred Stock multiplied by
the amount of such payment by (ii) the sum of all such payments.
"Banks" means the lenders under the Credit Agreement.
"Bank Indebtedness" means all Obligations and all other obligations
(monetary or otherwise) pursuant to the Credit Agreement (including, without
limitation, all interest accruing on or after, or which would accrue but for,
the filing of any petition in bankruptcy or for reorganization, whether or not
allowed thereby).
"Board of Directors" means, with respect to any Person, the board of
directors or board of managers of such Person or any committee thereof duly
authorized to act on behalf of such board. Unless the context otherwise
requires, "Board of Directors" refers to the Board of Directors of the Company.
"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification, and delivered to the
Trustee. Unless the context otherwise requires, "Board Resolution" refers to a
Board Resolution of the Company.
"Business Acquisition" means (i) an Investment by the Company or any of
its Restricted Subsidiaries in any other Person pursuant to which such Person
shall become a Restricted Subsidiary or shall be merged into or consolidated
with the Company or any of its Restricted Subsidiaries or (ii) an acquisition by
the Company or any of its Restricted Subsidiaries of the property and assets of
any Person other than the Company or any of its Restricted Subsidiaries that
constitute substantially all of the assets of such Person or of any division,
brand or line of business of such Person.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in The City of New York are authorized by law to close.
"Business Disposition" means any sale, transfer or other disposition
(including by way of merger or consolidation) in one transaction or a series of
related transactions by the Company or any of its Restricted Subsidiaries to any
Person other than the Company or any of its Restricted Subsidiary of (i) all or
substantially all of the Capital Stock of any Restricted Subsidiary or (ii) all
or substantially all of the assets of any Restricted Subsidiary or of any
division, brand or line of business of the Company or any of its Restricted
Subsidiaries.
"Capital Lease Obligations" means an obligation that is required to be
classified and accounted for as a capital lease for financial reporting purposes
in accordance with GAAP, and the amount of Indebtedness represented by such
obligation shall be the capitalized amount of such obligation determined in
accordance with GAAP; and the Stated Maturity thereof shall be the date of the
last payment of rent or any other amount due under such lease prior to the first
date upon which such lease may be terminated by the lessee without payment of a
penalty.
"Capital Stock" of any Person means any and all shares, interests,
rights to purchase, warrants, options, participation, membership interests or
other equivalents of or interests in (however designated) equity of such Person,
including any Preferred Stock, but excluding any debt securities convertible
into such equity.
"Cedel" means Cedel Bank, societe anonyme.
"Change of Control" means the occurrence of any of the following events:
(i) any "person" or "group" (within the meaning of Sections 13(d) and 14(d) of
the Exchange Act), other than one or more Permitted Holders, is or becomes the
beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act),
directly or indirectly, of more than 35% of the total voting power of the Voting
Stock of the Company or Triarc Parent; provided, however, that the Permitted
Holders beneficially own (as defined in this clause (i)), directly or
indirectly, in the aggregate a lesser percentage of the total voting power of
the Voting Stock of the Company or Triarc Parent than such other person or group
and do not have the right or ability by voting power, contract or otherwise to
elect or designate for election a majority of the Board of Directors of the
Company or Triarc Parent; (ii) individuals who on the Closing Date constituted
the Board of Directors of Triarc Parent, the Company or Triarc Beverage
(together with any new directors whose election by such Board of Directors or
whose nomination for election by the shareholders of such Person was approved by
a vote of a majority of the directors of such Person then still in office who
were either directors on the Closing Date or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the Board of Directors then in office; (iii) the adoption of a plan
relating to the liquidation or dissolution of the Company; (iv) the merger or
consolidation of the Company or Triarc Parent with or into another Person or the
merger of another Person with or into the Company or Triarc Parent, or the sale
of all or substantially all the assets of the Company or Triarc Parent to
another Person (other than a Person that is directly or indirectly controlled by
one or more Permitted Holders), and, in the case of any such merger or
consolidation, the securities of the Company or Triarc Parent that are
outstanding immediately prior to such transaction are changed into or exchanged
for cash, securities or property, unless pursuant to such transaction such
securities are changed into or exchanged for, in addition to any other
consideration, securities of the surviving Person or transferee that represent
immediately after such transaction, at least a majority of the aggregate voting
power of the voting Stock of the surviving Person or transferee; or (v) any
"person" or "group" (within the meaning of Section 13(d) and 14(d) of the
Exchange Act) other than one or more Permitted Holders, is or becomes the
"beneficial owner" (as defined in clause (i) above), directly or indirectly, of
both (A) 25% or more of the total voting power of all classes of capital stock
then outstanding of Triarc Beverage normally entitled to vote in elections of
directors ("Triarc Beverage Voting Stock") or 40% or more of the economic
interest in Triarc Beverage held by holders of Capital Stock thereof ("Triarc
Beverage Economic Interest") and (B) a greater percentage of the Triarc Beverage
Voting Stock or Triarc Beverage Economic Interest than is then beneficially
owned, directly or indirectly, in the aggregate by the Company and the Permitted
Holders.
"Closing Date" means the date on which the Initial Notes are originally
issued.
"Closing Dividend" means a cash dividend by the Company to Triarc Parent
on the Closing Date (and/or on a later date as provided in clauses (i) and (iii)
below) consisting of: (i) the net proceeds from the offering of the Notes and
the borrowings of term loans under the Credit Agreement made on the Closing Date
(to the extent such proceeds exceed the amount necessary to repay all amounts
outstanding under Triarc Beverage's existing credit agreement and RC/Arby's
existing notes, to fund the purchase price for the acquisition of a Snapple
distributor and the assets of a Stewart's distributors and to pay related fees
and expenses); provided that all or a portion of the excess proceeds of term
loan borrowings may also be dividended to Triarc Parent within thirty-five days
after the Closing Date; (ii) any amount contributed by Triarc Parent to fund the
purchase price for the acquisition of a Snapple distributor and the assets of a
Stewart's distributor, if such purchase occurred prior to the Closing Date; and
(iii) all cash and cash equivalents of the Company and its Subsidiaries (other
than RC/Arby's and its Subsidiaries) as of the Closing Date, determined on a
consolidated basis, to the extent such cash and cash equivalents exceed $2
million in the aggregate (and all cash and cash equivalents of RC/Arby's and its
Subsidiaries as of the Closing Date, determined on a consolidated basis, to be
paid on the date of the redemption of RC/Arby's existing notes).
"Code" means the Internal Revenue Code of 1986, as amended.
"Common Stock" means, with respect to any Person, any and all shares of
such Person's Capital Stock (excluding Preferred Stock of such Person),
including, without limitation, all series and classes of such common stock.
"Company" means Triarc Consumer Products Group, LLC, a Delaware limited
liability company, and any successor in interest thereto.
"Consolidated Coverage Ratio" as of any date of determination means the
ratio of (i) the aggregate amount of EBITDA for the period of the most recent
four consecutive fiscal quarters ending prior to the date of such determination
for which reports have been filed or provided to the Trustee pursuant to Section
4.04 to (ii) Consolidated Interest Expense for such four fiscal quarters;
provided, however, that
(A) if the Company or any Restricted Subsidiary has incurred any
Indebtedness since the beginning of such period that remains outstanding
or if the transaction giving rise to the need to calculate the
Consolidated Coverage Ratio is an Incurrence of Indebtedness, or both,
EBITDA and Consolidated Interest Expense for such period shall be
calculated after giving effect on a pro forma basis to such Indebtedness
as if such Indebtedness had been Incurred on the first day of such
period and the discharge of any other Indebtedness repaid, repurchased,
defeased or otherwise discharged with the proceeds of such new
Indebtedness as if such discharge had occurred on the first day of such
period,
(B) if the Company or any Restricted Subsidiary has repaid,
repurchased, defeased or otherwise discharged any Indebtedness since the
beginning of such period or if any Indebtedness is to be repaid,
repurchased, defeased or otherwise discharged (in each case other than
Indebtedness Incurred under any revolving credit facility unless such
Indebtedness has been permanently repaid and has not been replaced) on
the date of the transaction giving rise to the need to calculate the
Consolidated Coverage Ratio, EBITDA and Consolidated Interest Expense
for such period shall be calculated on a pro forma basis as if such
discharge had occurred on the first day of such period,
(C) if since the beginning of such period the Company or any
Restricted Subsidiary shall have made any Business Disposition, the
EBITDA for such period shall be reduced by an amount equal to the EBITDA
(if positive) directly attributable to the assets which are the subject
of such Business Disposition for such period, or increased by an amount
equal to the EBITDA (if negative), directly attributable thereto for
such period and Consolidated Interest Expense for such period shall be
reduced by an amount equal to the Consolidated Interest Expense directly
attributable to any Indebtedness of the Company or any Restricted
Subsidiary repaid, repurchased, defeased or otherwise discharged with
respect to the Company and its continuing Restricted Subsidiaries in
connection with such Business Disposition for such period (or, if the
Capital Stock of any Restricted Subsidiary is sold, the Consolidated
Interest Expense for such period directly attributable to the
Indebtedness of such Restricted Subsidiary to the extent the Company and
its continuing Restricted Subsidiaries are no longer liable for such
Indebtedness after such sale),
(D) if since the beginning of such period the Company or any
Restricted Subsidiary (by merger or otherwise) shall have made a
Business Acquisition, EBITDA and Consolidated Interest Expense for such
period shall be calculated after giving pro forma effect thereto
(including (x) pro forma effect to the Incurrence of any Indebtedness
and (y) pro forma effect to cost savings resulting from such Business
Acquisition (regardless of whether such cost savings could then be
reflected in pro forma financial statements under GAAP, Regulation S-X
promulgated by the SEC or any other regulation or policy of the SEC)
that the Company reasonably determines are probable based upon
specifically identified actions that it has determined to take (net of
any reduction in EBITDA as a result of such cost savings that the
Company reasonably determines are probable); provided that the Company's
chief financial officer shall have certified in an Officer's Certificate
delivered to the Trustee the specific actions to be taken, the cost
savings to be achieved from each such action, that such savings have
reasonably been determined to be probable, and the amount, if any, of
any reduction in EBITDA as a result thereof reasonably determined to be
probable, and such certificate shall be accompanied by a Board
Resolution specifically approving such cost savings and authorizing such
certification to be delivered to the Trustee (such cost savings, as
certified to the Trustee, the "Net Cost Savings") as if such Business
Acquisition occurred on the first day of such period,
(E) if since the beginning of such period any Person (that
subsequently became a Restricted Subsidiary or was merged with or into
the Company or any Restricted Subsidiary since the beginning of such
period) shall have made any Business Acquisition or Business Disposition
that would have required an adjustment pursuant to clause (C) or (D)
above if made by the Company or a Restricted Subsidiary during such
period, EBITDA and Consolidated Interest Expense for such period shall
be calculated after giving pro forma effect thereto (including any Net
Cost Savings in connection with any such Business Acquisition) as if
such Business Acquisition or Business Disposition occurred on the first
day of such period and
(F) if since the beginning of such period any Person was designated
as an Unrestricted Subsidiary or redesignated as a Restricted
Subsidiary, EBITDA and Consolidated Interest Expense for such period
shall be calculated after giving pro forma effect thereto as if such
designation or redesignation occurred on the first day of such period.
For purposes of this definition, to the extent that clause (C), (D) or
(E) require that pro forma effect be given to a Business Acquisition or Business
Disposition, such pro forma calculation shall be based upon the four full fiscal
quarters immediately preceding the date of determination of the Person, or
division, brand or line of business of the Person, that is acquired or disposed
for which financial information is available. If any Indebtedness bears a
floating rate of interest and is being given pro forma effect, the interest of
such Indebtedness shall be calculated as if the rate in effect on the date of
determination had been the applicable rate for the entire period (taking into
account any Interest Rate Agreement applicable to such Indebtedness if such
Interest Rate Agreement has a remaining term in excess of 12 months).
"Consolidated Interest Expense" means, for any period, the total
interest expense of the Company and its consolidated Restricted Subsidiaries,
plus, to the extent not included in such total interest expense, and to the
extent incurred by the Company or its Restricted Subsidiaries, without
duplication, (i) interest expense attributable to capital leases and the
interest expense attributable to leases constituting part of a Sale/Leaseback
Transaction, (ii) amortization of debt discount and debt issuance cost but
excluding amortization of deferred financing charges incurred in respect of the
Notes and the Credit Agreement on or prior to the Closing Date), (iii)
capitalized interest, (iv) non-cash interest expenses, (v) commissions,
discounts and other fees and charges owed with respect to letters of credit and
bankers' acceptance financing, (vi) net costs associated with Hedging
Obligations (including amortization of fees), and (vii) the product of (a)
dividends in respect of all Preferred Stock of any Restricted Subsidiary that is
not a Subsidiary Guarantor or an Issuer, and dividends in respect of all
Disqualified Stock of the Company or any Restricted Subsidiary, in each case
held by Persons other than the Company or a Wholly Owned Subsidiary (other than
dividend payments paid in Capital Stock that is not Disqualified Stock) times
(b) a fraction, the numerator of which is 1 and the denominator of which is 1
minus the then current combined federal, state and local statutory tax rate of
such Person expressed as a decimal. Consolidated Interest Expense shall also
include, without duplication, interest expense with respect to Capital Stock
issued under the Triarc Beverage 1997 Stock Option Plan as provided in the
definition of "Indebtedness."
Notwithstanding the foregoing, Consolidated Interest Expense shall
exclude any amount of such interest or dividends of any Restricted Subsidiary if
the net income of such Restricted Subsidiary is excluded in the calculation of
Consolidated Net Income pursuant to clause (iii) of the definition thereof (but
only in the same proportion as the net income of such Restricted Subsidiary is
excluded from the calculation of Consolidated Net Income pursuant to clause
(iii) of the definition thereof).
"Consolidated Leverage Ratio" as of any date of determination means the
ratio of (i) the aggregate amount of Indebtedness of the Company and its
Restricted Subsidiaries (net of (x) net cash proceeds from the initial public
offering of the Company, to the extent not otherwise used by the Company as of
such date of determination (other than to invest in cash equivalents) and (y)
cash and cash equivalents on hand as of such date in the ordinary course of
business) to (ii) EBITDA for the most recent four consecutive fiscal quarters
ending prior to the date of such determination for which reports have been filed
pursuant to Section 4.04 (the "Reference Period"); provided, however, that
(A) if the Company or any Restricted Subsidiary has incurred
or will incur any Indebtedness or will repay, defease or
discharge any Indebtedness on the date of the transaction giving
rise to the need to calculate the Consolidated Leverage Ratio,
the aggregate amount of Indebtedness as of such date of
determination shall be calculated on a pro forma basis giving
effect to such Incurrence of Indebtedness and the discharge of
any other Indebtedness repaid, repurchased, defeased or otherwise
discharged with the proceeds of such new Indebtedness or the
initial public offering of the Company as if such discharge had
occurred on the first day of such period,
(B) if since the beginning of such period the Company or any
Restricted Subsidiary shall have made any Business Disposition,
the EBITDA for such period shall be reduced by an amount equal to
the EBITDA (if positive) directly attributable to the assets
which are the subject of such Business Disposition for such
period, or increased by an amount equal to the EBITDA (if
negative), directly attributable thereto for such period,
(C) if since the beginning of such period the Company or any
Restricted Subsidiary (by merger or otherwise) shall have made a
Business Acquisition, the aggregate amount of Indebtedness shall
be calculated on a pro forma basis giving effect to any
Incurrence of Indebtedness as a result thereof and EBITDA for
such period shall be calculated after giving pro forma effect
thereto (including pro forma effect to (x) the Incurrence of any
Indebtedness and (y) Net Cost Savings) as if such Business
Acquisition occurred on the first day of such period,
(D) if since the beginning of such period any Person (that
subsequently became a Restricted Subsidiary or was merged with or
into the Company or any Restricted Subsidiary since the beginning
of such period) shall have made any Business Acquisition or
Business Disposition that would have required an adjustment
pursuant to clause (B) or (C) above if made by the Company or a
Restricted Subsidiary during such period, EBITDA for such period
shall be calculated after giving pro forma effect thereto
(including any Net Cost Savings in connection with any such
Business Acquisition) as if such Business Acquisition or Business
Disposition occurred on the first day of such period and
(E) if since the beginning of such period any Person was
designated as an Unrestricted Subsidiary or redesignated as a
Restricted Subsidiary, EBITDA for such period shall be calculated
after giving pro forma effect thereto as if such designation or
redesignation occurred on the first day of such period.
For purposes of this definition, to the extent that clause (B), (C) or
(D) require that pro forma effect be given to a Business Acquisition or Business
Disposition, such pro forma calculation shall be based upon the four full fiscal
quarters immediately preceding the date of determination of the Person, or
division, brand or line of business of the Person, that is acquired or disposed
for which financial information is available. The aggregate amount of
Indebtedness outstanding at such date of determination shall be deemed to
include the average amount of funds outstanding during such Reference Period
under any revolving credit or similar facilities of the Company or its
Restricted Subsidiaries (in lieu of the actual amount outstanding thereunder as
of the date of determination).
"Consolidated Net Income" means, for any period, the net income of the
Company and its consolidated Subsidiaries; provided, however, that there shall
not be included in such Consolidated Net Income:
(i) any net income of any person (other than the Company) if
such Person is not a Restricted Subsidiary, except that subject
to the exclusion contained in clause (iv) below, the Company's
equity in the net income of any such Person for such period shall
be included in such Consolidated Net Income up to the aggregate
amount of cash actually distributed by such Person during such
period to the Company or a Restricted Subsidiary as a dividend or
other distribution (subject, in the case of a dividend or other
distribution paid to a Restricted Subsidiary, to the limitations
contained in clause (iii) below),
(ii) any net income (or loss) of any Person acquired by the
Company or a Subsidiary in a pooling of interests transaction for
any period prior to the date of such acquisition,
(iii) the net income (but not loss) of any Restricted
Subsidiary to the extent that the declaration or payment of
dividends or similar distributions by such Restricted Subsidiary
of such net income is not permitted at such time of determination
by its charter or any agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable to
such Restricted Subsidiary (other than any restriction under the
Credit Agreement),
(iv) any gain or loss (on an after-tax basis) realized upon
the sale or other disposition of any assets of the Company, its
consolidated Subsidiaries or any other Person (including pursuant
to any sale-and-leaseback arrangement) which is not sold or
otherwise disposed of in the ordinary course of business and any
gain or loss (on an after-tax basis) realized upon the sale or
other disposition of any Capital Stock of any Person,
(v) any net after-tax extraordinary gains or losses and
(vi) the cumulative effect of a change in accounting
principles.
Notwithstanding the foregoing, for purposes of Section 4.07 only, there
shall be excluded from Consolidated Net Income any dividends, repayments of
loans or advances or other transfers of assets from Unrestricted Subsidiaries to
the Company or a Restricted Subsidiary to the extent such dividends, repayments
or transfers increase the amount of Restricted Payments permitted under Section
4.07(a)(iii)(C) or (D) thereof.
"Consolidated Total Assets" means, as of any date of determination, the
total assets of the Foreign Restricted Subsidiaries of the Company, on a
consolidated basis, included in the consolidated balance sheet of the Company
and its Restricted Subsidiaries as of the most recent date for which such a
balance sheet has been filed or delivered to the Trustee pursuant to Section
4.04 (and, in the case of any determination relating to any Incurrence of
Indebtedness, on a pro forma basis including any property or assets being
acquired in connection therewith).
"Corporate Trust Office" means the principal office of the Trustee, at
which at any particular time its corporate trust business shall be administered,
which office on the Closing Date is located at 101 Barclay Street, Floor 21
West, New York, New York 10286.
"Credit Agreement" means the Credit Agreement to be entered into on the
Closing Date by and among, the Company and/or certain of its Subsidiaries, the
financial institutions party thereto from time to time, the Administrative Agent
party thereto, DLJ Capital Funding, Inc., as Syndication Agent, and Morgan
Stanley Senior Funding, Inc., as Documentation Agent, together with the related
documents thereto (including, without limitation, the term loans, revolving
loans and swingline loans thereunder, the letters of credit issued pursuant
thereto and any guarantees and security documents), as amended, extended,
renewed, restated, supplemented or otherwise modified (in whole or in part, and
without limitation as to amount, terms, conditions, covenants and other
provisions) from time to time, and any agreement (and related document)
governing Indebtedness incurred to Refinance, in whole or in part, the
borrowings, letters of credit, commitments and other Obligations then
outstanding or permitted to be outstanding under such Credit Agreement or a
successor Credit Agreement, whether by the same or any other lender or group of
lenders.
"Currency Agreement" means in respect of a Person any foreign exchange
contract, currency swap agreement or other similar agreement designed to protect
such Person against fluctuations in currency values.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Depositary" means The Depository Trust Company, its nominees and
successors.
"Designated Senior Indebtedness" means, with respect to any Person, (i)
the Bank Indebtedness and (ii) any other Senior Indebtedness of the referent
Person which, at the date of determination, has an aggregate principal amount
outstanding of, or under which, at the date of determination, the holders
thereof are committed to lend up to, at least $25.0 million and is specifically
designated by the referent Person in the instrument evidencing or governing such
Senior Indebtedness as "Designated Senior Indebtedness" for purposes of this
Indenture.
"Disqualified Stock" means, with respect to any Person, any Capital
Stock which by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable at the option of the holder) or upon
the happening of any event (i) matures or is mandatorily redeemable pursuant to
a sinking fund obligation or otherwise, (ii) is convertible or exchangeable at
the option of the holder for Indebtedness or Disqualified Stock or (iii) is
mandatorily redeemable or must be purchased, upon the occurrence of certain
events or otherwise, in whole or in part, in each case on or prior to the Stated
Maturity of the Notes; provided, however, that any Capital Stock that would not
constitute Disqualified Stock but for provisions thereof giving holders thereof
the right to require such Person to purchase or redeem such Capital Stock upon
the occurrence of an "asset sale" or "change of control" occurring prior to the
Stated Maturity of the Notes shall not constitute Disqualified Stock if (x) the
"asset sale" or "change of control" provisions applicable to such Capital Stock
cannot become operative in any circumstance that does not trigger the provisions
of Section 4.09 or Section 4.13, as applicable and (y) any such requirement only
becomes operative after compliance with such terms applicable to the Notes,
including the purchase of any Notes tendered pursuant thereto.
"Domestic Restricted Subsidiary" means, with respect to the Company, any
Restricted Subsidiary of the Company (x) that was formed under the laws of the
United States of America or any state, district or territory thereof or the
District of Columbia or (y) 50% or more of the assets of which are located in
the United States or any territory thereof.
"EBITDA" for any period means the sum of Consolidated Net Income, plus
the following to the extent deducted in calculating such Consolidated Net
Income: (a) all income tax expense of the Company and its consolidated
Restricted Subsidiaries (other than income taxes (either positive or negative)
attributable to extraordinary gains or losses or sales of assets that are
excluded from the computation of Consolidated Net Income), (b) Consolidated
Interest Expense, (c) depreciation and amortization expense of the Company and
its consolidated Restricted Subsidiaries (excluding amortization expense
attributable to a prepaid cash item that was paid in a prior period), (d) all
other non-cash charges of the Company and its consolidated Restricted
Subsidiaries (excluding any such non-cash charge to the extent that it
represents an accrual of or reserve for cash expenditures in any future period
or amortization of a prepaid cash expense that was paid in a prior period), (e)
expenses and charges of the Company relating to the Transactions which are paid,
taken or otherwise accounted for within 180 days of the Closing Date, plus (f)
nonrecurring charges (cash or otherwise) incurred in connection with any
Business Acquisition (but not otherwise), in each case for such period.
Notwithstanding the foregoing, the provision for taxes based on the income or
profits of, and the depreciation and amortization and non-cash charges of, a
Restricted Subsidiary shall be added to Consolidated Net Income to compute
EBITDA only to the extent (and in the same proportion) that the net income of
such Restricted Subsidiary was included in calculating Consolidated Net Income
and only if a corresponding amount would be permitted at the date of
determination to be dividended to the Company by such Restricted Subsidiary
without prior approval of a third party (that has not been obtained), pursuant
to the terms of its charter and all agreements, instruments, judgments, decrees,
orders, statutes, rules and governmental regulations applicable to such
Restricted Subsidiary (other than pursuant to the Credit Agreement).
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels Office, as operator of the Euroclear System.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Notes" means the debt securities of the Issuers issued
pursuant to this Indenture in exchange for, and in an aggregate principal amount
at maturity equal to, the Initial Notes or any Initial Additional Notes, in
compliance with the terms of a Registration Rights Agreement and containing
terms substantially identical to the Initial Notes or any Initial Additional
Notes (except that (i) such Exchange Notes shall not contain terms with respect
to transfer restrictions and shall be registered under the Securities Act, and
(ii) certain provisions relating to an increase in the stated rate of interest
thereon shall be eliminated).
"Exchange Offer" means an offer by the Issuers to the Holders of the
Initial Notes to exchange Outstanding Notes for Exchange Notes, as provided for
in a Registration Rights Agreement.
"Exchange Offer Registration Statement" means the Exchange Offer
Registration Statement as defined in a Registration Rights Agreement.
"Executive Officer Purchasers" means Nelson Peltz, the Company's
chairman and chief executive officer and Peter W. May, the Company's president
and chief operating officer.
"Foreign Restricted Subsidiary" means any Restricted Subsidiary other
than a Domestic Restricted Subsidiary.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect as of the Closing Date, including those set forth
in (i) the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants, (ii) statements and
pronouncements of the Financial Accounting Standards Board, (iii) such other
statements by such other entity as approved by a significant segment of the
accounting profession and (iv) the rules and regulations of the SEC governing
the inclusion of financial statements (including pro forma financial statements)
in periodic reports required to be filed pursuant to Section 13 of the Exchange
Act, including opinions and pronouncements in staff accounting bulletins and
similar written statements from the accounting staff of the SEC.
"Guarantee" means, without duplication, any obligation, contingent or
otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of
any other Person and any obligation, direct or indirect, contingent or
otherwise, of such Person (i) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Indebtedness or other obligation of such other
Person (whether arising by virtue of partnership arrangements, or by agreements
to keep-well, to purchase assets, goods, securities or services, to take or pay
or to maintain financial statement conditions or otherwise) or (ii) entered into
for the purpose of assuring in any other manner the obligee of such Indebtedness
of the payment thereof or to protect such obligee against loss in respect
thereof (in whole or in part); provided, however, that the term "Guarantee"
shall not include endorsements for collection or deposit in the ordinary course
of business. The term "Guarantee" used as a verb has a corresponding meaning.
The term "Guarantor" shall mean any Person Guaranteeing any obligation.
"Hedging Obligations" of any Person means the net obligations of such
Person pursuant to any Interest Rate Agreement or Currency Agreement.
"Holder" or "Noteholders" means the Person in whose name a Note is
registered on the Registrar's books.
"Incur" means issue, assume, Guarantee, incur or otherwise become liable
for; provided, however, that any Indebtedness or Capital Stock of a Person
existing at the time such Person becomes a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be Incurred by such
Subsidiary at the time it becomes a Subsidiary. The term "Incurrence" when used
as a noun shall have a correlative meaning. The accretion of principal of a
non-interest bearing or other discount security shall not be deemed the
Incurrence of Indebtedness.
"Indebtedness" means, with respect to any Person on any date of
determination (without duplication):
(i) the principal in respect of (A) indebtedness of such
Person for money borrowed and (B) indebtedness evidenced by
notes, debentures, bonds or other similar instruments for the
payment of which such Person is responsible or liable, including,
in each case, any premium on such indebtedness to the extent such
premium has become due and payable,
(ii) all Capital Lease Obligations of such Person and all
Attributable Debt in respect of Sale/Leaseback Transactions
entered into by such Person,
(iii) all obligations of such Person issued or assumed as the
deferred purchase price of property, all conditional sale
obligations of such Person and all obligations of such Person
under any title retention agreement (but excluding take-or-pay
agreements and trade accounts payable arising, in each case, in
the ordinary course of business),
(iv) all obligations of such Person for the reimbursement of
any obligor on any letter of credit, banker's acceptance or
similar credit transaction (other than obligations with respect
to letters of credit securing obligations (other than obligations
described in clauses (i) through (iii) above) entered into in the
ordinary course of business of such Person to the extent such
letters of credit are not drawn upon or, if and to the extent
drawn upon, such drawing is reimbursed no later than the tenth
Business Day following payment on the letter of credit),
(v) the amount of all obligations of such Person with respect
to the redemption, repayment or other repurchase of any
Disqualified Stock or, with respect to any Subsidiary of such
Person that is not a Subsidiary Guarantor or an Issuer, the
liquidation preference with respect to, any Preferred Stock (but
excluding, in each case, any accrued dividends),
(vi) all obligations of the type referred to in clauses (i)
through (v) of other Persons and all dividends of other Persons
for the payment of which, in either case, such Person is
responsible or liable, directly or indirectly, as obligor,
guarantor or otherwise, including by means of any Guarantee,
(vii) all obligations of the type referred to in clauses (i)
through (vi) of other Persons secured by any Lien on any property
or asset of such Person (whether or not such obligation is
assumed by such Person), the amount of such obligation being
deemed to be the lesser of the value of such property or assets
or the amount of the obligation so secured and
(viii) to the extent not otherwise included in this definition,
Hedging Obligations of such Person.
Except as provided in clause (vii), the amount of indebtedness of any
Person at any date shall be the outstanding balance at such date of all
unconditional obligations as described above and the maximum liability, upon the
occurrence of the contingency giving rise to the obligation, of any contingent
obligations at such date. Notwithstanding the foregoing, Capital Stock issued or
issuable pursuant to the Triarc Beverage 1997 Stock Option Plan as such plan is
in effect on the Closing Date (and as such plan may be amended, but not to
change the financial terms thereof in any way that is materially less favorable
to the Company and its Subsidiaries or the holders of the Notes) and any stock
option plan of Arby's (provided that such plan (and any amendment thereto) is
not materially less favorable to the Company and its Subsidiaries or to the
Holders (including with respect to the percentage of shares of Arby's to be
issued thereunder) than the Triarc Beverage 1997 Stock Option Plan as such plan
is in effect on the Closing Date) shall not be considered Indebtedness (unless,
as of the date of determination, the Company is required to purchase such stock
pursuant to the put rights contained in such plan, is not prohibited by the
terms of any Indebtedness from purchasing such stock and has not purchased it)
but any interest thereon shall be included in the calculation of Consolidated
Interest Expense.
"Initial Additional Notes" means Additional Notes issued in an offering
not registered under the Securities Act.
"Initial Notes" means the Issuers' 10-1/4% Senior Subordinated Notes Due
2009, issued on the Closing Date (and any Notes issued in respect thereof
pursuant to Section 3.04, 3.05, 3.06, 3.13, 3.14 or 10.08), but not including
any Exchange Notes issued in exchange therefor.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act.
"Interest Payment Date" means, when used with respect to any Note and
any installment of interest thereon, the date specified in such Note as the
fixed date on which such installment of interest is due and payable, as set
forth in such Note.
"Interest Rate Agreement" means in respect of a Person any interest rate
swap agreement, interest rate cap agreement or other financial agreement or
arrangement designed to protect such Person against fluctuations in interest
rates.
"Investment" in any Person means any direct or indirect advance, loan
(other than advances to customers in the ordinary course of business that are
recorded as accounts receivable on the balance sheet of the lender) or other
extensions of credit (including by way of Guarantee or similar arrangement but
only when payment has been made thereunder or such arrangement would be
classified and accounted for as a liability upon a balance sheet of the Person
extending such credit prepared in accordance with GAAP) or capital contribution
to (by means of any transfer of cash or other property to others or any payment
for property or services for the account or use of others), or any purchase or
acquisition of Capital Stock, Indebtedness or other similar instruments issued
by such Person and shall include (i) the designation of a Restricted Subsidiary
as an Unrestricted Subsidiary and (ii) the fair market value of the Capital
Stock (or any other Investment) held by the Company or any of its Restricted
Subsidiaries of (or in) any Person that has ceased to be a Restricted
Subsidiary, including without limitation by reason of a transaction permitted by
Section 4.14(d). For purposes of the definition of "Unrestricted Subsidiary",
the definition of "Restricted Payment" and Section 4.07, (i) "Investment" shall
include the portion (proportionate to the Company's equity interest in such
Subsidiary) of the fair market value of the net assets of any Subsidiary of the
Company at the time that such Subsidiary is designated an Unrestricted
Subsidiary and (ii) any property transferred to or from an Unrestricted
Subsidiary shall be valued at its fair market value at the time of such
transfer, in each case as determined in good faith by the Board of Directors.
"Issuer Request," "Issuer Order" and "Issuer Consent" mean,
respectively, a written request, order or consent signed in the name of the
Issuers by an Officer of each Issuer.
"Lien" means any mortgage, pledge, security interest, encumbrance, lien
or charge of any kind (including any conditional sale or other title retention
agreement or lease in the nature thereof).
"Liquid Securities" means securities (i) of an issuer that is not an
Affiliate of the Company, (ii) that are publicly traded on the New York Stock
Exchange, the American Stock Exchange, or the NASDAQ National Market and (iii)
as to which the Company or the Restricted Subsidiary holding such securities is
not subject to any restrictions on sale or transfer (including any volume
restrictions under Rule 144 under the Securities Act or any other restrictions
imposed by the Securities Act) or as to which a registration statement under the
Securities Act covering the resale thereof is in effect for as long as the
securities are held; provided that securities meeting the requirements of
clauses (i), (ii) and (iii) above shall be treated as Liquid Securities from the
date of receipt thereof until and only until the earlier of (x) the date on
which such securities are sold or exchanged for cash or Temporary Cash
Investments and (y) 90 days following the date of receipt of such securities. If
such securities are not sold or exchanged for cash or Temporary Cash Investments
within 90 days of receipt thereof, for purposes of determining whether the
transaction pursuant to which the Company or a Restricted Subsidiary received
the securities was in compliance with Section 4.09, such securities shall be
deemed not to have been Liquid Securities at any time.
"Management Agreement" means the management services agreement(s)
between Triarc Parent and the Company and/or its Subsidiaries for the provision
of management and other services by Triarc Parent as in effect on, or entered
into on, the Closing Date, and as such agreement may be amended from time to
time to, among other things, add additional Subsidiaries as parties thereto (but
not to change the financial terms thereof in any way that is less favorable to
the Company and its Subsidiaries).
"Material Subsidiary Obligor" means (i) any Subsidiary Guarantor, Triarc
Beverage and any other Subsidiary that is an Issuer (other than, in each case,
any Subsidiary principally engaged in the Company's soft drink concentrates
business segment) which, together with its consolidated Subsidiaries, had EBITDA
for the period of the most recent four consecutive fiscal quarters of the
Company ending prior to the date of such determination for which reports have
been filed or provided to the Trustee pursuant to Section 4.04 equal to or more
than 15% of the EBITDA of the Company and its Restricted Subsidiaries (including
such Issuer or Subsidiary Guarantor) for such four fiscal quarters, in each case
calculated on a pro forma basis giving effect to any Business Disposition (other
than the disposition of such Subsidiary Guarantor), Business Acquisition,
designation of a Restricted Subsidiary as an Unrestricted Subsidiary or
redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary occurring
since the beginning of such period and on or prior to the date of such
determination.
"Moody's" means Moody's Investors Service, Inc., and its successors.
"Net Available Cash" from an Asset Disposition means cash payments
received therefrom (including any cash payments received by way of deferred
payment of principal pursuant to a note or installment receivable or otherwise
and proceeds from the sale or other disposition of any securities received as
consideration, but only as and when received, but excluding any other
consideration received in the form of assumption by the acquiring Person of
Indebtedness or other obligations relating to such properties or assets or
received in any other noncash form), in each case net of (i) all legal, title
and recording tax expenses, commissions and other fees and expenses incurred,
and all Federal, state, provincial, foreign and local taxes required to be
accrued as a liability under GAAP, as a consequence of such Asset Disposition,
(ii) all payments made on any Indebtedness which is secured by any assets
subject to such Asset Disposition, in accordance with the terms of any Lien upon
or other security agreement of any kind with respect to such assets, or which
must by its terms, or in order to obtain a necessary consent to such Asset
Disposition, or by applicable law, be repaid out of the proceeds from such Asset
Disposition, (iii) all distributions and other payments required to be made to
minority interest holders in Restricted Subsidiaries as a result of such Asset
Disposition and (iv) the deduction of appropriate amounts provided by the seller
as a reserve, in accordance with GAAP, against any liabilities associated with
the property or other assets disposed in such Asset Disposition and retained by
the Company or any Restricted Subsidiary after such Asset Disposition.
"Net Cash Proceeds," with respect to any issuance or sale of Capital
Stock and with respect to a Permitted Arby's Securitization, means the cash
proceeds of such issuance, sale or transaction, net of attorneys, fees,
accountants' fees, underwriters, or placement agents' fees, discounts or
commissions and brokerage, consultant and other fees actually incurred in
connection with such issuance, sale or transaction and net of taxes paid or
payable as a result thereof.
"Non-Recourse Debt" means Indebtedness of any Person: (i) as to which
neither the Company nor any of its Subsidiaries (a) provides credit support of
any kind (including, without limitation, any undertaking, agreement or
instrument that would constitute Indebtedness) or (b) is directly or indirectly
liable (as a guarantor or otherwise); and (ii) no default with respect to which
(including any rights that the holders thereof may have to take enforcement
action) would permit (upon notice, lapse of time or both) any holder of any
other Indebtedness of the Company or any of its Subsidiaries to declare a
default on such other Indebtedness or cause the payment thereof to be
accelerated or payable prior to its stated maturity.
"Non-U.S. Person" means a Person who is not a U.S. person, as defined
in Regulation S.
"Notes" means the Initial Notes, any Additional Notes, and the Exchange
Notes.
"Obligations" means with respect to any Indebtedness all obligations for
principal, premium, interest, penalties, fees, indemnifications, reimbursements,
and other amounts payable pursuant to the documentation governing such
Indebtedness and, in the case of the Credit Agreement, any Hedging Obligations
with respect thereto.
"Officer" means, with respect to any Issuer, any Subsidiary Guarantor or
any other obligor upon the Notes, the Chairman of the Board, the President, the
Chief Executive Officer, the Chief Financial Officer, the Secretary, the
Treasurer, any Assistant Secretary or Assistant Treasurer or any Vice President
of such Person.
"Officer's Certificate" means, with respect to any Issuer or any other
obligor upon the Notes, a certificate signed by an Officer of such Person.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to any Issuer or the Trustee.
"Original Notes" means the Initial Notes and any Exchange Notes issued
in exchange therefor.
"Outstanding" when used with respect to Notes means, as of the date of
determination, all Notes theretofore authenticated and delivered under this
Indenture, except:
(i) Notes theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Notes for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying
Agent in trust for the Holders of such Notes, provided that, if such
Notes are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor reasonably satisfactory
to the Trustee has been made; and
(iii) Notes in exchange for or in lieu of which other Notes have
been authenticated and delivered pursuant to this Indenture.
A Note does not cease to be Outstanding because the Issuers or any
Affiliate of the Issuers holds the Note, provided that in determining whether
the Holders of the requisite amount of Outstanding Notes have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, Notes
owned by the Issuers or any Affiliate of the Issuers shall be disregarded and
deemed not to be Outstanding, except that, for the purpose of determining
whether the Trustee shall be protected in relying on any such request, demand,
authorization, direction, notice, consent or waiver, only Notes which the
Trustee actually knows are so owned shall be so disregarded. Notes so owned that
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the reasonable satisfaction of the Trustee the pledgee's right to
act with respect to such Notes and that the pledgee is not an Issuer or an
Affiliate of such Issuer.
"Paying Agent" means any Person authorized by the Issuers to pay the
principal of (and premium, if any) or interest on any Notes on behalf of the
Issuers.
"Permitted Arby's Dividend" means (i) a Permitted Arby's Securitization
Residual Payment and (ii) a Permitted Arby's IPO Dividend; provided that, in
each case, immediately after giving effect to such dividend of Capital Stock,
(x) RC/Arby's and its Subsidiaries (a) have no Indebtedness other than
Non-Recourse Debt and (b) are not party to any arrangement with the Company or
any of its Subsidiaries, including without limitation any arrangement to make
payments in respect of service provided to RC/Arby's and its Subsidiaries under
the Management Agreement, the Tax Sharing Agreement or any other agreement,
unless the terms of such arrangement are on an arms-length basis, (y) neither
the Company nor any of its Subsidiaries has any direct or indirect contractual
obligations (i) with respect to any obligation of RC/Arby's and its
Subsidiaries, including without limitation, any Guarantee thereof, (ii) to
subscribe for additional Capital Stock of RC/Arby's or any of its Subsidiaries
or (iii) to maintain or preserve the financial condition of RC/Arby's or any of
its Subsidiaries or to cause any of them to achieve any specified levels of
operating results and (z) RC/Arby's and its Subsidiaries shall jointly and
severally indemnify the Company and its Subsidiaries from and against all
losses, claims, damages and liabilities, including, without limitation, any tax,
ERISA or environmental losses (collectively, "Losses") related to the actions or
operations of RC/Arby's and its Subsidiaries (other than any losses related to
the actions or operations of Royal Crown Company, Inc. and each of its
Subsidiaries, the Capital Stock of which has been conveyed to the Company or any
of its Subsidiaries), and the Company and its Subsidiaries shall jointly and
severally indemnify RC/Arby's and its Subsidiaries from and against all losses
related to the actions or operations of the Company and its Subsidiaries
(including Royal Crown Company, Inc. and each of its Subsidiaries, if the
Capital Stock of such Person has been conveyed to the Company or any of its
Subsidiaries).
"Permitted Arby's IPO Dividend" means a distribution by the Company to
Triarc Parent of all of the Capital Stock (but not assets) of RC/Arby's and any
of its Subsidiaries (so long as each such Person has no assets other than Arby's
Securitization Assets, the Net Cash Proceeds of any Permitted Arby's
Securitization, any Arby's Securitization Residual Notes, the Capital Stock of
any Arby's Securitization Entity and businesses related thereto and any other
assets (other than cash and cash equivalents that do not constitute Net Cash
Proceeds of a Permitted Arby's Securitization) used in connection with any
restaurant franchising business, and not used in connection with the beverage
business, of the Company and its Restricted Subsidiaries); provided that, as a
condition to such distribution:
(i) no Default shall have occurred and be continuing;
(ii) the Company shall have consummated an underwritten primary
public offering of its Common Stock substantially concurrently with, but
no later than, the date of such distribution; and
(iii) immediately after giving effect to such transaction
(including the distribution of RC/Arby's Capital Stock, the public
offering described in clause (ii) and the use of proceeds therefrom),
the Company would (A) be able to Incur an additional $1.00 of
Indebtedness pursuant to Section 4.06(a) and (b) have a Consolidated
Leverage Ratio no greater than 5.0 to 1.
"Permitted Arby's Securitization" means the sale, transfer and
assignment by Arby's and/or one or more of its Subsidiaries to one or more
Arby's Securitization Entities of Arby's Securitization Assets to occur within
nine months of the Closing Date, the issuance and sale by the Arby's
Securitization Entity of the Arby's Securitization Notes and the Arby's
Securitization Residual Note and the right and obligations of Arby's and/or one
or more of its Subsidiaries to provide certain servicing and other services with
respect to such Arby's Securitization Assets and the Arby's Securitization
Entity; provided that:
(i) the Company receives Net Cash Proceeds from such sale by Arby's
and/or one or more of the Subsidiaries of at least $300.0 million;
(ii) the aggregate consideration received in such sale is at least
equal to the aggregate fair market value of the assets sold, as
determined by the Company's board of directors in good faith;
(iii) the Company applies the Net Cash Proceeds from the first
$350.0 million of gross proceeds of such sale to repay Senior
Indebtedness of an Issuer or any Subsidiary Guarantor (and to
correspondingly reduce any commitments therefor in the case of revolving
credit indebtedness) and, if such proceeds exceed the amount of Senior
Indebtedness outstanding, to offer to purchase the Notes and any other
pari passu Indebtedness, on a pro rata basis (such offer to be on
substantially the same terms and at the same price as an offer to
purchase pursuant to Section 4.09); and
(iv) (A) neither the Company nor any Restricted Subsidiary of the
Company retains any obligation (contingent or otherwise) (x) with
respect to the assets so sold, (y) for the indebtedness or other
liabilities (contingent or otherwise) of any Arby's Securitization
Entity purchasing such assets or (z) to subscribe for additional shares
of Capital Stock or other Equity Interests or make any additional
capital contribution or similar payment or transfer to any Arby's
Securitization Entity or any other Person purchasing such assets or to
maintain or preserve the solvency or any balance sheet term, financial
condition, level of income or results of operations thereof and (B) no
property of the Company or any Restricted Subsidiary of the Company is
subject, directly or indirectly, to the satisfaction therefor (other
than any such obligations or subjecting of property of Arby's or any
Subsidiary of Arby's pursuant to customary representations, warranties
and covenants made in connection with the sale of such assets and other
than obligations to service such assets).
"Permitted Arby's Securitization Residual Payment" means, in the event
that the gross proceeds received by the Company from the Permitted Arby's
Securitization exceeds $350.0 million, a distribution by the Company to Triarc
Parent of all of the Capital Stock of RC/Arby's and any of its Subsidiaries (so
long as each such Person has no assets other than Arby's Securitization Assets,
the Net Cash Proceeds of the Permitted Arby's Securitization, any Arby's
Securitization Residual Notes, the Capital Stock of any Arby's Securitization
Entity and businesses related thereto (collectively, "Arby's Assets")); provided
that the Capital Stock of any other subsidiary of RC/Arby's (but not any assets
of such Person other than Arby's Assets) that has any obligations or
liabilities, contingent or otherwise with respect to the assets transferred
pursuant to such securitization are also distributed to Triarc Parent at such
time.
"Permitted Holders" means, collectively, Nelson Peltz, Peter W. May, DWG
Acquisition Group, L.P., and/or their respective Affiliates (including members
of their immediate families) and any trusts and estates of which any of them are
primary beneficiaries and any entities of which any of them hold a majority of
the equity securities.
"Permitted Investment" means an Investment by the Company or any
Restricted Subsidiary in (i) the Company, a Restricted Subsidiary or a Person
that will, upon the making of such Investment, become a Restricted Subsidiary;
provided, however, that the primary business of such Restricted Subsidiary is a
Related Business; (ii) another Person if as a result of such Investment such
other Person is merged or consolidated with or into, or transfers or conveys all
or substantially all its assets to, the Company or a Restricted Subsidiary;
provided, however, that such Person's primary business is a Related Business;
(iii) Temporary Cash Investments; (iv) receivables owing to the Company or any
Restricted Subsidiary if created or acquired in the ordinary course of business
and payable or dischargeable in accordance with customary trade terms; provided,
however, that such trade terms may include such concessionary trade terms as the
Company or any such Restricted Subsidiary deems reasonable under the
circumstances; (v) payroll, travel and similar advances to cover matters that
are expected at the time of such advances ultimately to be treated as expenses
for accounting purposes and that are made in the ordinary course of business;
(vi) loans or advances to employees or directors made in the ordinary course of
business consistent with past practices of the Company or such Restricted
Subsidiary; (vii) stock, obligations or securities received in settlement of
debts created in the ordinary course of business and owing to the Company or any
Restricted Subsidiary or in satisfaction of judgments; (viii) any Arby's
Securitization Residual Note and any contribution of Arby's Securitization
Assets to any Arby's Securitization Entity and (ix) any Person to the extent
such Investment represents the non-cash portion of the consideration received
for an Asset Disposition as permitted pursuant to Section 4.09.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Place of Payment" means a city or any political subdivision thereof
referred to in Article 3 and initially designated under Section 4.02.
"Predecessor Notes" of any particular Note means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 3.06 in lieu of a mutilated,
destroyed, lost or stolen Note shall be deemed to evidence the same debt as the
mutilated, destroyed, lost or stolen Note.
"Preferred Stock," as applied to the Capital Stock of any Person, means
Capital Stock of any class or classes (however designated) which is preferred as
to the payment of dividends or distributions, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
Person, over shares of Capital Stock of any other class of such Person.
"Principal" of a Note means the principal of the Note plus the premium,
if any, payable on the Note which is due or overdue or is to become due at the
relevant time.
"QIB", or "Qualified Institutional Buyer" means a "qualified
institutional buyer," as the term is defined in Rule 144A under the Securities
Act.
"Qualified Public Equity Offering" means an underwritten primary public
offering of Common Stock of the Company or Triarc Parent (to the extent the
proceeds are contributed to the Company as equity) pursuant to an effective
registration statement under the Securities Act.
"RC/Arby's" means RC/Arby's Corporation and its successors.
"Redemption Date" when used with respect to any Note to be redeemed or
purchased means the date fixed or such redemption or purchase by or pursuant to
this Indenture and the Notes.
"Redemption Price" when used with respect to any Note to be redeemed or
purchased means the price at which it is to be redeemed or purchased pursuant to
this Indenture and the Notes.
"Refinance" means, in respect of any Indebtedness, to refinance, extend,
renew, refund, repay, prepay, redeem, defease or retire, or to issue other
Indebtedness in exchange or replacement for, such indebtedness. "Refinanced" and
"Refinancing" shall have correlative meanings.
"Refinancing Indebtedness" means Indebtedness that Refinances any
Indebtedness of the Company or any Restricted Subsidiary existing on the Closing
Date or Incurred in compliance with this Indenture, including Indebtedness that
Refinances Refinancing Indebtedness; provided, however, that (i) such
Refinancing Indebtedness has a Stated Maturity no earlier than the Stated
Maturity of the Indebtedness being Refinanced, (ii) such Refinancing
Indebtedness has an Average Life at the time such Refinancing Indebtedness is
Incurred that is equal to or greater than the Average Life of the Indebtedness
being Refinanced and (iii) such Refinancing Indebtedness has an aggregate
principal amount (or if Incurred with original issue discount, an aggregate
issue price) that is equal to or less than the aggregate principal amount (or if
Incurred with original issue discount, the aggregate accreted value) then
outstanding or committed (plus fees and expenses, including any premium and
defeasance costs) under the Indebtedness being Refinanced; provided, further,
however, that Refinancing Indebtedness shall not include (x) Indebtedness of a
Subsidiary that is not a Subsidiary Guarantor or an Issuer that Refinances
Indebtedness of an Issuer or a Subsidiary Guarantor or (y) Indebtedness of the
Company or a Restricted Subsidiary that Refinances Indebtedness of an
Unrestricted Subsidiary.
"Registration Rights Agreement" means (i) the Registration Rights
Agreement dated as of February 18, 1999 among the Issuers, the Guarantors party
thereto and Morgan Stanley & Co. Incorporated, Donaldson, Lufkin & Jenrette
Securities Corporation and Wasserstein Perella Securities, Inc., as Placement
Agents, as such agreement may be amended from time to time, and (ii) with
respect to any Additional Notes, one or more registration rights agreements
between the Issuers and the other parties thereto, as such agreement(s) may be
amended from time to time, relating to rights given by the Issuers to the
purchasers of Additional Notes to register or exchange such Additional Notes
under the Securities Act.
"Registration Statement" means the Registration Statement as defined in
the Registration Rights Agreement.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the date specified for that purpose in Section 3.01.
"Regulation S" means Regulation S under the Securities Act.
"Related Business" means the business of the Company and its Restricted
Subsidiaries on the Closing Date and any business related, ancillary or
complementary to the businesses of the Company and its Restricted Subsidiaries
on the Closing Date.
"Representative" means any trustee, agent or representative (if any) for
an issue of Senior Indebtedness of an Issuer or any Subsidiary Guarantor;
provided that, with respect to the Credit Agreement as in effect on the Closing
Date, "Representative" shall, for purposes of delivering a Blockage Notice,
refer only to the "Administrative Agent" (as defined in the Credit Agreement)
unless otherwise agreed in writing by all of the Banks party to the Credit
Agreement.
"Resale Restriction Termination Date" means, with respect to any Note,
the date that is two years (or such other period as may hereafter be provided
under Rule 144(k) under the Securities Act or any successor provision thereto as
permitting the resale by non-affiliates of Restricted Securities without
restriction) after the later of the original issue date in respect of such Note
and the last date on which the Company or any Affiliate of the Company was the
owner of such Note (or any Predecessor Note thereto).
"Responsible Officer" when used with respect to the Trustee means any
officer in the corporate trust department of the Trustee, and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his or her knowledge of and familiarity with the
particular subject.
"Restricted Payment" with respect to any Person means (i) the
declaration or payment of any dividends or any other distributions of any sort
in respect of its Capital Stock (including any payment in connection with any
merger or consolidation involving such Person) or similar payment to the direct
or indirect holders of its Capital Stock in their capacity as such (other than
dividends or distributions payable solely in its Capital Stock (other than
Disqualified Stock) and dividends or distributions payable solely to the Company
or a Restricted Subsidiary), (ii) the purchase, redemption or other acquisition
or retirement for value of any Capital Stock of an Issuer, any Affiliate of the
Company or any Subsidiary Guarantor held by any Person (other than the Company
or a Wholly Owned Subsidiary) or of any Capital Stock of a Restricted Subsidiary
that is not a Subsidiary Guarantor or an Issuer held by any Affiliate of the
Company (other than a Restricted Subsidiary), including the exercise of any
option to exchange any Capital Stock (other than into Capital Stock of the
Company that is not Disqualified Stock), (iii) the purchase, repurchase,
redemption, defeasance or other acquisition or retirement for value, prior to
scheduled maturity, scheduled repayment or scheduled sinking fund payment of any
Subordinated Obligations (other than the purchase, repurchase or other
acquisition of Subordinated Obligations purchased in anticipation of satisfying
a sinking fund obligation, principal installment or final maturity, in each case
due within one year of the date of acquisition) or (iv) the making of any
Investment in any Person (other than a Permitted Investment).
"Restricted Period" means the 40-day distribution compliance period as
defined in Regulation S which, in the case of the Initial Notes, ends April 7,
1999.
"Restricted Security" has the meaning assigned to such term in Rule
144(a)(3) under the Securities Act; provided, however, that the Trustee shall be
entitled to receive, at its request, and conclusively rely on an Opinion of
Counsel with respect to whether any Note constitutes a Restricted Security.
"Restricted Subsidiary" means any Subsidiary of the Company that is not
an Unrestricted Subsidiary.
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc., and its successors.
"Sale/Leaseback Transaction" means an arrangement relating to property
now owned or hereafter acquired whereby the Company or a Restricted Subsidiary
transfers such property to a Person and the Company or a Restricted Subsidiary
leases it from such Person (other than pursuant to an operating lease).
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Indebtedness" means, with respect to any Person on any date of
determination, (i) the Bank Indebtedness, (ii) all other Indebtedness of such
Person, whether outstanding on the Closing Date or thereafter Incurred, and
(iii) accrued and unpaid interest (including interest accruing on or after, or
which would accrue but for, the filing of any petition in bankruptcy or for
reorganization, whether or not allowed thereby in respect of (A) indebtedness of
such Person for money borrowed and (B) indebtedness evidenced by notes,
debentures, bonds or other similar instruments for the payment of which such
Person is responsible or liable) unless, in each case, in the instrument
creating or evidencing the same or pursuant to which the same is outstanding, it
is provided that such obligations are pari passu or subordinate in right of
payment to the Notes; provided, however, that Senior Indebtedness shall not
include (1) any obligation of an Issuer or Subsidiary Guarantor to any Affiliate
of the Company, (2) any liability for Federal, state, local or other taxes owed
or owing by such Person, (3) any accounts payable or other liability to trade
creditors arising in the ordinary course of business (including guarantees
thereof or instruments evidencing such liabilities), (4) any Indebtedness of
such Person (and any accrued and unpaid interest in respect thereof) which is
subordinate or junior in any respect to any other Indebtedness or other
obligation of such Person or (5) that portion of any Indebtedness which at the
time of Incurrence is Incurred in violation of this Indenture; provided that
Bank Indebtedness shall be deemed not to have been Incurred in violation of this
Indenture if the Company shall (or shall be deemed to) have represented that the
Incurrence thereof does not violate this Indenture.
"Senior Subordinated Indebtedness" means the Notes, the Exchange Notes
and the Subsidiary Guarantees and any other Indebtedness of the Issuers or the
Subsidiary Guarantors that specifically provides that such Indebtedness is to
rank pari passu with the Notes or the Subsidiary Guarantees, as applicable, in
right of payment and is not subordinated by its terms in right of payment to any
Indebtedness or other obligation of the Issuers or the Subsidiary Guarantors, as
applicable, which is not Senior Indebtedness.
"Shelf Registration Statement" means the Shelf Registration Statement as
defined in a Registration Rights Agreement.
"Significant Subsidiary" means any Subsidiary that would be a
"Significant Subsidiary" of the Company within the meaning of Rule 1-02 under
Regulation S-X promulgated by the SEC.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed date on which the final payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the
happening of any contingency unless such contingency has occurred).
"Subordinated Obligation" means any Indebtedness of an Issuer or a
Subsidiary Guarantor (whether outstanding on the Closing Date or thereafter
Incurred) which is subordinate or junior in right of payment to the Notes
pursuant to a written agreement to that effect.
"Subsidiary" means, with respect to any Person, any corporation,
association, partnership, limited liability company, business or other business
entity of which more than 50% of the total voting power of shares of Capital
Stock or other interests (including partnership interests) entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by such Person, (ii) such Person and one or more
Subsidiaries of such Person or (iii) one or more Subsidiaries of such Person.
"Subsidiary Guarantor" means (i) each Domestic Restricted Subsidiary of
the Company (other than Triarc Beverage) in existence on the Closing Date (other
than RC/Arby's and each Domestic Restricted Subsidiary of RC/Arby's), (ii) from
and after the redemption of the existing RC/Arby's notes, RC/Arby's and each
Domestic Restricted Subsidiary of RC/Arby's in existence on such redemption date
and (iii) each Domestic Restricted Subsidiary that executes a supplemental
indenture, in the form of Exhibit B hereto, providing for the Guarantee of the
payment of the Notes, in each case until such time as such Subsidiary is
released from its Subsidiary Guarantee as permitted by this Indenture.
"Subsidiary Guaranty" means a Guaranty by a Subsidiary Guarantor of the
Issuers' obligations with respect to the Notes.
"Tax Sharing Agreement" means (i) the tax sharing agreement among the
Company, certain of its Subsidiaries and Triarc Parent as in effect on the
Closing Date and as such agreement may be amended from time to time to, among
other things, add additional Subsidiaries as parties thereto (but not to change
the financial terms thereof in any way that is less favorable to the Company and
its Subsidiaries) and (ii) any other tax sharing agreement between Triarc
Parent, the Company and/or any other Subsidiaries of the Company containing
terms no less favorable to the Company and its Subsidiaries than the tax sharing
agreement referred to in clause (i).
"Temporary Cash Investments" means any of the following;
(i) any investment in direct obligations of the United States of
America or any agency thereof or obligations guaranteed by the United
States of America or any agency thereof,
(ii) investments in demand deposit accounts, time deposit accounts,
certificates of deposit and money market deposits maturing within 365
days of the date of acquisition thereof issued by a commercial banking
institution that is a lender under the Credit Agreement or a member of
the Federal Reserve System and has a combined capital and surplus and
undivided profits aggregating in excess of $500,000,000 (or the foreign
currency equivalent thereof) or any money-market fund sponsored by a
registered broker dealer or mutual fund distributor,
(iii) repurchase obligations with a term of not more than 30 days
for underlying securities of the types described in clause (i), (ii) or
(iv) entered into with a bank meeting the qualifications described in
clause (ii) above,
(iv) investments in commercial paper, maturing not more than nine
months after the date of acquisition, issued by a corporation (other
than an Affiliate of the Company) organized and in existence under the
laws of the United States of America or any foreign country recognized
by the United States of America with a rating at the time as of which
any investment therein is made of "P-l" (or higher) according to Moody's
or "A-1" (or higher) according to S&P, and
(v) investments in securities with maturities of one year or less
from the date of acquisition issued or fully guaranteed by any state,
commonwealth or territory of the United States of America, or by any
political subdivision or taxing authority thereof, and rated at least
"AA" by S&P or "Aa" by Moody's.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. sections 77aaa-
77bbbb) as in effect on the date of this Indenture.
"Transactions" means the issuance and sale of the Notes and the closing
of the Credit Agreement and the borrowings thereunder for the purpose of (i)
repaying Triarc Beverage's existing credit agreement, (ii) redeeming RC/Arby's
existing notes, (iii) paying the Closing Dividend and (iv) purchasing certain
premium beverage distributors on or about the Closing Date.
"Triarc Beverage" means Triarc Beverage Holdings Corp. and any Person
who is the successor to Triarc Beverage Holdings Corp.
"Triarc Beverage 1997 Stock Option Plan" means the 1997 Stock Option
Plan of Triarc Beverage.
"Triarc Parent" means Triarc Companies, Inc. and its successors.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this Indenture until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
such successor Trustee.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Company that
at the time of determination shall be designated an Unrestricted Subsidiary by
the Board of Directors in the manner provided below and (ii) any Subsidiary of
an Unrestricted Subsidiary. The Board of Directors may designate any Subsidiary
of the Company (including any newly acquired or newly formed Subsidiary) to be
an Unrestricted Subsidiary (other than Triarc Beverage) unless such Subsidiary
or any of its Subsidiaries owns any Capital Stock or Indebtedness of, or holds
any Lien on any property of, the Company or any other Subsidiary of the Company
that is not a Subsidiary of the Subsidiary to be so designated; provided that
(A) any Guarantee by the Company or any Restricted Subsidiary of any
Indebtedness of the Subsidiary being so designated shall be deemed an
"Incurrence" of such Indebtedness and, if such Guarantee is called upon or would
be required to be classified and accounted for as a liability upon a balance
sheet of the Company or any Restricted Subsidiary prepared in accordance with
GAAP, an "Investment" by the Company or such Restricted Subsidiary (or both, if
applicable) at the time of such designation, (B) either (i) the Subsidiary to be
so designated has total assets of $1,000 or less or (ii) if such Subsidiary has
assets greater than $1,000, such designation would be permitted under Section
4.07 and (C) if applicable, the Incurrence of Indebtedness and the Investment
referred to in clause (A) of this proviso would be permitted under Sections 4.06
and 4.07. The Board of Directors may designate any Unrestricted Subsidiary to be
a Restricted Subsidiary; provided, however, that immediately after giving effect
to such designation (x) the Company could Incur $1.00 of additional Indebtedness
under 4.06(a) and (y) no Default shall have occurred and be continuing. Any such
designation by the Board of Directors shall be evidenced to the Trustee by
promptly filing with the Trustee a copy of the resolution of the Board of
Directors giving effect to such designation and an Officer's Certificate
certifying that such designation complied with the foregoing provisions.
"U.S. Government Obligations" means direct obligations (or certificates
representing an ownership interest in such obligations) of the United States of
America (including any agency or instrumentality thereof) for the payment of
which the full faith and credit of the United States of America is pledged and
which are not callable at the issuer's option.
"Voting Stock" of a Person means all classes of Capital Stock or other
interests (including partnership or membership interests) of such Person then
outstanding and normally entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof.
"Wholly Owned Subsidiary" means a Restricted Subsidiary all the Capital
Stock of which (other than directors' qualifying shares and other than Capital
Stock issued to employees, directors, managers and consultants of such
Subsidiary pursuant to plans approved by the Board of Directors of the Company
or such Subsidiary) is owned by the Company or one or more Wholly Owned
Subsidiaries.
SECTION 1.02. Other Definitions.
DEFINED
TERM IN SECTION
Acceleration Notice 6.02
Act 1.08
Affiliate Transaction 4.10
Agent Members 3.13
Authentication Order 3.03
Blockage Notice 14.03
Change of Control Offer 4.13
Change of Control Payment 4.13
Change of Control Payment Date 4.13
Covenant Defeasance 12.03
Defaulted Interest 3.07
DTC 2.03
Event of Default 6.01
Excess Proceeds 4.09
Excess Proceeds Offer 4.09
Excess Proceeds Payment 4.09
Executive Officer Legend 2.03
Executive Officer Notes 3.14
Expiration Date 1.08
Global Notes 2.01
Guaranteed Amount 13.01
Guaranteed Indebtedness 4.12
Legal Defeasance 12.02
Offshore Global Note 2.01
Offshore Note Exchange Date 2.01
Offshore Physical Note 2.01
Pay the Notes 14.03
Payment Blockage Period 14.03
Permanent Offshore Global Note 2.01
Permitted Indebtedness 4.06
Physical Notes 2.01
Place of Payment 3.01
Plan Participants 4.07
Private Placement Legend 2.03
Redemption Amount 10.01
Redemption date 13.01
Regular Record Date 3.01
Related Party Transaction 4.10
Secured Indebtedness 4.11
Successor Company 5.01
Temporary Offshore Global Note 2.01
U.S. Global Note 2.01
U.S. Physical Notes 2.01
SECTION 1.03. Rules of Construction. For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Indenture have the meanings assigned to
them in this Indenture;
(b) "or" is not exclusive;
(c) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with GAAP and, unless expressly provided
otherwise, all determinations and computations made pursuant to any provision
hereof shall be made in accordance with GAAP;
(d) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision;
(e) all references to "$" or "dollars" shall refer to the lawful currency
of the United States of America;
(f) the words "include," "included" and "including" as used herein shall
be deemed in each case to be followed by the phrase "without limitation," if not
expressly followed by such phrase or the phrase "but not limited to";
(g) words in the singular include the plural, and words in the plural
include the singular; and
(h) any reference to a Section or Article refers to such Section or
Article of this Indenture unless otherwise indicated.
SECTION 1.04. Incorporation by Reference of TIA. Whenever this Indenture
refers to a provision of the TIA, the provision is incorporated by reference in
and made a part of this Indenture. This Indenture is subject to the mandatory
provisions of the TIA, which are incorporated by reference in and made a part of
this Indenture. Any terms incorporated by reference in this Indenture that are
defined by the TIA, defined by any TIA reference to another statute or defined
by SEC rule under the TIA, have the meanings so assigned to them therein. The
following TIA terms have the following meanings:
"Indenture Securities" means the Notes.
"Indenture Security Holder" means a Holder or Noteholders.
"Indenture to be Qualified" means this Indenture.
"Indenture Trustee" or "Institutional Trustee" means the Trustee.
"Obligor" on the indenture securities means the Issuers, any Subsidiary
Guarantor and any other obligor on the indenture securities.
SECTION 1.05. Conflict with TIA. If any provision hereof limits,
qualifies or conflicts with a provision of the TIA that is required under the
TIA to be a part of and govern this Indenture, the latter provision shall
control. If any provision of this Indenture modifies or excludes any provision
of the TIA that may be so modified or excluded, the latter provision shall be
deemed (a) to apply to this Indenture as so modified or (b) to be excluded, as
the case may be.
SECTION 1.06. Compliance Certificates and Opinions. Upon any application
or request by the Issuers or by any other obligor upon the Notes to the Trustee
to take any action under any provision of this Indenture, the Issuers or such
other obligor upon the Notes, as the case may be, shall furnish to the Trustee
such certificates and opinions as may be required under the TIA. Each such
certificate or opinion shall be given in the form of one or more Officer's
Certificates, if to be given by an Officer, or an Opinion of Counsel, if to be
given by counsel, and shall comply with the requirements of the TIA and any
other requirements set forth in this Indenture. Notwithstanding the foregoing,
in the case of any such request or application as to which the furnishing of any
Officer's Certificate or Opinion of Counsel is specifically required by any
provision of this Indenture relating to such particular request or application,
no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (except for certificates provided for
in Section 4.05) shall include:
(a) a statement that the individual signing such certificate or opinion
has read such covenant or condition and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such individual, he or she made
such examination or investigation as is necessary to enable him or her to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether, in the opinion of such individual, such
condition or covenant has been complied with.
SECTION 1.07. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an Officer may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such Officer knows that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or opinion of counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an Officer or Officers to the effect that the
information with respect to such factual matters is in the possession of the
Issuers, unless such counsel knows that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.08. Acts of Noteholders; Record Dates. (a) Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such Holders in person or by agent duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee, and, where it is
hereby expressly required, to the Issuers. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Indenture and (subject to Section 7.01)
conclusive in favor of the Trustee, the Issuers and any other obligor upon the
Notes, if made in the manner provided in this Section 1.08.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by an officer of a corporation or a member of a partnership or
other entity, on behalf of such corporation or partnership or other entity, such
certificate or affidavit shall also constitute sufficient proof of such Person's
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the person executing the same, may also be proved in any
other manner that the Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Note shall bind the Holder of every
Note issued upon the transfer thereof or in exchange therefor or in lieu
thereof, in respect of anything done or suffered to be done by the Trustee, the
Issuers or any other obligor upon the Notes in reliance thereon, whether or not
notation of such action is made upon such Note.
(e) (i) The Issuers may set any day as a record date for the purpose of
determining the Holders of Outstanding Notes entitled to give, make or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given, made or taken by
Holders, provided that the Issuers may not set a record date for, and the
provisions of this paragraph shall not apply with respect to, the giving or
making of any notice, declaration, request or direction referred to in Section
1.08(e)(ii). If any record date is set pursuant to this paragraph, the Holders
of Outstanding Notes on such record date (or their duly designated proxies), and
no other Holders, shall be entitled to take the relevant action, whether or not
such Persons remain Holders after such record date; provided that no such action
shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Notes on such record date. Nothing in this paragraph shall be construed to
prevent the Issuers from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person
be canceled and of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the requisite principal
amount of Outstanding Notes on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Issuers, at their own
expense, shall cause notice of such record date, the proposed action by Holders
and the applicable Expiration Date to be given to the Trustee in writing and to
each Holder in the manner set forth in Section 1.10.
(ii) The Trustee may set any day as a record date for the purpose
of determining the Holders of Outstanding Notes entitled to join in the giving
or making of (w) any Notice of Default, (x) any declaration of acceleration
referred to in Section 6.02, (y) any request to institute proceedings referred
to in Section 6.06(b) or (z) any direction referred to in Section 6.05, in each
case with respect to Notes. If any record date is set pursuant to this
paragraph, the Holders of Outstanding Notes on such record date, and no other
Holders, shall be entitled to join in such notice, declaration, request or
direction, whether or not such Holders remain Holders after such record date;
provided that no such action shall be effective hereunder unless taken on or
prior to the applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Notes on such record date. Nothing in this paragraph shall
be construed to prevent the Trustee from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be canceled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Notes on the date such action
is taken. Promptly after any record date is set pursuant to this paragraph, the
Trustee, at the expense of the Issuers, shall cause notice of such record date,
the proposed action by Holders and the applicable Expiration Date to be given to
the Issuers in writing and to each Holder in the manner set forth in Section
1.10.
(iii) With respect to any record date set pursuant to this Section
1.08, the party hereto that sets such record dates may designate any day as the
"Expiration Date" and from time to time may change the Expiration Date to any
earlier or later day; provided that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the Issuers or the
Trustee, whichever such party is not setting a record date pursuant to this
Section 1.08(e) in writing, and to each Holder in the manner set forth in
Section 1.10, on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section,
the party hereto that set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
(iv) Without limiting the foregoing, a Holder entitled hereunder to
take any action hereunder with regard to any particular Note may do so with
regard to all or any part of the principal amount of such Note or by one or more
duly appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
SECTION 1.09. Notices, Etc., to Trustee and Issuers. Any request,
demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
(a) the Trustee by any Holder or by the Issuers or any other obligor upon
the Notes shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at the Corporate Trust
Office (telephone: (212) 815-5092; facsimile: (212) 815-5915), or at any other
address furnished in writing to the Issuers by the Trustee, or
(b) the Issuers by the Trustee or by any Holder shall be sufficient for
every purpose hereunder if in writing and delivered in person or mailed,
first-class postage prepaid, to the Issuers at c/o Triarc Companies, Inc., 280
Park Avenue, 41st Floor, New York, New York 10017, Attention: General Counsel
(facsimile: (212) 451-3216), with copies to Paul, Weiss, Rifkind, Wharton &
Garrison at 1285 Avenue of the Americas, New York, New York 10019, Attention:
Paul Ginsberg, Esq. (facsimile: (212) 757-3990), or at any other address
previously furnished in writing to the Trustee by the Issuers.
SECTION 1.10. Notices to Holders; Waivers. Where this Indenture provides
for notice to Holders of any event, such notice shall be deemed to have been
given upon the mailing by first class mail, postage prepaid, of such notices to
Holders at their registered addresses as recorded in the Register, not later
than the latest date, and not earlier than the earliest date, prescribed herein
for the giving of such notice. In any case where notice to Holders is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case, by reason of the suspension of regular mail service, or by
reason of any other cause, it shall be impossible to mail notice of any event as
required by any provision of this Indenture, then such notification as shall be
made with the approval of the Trustee (such approval not to be unreasonably
withheld) shall constitute a sufficient notification for every purpose
hereunder.
SECTION 1.11. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 1.12. Successors and Assigns. All covenants and agreements in
this Indenture by the Issuers shall bind their respective successors and
assigns, whether so expressed or not.
SECTION 1.13. Separability Clause. In case any provision in this
Indenture or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 1.14. Benefits of Indenture. Nothing in this Indenture or in the
Notes, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, any Paying Agent and the Holders, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 1.15. Governing Law. THIS INDENTURE, THE NOTES AND THE
SUBSIDIARY GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY PRINCIPLES OF
CONFLICT OF LAWS TO THE EXTENT THAT THE APPLICATION OF THE LAW OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY. THE TRUSTEE, THE ISSUERS, THE SUBSIDIARY
GUARANTORS, ANY OTHER OBLIGORS IN RESPECT OF THE NOTES AND (BY THEIR ACCEPTANCE
OF THE NOTES) THE HOLDERS, AGREE TO SUBMIT TO THE JURISDICTION OF ANY UNITED
STATES FEDERAL OR STATE COURT LOCATED IN THE BOROUGH OF MANHATTAN, IN THE CITY
OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
INDENTURE OR THE NOTES.
SECTION 1.16. Legal Holidays. In any case where any Interest Payment
Date, Redemption Date or Stated Maturity of any Note shall not be a Business
Day, then (notwithstanding any other provision of this Indenture or of the
Notes) payment of interest or principal and premium (if any) need not be made on
such date, but may be made on the next succeeding Business Day with the same
force and effect as if made on the Interest Payment Date or Redemption Date, or
at the Stated Maturity.
SECTION 1.17. No Personal Liability of Directors, Officers, Employees,
Incorporators and Stockholders. No director, manager, officer, employee,
incorporator, member or stockholder of any Issuer or Subsidiary Guarantor, as
such, shall have any liability for any obligations of such Issuer or Subsidiary
Guarantor under the Notes, Subsidiary Guarantees or the Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder of Notes by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for issuance of
the Notes.
SECTION 1.18. Exhibits and Schedules. All exhibits and schedules
attached hereto are by this reference made a part hereof with the same effect as
if herein set forth in full.
SECTION 1.19. Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such counter-
parts shall together constitute but one and the same instrument.
ARTICLE 2
NOTE FORMS
SECTION 2.01. Forms Generally. The Notes and the Trustee's certificate
of authentication relating thereto shall be in substantially the forms set
forth, or referenced, in Exhibit A annexed hereto and in this Article 2. The
Notes may have such appropriate insertions, omissions, substitutions, notations,
legends, endorsements, identifications and other variations as are required or
permitted by law, stock exchange rule or depository rule or usage, agreements to
which the Issuers are subject, if any, or other customary usage, or as may
consistently herewith be determined by the Officers or members of the Issuers
executing such Notes, as evidenced by such execution (provided always that any
such notation, legend, endorsement, identification or variation is in a form
acceptable to the Issuers). Each Note shall be dated the date of its
authentication.
Initial Notes and any Additional Notes offered and sold in reliance on
Rule 144A under the Securities Act shall be issued initially in the form of a
single permanent global Note in substantially the form set forth in Exhibit A
and shall contain the legends set forth in Section 2.03(a) and (b) (the "U.S.
Global Note"), registered in the name of the nominee of the Depositary,
deposited with the Trustee, as custodian for the Depositary or its nominee, duly
executed by the Issuers and authenticated by the Trustee as hereinafter
provided. The aggregate principal amount of the U.S. Global Note may from time
to time be increased or decreased by adjustments made on the records of the
Trustee, as custodian for the Depositary or its nominee, as provided in Sections
3.13 and 3.14.
Initial Notes and any Additional Notes offered and sold in offshore
transactions in reliance on Regulation S under the Securities Act shall be
issued initially in the form of a single temporary global Note in substantially
the form set forth in Exhibit A and containing each of the legends set forth in
Section 2.03 (the "Temporary Offshore Global Note"), registered in the name of
the nominee of the Depositary, deposited with the Trustee, as custodian for the
Depositary or its nominee, duly executed by the Issuers and authenticated by the
Trustee as hereinafter provided. At any time following termination of the
Restricted Period (the "Offshore Note Exchange Date"), upon receipt by the
Trustee and the Issuers of a certificate substantially in the form set forth in
Exhibit C hereto, a single permanent global Note substantially in the form of
Exhibit A hereto (the "Permanent Offshore Global Note," and together with the
Temporary Offshore Global Note, the "Offshore Global Note") duly executed by the
Issuers and authenticated by the Trustee as hereinafter provided shall be
deposited with the Trustee, as custodian for the Depositary, and the Registrar
shall reflect on its books and records the date and a decrease in the principal
amount of the Temporary Offshore Global Note in an amount equal to the principal
amount of the beneficial interest in the Temporary Offshore Global Note
transferred. Prior to the Offshore Note Exchange Date and receipt of the
certificate referred to above, beneficial interests in a Temporary Offshore
Global Note may be held only through Euroclear or Cedel. The aggregate principal
amount of the Offshore Global Note may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as custodian for
the nominee of the Depositary for the Offshore Global Note, for the accounts of
Euroclear and Cedel Bank, as provided in Sections 3.13 and 3.14.
Initial Notes and any Additional Notes initially offered and sold to an
Executive Officer Purchaser in reliance on Section 4(2) of the Securities Act
shall be issued in the form of permanent certificated Notes in substantially the
form set forth in Exhibit A containing the Private Placement Legend as set forth
in Section 2.03 and the Executive Officer Legend as set forth in Section 2.03
(the "Executive Officer Notes").
Initial Notes and any Additional Notes issued pursuant to Section 3.05
in exchange for or upon transfer of beneficial interests in the U.S. Global Note
or the Offshore Global Note shall be in the form of permanent certificated Notes
in substantially the form set forth in Exhibit A containing the Private
Placement Legend as set forth in Section 2.03 (the "U.S. Physical Notes"), or in
the form of permanent certificated Notes substantially in the form set forth in
Exhibit A (the "Offshore Physical Notes"), respectively, as hereinafter
provided.
The Executive Officer Notes, the Offshore Physical Notes and the U.S.
Physical Notes, together with any other certificated notes in registered form,
are sometimes collectively herein referred to as the "Physical Notes." The U.S.
Global Note and the Offshore Global Note are sometimes collectively referred to
as the "Global Notes."
Initial Notes and Additional Notes offered and sold in reliance on any
exemption under the Securities Act other than Regulation S and Rule 144A
thereunder shall be issued, and, upon the request of the Issuers to the Trustee,
Notes offered and sold in reliance on Rule 144A may be issued, in the form of
permanent certificated Notes substantially in the form set forth in Exhibit A
and shall contain the Private Placement Legend as set forth in Section 2.03. No
Offshore Physical Notes may be issued until expiration of the applicable
Restricted Period and receipt by the Issuers and the Trustee from the proposed
transferor of a certificate substantially in the form set forth in Exhibit D.
Exchange Notes shall be issued substantially in the form set forth in
Exhibit A and, subject to Section 3.13, shall be in the form of one or more
Global Notes.
SECTION 2.02. Form of Trustee' Certificate of Authentication. The
Trustee's certificate of authentication shall be in substantially the following
form:
This is one of the Notes referred to in the within-mentioned Indenture.
The Bank of New York,
as Trustee
Dated: __________ By: __________________________
Authorized Signatory
If an appointment of an Authenticating Agent is made pursuant to Section
7.15, the Notes may have endorsed thereon, in lieu of the Trustee's certificate
of authentication, an alternative certificate of authentication in the following
form:
This is one of the Notes referred to in the within-mentioned Indenture.
The Bank of New York,
As Trustee
By _____________________________
As Authenticating Agent
By _____________________________
Authorized Signatory
Dated:
SECTION 2.03. Restrictive Legends. (a) Unless and until (i) an Initial
Note or any Additional Note is sold pursuant to an effective registration
statement, whether pursuant to the Registration Rights Agreement or otherwise or
(ii) an Initial Note or any Additional Note is exchanged for an Exchange Note in
an Exchange Offer pursuant to an effective Exchange Offer Registration Statement
pursuant to the Registration Rights Agreement, (A) each U.S. Global Note and
U.S. Physical Note and each Executive Officer Note shall bear the following
legend set forth below (the "Private Placement Legend") on the face thereof and
(B) the Temporary Offshore Global Note shall bear the Private Placement Legend
on the face thereof until the Offshore Note Exchange Date and receipt by the
Issuers and the Trustee of a certificate substantially in the form provided in
Exhibit C with respect to the entire principal amount of such Temporary Offshore
Global Note:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE U.S. OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS
SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT), (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR"
(AS DEFINED IN RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR"), [For Executive Officer
Notes Add - OR IS AN ACCREDITED INVESTOR (AS DEFINED IN RULE 501(A)(4) UNDER THE
SECURITIES ACT) THAT IS AN EXECUTIVE OFFICER PURCHASER PURCHASING THIS NOTE ON
THE DATE OF ITS INITIAL ISSUANCE OR SUCH OTHER PERSON TO WHOM AN EXECUTIVE
OFFICER PURCHASER TRANSFERRED THIS NOTE IN ACCORDANCE WITH SECTION 3.14 (g) AND
(k) OF THE INDENTURE] OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE
IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES
ACT, (2) AGREES THAT IT WILL NOT [For all Notes other than Executive Officer
Notes Add - , WITHIN THE TIME PERIOD REFERRED TO IN RULE 144(k) UNDER THE
SECURITIES ACT AS IN EFFECT ON THE DATE OF THE TRANSFER OF THIS NOTE,] RESELL OR
OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE ISSUERS OR ANY SUBSIDIARY
THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A
UNDER THE SECURITIES ACT, (C) INSIDE THE U.S. TO AN INSTITUTIONAL ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS
ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE
TRUSTEE), AND IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF
NOTES OF LESS THAN $100,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE ISSUERS
THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (D) OUTSIDE THE
U.S. IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH [For Executive Officer Notes
Add - RULE 903 OR] RULE 904 UNDER THE SECURITIES ACT, (E) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE), OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT [For Executive Officer Notes Add - OR (G) PURSUANT TO ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN
ACCORDANCE WITH SECTION 3.14(g) AND (k) OF THE INDENTURE] AND (3) AGREES THAT IT
WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF
THIS NOTE WITHIN THE TIME PERIOD REFERRED TO ABOVE, THE HOLDER MUST CHECK THE
APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH
TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE. IF THE PROPOSED TRANSFEREE
IS AN INSTITUTIONAL ACCREDITED INVESTOR OR A NON-U.S. PERSON THAT, IN EITHER
CASE, IS NOT A QUALIFIED INSTITUTIONAL BUYER, THE HOLDER MUST, PRIOR TO SUCH
TRANSFER, FURNISH TO THE TRUSTEE AND THE ISSUERS SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "U.S." AND "U.S. PER-
SON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER
ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS
(b) Each Global Note, whether or not an Initial Note or Additional Note,
shall also bear the following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUERS OR
THEIR AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTIONS 3.13 AND 3.14 OF THE INDENTURE.
(c) Each Temporary Offshore Global Note shall bear the following legend
on the face thereof:
THIS NOTE IS A TEMPORARY GLOBAL NOTE. PRIOR TO THE EXPIRATION OF THE
RESTRICTED PERIOD APPLICABLE HERETO, BENEFICIAL INTERESTS HEREIN MAY NOT BE HELD
BY ANY PERSON OTHER THAN (1) A NON-U.S. PERSON OR (2) A U.S. PERSON WHO
PURCHASED SUCH INTEREST IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") PURSUANT TO RULE 144A
THEREUNDER. BENEFICIAL INTERESTS HEREIN ARE NOT EXCHANGEABLE FOR PHYSICAL NOTES
OTHER THAN A PERMANENT GLOBAL NOTE IN ACCORDANCE WITH THE TERMS OF THE
INDENTURE. TERMS IN THIS LEGEND ARE USED AS USED IN REGULATION S UNDER THE
SECURITIES ACT.
(d) Each Executive Officer Note that bears a Private Placement Legend
shall also bear the following legend (the "Executive Officer Legend") thereon:
THIS NOTE WAS INITIALLY ISSUED TO AN AFFILIATE OF THE ISSUERS. FOR
PURPOSES OF RULE 144(d) UNDER THE SECURITIES ACT OF 1933, AS AMENDED, THE
HOLDING PERIOD FOR THIS NOTE WILL NOT BEGIN UNTIL IT IS RESOLD BY SUCH AFFILIATE
TO A PERSON THAT IS NOT AN AFFILIATE OF THE ISSUERS. PRIOR TO ANY SALE OF THIS
NOTE OR AN INTEREST HEREIN PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR
ANY EXCHANGE OF THIS NOTE OR AN INTEREST HEREIN IN CONNECTION WITH A REGISTERED
EXCHANGE OFFER, THIS NOTE MAY NOT BE TRANSFERRED FOR AN INTEREST IN A GLOBAL
NOTE BUT CAN ONLY BE TRANSFERRED OR EXCHANGED FOR A PHYSICAL NOTE BEARING THIS
LEGEND IN ACCORDANCE WITH THE TERMS OF THE INDENTURE. THIS NOTE MAY NOT BE
TRANSFERRED UNLESS, PRIOR TO THE PROPOSED TRANSFER, THE TRANSFEROR OR TRANSFEREE
FURNISH TO THE ISSUERS AND THE TRUSTEE AN OPINION OF COUNSEL SATISFACTORY TO THE
ISSUERS AND THE TRUSTEE AND SUCH OTHER CERTIFICATIONS OR INFORMATION AS THE
ISSUERS MAY REQUIRE. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO
REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING
RESTRICTIONS.
ARTICLE 3
THE NOTES
SECTION 3.01. Title and Terms. The aggregate principal amount of Notes
that may be authenticated and delivered and Outstanding under this Indenture is
initially limited to $300,000,000, but may be increased, without limit, subject
to compliance with the covenants contained in Article 4 below and except as may
be limited by applicable law. The Initial Notes will be issued in an aggregate
principal amount of $300,000,000. All the Original Notes shall vote and consent
together on all matters as one class, and none of the Original Notes will have
the right to vote or consent as a class separate from one another on any matter.
Subject to the covenants contained in Article 4 below, the Issuers may issue
Additional Notes hereunder. Additional Notes (including any Exchange Notes
issued in exchange therefor) shall vote (or consent) as a class with the other
Notes and otherwise be treated as Notes for all purposes of this Indenture.
The Notes shall be known and designated as the "10-1/4% Senior
Subordinated Notes Due 2009" of the Issuers. The final Stated Maturity of the
Notes shall be February 15, 2009. Interest on the Outstanding principal amount
of Notes will accrue, subject to Section 3.11, at the rate of 10-1/4% per annum
and will be payable semiannually in arrears on February 15 and August 15 in each
year, commencing on August 15, 1999, to holders of record at the close of
business on the immediately preceding February 1 and August 1, respectively
(each such February 1 and August 1, a "Regular Record Date"). Interest on the
Original Notes will accrue from the most recent date to which interest has been
paid or duly provided for or, if no interest has been paid, from February 25,
1999, and interest on any Additional Notes (and Exchange Notes issued in
exchange therefor) will accrue from the most recent date to which interest has
been paid or duly provided for or, if no interest has been paid on such
Additional Notes, from the date of issuance of such Additional Notes; provided
that if any Note is surrendered for exchange on or after a record date for an
Interest Payment Date that will occur on or after the date of such exchange,
interest on the Note received in exchange thereof will accrue from the date of
such Interest Payment Date. The Issuers will pay interest on overdue principal
at a rate of 1% per annum in excess of the interest rate referred to above and
will pay interest on overdue installments of interest at such higher rate to the
extent permitted by law.
The principal of, and premium, if any, and interest, on the Notes shall
be payable at the Corporate Trust Office or at the office or agency of the
Issuers maintained for that purpose in the Borough of Manhattan, The City of New
York (each, a "Place of Payment") in the manner provided in Section 4.01(b);
provided, however, that, under the circumstances set forth in Section 4.01(b),
payment of interest on a Note may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the Register.
SECTION 3.02. Denominations. The Notes shall be issuable only in
registered form without coupons and only in denominations of $1,000 and any
integral multiple thereof.
SECTION 3.03. Execution, Authentication and Delivery and Dating. The
Notes shall be executed on behalf of each Issuer by an Officer of such Issuer.
The signature of such Officers on the Notes may be manual or facsimile.
Notes bearing the manual or facsimile signature of an individual who was
at any time a proper Officer of an Issuer shall bind such Issuer,
notwithstanding that such individual has ceased to hold such office prior to the
authentication and delivery of such Notes or did not hold such office at the
date of such Notes.
At any time and from time to time after the execution and delivery of
this Indenture, the Issuers may deliver Notes executed by the Issuers to the
Trustee for authentication; and the Trustee shall authenticate and deliver (i)
Initial Notes for original issue in the aggregate principal amount not to exceed
$300,000,000 and (ii) Additional Notes from time to time for original issue in
aggregate principal amounts specified by the Issuers and (iii) Exchange Notes
from time to time for issue in exchange for a like principal amount of Initial
Notes or Initial Additional Notes, in each case specified in clauses (i) through
(iii) above, upon a written order of the Issuers in the form of an Officer's
Certificate of each Issuer (an "Authentication Order"). Such Officer's
Certificates shall specify the amount of Notes to be authenticated and the date
on which the Notes are to be authenticated, whether the Notes are to be Initial
Notes, Additional Notes or Exchange Notes, that the issuance of such Notes (in
the case of Additional Notes) does not contravene any provision of Article 4 of
this Indenture, whether the Notes are to be issued as one or more Global Notes
or Physical Notes and such other information as the Issuers may include or the
Trustee may reasonably request.
All Notes shall be dated the date of their authentication.
No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any Note
shall be conclusive evidence, and the only evidence, that such Note has been
duly authenticated and delivered hereunder.
SECTION 3.04. Temporary Notes. Until definitive Notes are ready for
delivery, the Issuers may prepare and upon receipt of an Authentication Order
the Trustee shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form of definitive Notes but may have variations that the
Issuers consider appropriate for temporary Notes. If temporary Notes are issued,
the Issuers will cause definitive Notes to be prepared without unreasonable
delay. After the preparation of definitive Notes, the temporary Notes shall be
exchangeable for definitive Notes upon surrender of the temporary Notes at the
office or agency of the Issuers in a Place of Payment, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Notes, the
Issuers shall execute and upon receipt of an Authentication Order the Trustee
shall authenticate and deliver in exchange therefor a like principal amount of
definitive Notes of authorized denominations. Until so exchanged the temporary
Notes shall in all respects be entitled to the same benefits under this
Indenture as definitive Notes of the same series and tenor.
SECTION 3.05. Registration, Registration of Transfer and Exchange. The
Issuers shall cause to be kept at the Corporate Trust Office of the Trustee a
register (the register maintained in such office and in any other office or
agency of the Issuers in a Place of Payment being herein sometimes collectively
referred to as the "Register") in which, subject to such reasonable regulations
as it may prescribe, the Issuers shall provide for the registration of Notes and
of transfers of Notes. The Trustee is hereby appointed "Registrar" for the
purpose of registering Notes and transfers of Notes as herein provided.
Upon surrender for transfer of any Note at the office or agency of the
Issuers in a Place of Payment, in compliance with all applicable requirements of
this Indenture and applicable law, the Issuers shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Notes, of any authorized denominations and of a
like aggregate principal amount.
At the option of the Holder, Notes may be exchanged for other Notes, of
any authorized denominations and of a like tenor and aggregate principal amount,
upon surrender of the Notes to be exchanged at such office or agency. Whenever
any Notes are so surrendered for exchange, the Issuers shall execute, and the
Trustee shall authenticate and deliver, the Notes that the Holder making the
exchange is entitled to receive; provided that no exchange of Initial Notes or
Initial Additional Notes for Exchange Notes shall occur until an Exchange Offer
Registration Statement shall have been declared effective by the SEC and the
Trustee shall have received an Officer's Certificate confirming that the
Exchange Offer Registration Statement has been declared effective by the SEC and
an exchange offer thereunder has been consummated. The Initial Notes or
Additional Notes to be exchanged for the Exchange Notes shall be canceled by the
Trustee.
All Notes issued upon any registration of transfer or exchange of Notes
shall be the valid obligations of the Issuers, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or
exchange shall (if so required by the Issuers or the Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer, in form
satisfactory to the Issuers and the Registrar duly executed, by the Holder
thereof or such Holder's attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange or redemption of Notes, but the Issuers may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Notes under this
Section 3.05.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Notes. If (a) any
mutilated Note is surrendered to the Trustee, or the Issuers and the Trustee
receive evidence to their satisfaction of the destruction, loss or theft of any
Note, and (b) there is delivered to the Issuers and the Trustee such security or
indemnity as may be required by them to save each of them harmless, then, in the
absence of notice to the Issuers or the Trustee that such Note has been acquired
by a bona fide purchaser, the Issuers shall execute and upon receipt of an
Authentication Order the Trustee shall authenticate and deliver, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Note, a new Note of
like tenor and principal amount, bearing a number not contemporaneously
Outstanding.
In case any such mutilated, destroyed, lost or stolen Note has become or
is about to become due and payable, the Issuers in their discretion may, instead
of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section 3.06, the Issuers
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Note issued pursuant to this Section 3.06 in lieu of any
mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Issuers, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and ratably with
any and all other Notes duly issued hereunder.
The provisions of this Section 3.06 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 3.07. Payment of Interest Rights Preserved. Interest on any Note
that is payable, and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that Note (or one or more
Predecessor Notes) is registered at the close of business on the Regular Record
Date for such interest specified in Section 3.01.
Any interest on any Note that is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the registered Holder on the
relevant Regular Record Date by virtue of having been such Holder; and such
Defaulted Interest shall be paid by the Issuers, as provided in 3.07(a) or
3.07(b) below:
(a) The Issuers may elect to make payment of any Defaulted Interest to
the Persons in whose names the Notes (or their respective Predecessor Notes) are
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner. The
Issuers shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Note and the date of the proposed payment, and at
the same time the Issuers shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements reasonably satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as provided in this Section 3.07(a). Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 nor less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify the
Issuers of such Special Record Date and, in the name and at the expense of the
Issuers, shall cause notice of the proposed payment of such Defaulted Interest,
the amount thereof and the Special Record Date and payment date therefor to be
mailed, first class postage prepaid, to each Holder at such Holder's address as
it appears in the Register, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted Interest shall be
paid to the Persons in whose names the Notes (or their respective Predecessor
Notes) are registered on such Special Record Date and shall no longer be payable
pursuant to the following 3.07(b).
(b) The Issuers may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Notes may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Issuers to the Trustee of the
proposed payment pursuant to this clause (b), such payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section 3.07, each Note
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Note shall carry the rights to interest (including
any Additional Amount) accrued and unpaid, and to accrue, that were carried by
such other Note.
SECTION 3.08. Persons Deemed Owners. Prior to due presentment of a Note
for registration of transfer, the Issuers, the Trustee and any agent of the
Issuers or the Trustee may treat the Person in whose name such Note is
registered as the owner of such Note for the purpose of receiving payment of
principal of (and premium, if any, on) and (subject to Section 3.07) interest on
such Note and for all other purposes whatsoever, whether or not such Note be
overdue, and none of the Issuers, the Subsidiary Guarantors, the Trustee or any
agent of the Issuers, the Subsidiary Guarantors or the Trustee shall be
affected by notice to the contrary.
SECTION 3.09. Cancellation. All Notes surrendered for payment,
redemption, registration of transfer or exchange shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee and, if not already
canceled, shall be promptly canceled by it. The Issuers may at any time deliver
to the Trustee for cancellation any Notes previously authenticated and delivered
hereunder that the Issuers may have acquired in any manner whatsoever, and all
Notes so delivered shall be promptly canceled by the Trustee. No Notes shall be
authenticated in lieu of or in exchange for any Notes canceled as provided in
this Section 3.09, except as expressly permitted by this Indenture. All canceled
Notes held by the Trustee shall be disposed of as directed by an Issuer Order.
SECTION 3.10. Computation of Interest. Interest on the Notes shall be
computed on the basis of a 360-day year of twelve 30-day months.
SECTION 3.11. Payment of Additional Amounts. (a) Under certain
circumstances the Issuers will be obligated to pay certain Additional Amounts of
interest to the Holders of certain Initial Notes, as more particularly set forth
in such Initial Notes.
(b) Under certain circumstances the Company may be obligated to pay
certain Additional Amounts of interest to the Holders of certain Initial
Additional Notes, as may be more particularly set forth in such Initial
Additional Notes.
SECTION 3.12. CUSIP Numbers. The Issuers in issuing the Notes may use
"CUSIP" or "CINS" numbers (if then generally in use) in addition to serial
numbers, and, if so, the Trustee shall use such "CUSIP" or "CINS" numbers in
addition to serial numbers in notices of redemption, repurchase or other notices
to Holders as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness of such CUSIP or CINS
numbers either as printed on the Notes or as contained in any notice of a
redemption or repurchase and that reliance may be placed only on the serial or
other identification numbers printed on the Notes, and any such redemption or
repurchase shall not be affected by any defect in or omission of such numbers.
The Issuers will promptly notify the Trustee of any change in the CUSIP or CINS
numbers.
SECTION 3.13. Book-entry Provisions for Global Notes.
(a) Each Global Note initially shall (i) be registered in the name of the
Depositary for such Global Notes or the nominee of such Depositary, (ii) be
delivered to the Trustee as custodian for such Depositary and (iii) to the
extent relevant thereto, bear legends as set forth in Section 2.03. None of the
Issuers or the Subsidiary Guarantors, nor any of their agents shall have any
responsibility or liability for any aspect of the records relating to, or
payments made on account of beneficial ownership interests of, a Global Note, or
for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Note, and the
Depositary may be treated by the Issuers, the Subsidiary Guarantors, the Trustee
and any agent of the Issuers, the Subsidiary Guarantors or the Trustee as the
absolute owner of such Global Note for all purposes whatsoever. Notwithstanding
the foregoing, nothing herein shall prevent the Issuers, the Subsidiary
Guarantors, the Trustee or any agent of the Issuers, the Subsidiary Guarantors
or the Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary
and its Agent Members, the operation of customary practices governing the
exercise of the rights of a beneficial owner of any Note. The registered holder
of a Global Note may grant proxies and otherwise authorize any person, including
Agent Members and persons that may hold interests through Agent Members, to take
any action which a Holder is entitled to take under this Indenture or the Notes.
(b) Interests of beneficial owners in a Global Note may be transferred in
accordance with the applicable rules and procedures of the Depositary and the
provisions of Section 3.14. Transfers of a Global Note shall be limited to
transfers of such Global Note in whole, but not in part, to the Depositary, its
successors or their respective nominees, except (i) as otherwise set forth in
Section 3.14 and (ii) U.S. Physical Notes or, subject to Section 3.14(e),
Offshore Physical Notes shall be transferred to all beneficial owners in
exchange for their beneficial interests in the U.S. Global Note or the Offshore
Global Note, respectively, in the event that (A) the Depositary notifies the
Issuers that it is unwilling or unable to continue as Depositary for the
applicable Global Note or the Depositary ceases to be a "Clearing Agency"
registered under the Exchange Act and a successor depositary is not appointed by
the Issuers within 90 days, (B) an Event of Default has occurred and is
continuing and the Registrar has received a request from the Depositary or (C)
the Issuers, at their option, notify the Trustee in writing that they elect to
cause the issuance of Physical Notes under this Indenture. In connection with
any transfer or exchange of a portion of the beneficial interest in any Global
Note to beneficial owners for Physical Notes pursuant to paragraph (b) of this
Section 3.13, the Registrar shall record on its books and records (and make a
notation on the Global Note of) the date and a decrease in the principal amount
of such Global Note in an amount equal to the beneficial interest in the Global
Note being transferred, and the Issuers shall execute, and the Trustee shall
authenticate and deliver, one or more Physical Notes of like tenor and principal
amount of authorized denominations. In connection with a transfer of an entire
Global Note to beneficial owners pursuant to clause (ii) of this paragraph (b),
the applicable Global Note shall be deemed to be surrendered to the Trustee for
cancellation, and the Issuers shall execute, and the Trustee shall authenticate
and deliver, to each beneficial owner identified by the Depositary in exchange
for its beneficial interest in the applicable Global Note, an equal aggregate
principal amount at maturity of U.S. Physical Notes (in the case of the U.S.
Global Note) or Offshore Physical Notes (in the case of the Offshore Global
Note), as the case may be, of authorized denominations.
(c) Any beneficial interest in one of the Global Notes that is
transferred to a person who takes delivery in the form of an interest in the
other Global Note will, upon transfer, cease to be an interest in such Global
Note and become an interest in the other Global Note and, accordingly, will
thereafter be subject to all transfer restrictions, if any, and other procedures
applicable to beneficial interests in such other Global Note for as long as it
remains such an interest.
(d) The Issuers, the Subsidiary Guarantors, any other obligor upon the
Notes or the Trustee, in the discretion of any of them, may treat as the Act of
a Holder any instrument or writing of any Person that is identified by the
Depositary as the owner of a beneficial interest in the Global Note, provided
that the fact and date of the execution of such instrument or writing is proved
in accordance with Section 1.08(b).
(e) Any U.S. Physical Note delivered in exchange for an interest in the
U.S. Global Note pursuant to paragraph (b) of this Section shall, except as
otherwise provided in Section 3.14, bear the Private Placement Legend.
SECTION 3.14. Transfer Provisions. Unless and until (i) an Initial Note
or any Initial Additional Note is sold pursuant to an effective registration
statement, whether pursuant to the Registration Rights Agreement or otherwise,
or (ii) an Initial Note or any Initial Additional Note is exchanged for an
Exchange Note in the Exchange Offer pursuant to an effective Registration
Statement pursuant to the Registration Rights Agreement, the following
provisions shall apply:
(a) General. The provisions of this Section 3.14 shall apply to all
transfers involving any Physical Note and any beneficial interest in any Global
Note.
(b) Transfers to Non-QIB Institutional Accredited Investors. With respect
to the registration of any proposed transfer of a Note that is a Restricted
Security to any Institutional Accredited Investor which is not a QIB, the
Registrar shall register such transfer if it complies with all other applicable
requirements of this Indenture (including Section 3.05 and Section 3.14(g)) and,
(i) if (x) such transfer is after the relevant Resale Restriction
Termination Date with respect to such Note, or (y) the proposed
transferee has delivered to the Registrar a Certificate substantially in
the form of Exhibit E, and, if such transfer is in respect of an
aggregate principal amount of Notes of less than $100,000, the Trustee
and the Issuers have received an opinion of counsel, certifications and
other information satisfactory to the Issuers and the Trustee, and
(ii) if the proposed transferor is or is acting through an Agent
Member holding a beneficial interest in a Global Note, upon receipt by
the Registrar of (x) the certificate, opinion, certifications and other
information, if any, required by clause (i) above and (y) written
instructions given in accordance with the Depositary's and the
Registrar's procedures;
the Registrar shall reflect on its books and records (and make a notation on the
relevant Global Note of) the date and, if the transfer does not involve a
transfer of any Outstanding Physical Note, a decrease in the principal amount of
the relevant Global Note in an amount equal to the principal amount of the
beneficial interest in the relevant Global Note to be transferred, and the
Company shall execute and the Trustee shall authenticate and deliver one or more
Physical Notes of like tenor and amount.
(c) Transfers to QIBs. With respect to the registration of any proposed
transfer of a Note that is a Restricted Security to a QIB (excluding transfers
to Non-U.S. Persons), the Registrar shall register such transfer if it complies
with all other applicable requirements of this Indenture (including Section 3.05
and 3.14(g)) and,
(i) if such transfer is being made by a proposed transferor who has
checked the box provided for on the form of such Note stating, or has
otherwise certified to the Issuers and the Registrar in writing, that
the sale has been made in compliance with the provisions of Rule 144A to
a transferee who has signed the certification provided for on the form
of such Note stating, or has otherwise certified to the Issuers and the
Registrar in writing, that it is purchasing such Note for its own
account or an account with respect to which it exercises sole investment
discretion and that it and any such account is a QIB within the meaning
of Rule 144A, and is aware that the sale to it is being made in reliance
on Rule 144A and acknowledges that it has received such information
regarding the Issuers as it has requested pursuant to Rule 144A or has
determined not to request such information and that it is aware that the
transferor is relying upon its foregoing representations in order to
claim the exemption from registration provided by Rule 144A; and
(ii) if the proposed transferee is or is acting through an Agent
Member, and the Note to be transferred consists of (A) a Physical Note
that after transfer is to be evidenced by an interest in a Global Note
or (B) a beneficial interest in a Global Note that after the transfer is
to be evidenced by an interest in a different Global Note, upon receipt
by the Registrar of written instructions given in accordance with the
Depositary's and the Registrar's procedures,
the Registrar shall reflect on its books and records (and make a notation on the
relevant Global Note of) the date and an increase in the principal amount of the
transferee Global Note in an amount equal to the principal amount of the
Physical Note or such beneficial interest in such transferor Global Note to be
transferred, and the Trustee shall cancel the Physical Note so transferred or
reflect on its books and records (and make a notation on the relevant Global
Note of) the date and a decrease in the principal amount of such transferor
Global Note, as the case may be.
(d) Transfers of Interests in the Temporary Offshore Global Notes. With
respect to registration of any proposed transfer of interests in any Temporary
Offshore Global Note:
(i) the Registrar shall register the transfer of any interest in
such Note only (x) if the proposed transferee is a Non-U.S. Person and
the proposed transferor has delivered to the Registrar a certificate
substantially in the form of Exhibit D hereto and will take delivery in
the form of an interest in the Temporary Offshore Global Note or (y) if
the proposed transferee is a QIB and the proposed transferor has checked
the box provided for on the form of Note stating, or has otherwise
certified to the Issuers and the Registrar in writing, that the sale has
been made in compliance with provisions of Rule 144A to a transferee who
has signed the certification provided for on the form of Note stating,
or has otherwise advised the Issuers and the Registrar in writing, that
it is purchasing the Note for its own account or an account with respect
to which it exercises sole investment discretion and that it and any
such account is a QIB within the meaning of Rule 144A, and is aware that
the sale to it is being made in reliance on Rule 144A and acknowledges
that it has received such information regarding the Issuers as it has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon its
foregoing representations in order to claim the exemption from
registration provided by Rule 144A; and
(ii) if the proposed transferee is or is acting through an Agent
Member and is a QIB (and not a non-U.S. person), upon receipt by the
Registrar of the documents referred to in clause (i)(y) above and
written instructions given in accordance with the Depositary's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and an increase in the principal amount of the U.S.
Global Note, in an amount equal to the principal amount of the Temporary
Offshore Global Note to be transferred, and the Registrar shall reflect
on its books and records the date and a decrease in the principal amount
of the Temporary Offshore Global Note.
(e) Transfers to Non-U.S. Persons. The following provisions shall apply
with respect to any transfer of a Note to a Non-U.S. Person (except for any
transfer referred to in Section 3.14(d)):
(i) prior to the end of the Restricted Period, the Registrar shall
register any proposed transfer of a Note to a Non-U.S. Person upon
receipt of a certificate substantially in the form of Exhibit D hereto
from the proposed transferor.
(ii) after the end of the Restricted Period, the Registrar shall
register any proposed transfer to any Non-U.S. Person if the Note to be
transferred is a U.S. Certificated Note or an interest in the U.S.
Global Note, upon receipt of a certificate substantially in the form of
Exhibit D from the proposed transferor.
(iii) (A) if the proposed transferor is or is acting through an
Agent Member holding a beneficial interest in a U.S. Global Note, upon
receipt by the Registrar of (x) the documents, if any, required by
paragraph (i) or (ii) and (y) written instructions in accordance with
the Depositary's and the Registrar's procedures, the Registrar shall
reflect on its books and records the date and a decrease in the
principal amount of the U.S. Global Note in an amount equal to the
principal amount of the beneficial interest in the U.S. Global Note to
be transferred, and (B) if the proposed transferee is or is acting
through an Agent Member, upon receipt by the Registrar of written
instructions given in accordance with the Depositary's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and an increase in the principal amount of the Offshore
Global Note in an amount equal to the principal amount of the U.S.
Certificated Note or the U.S. Global Note, as the case may be, to be
transferred, and the Trustee shall cancel the Certificated Notes, if
any, so transferred or decrease the amount of the U.S. Global Note, as
the case may be;
provided that, in each case, if the Note being transferred is an Executive
Officer Note, the transferor and transferee comply with the provisions of
Section 3.14(g).
(f) Interests in the Offshore Global Note prior to the Offshore Note
Exchange Date. Notwithstanding anything to the contrary contained in this
Indenture, until the Offshore Note Exchange Date occurs and appropriate
certification substantially in the form of Exhibit C is made as provided in
Section 2.01, beneficial interests in the Offshore Global Note may be held only
in or through accounts maintained at the Depositary by Euroclear or Cedel, and
no person shall be entitled to effect any transfer or exchange that would result
in any such interest being held otherwise than in or through such an account,
and no Physical Notes may be issued in exchange therefor.
(g) Executive Officer Notes. Notwithstanding anything to the contrary
contained in this Indenture, until an Executive Officer Note is sold pursuant to
an effective registration statement or is exchanged for Exchange Notes in the
Exchange Offer pursuant to an effective registration statement (it being
understood that no Executive Officer Purchaser or other affiliate of the Issuers
may participate in an Exchange Offer), no Executive Officer Note or interest in
an Executive Officer Note may be transferred or exchanged for an interest in a
Global Note, but may only be transferred or exchanged for another Physical Note
bearing the Executive Officer Legend and the Private Placement Legend; provided
that if a portion of such Executive Officer Note is sold or exchanged pursuant
to an effective registration statement, such portion may be transferred for an
interest in a Global Note, and the remaining portion of such Note shall remain
in the form of a Physical Note. The Registrar shall effect and register, upon
receipt of a written request from the Issuers to do so, a transfer of such Note
only if such transfer was made in accordance with the provisions of the Private
Placement Legend and the Executive Officer Legend and upon the furnishing by the
proposed transferor and/or transferee of a written opinion of counsel (which
opinion and counsel are satisfactory to the Issuers and the Trustee) to the
effect that, and such other certifications or information as the Issuers may
require to confirm that, the proposed transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act.
(h) Limitation on Issuance of Physical Notes. No Physical Note shall be
exchanged for a beneficial interest in any Global Note, except in accordance
with Section 3.13 and this Section 3.14.
(i) Execution, Authentication and Delivery of Physical Notes. In any case
in which the Registrar is required to deliver a Physical Note to a transferee or
transferor, the Issuers shall execute, and the Trustee shall authenticate and
make available for delivery, such Physical Note.
(j) Private Placement Legend. Upon the transfer, exchange or replacement
of Notes not bearing the Private Placement Legend, the Registrar shall deliver
Notes that do not bear the Private Placement Legend. Upon the transfer, exchange
or replacement of Notes bearing the Private Placement Legend, the Registrar
shall deliver only Notes that bear the Private Placement Legend, unless (i) the
requested transfer is after the relevant Resale Restriction Termination Date
with respect to such Notes, (ii) upon written request of the Issuers after there
is delivered to the Registrar an opinion of counsel (which opinion and counsel
are satisfactory to the Issuers and the Trustee) to the effect that neither such
legend nor the related restrictions on transfer are required in order to
maintain compliance with the provisions of the Securities Act, or (iii) with
respect to an Offshore Global Note, with the agreement of the Issuers on or
after the Offshore Note Exchange Date with respect to such Note, or (iv) such
Notes are sold or exchanged pursuant to an effective registration statement
under the Securities Act.
(k) Other Transfers. The Registrar shall effect and register, upon
receipt of a written request from the Issuers to do so, a transfer not otherwise
permitted by this Section 3.14, such registration to be done in accordance with
the otherwise applicable provisions of this Section 3.14, upon the furnishing by
the proposed transferor or transferee of a written opinion of counsel (which
opinion and counsel are satisfactory to the Issuers and the Trustee) to the
effect that, and such other certifications or information as the Issuers may
require to confirm that, the proposed transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act.
A Note that is a Restricted Security may not be transferred other than
as provided in this Section 3.14. A beneficial interest in a Global Note that is
a Restricted Security may not be exchanged for a beneficial interest in another
Global Note other than through a transfer in compliance with this Section 3.14.
(l) General. By its acceptance of any Note bearing the Private Placement
Legend and/or the Executive Officer Legend, as applicable, each Holder of such a
Note acknowledges the restrictions on transfer of such Note set forth in this
Indenture and in the Private Placement Legend and/or the Executive Officer
Legend, as applicable, and agrees that it will transfer such Note only as
provided in this Indenture.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 3.13 or this Section 3.14
(including all Notes received for transfer pursuant to this Section 3.14). The
Issuers shall have the right to require the Registrar to deliver to the Issuers,
at the Issuers' expense, copies of all such letters, notices or other written
communications at any reasonable time upon the giving of reasonable written
notice to the Registrar.
In connection with any transfer of any Note, the Trustee, the Registrar,
the Issuers and the Subsidiary Guarantors shall be entitled to receive, shall be
under no duty to inquire into, may conclusively presume the correctness of, and
shall be fully protected in relying upon the certificates, opinions and other
information referred to herein (or in the forms provided herein, attached hereto
or to the Notes, or otherwise) received from any Holder and any transferee of
any Note regarding the validity, legality and due authorization of any such
transfer, the eligibility of the transferee to receive such Note and any other
facts and circumstances related to such transfer.
(m) Certain Additional Terms Applicable to Physical Notes. Any transferee
entitled to receive a Physical Note may request that the principal amount
thereof be evidenced by one or more Physical Notes in any authorized
denomination or denominations and the Registrar shall comply with such request
if all other transfer restrictions are satisfied.
ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Principal, Premium and Interest. (a) The
Issuers will duly and punctually pay the principal of (and premium, if any) and
interest on the Notes in accordance with the terms of the Notes and this
Indenture. An installment of principal (and premium, if any) or interest shall
be considered paid on the date it is due if the Trustee or Paying Agent or
Paying Agents hold on that date money designated for and sufficient to pay the
installment.
(b) Payments in respect of the Notes represented by the Global Notes
(including principal, premium, if any, interest and Additional Amounts, if any)
shall be made by wire transfer of immediately available funds to the accounts
specified by the Global Note Holder. With respect to Physical Notes, the Issuers
will make all payments of principal, premium, if any, interest and Additional
Amounts, if any, by wire transfer of immediately available funds to the accounts
specified by the Holders thereof or, if no such account is specified, by mailing
a check to each such Holder's registered address.
SECTION 4.02. Maintenance of Office or Agency. The Issuers will maintain
in the Borough of Manhattan, The City of New York an office or agency where
Notes may be presented or surrendered for payment, where Notes may be
surrendered for transfer or exchange and where notices and demands to or upon
the Issuers in respect of the Notes and this Indenture may be served. The
Issuers will give prompt written notice to the Trustee of the location, and of
any change in the location, of such office or agency. If at any time the Issuers
shall fail to maintain such office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee. The
Issuers hereby designate the Corporate Trust Office as an initial Place of
Payment and as such office of the Issuers in the Borough of Manhattan, the City
of New York, and appoint the Trustee as their agent to receive all such
presentations, surrenders, notices and demands so long as such Corporate Trust
Office remains a Place of Payment.
SECTION 4.03. Money for Payments to Be Held in Trust. If the Issuers
shall at any time act as their own Paying Agent, they will, on or before each
due date of the principal of (and premium, if any) or interest on, any of the
Notes, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided, and will promptly notify the Trustee of their
action or failure so to act.
If the Issuers are not acting as their own Paying Agent, they will,
prior to each due date of the principal of (and premium, if any) or interest on,
any Notes, deposit with a Paying Agent a sum sufficient to pay the principal
(and premium, if any) or interest, so becoming due, such sum to be held in trust
for the benefit of the Persons entitled to such principal, premium or interest,
and (unless such Paying Agent is the Trustee) the Issuers will promptly notify
the Trustee of their action or failure so to act.
If the Issuers are not acting as their own Paying Agent, the Issuers
will cause any Paying Agent other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee,
subject to the provisions of this Section 4.03, that such Paying Agent will:
(a) hold all sums held by it for the payment of principal of (and
premium, if any) or interest on Notes in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(b) give the Trustee notice of any default by the Issuers (or any other
obligor upon the Notes) in the making of any such payment of principal (and
premium, if any) or interest;
(c) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent; and
(d) acknowledge, accept and agree to comply in all respects with the
provisions of this Indenture and TIA relating to the duties, rights and
liabilities of such Paying Agent.
The Issuers may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Issuer Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Issuers or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Issuers or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Issuers, in trust for the payment of the principal of (and premium, if
any) or interest on any Note and remaining unclaimed for two years after such
principal (and premium, if any) or interest has become due and payable shall be
paid in the appropriate proportion to the Issuers upon an Issuer Request, or (if
then held by the Issuers) shall be discharged from such trust; and the Holder of
such Note shall thereafter, as an unsecured general creditor, look only to the
Issuers for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Issuers as
trustee thereof, shall thereupon cease.
SECTION 4.04. SEC Reports. (a) Notwithstanding that the Company may not
be subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act, the Company shall provide the Trustee and Noteholders with (i) all
quarterly and annual financial information that would be required to be
contained in a filing with the SEC on Forms 10-Q and 10-K, if the Company were
required to file such forms including a "Management's Discussion and Analysis of
Financial Condition and Results of Operations" and, with respect to annual
information only, a report thereon by the Company's certified independent
accountants, and (ii) all current reports that would be required to be filed
with the SEC on Form 8-K, if the Company were required to file such reports. In
addition, following the consummation of the exchange offer contemplated by the
Registration Rights Agreement, whether or not required by the rules and
regulations of the SEC, the Company will file a copy of all such information and
reports with the SEC for public availability (unless the SEC will not accept
such a filing) and make such information available to prospective investors upon
request.
(b) In addition, for so long as any of the Notes remain outstanding and
constitute "restricted securities" under Rule 144, the Company will furnish to
the Holders of the Notes and prospective investors, upon their request, the
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act.
(c) All obligors on the Notes will comply with Section 314(a) of the TIA.
(d) The Company shall promptly mail copies of all such annual reports,
information, documents and other reports provided to the Trustee pursuant to
clauses (a) and (c) hereof to the Holders at their addresses appearing in the
Register maintained by the Registrar.
(e) Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Issuers'
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officer's Certificates).
SECTION 4.05. Certificates to Trustee. (a) The Issuers will deliver to
the Trustee within 120 days after the end of each fiscal year of the Issuers a
certificate from the principal executive, financial or accounting officer of the
Issuers stating that such officer has conducted or supervised a review of the
activities of the Issuers and their Restricted Subsidiaries and the Issuers' and
their Restricted Subsidiaries' performance under this Indenture and that, based
upon such review, the Issuers have fulfilled all obligations thereunder or, if
there has been a default in the fulfillment of any such obligation (determined
without regard to any period of grace or requirement of notice provided in this
Indenture), specifying each such default and the nature and status thereof.
(b) The Issuers will deliver to the Trustee, as soon as possible and in
any event within 30 days after the Issuers become aware or should reasonably
become aware of the occurrence of an Event of Default or a Default, an Officer's
Certificate setting forth the details of such Event of Default or Default, and
the action which the Issuers propose to take with respect thereto.
(c) The Issuers will deliver to the Trustee within 120 days after the end
of each fiscal year of the Issuers a written statement by the Issuers'
independent public accountants stating (i) that their audit examination has
included a review of the terms of this Indenture and the Notes as they relate to
accounting matters, and (ii) whether, in connection with their audit
examination, any Default has come to their attention and, if such a Default has
come to their attention, specifying the nature and period of the existence
thereof.
SECTION 4.06. Limitation on Indebtedness. (a) The Company shall not, and
shall not permit any Restricted Subsidiary to, Incur, directly or indirectly,
any Indebtedness; provided, however, that any Issuer or any Subsidiary Guarantor
may Incur Indebtedness if, on the date of such Incurrence and after giving
effect thereto, the Consolidated Coverage Ratio exceeds 2.0 to 1.
(b) Notwithstanding Section 4.06(a), the Company and the Restricted
Subsidiaries may Incur any or all of the following Indebtedness:
(i) Indebtedness Incurred pursuant to the Credit Agreement by an
Issuer or a Subsidiary Guarantor; provided, however, that, after giving
effect to any such Incurrence, the aggregate principal amount of such
Indebtedness then outstanding does not exceed the greater of (A) $545.0
million less the sum of all principal payments with respect to such
Indebtedness pursuant to (1) Section 4.09 and/or (2) a Permitted Arby's
Securitization; provided that, after a Permitted Arby's IPO Dividend,
the aggregate principal amount of such Indebtedness then outstanding
shall not exceed $425.0 million less the sum of all principal payments
with respect to such Indebtedness pursuant to Section 4.09 or (B) the
sum of (x) 50.0% of the book value of the inventory of the Company and
its Restricted Subsidiaries and (y) 80.0% of the book value of the
accounts receivable of the Company and its Restricted Subsidiaries (to
the extent such inventory or accounts receivable is not subject to any
Lien securing Indebtedness other than Liens securing Obligations under
the Credit Agreement), in each case as of the date of the most recent
balance sheet of the Company filed or delivered to the Trustee pursuant
to Section 4.04 (as determined on a pro forma basis after giving effect
to any Business Disposition, Business Acquisition or designation of a
Restricted Subsidiary as an Unrestricted Subsidiary occurring after the
date of such balance sheet);
(ii) Indebtedness owed to and held by the Company or a Restricted
Subsidiary; provided, however, that (A) any subsequent issuance or
transfer of any Capital Stock which results in any such Restricted
Subsidiary ceasing to be a Restricted Subsidiary or any subsequent
transfer of such Indebtedness (other than to the Company or a Restricted
Subsidiary) shall be deemed, in each case, to constitute the Incurrence
of such Indebtedness by the obligor thereon not permitted by this clause
(ii) and (B) if an Issuer or a Subsidiary Guarantor is the obligor on
such Indebtedness, such Indebtedness is expressly subordinated to the
prior payment in full in cash of all obligations with respect to the
Notes;
(iii) the Initial Notes (but not any Additional Notes), the
Exchange Notes and the Subsidiary Guarantees;
(iv) Indebtedness outstanding on the Closing Date (other than
Indebtedness described in clause (i), (ii) or (iii) of this Section
4.06(b));
(v) Indebtedness of Foreign Restricted Subsidiaries in an aggregate
principal amount at any time outstanding under this clause (v) not to
exceed the greater of (x) $5.0 million or (y) 10% of Consolidated Total
Assets of the Company's Foreign Restricted Subsidiaries;
(vi) Refinancing Indebtedness in respect of Indebtedness Incurred
pursuant to Section 4.06(a) or pursuant to clause (iii), (iv) or this
clause (vi);
(vii) Hedging Obligations under Currency Agreements and Interest
Rate Agreements (provided that such Currency Agreements do not increase
the Indebtedness of the obligor outstanding at any time other than as a
result of fluctuations in foreign currency exchange rates or by reason
of fees, indemnities and compensation payable thereunder and provided
further that the notional principal amount of Indebtedness with respect
to any such Interest Rate Agreement does not exceed the principal amount
of the Indebtedness to which such Interest Rate Agreement relates);
(viii) Indebtedness represented by Capital Lease Obligations or
other purchase money Indebtedness of an Issuer or any Subsidiary
Guarantor incurred for the purpose of leasing or financing or
refinancing all or any part of the purchase price or cost of
construction or improvements of any property (real or personal) or other
assets that are used or useful in a Related Business (whether through
the direct purchase of assets or the Capital Stock of any Person owning
such assets and whether such Indebtedness is owed to the seller or the
Person carrying out any construction or improvement or to any third
party) in an aggregate principal amount at any time outstanding under
this clause (viii) not to exceed $20.0 million; provided that (x) such
Indebtedness is not secured by any property or assets of the Company and
its Restricted Subsidiaries other than the property or assets so leased,
acquired, constructed or improved and (y) such Indebtedness is created
within 90 days of the acquisition or completion of construction or
improvement of the related property or asset;
(ix) Indebtedness arising from agreements of the Company or a
Restricted Subsidiary providing for indemnification, adjustment of
purchase price or similar obligations, in each case, incurred or assumed
in connection with the disposition of any business, asset or Subsidiary,
other than Guarantees of Indebtedness incurred by any Person acquiring
all or any portion of such business, assets or Subsidiary for the
purpose of financing such acquisition; provided that the maximum
assumable liability in respect of such Indebtedness shall at no time
exceed the gross proceeds, including non-cash proceeds (the fair market
value of such non-cash proceeds being measured at the time received and
without giving effect to any such subsequent changes in value) actually
received by the Company and/or such Restricted Subsidiary in connection
with such disposition;
(x) Obligations in respect of performance and surety bonds and
completion guarantees provided by the Company or any Restricted
Subsidiary in the ordinary course of business;
(xi) Indebtedness of a Subsidiary Guarantor Incurred and
outstanding on or prior to the date on which such Person was acquired by
the Company (other than Indebtedness Incurred in connection with, or to
provide all or any portion of the funds or credit support utilized to
consummate, the transactions or series of related transactions pursuant
to which such Person became a Subsidiary or was acquired by the Company)
in an aggregate principal amount which, together with the principal
amount of all other Indebtedness under this clause (xi) outstanding on
the date of such Incurrence, does not exceed $20.0 million;
(xii) Guarantees by any Issuer or any Subsidiary Guarantor of any
Indebtedness permitted to be Incurred pursuant to this Section 4.06; and
(xiii) Indebtedness of any Issuer or Subsidiary Guarantor in an
aggregate principal amount which, together with all other Indebtedness
of the Issuers and the Subsidiary Guarantors outstanding on the date of
such Incurrence (other than Indebtedness permitted by clauses (i)
through (xii) above or Section 4.06(a)) after giving effect to the use
of the proceeds of such Incurrence of Indebtedness on such day does not
exceed $45.0 million.
(c) Notwithstanding the foregoing, the Issuers and the Subsidiary
Guarantors shall not Incur any Indebtedness pursuant to Section 4.06(b) if the
proceeds thereof are used, directly or indirectly, to Refinance any Subordinated
Obligations unless such Indebtedness shall be subordinated to the Notes or the
Subsidiary Guarantees, as the case may be, to at least the same extent as such
Subordinated Obligations.
(d) For purposes of determining compliance with this Section 4.06, (i) in
the event that an item of Indebtedness meets the criteria of more than one of
the types of Indebtedness described above, the Company, in its sole discretion,
will classify such item of Indebtedness and only be required to include the
amount and type of such Indebtedness in one of the above clauses or paragraph
(a) hereof and (ii) an item of Indebtedness may be divided and classified in
more than one of the types of Indebtedness described above. In addition, the
Company may, at any time, change the classification of an item of Indebtedness
(or any portion thereof) to any other clause or to paragraph (a) hereof;
provided that the Company would be permitted to incur such item of Indebtedness
(or portion thereof) pursuant to such clause or paragraph (a) hereof, as the
case may be, at such time of reclassification.
SECTION 4.07. Limitation on Restricted Payments. (a) The Company shall
not, and shall not permit any Restricted Subsidiary, directly or indirectly, to
make a Restricted Payment if at the time the Company or such Restricted
Subsidiary makes such Restricted Payment: (i) a Default shall have occurred and
be continuing (or would result therefrom); (ii) the Company is not able to Incur
an additional $1.00 of Indebtedness pursuant to Section 4.06(a); or (iii) the
aggregate amount of such Restricted Payment and all other Restricted Payments
since the Closing Date would exceed the sum of (without duplication):
(A) 50% of the Consolidated Net Income accrued during the
period (treated as one accounting period) from the beginning of
the fiscal quarter immediately following the Closing Date to the
end of the most recent fiscal quarter ending prior to the date of
such Restricted Payment for which reports have been filed or
provided to the Trustee pursuant to Section 4.04 (or, in case
such Consolidated Net Income shall be a deficit, minus 100% of
such deficit);
(B) the aggregate Net Cash Proceeds received by the Company as
a contribution to its capital or from the issuance or sale of its
Capital Stock (other than Disqualified Stock) subsequent to the
Closing Date (other than an issuance or sale to a Subsidiary of
the Company), including an issuance or sale permitted by the
Indenture of Indebtedness of the Company for cash subsequent to
the Closing Date upon the conversion of such Indebtedness into
Capital Stock (other than Disqualified Stock) of the Company;
(C) an amount equal to the sum of (i) the net reduction in
Investments in Unrestricted Subsidiaries resulting from
dividends, repayments of loans or advances or other transfers of
assets, in each case to the Company or any Restricted Subsidiary
from Unrestricted Subsidiaries, and (ii) the portion
(proportionate to the Company's equity interest in such
Subsidiary) of the fair market value of the net assets of an
Unrestricted Subsidiary at the time such Unrestricted Subsidiary
is designated a Restricted Subsidiary; provided, however, that
the foregoing sum shall not exceed, in the case of any
Unrestricted Subsidiary, the amount of Investments previously
made (and treated as a Restricted Payment) by the Company or any
Restricted Subsidiary in such Unrestricted Subsidiary; and
(D) to the extent that any Investment (other than a Permitted
Investment) that was made after the Closing Date is sold for cash
or otherwise liquidated, repaid or otherwise reduced (including
by way of dividend) for cash, an amount equal to the lesser of
(i) the cash return of capital with respect to such Investment
(less the cost of disposition, if any) and (ii) the initial
amount of such Investment.
(b) The provisions of Section 4.07(a) shall not prohibit, so long as,
other than with respect to clauses (iv), (viii) (except for payments of any
management fees), (x) and (xii), no Default or Event of Default shall have
occurred and be continuing or occur as a consequence of the actions or payments
set forth therein:
(i) payment of the Closing Dividend to Triarc Parent; provided
that such payment shall be excluded in the calculation of the amount of
Restricted Payments made under Section 4.07(a);
(ii) any Restricted Payment (other than a Restricted Payment
described in clause (i) of the definition of "Restricted Payment") made
out of the Net Cash Proceeds of a capital contribution to the Company or
the substantially concurrent sale of, or made by exchange for, Capital
Stock of the Company (other than Disqualified Stock); provided, however,
that (A) the capital contribution or sale occurs within 20 Business Days
of the date of the Restricted Payment, (B) such Restricted Payment shall
be excluded in the calculation of the amount of Restricted Payments made
under paragraph (a) above and (C) the Net Cash Proceeds from such
capital contribution or sale shall, to the extent used to make such
payment, be excluded from the calculation of amounts under Section
4.07(a)(iii)(B);
(iii) any purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value of Subordinated Obligations made by
exchange for, or out of the sale of, Indebtedness of the Company which
is permitted to be Incurred pursuant to Section 4.07(b)(vi); provided,
however, that (A) the sale occurs within 20 Business Days of the date of
the Restricted Payment and (B) such purchase, repurchase, redemption,
defeasance or other acquisition or retirement for value shall be
excluded in the calculation of the amount of Restricted Payments made
under Section 4.07(a);
(iv) dividends paid within 60 days after the date of declaration
thereof if at such date of declaration such dividend would have complied
with this Section; provided, however, that such dividend shall be
included in the calculation of the amount of Restricted Payments made
under Section 4.07(a);
(v) the repurchase or other acquisition of shares of, or options
to purchase shares of, Common Stock of the Company or any of its
Subsidiaries from employees, former employees, directors or former
directors of the Company or any of its Subsidiaries (or permitted
transferees of such employees, former employees, directors or former
directors), pursuant to the terms of the agreements, (including
employment agreements) or plans (or amendments thereto) approved by the
board of directors of the Company or the applicable Subsidiary under
which such individuals purchase or sell shares of such Common Stock
(collectively, "Plan Participants"); provided that the aggregate price
paid for all such repurchased or acquired Common Stock repurchased or
acquired pursuant to this clause (v) shall not exceed (x) $5 million in
the twelve month period beginning on the Closing Date, (y) $7.5 million
in the twelve month period beginning on the first anniversary of the
Closing Date and (z) $10.0 million in each twelve month period beginning
on the second anniversary of the Closing Date and each anniversary of
the Closing Date thereafter; provided, however, that the aggregate price
paid for all such repurchased or acquired Common Stock repurchased or
acquired pursuant to this clause (v) on and after the Closing Date shall
not exceed $25.0 million plus an amount equal to the Net Cash Proceeds
received by the Company or any Restricted Subsidiary after the Closing
Date from the sale of Capital Stock (other than Disqualified Stock) to
Plan Participants; provided further, however, that (A) such repurchases
and other acquisitions shall be excluded in the calculation of the
amount of Restricted Payments made under Section 4.07(a); and (B) the
Net Cash Proceeds from such sales shall, to the extent used to make such
repurchase or other acquisition, be excluded from the calculation of
amounts under Section 4.07(A)(iii)(B);
(vi) any Permitted Arby's Dividend; provided that such payment
shall be excluded in the calculation of the amount of Restricted
Payments made under Section 4.07(a);
(vii) dividends or distributions by any Restricted Subsidiary
payable to all holders of a class of Capital Stock of such Restricted
Subsidiary on a pro rata basis; provided that such payment shall be
excluded in the calculation of the amount of Restricted Payments made
under Section 4.07(a);
(viii) payments to Triarc Parent pursuant to the Management
Agreement; provided that such payment shall be excluded in the
calculation of the amount of Restricted Payments made under Section
4.07(a);
(ix) Investments by Arby's or any of its Subsidiaries in the Arby's
Securitization Entity in an amount that, together with all other
Investments made pursuant to this clause (ix) on or after the Closing
Date, do not exceed $15.0 million; provided that such Investment shall
be included in the calculation of the amount of Restricted Payments made
under Section 4.07(a);
(x) payments or distributions to Triarc Parent pursuant to any Tax
Sharing Agreement; provided that such payment shall, to the extent not
deducted in calculating Consolidated Net Income or recorded as deferred
income taxes, be included in the calculation of the amount of Restricted
Payments made under Section 4.07(a);
(xi) the declaration and payment of dividends to holders of any
class or series of Disqualified Stock issued on or after the Closing
Date in accordance with Section 4.06; provided that such payment shall
be excluded in the calculation of Restricted Payments made under Section
4.07(a);
(xii) repurchases of Capital Stock deemed to occur upon exercise
of stock options to the extent that such Capital Stock represents a
portion of the exercise price of such options; provided that such amount
shall be excluded in the calculation of the amount of Restricted
Payments made pursuant to Section 4.07(a);
(xiii) any other Investment made in a Related Business or a Person
engaged in a Related Business which, together with all other Investments
made pursuant to this clause (xiii) on or after the Closing Date, does
not exceed $25.0 million (in each case, after giving effect to any
subsequent reduction in the amount of any Investments made pursuant to
this clause (xiii) as a result of the repayment or other disposition
thereof for cash as set forth in Section 4.07(a)(iii)(D), the amount of
such reduction not to exceed the amount of such Investment previously
made pursuant to this clause (xiii)); provided that such Investment
shall be included in the calculation of Restricted Payments made under
Section 4.07(a); or
(xiv) any other Restricted Payment that, together with all other
Restricted Payments made pursuant to this clause (xiv) on or after the
Closing Date, does not exceed $10.0 million; provided that such amount
shall be included in the calculation of the amount of Restricted
Payments made pursuant to Section 4.07(a).
The amount of all Restricted Payments (other than cash) shall be the
fair market value on the date of the Restricted Payment of the assets or
securities proposed to be transferred or issued by the Company or such
Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair
market value of any non-cash Restricted Payment shall be determined in good
faith by the Board of Directors, whose good faith determination shall be
conclusive.
SECTION 4.08. Limitation on Restrictions on Distributions from
Restricted Subsidiaries. The Company shall not, and shall not permit any
Restricted Subsidiary to, create or otherwise cause or permit to exist or become
effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to (a) pay dividends or make any other distributions on
its Capital Stock to the Company or any other Restricted Subsidiary or pay any
Indebtedness owed to the Company or any other Restricted Subsidiary, (b) make
any loans or advances to the Company or any other Restricted Subsidiary or (c)
transfer any of its property or assets to the Company or any other Restricted
Subsidiary, except:
(i) any encumbrance or restriction pursuant to an agreement in
effect at or entered into on the Closing Date, including the Credit
Agreement as in effect on the Closing Date;
(ii) any encumbrance or restriction with respect to a Restricted
Subsidiary pursuant to an agreement relating to any Indebtedness
Incurred by such Restricted Subsidiary on or prior to the date on which
such Restricted Subsidiary was acquired by the Company (other than
Indebtedness Incurred as consideration in, or to provide all or any
portion of the funds or credit support utilized to consummate, the
transaction or series of related transactions pursuant to which such
Restricted Subsidiary became a Restricted Subsidiary or was acquired by
the Company) and outstanding on such date;
(iii) any encumbrance or restriction pursuant to an agreement
effecting a Refinancing of Indebtedness Incurred pursuant to an
agreement referred to in clause (i) or (ii) of this Section 4.08 or this
clause (iii) or contained in any amendment to an agreement referred to
in clause (i) or (ii) of Section 4.08 or this clause (iii); provided,
however, that the encumbrances and restrictions with respect to such
Restricted Subsidiary contained in any such refinancing agreement or
amendment are, taken as a whole, not materially more restrictive than
encumbrances and restrictions with respect to such Restricted Subsidiary
contained in such predecessor agreements (as determined in good faith by
the Company's Board of Directors);
(iv) any such encumbrance or restriction consisting of customary
non-assignment provisions in leases governing leasehold interests to the
extent such provisions restrict the transfer of the lease or the
property leased thereunder or other customary non-assignment provisions
in agreements entered into in the ordinary course of business to the
extent such provisions restrict assignment of such agreements;
(v) in the case of clause (c) above, restrictions contained in
security agreements or mortgages securing Indebtedness of a Restricted
Subsidiary to the extent such restrictions restrict the transfer of the
property subject to such security agreements or mortgages;
(vi) any restriction with respect to a Restricted Subsidiary
imposed pursuant to an agreement entered into for the sale or
disposition of all or substantially all the Capital Stock or assets of
such Restricted Subsidiary pending the closing of such sale or
disposition;
(vii) encumbrances or restrictions contained in the terms of any
Indebtedness or any agreement pursuant to which such Indebtedness was
issued if (A) the encumbrances or restrictions, taken as a whole, are
not materially more restrictive than is customary in comparable
financings (as determined in good faith by the Company's Board of
Directors); and (B) any such encumbrances or restrictions will not
materially adversely affect the ability of the Issuers to make principal
or interest payments on the Notes (as determined in good faith by the
Company's Board of Directors); and
(viii) any applicable law, rule, regulation or order.
SECTION 4.09. Limitation on Sales of Assets and Subsidiary Stock. The
Company will not, and will not permit any Restricted Subsidiary to, consummate
any Asset Disposition, unless (i) the consideration received by the Company or
such Restricted Subsidiary is at least equal to the fair market value of the
assets sold or disposed of and (ii) at least 75% of the consideration received
consists of cash, Temporary Cash Investments, Liquid Securities or the
assumption by the purchaser of Indebtedness (other than Subordinated
Obligations).
In the event and to the extent that the Net Available Cash received by
the Company or any Restricted Subsidiary from one or more Asset Dispositions
occurring on or after the Closing Date in any period of 12 consecutive months
exceeds $10.0 million, then the Company shall (i) within 360 days after the date
that such Net Available Cash so received exceeds $10.0 million and to the extent
the Company elects (or is required by the terms of any Indebtedness) (A) apply
an amount equal to such excess Net Available Cash to repay Senior Indebtedness
of an Issuer or any Subsidiary Guarantor, in each case owing to a Person other
than the Company or any Affiliate of the Company (and to correspondingly reduce
any commitment therefor, in the case of revolving credit indebtedness) or (B)
invest all or a portion of such amount, or the amount not so applied pursuant to
clause (A), in Additional Assets and (ii) apply such excess Net Available Cash
(to the extent not applied pursuant to clause (i)) as provided in the following
paragraphs of this Section. The amount of such excess Net Available Cash
required to be applied or reinvested during the applicable period and not
applied or reinvested as so required by the end of such period shall constitute
"Excess Proceeds."
If, as of the first day of any calendar month, the aggregate amount of
Excess Proceeds not theretofore subject to an Excess Proceeds Offer (as defined
below) totals at least $10.0 million, the Issuers must, not later than the
fifteenth Business Day of such month, make an offer (an "Excess Proceeds Offer")
to purchase on a pro rata basis from the Holders and, if an Issuer or a
Subsidiary Guarantor is required to do so under the terms of any other
Indebtedness of such Issuer or such Subsidiary Guarantor that is not
subordinated to the Notes, such other Indebtedness, an aggregate principal
amount of Notes and such other Indebtedness equal to the Excess Proceeds
(rounded down to the nearest multiple of $1,000) on such date, at a purchase
price equal to 100% of the principal amount of such Notes or such other
Indebtedness, as the case may be, plus, in each case, accrued interest (if any)
to the date of purchase (the "Excess Proceeds Payment"). Upon completion of such
an offer to purchase, the amount of Excess Proceeds shall be reset at zero.
The Issuers will comply, to the extent applicable, with the requirements
of Section 14(e) of the Exchange Act and any other securities laws or
regulations thereunder in the event that such Excess Proceeds are received by
the Company under this Section 4.09 and the Issuers are required to repurchase
Notes as described above. To the extent that the provisions of any securities
laws or regulations conflict with the provisions of this Section, the Issuers
shall comply with the applicable securities laws and regulations and shall not
be deemed to have breached its obligations under this Section 4.09 by virtue
thereof.
SECTION 4.10. Limitation on Affiliate Transactions. (a) The Company
shall not, and shall not permit any Restricted Subsidiary to, enter into or
permit to exist any transaction (including the purchase, sale, lease or exchange
of any property, employee compensation arrangements or the rendering of any
service) with any Affiliate of the Company (an "Affiliate Transaction") unless
the terms thereof (i) are no less favorable to the Company or such Restricted
Subsidiary than those that could be obtained at the time of such transaction in
arm's-length dealings with a Person who is not such an Affiliate, (ii) if such
Affiliate Transaction involves an amount in excess of $2.5 million, (A) are set
forth in writing and (B) have been approved by a majority of the members of the
Board of Directors having no personal stake in such Affiliate Transaction and
(iii) if such Affiliate Transaction involves as amount in excess of $10.0
million, the financial terms of which have been determined by a nationally
recognized investment banking firm to be fair, from a financial standpoint, to
the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.10(a) shall not prohibit (i) any
Restricted Payment permitted to be paid pursuant to Section 4.07, (ii) any
issuance of securities, or other payments, awards or grants in cash, securities
or otherwise pursuant to, or the funding of, employment arrangements, stock
options and stock ownership plans approved by the Board of Directors, (iii) the
grant of stock options or similar rights to employees, managers, directors and
consultants of the Company and its Subsidiaries pursuant to plans approved by
the Board of Directors, (iv) loans or advances to employees in the ordinary
course of business in accordance with the past practices of the Company or its
Restricted Subsidiaries, but in any event not to exceed $2.5 million in the
aggregate outstanding at any one time, (v) the payment of reasonable fees to
directors of the Company and its Restricted Subsidiaries who are not employees
of the Company or its Restricted Subsidiaries, (vi) any Affiliate Transaction
between the Company and a Restricted Subsidiary or between Restricted
Subsidiaries, (vii) the issuance or sale of any Capital Stock (other than
Disqualified Stock) of the Company, (viii) transactions pursuant to any contract
or agreement in effect on (or entered into on) the Closing Date and any renewal,
extension or amendment thereof that is on terms no less favorable to the Company
than the terms in effect on the Closing Date (as determined in good faith by the
Company's Board of Directors), (ix) the purchase by the Company and its
Restricted Subsidiaries of raw materials, flavors and packaging materials from
Triarc Parent at Triarc Parent's cost, (x) the Transactions and (xi) any
transactions constituting part of the Permitted Arby's Securitization.
SECTION 4.11. Limitation on Liens. The Issuers and the Subsidiary
Guarantors shall not Incur any Indebtedness secured by a Lien ("Secured
Indebtedness") which is not Senior Indebtedness unless contemporaneously
therewith effective provision is made to secure the Notes, or the Subsidiary
Guarantee, as the case may be, equally and ratably with (or, if the Secured
Indebtedness is subordinated in right of payment to the Notes or the Subsidiary
Guarantee, prior to) such Secured Indebtedness for so long as such Secured
Indebtedness is secured by a Lien.
SECTION 4.12. Limitation on Senior Subordinated Indebtedness. The
Issuers and the Subsidiary Guarantors shall not Incur any Indebtedness that is
subordinate in right of payment to any Senior Indebtedness unless such
Indebtedness is pari passu with, or subordinated in right of payment to, the
Notes or the Subsidiary Guarantees, as the case may be; provided that the
foregoing limitation shall not apply to distinctions between categories of
Senior Indebtedness of an Issuer or a Subsidiary Guarantor that exist by reason
of any Liens or Guarantees arising or created in respect of some but not all
such Senior Indebtedness.
SECTION 4.13. Repurchase of Notes upon a Change in Control. (a) Upon the
occurrence of a Change of Control, each Holder shall have the right to require
that the Issuers repurchase such Holder's Notes at a purchase price in cash
equal to 101% of the principal amount thereof on the date of purchase plus
accrued and unpaid interest, if any, to the date of purchase (subject to the
right of holders of record on the relevant record date to receive interest on
the relevant interest payment date), in accordance with the terms contemplated
in Section 4.13(b).
(b) Within 30 days following any Change of Control, the Issuers shall
mail a notice to each Holder with a copy to the Trustee (the "Change of Control
Offer") stating: (1) that a Change of Control has occurred and that such Holder
has the right to require the Issuers to purchase such Holder's Notes at a
purchase price in cash equal to 101% of the principal amount thereof on the date
of purchase plus accrued and unpaid interest, if any, to the date of purchase
(subject to the right of holders of record on the relevant record date to
receive interest on the relevant interest payment date); (2) the circumstances
and relevant facts regarding such Change of Control (including, if applicable,
information with respect to pro forma historical income, cash flow and
capitalization after giving effect to such Change of Control); (3) the
repurchase date (which shall be no earlier than 30 days nor later than 60 days
from the date such notice is mailed); and (4) the instructions determined by the
Issuers, consistent with this Section, that a Holder must follow in order to
have its Notes purchased.
(c) The Issuers will not be required to make a Change of Control Offer
following a Change of Control if a third party makes the Change of Control Offer
in the manner, at the times and otherwise in compliance with the requirements
set forth in this Indenture applicable to a Change of Control Offer made by the
Issuers and purchases all Notes validly tendered and not withdrawn under such
Change of Control Offer.
(d) The Issuers shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Notes pursuant to this
Section. To the extent that the provisions of any securities laws or regulations
conflict with the provisions of this Section, the Issuers shall comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations under this Section by virtue thereof.
SECTION 4.14. Limitation on the Sale or Issuance of Capital Stock of
Restricted Subsidiaries. The Company shall not sell or otherwise dispose of any
Capital Stock of a Restricted Subsidiary, and shall not permit any Restricted
Subsidiary, directly or indirectly, to issue or sell or otherwise dispose of any
of its Capital Stock except (a) to the Company or a Restricted Subsidiary, (b)
directors' qualifying shares, (c) if, immediately after giving effect to such
issuance, sale or other disposition, neither the Company nor any of its
Subsidiaries own any Capital Stock of such Restricted Subsidiary (d) if,
immediately after giving effect to such issuance, sale or other disposition,
such Restricted Subsidiary would no longer constitute a Restricted Subsidiary
and any Investment in such Person remaining after giving effect thereto would
have been permitted to be made under Section 4.07 if made on the date of such
issuance, sale or other disposition, or (e) the issuance or sale of Common Stock
of a Restricted Subsidiary that remains a Restricted Subsidiary after such
transaction and the issuance or sale of Preferred Stock of any Subsidiary
Guarantor or Triarc Beverage.
SECTION 4.15. Existence. Subject to Articles 4 and 5 of this Indenture,
the Company will do or cause to be done all things necessary to preserve and
keep in full force and effect its existence and the existence of each of its
Restricted Subsidiaries in accordance with the respective organizational
documents of the Company and each such Subsidiary and the rights (whether
pursuant to charter, partnership certificate, agreement, statute or otherwise),
material licenses and franchises of the Company and each such Subsidiary,
provided that the Company shall not be required by this Section 4.15 to preserve
any such right, license or franchise, or the existence of any Restricted
Subsidiary, if the Company shall determine that the maintenance or preservation
thereof is no longer desirable in the conduct of the business of the Company and
its Restricted Subsidiaries taken as a whole.
SECTION 4.16. Payment of Taxes and Other Claims. The Company will pay or
discharge and shall cause each of its Restricted Subsidiaries to pay or
discharge, or cause to be paid or discharged, before the same shall become
delinquent (a) all material taxes, assessments and governmental charges levied
or imposed upon (i) the Company or any such Subsidiary, (ii) the income or
profits of any such Subsidiary which is a corporation or (iii) the property of
the Company or any such Subsidiary and (b) all material lawful claims for labor
materials and supplies that, if unpaid, might by law become a lien upon the
property of the Company or any such Subsidiary; provided that the Company shall
not be required to pay or discharge, or cause to be paid or discharged, any such
tax, assessment, charge or claim the amount, applicability or validity of which
is being contested in good faith by appropriate proceedings and for which
adequate reserves have been established.
SECTION 4.17. Maintenance of Properties and Insurance. The Company will
cause all material properties used or useful in the conduct of its business or
the business of any of its Restricted Subsidiaries, to be maintained and kept in
good condition, repair and working order (ordinary wear and tear excepted) and
supplied with all necessary equipment and will cause to be made all necessary
repairs, renewals, replacements, betterments and improvements thereof, all as in
the judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided that nothing in this Section 4.17 shall prevent the Company or any such
Subsidiary from discontinuing the use, operation or maintenance of any of such
properties or disposing of any of them, if such discontinuance or disposal is,
in the judgment of the Company, desirable in the conduct of the business of the
Company or such Subsidiary.
The Company will provide or cause to be provided, for itself and its
Restricted Subsidiaries, insurance (including appropriate self-insurance)
against loss or damage of the kinds customarily insured against by corporations
similarly situated and owning like properties, including, but not limited to,
products liability insurance and public liability insurance, with reputable
insurers or with the government of the United States of America, or an agency or
instrumentality thereof, in such amounts, with such deductibles and by such
methods as shall be customary for corporations similarly situated in the
industry in which the Company or such Restricted Subsidiary, as the case may be,
is then conducting business.
SECTION 4.18. Additional Subsidiary Guarantees. (a) If the Company or
any of its Restricted Subsidiaries shall acquire or create another Domestic
Restricted Subsidiary after the date of this Indenture, then such acquired or
created Domestic Restricted Subsidiary shall become a Subsidiary Guarantor by
executing a supplemental indenture in the form of Exhibit B hereto providing for
the Subsidiary Guaranty and shall deliver an Opinion of Counsel to the Trustee
pursuant to paragraph (b) below.
(b) The Opinion of Counsel described above shall be to the effect that
such supplemental indenture has been duly authorized, executed and delivered by
such Subsidiary and constitutes a valid and binding obligation of such
Subsidiary, enforceable against such Subsidiary in accordance with its terms
(subject to certain customary exceptions).
ARTICLE 5
CONSOLIDATION, MERGER OR SALE OF ASSETS
SECTION 5.01. Consolidation, Merger or Sale of Assets by the Company.
(a) The Company shall not consolidate with or merge with or into, or convey,
transfer or lease, in one transaction or a series of related transactions, all
or substantially all its assets to, any Person, unless:
(i) the resulting, surviving or transferee Person (the "Successor
Company") shall be a Person organized and existing under the laws of the
United States of America, any State thereof or the District of Columbia
and the Successor Company (if not the Company) shall expressly assume,
by an indenture supplemental thereto, executed and delivered to the
Trustee, in form reasonably satisfactory to the Trustee, all the
obligations of the Company under the Notes and this Indenture;
(ii) immediately after giving effect to such transaction (and
treating any Indebtedness which becomes an obligation of the Successor
Company or any Subsidiary as a result of such transaction as having been
Incurred by such Successor Company or such Subsidiary at the time of
such transaction), no Default shall have occurred and be continuing;
(iii) immediately after giving effect to such transaction (and
treating any Indebtedness which becomes an obligation of the Successor
Company or any Subsidiary as a result of such transaction as having been
Incurred by such Successor Company or such Subsidiary at the time of
such transaction), the Successor Company would be able to Incur an
additional $1.00 of Indebtedness pursuant to Section 4.06(a); provided
that this clause (iii) shall not apply to a consolidation or merger with
or into a Wholly Owned Restricted Subsidiary that is an Issuer or a
Subsidiary Guarantor; provided that, in connection with any such merger
or consolidation, no consideration (other than Common Stock in the
surviving Person or the Company) shall be issued or distributed to the
stockholders of the Company; and
(iv) the Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if
any) comply with this Indenture;
provided that clause (iii) above does not apply if, in the good faith
determination of the Board of Directors of the Company, whose determination
shall be evidenced by a Board Resolution, the principal purpose of such
transaction is to change the state of organization of, or to incorporate, the
Company; and provided further that any such transaction shall not have as one of
its purposes the evasion of the foregoing limitations.
SECTION 5.02. Successor Company Substituted. (a) Upon any consolidation
or merger, or any sale, assignment, transfer, lease, conveyance or other
disposition of all or substantially all of the assets of the Company in
accordance with Section 5.01 hereof, the successor corporation formed by such
consolidation or into or with which the Company is merged or to which such sale,
assignment, transfer, lease, conveyance or other disposition is made shall
succeed to, and be substituted for (so that from and after the date of such
consolidation, merger, sale, assignment, transfer, lease, conveyance or other
disposition, the provisions of this Indenture referring to the "Company" shall
refer instead to the successor corporation), and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and the predecessor
Company shall be released from all of its obligations hereunder and under the
Notes.
(b) Notwithstanding the foregoing, the sale, assignment, transfer, lease,
conveyance or other disposition by the Company of all or substantially all of
its property or assets to an Affiliate of the Company shall not relieve the
Company from its obligations under this Indenture and the Notes.
SECTION 5.03. Consolidation, Merger or Sale of Assets by a Material
Subsidiary Obligor. (a) No Material Subsidiary Obligor shall consolidate with or
merge with or into (unless such Material Subsidiary Obligor or an Issuer or any
Wholly-Owned Subsidiary that is or becomes a Subsidiary Guarantor concurrently
with such transaction is the surviving Person and a Wholly Owned Subsidiary,
after giving effect to such transaction or the Company is the surviving Person),
or convey, transfer or lease, in one transaction or a series of transactions,
all or substantially all its assets to, any Person (other than an Issuer or any
Wholly Owned Subsidiary that is or becomes a Subsidiary Guarantor concurrently
with such transaction) unless:
(i) except as set forth in Section 5.03(b), the resulting,
surviving or transferee Person shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
reasonably satisfactory to the Trustee, all the obligations of such
Material Subsidiary Guarantor under the Notes or its Subsidiary
Guarantee, as the case may be, and this Indenture;
(ii) immediately after giving effect to such transaction, no
Default shall have occurred and be continuing; and
(iii) immediately after giving effect to such transaction, the
Company would be able to Incur an additional $1.00 of Indebtedness
pursuant to Section 4.06(a). No transaction made pursuant to this
paragraph shall be permitted if it is not made in compliance with
Section 5.01(a).
All the Subsidiary Guarantees issued pursuant to clause (i) above shall
in all respects have the same legal rank and benefit under this Indenture as the
Subsidiary Guarantees theretofore and thereafter issued in accordance with the
terms of this Indenture as though all of such Subsidiary Guarantees had been
issued at the date of the execution hereof.
(b) (i) The requirements of clause (i) of Section 5.03(a) will not apply
in the case of a sale or other disposition (including by way of consolidation or
merger) of a Material Subsidiary Obligor or the sale or disposition of all or
substantially all the assets of a Material Subsidiary Obligor (in each case
other than to the Company or an Affiliate of the Company) otherwise permitted by
this Indenture (and in compliance with clauses (ii) and (iii) of Section
5.03(a)). Upon delivery by the Issuers to the Trustee of an Officer's
Certificate and an Opinion of Counsel to the effect that a sale or other
disposition of a Material Subsidiary Obligor was made by the Issuers in
accordance with the applicable provisions of this Indenture, including without
limitation Section 4.09 hereof, the Trustee shall execute any documents
reasonably required in order to evidence the release of such Material Subsidiary
Obligor from its obligations under the Notes or its Subsidiary Guarantee, as the
case may be, and the Indenture.
(ii) Triarc Beverage shall not consolidate with or merge with or
into, or convey, transfer or lease, in one transaction or a series of
transactions, all or substantially all of its assets to any Person
unless concurrently therewith, a corporate Restricted Subsidiary of the
Company (which may be the successor to Triarc Beverage as a result of
such transaction) shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to
the Trustee, all the obligations of an Issuer under the Notes and this
Indenture.
(iii) This Section 5.03 shall not apply to a transfer of
substantially all of the Capital Stock of RC/Arby's or any of its
Subsidiaries to Triarc Parent as a Permitted Arby's Dividend.
SECTION 5.04. Opinion of Counsel to Trustee. The Trustee, subject to the
provisions of Sections 7.01 and 7.03, may receive an Opinion of Counsel as
conclusive evidence that any such consolidation, merger, conveyance, sale,
transfer, lease, exchange or other disposition referred to in Section 5.01 or
5.03 complies with the applicable provisions of this Indenture.
ARTICLE 6
REMEDIES
SECTION 6.01. Events of Default. Each of the following constitutes an
"Event of Default":
(a) a default in the payment of interest or any Additional Amounts on the
Notes when due, which has continued for 30 days, whether or not such payment is
prohibited by the provisions of Article 14;
(b) a default in the payment of principal of any Note when due at its
Stated Maturity, upon optional redemption, upon required repurchase, upon
declaration or otherwise, whether or not such payment is prohibited by the
provisions of Article 14;
(c) the failure by the Issuers to comply with their obligations under
Article 5 above and under Section 4.09 and under Section 4.13;
(d) the Issuers or any Subsidiary Guarantor defaults in the performance
of or breaches any other covenant or agreement in this Indenture or under the
Notes (other than (a), (b) or (c) above) and such default or breach continues
for a period of 60 consecutive days after written notice by the Trustee or the
Holders of 25% or more in aggregate principal amount of the Notes;
(e) there occurs with respect to any issue or issues of Indebtedness of
an Issuer or any Significant Subsidiary having an outstanding principal amount,
in the aggregate for all such issues of all such Persons, of $20 million or
more, whether such Indebtedness now exists or shall hereafter be created, (i) an
event of default that has caused the holder thereof to declare such Indebtedness
to be due and payable prior to its Stated Maturity and/or (ii) the failure to
make a principal payment at the final (but not any interim) fixed maturity and
such defaulted payment shall not have been made, waived or extended within the
applicable grace period, if any, after such payment default;
(f) any final judgment or order for the payment of money in excess of $20
million in the aggregate for all such final judgments or orders against all such
Persons shall be rendered against an Issuer and/or any Significant Subsidiary
and shall not be discharged, waived or stayed and there shall be any period of
60 consecutive days following entry of the final judgment or order that causes
the aggregate amount for all such final judgments or orders outstanding and not
discharged, waived or stayed against all such Persons to exceed $20 million (in
excess of amounts which the Issuers' insurance carriers have agreed to pay under
applicable policies) during which a stay of enforcement of such final judgment
or order, by reason of a pending appeal or otherwise, shall not be in effect;
(g) a court having jurisdiction in the premises enters a decree or order
for (i) relief in respect of an Issuer or any Significant Subsidiary in an
involuntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, (ii) appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of an Issuer or
any Significant Subsidiary or for all or substantially all of the property and
assets of an Issuer or any Significant Subsidiary or (iii) the winding up or
liquidation of the affairs of an Issuer or any Significant Subsidiary and, in
each case, such decree or order shall remain unstayed and in effect for a period
of 60 consecutive days;
(h) an Issuer or any Significant Subsidiary (i) commences a voluntary
case under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consents to the entry of an order for relief in an
involuntary case under any such law, (ii) consents to the appointment of or
taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of an Issuer or any Significant Subsidiary or
for all or substantially all of the property and assets of an Issuer or any
Significant Subsidiary or (iii) effects any general assignment for the benefit
of creditors; or
(i) any Subsidiary Guarantee ceases to be in full force and effect (other
than in accordance with its terms), a Subsidiary Guarantor denies or disaffirms
its obligations under such Subsidiary Guarantee or any Subsidiary Guarantee of
RC/Arby's or any of its Domestic Restricted Subsidiaries does not have the
Guaranteed Amount specified in Section 13.01(a) at any time more than
thirty-five days after the Closing Date because the redemption date has not yet
occurred at such time.
SECTION 6.02. Acceleration. (a) If an Event of Default (other than an
Event of Default specified in clause (g) or (h) of Section 6.01 that occurs with
respect to an Issuer) occurs and is continuing under this Indenture, the Trustee
or the Holders of at least 25% in aggregate principal amount of the Notes then
Outstanding, by written notice to the Issuers (and to the Trustee if such notice
is given by the Holders (the "Acceleration Notice")), may, and the Trustee at
the request of such Holders shall, declare the principal of, premium, if any,
and accrued but unpaid interest on all the Notes to be due and payable. Upon a
declaration of acceleration, such principal, premium, if any, and accrued
interest shall be immediately due and payable; provided that if any Designated
Senior Indebtedness is outstanding, such principal, premium and interest shall
not become due and payable until five Business Days after the Representatives of
all the issues of Designated Senior Indebtedness receive notice of such
acceleration. If an Event of Default specified in clause (g) or (h) of Section
6.01 occurs with respect to an Issuer, the principal of, premium, if any, and
accrued interest on the Notes then Outstanding shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder.
(b) If payment of the Notes is accelerated because of an Event of
Default, the Issuers or the Trustee shall promptly notify the holders of
Designated Senior Indebtedness or the Representative of such holders of the
acceleration. If any Designated Senior Indebtedness is outstanding upon such
declaration of acceleration, neither the Issuers nor any Subsidiary Guarantor
may pay the Notes until five Business Days after the Representatives of all
issues of Designated Senior Indebtedness receive notice of such acceleration
and, thereafter, the Issuers or any Subsidiary Guarantor may pay the Notes only
if this Indenture otherwise permits payment at that time.
SECTION 6.03. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of principal or interest on the Notes or to enforce the performance of any
provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Notes or does not produce any of them in the proceeding. A delay or omission
by the Trustee or any Holder in exercising any right or remedy accruing upon an
Event of Default shall not impair the right or remedy or constitute a waiver of
or acquiescence in the Event of Default. All remedies are cumulative to the
extent permitted by law.
SECTION 6.04. Waiver of Past Defaults. The Holders of at least a
majority in principal amount of the Outstanding Notes by written notice to the
Issuers and to the Trustee, may waive all past defaults and rescind and annul a
declaration of acceleration and its consequences if (i) all existing Events of
Default, other than the nonpayment of the principal of, premium, if any, and
interest on the Notes that have become due solely by such declaration of
acceleration, have been cured or waived and (ii) the rescission would not
conflict with any judgment or decree of a court of competent jurisdiction. Upon
any such waiver, such Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default or
impair any right consequent thereon.
SECTION 6.05. Control by Majority. The Holders of at least a majority in
aggregate principal amount of the Outstanding Notes may direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee
or exercising any trust or power conferred on the Trustee. However, the Trustee
may refuse to follow any direction that conflicts with law or this Indenture,
that may involve the Trustee in personal liability, or that the Trustee
determines in good faith may be unduly prejudicial to the rights of Holders not
joining in the giving of such direction and may take any other action it deems
proper that is not inconsistent with any such direction received from the
Holders.
SECTION 6.06. Limitation on Suits. A Holder may not pursue any remedy
with respect to this Indenture or the Notes unless:
(a) the Holder gives the Trustee written notice of a continuing Event of
Default;
(b) the Holders of at least 25% in aggregate principal amount of
Outstanding Notes make a written request to the Trustee to pursue the remedy;
(c) such Holder or Holders offer the Trustee reasonable security or
indemnity against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days after
receipt thereof and the offer of security or indemnity; and
(e) during such 60 day period, the Holders of at least a majority in
aggregate principal amount of the Outstanding Notes do not give the Trustee a
direction inconsistent with the request.
SECTION 6.07. Rights of Holders to Receive Payment. Notwithstanding any
other provision of this Indenture, the right of any Holder to receive payment of
principal, premium, if any, and interest on the Note, on or after the respective
due dates expressed in the Note, or to bring suit for the enforcement of any
such payment on or after such respective dates, shall not be impaired or
affected without the consent of the Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of Default
specified in Section 6.01(a) or (b) hereof occurs and is continuing, the Trustee
is authorized to recover judgment in its own name and as trustee of an express
trust against the Issuers or any other obligor for the whole amount of
principal, premium, if any, and interest remaining unpaid on the Notes and
interest on overdue principal and, to the extent lawful, interest and such
further amount as shall be sufficient to cover amounts due the Trustee under
Section 7.08, including the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee is
authorized to file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel) and the Holders allowed in any judicial
proceedings relative to the Issuers (or any other obligor upon the Notes), their
creditors or their property and shall be entitled and empowered to collect,
receive and distribute any money or other property payable or deliverable on any
such claims and any custodian in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee, and in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.08. To the
extent that the payment of any such compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.08 out of the estate in any such proceeding, shall be
denied for any reason, payment of the same shall be secured by a Lien on, and
shall be paid out of, any and all distributions, dividends, money, securities
and other properties which the Holders may be entitled to receive in such
proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.10. Priorities. If the Trustee collects any money pursuant to
this Article, it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due under
Section 7.08, including payment of all compensation, expense and liabilities
incurred, and all advances made, by the Trustee and the costs and expenses of
collection;
Second: to Holders for amounts due and unpaid on the Notes for
principal, premium, if any, and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Notes for
principal, premium, if any and interest, respectively; and
Third: to the Issuers or to such party as a court of competent juris-
diction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 6.10 upon five Business Days prior notice to
the Issuers.
SECTION 6.11. Undertaking for Costs. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as a Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees and expenses, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 6.06, or a suit by
Holders of more than 10% in aggregate principal amount of the then Outstanding
Notes.
SECTION 6.12. Restoration of Rights and Remedies. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture or any Note and such proceeding has been discontinued or abandoned for
any reason, or has been deter mined adversely to the Trustee or to such Holder,
then and in every such case the Issuers, any other obligor upon the Notes, the
Trustee and the Holders shall, subject to any determination in such proceeding,
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 6.13. Rights and Remedies Cumulative. No right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 6.14. Waiver of Stay, Extension or Usury Laws. The Issuers
covenant (to the extent that they may lawfully do so) that they will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury or other similar
law wherever enacted, now or at any time hereafter in force, that would prohibit
or forgive the Issuers from paying all or any portion of the principal of (or
premium, if any) or interest on the Notes contemplated herein or in the Notes or
that may affect the covenants or the performance of this Indenture; and the
Issuers (to the extent that they may lawfully do so) hereby expressly waive all
benefit or advantage of any such law, and covenant that they will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE 7
THE TRUSTEE
SECTION 7.01. Certain Duties and Responsibilities. (a) Except during
the continuance of an Event of Default,
(i) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements of
this Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein).
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that (i) this paragraph does not
limit the effect of Section 7.01(a); (ii) the Trustee shall not be liable for
any error of judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it takes or
omits to take in good faith in accordance with a direction received by it
pursuant to Section 6.06.
(d) The Trustee may refuse to perform any duty or exercise any right or
power or expend or risk its own funds or otherwise incur any financial liability
unless it receives indemnity satisfactory to it against any loss, liability or
expense.
(e) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of Sections 7.01
and 7.03 hereof.
SECTION 7.02. Notice of Defaults. (a) Within 90 days after the
occurrence of any Default, the Trustee shall transmit by mail to all Holders, as
their names and addresses appear in the Register, notice of such Default
hereunder known to the Trustee unless such Default shall have been cured or
waived; provided, however, that, except in the case of a Default in the payment
of the principal of, premium (if any) or interest on, any Note, the Trustee may
withhold such notice if and so long as the board of directors, the executive
committee or a trust committee of Responsible Officers of the Trustee determines
that the withholding of such notice is not opposed to the interests of the
Holders.
(b) The Trustee shall not be required to take notice or be deemed to
have notice or knowledge of any event or of any Default (except default in the
payment of monies to the Trustee which are required to be paid to the Trustee on
or before a specified date or within a specified time after receipt by the
Trustee of a notice or a certificate which was in fact received), unless the
Trustee shall receive from an Issuer or a Holder a notice stating that the same
has occurred and is continuing, and specifying the same, and in the absence of
such notice the Trustee may conclusively assume that the same does not exist,
except as aforesaid.
SECTION 7.03. Certain Rights of Trustees. (a) Subject to the provisions
of Section 7.01:
(i) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(ii) any request or direction of the Issuers mentioned herein shall
be sufficiently evidenced by an Issuer Request or an Issuer Order
thereof, and any resolution of any Person's board of directors shall be
sufficiently evidenced if certified by an Officer of such Person as
having been duly adopted and being in full force and effect on the date
of such certificate;
(iii) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon the Officer's Certificates of the
Issuers;
(iv) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(v) in case an Event of Default occurs and is continuing, the
Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Indenture at the request or direction of any
of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against any
loss, liability or expense which might be incurred by it in compliance
with such request or direction;
(vi) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, note, other evidence of indebtedness or other paper or document;
and
(vii) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due
care by it hereunder.
SECTION 7.04. Not Responsible for Recitals or Issuance of Notes. (a) The
recitals contained herein and in the Notes, except the Trustee's certificates of
authentication, shall be taken as the statements of the Issuers, and neither the
Trustee nor any Authenticating Agent assumes any responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Notes, except that the Trustee
represents that it is duly authorized to execute and deliver this Indenture,
authenticate the Notes and perform its obligations hereunder and that the
statements made by it in a Statement of Eligibility and Qualification on Form
T-1 supplied to the Issuers in connection with the registration of any Notes
issued hereunder are and will be true and accurate subject to the qualifications
set forth therein. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Issuers of the Notes or the
proceeds thereof.
SECTION 7.05. Trustee's Disclaimer. The Trustee makes no representation
as to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Issuers' use of the proceeds from the Notes, it shall not be
responsible for any statement in the offering memorandum for the Notes or in the
Indenture or the Notes (other than its certificate of authentication), the acts
of a prior Trustee hereunder, or the determination as to which beneficial owners
are entitled to receive any notices hereunder.
SECTION 7.06. May Hold Notes. (a) The Trustee, any Authenticating Agent,
any Paying Agent, any Registrar or any other agent of the Issuers, in its
individual or any other capacity, may become the owner or pledgee of Notes and,
subject to Section 7.09 and Section 7.14, may otherwise deal with the Issuers or
their Affiliates with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Registrar or such other agent.
SECTION 7.07. Money Held in Trust. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Issuers.
SECTION 7.08. Compensation and Reimbursement. The Issuers agree:
(a) to pay to the Trustee from time to time such compensation as the
Issuers and the Trustee shall from time to time agree in writing for all
services rendered by it hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust);
(b) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses, advances and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(c) to indemnify the Trustee for, and to hold it harmless against, any
loss, damage, claims, liability or expense incurred without negligence or bad
faith on its part, arising out of or in connection with the acceptance or
administration of this trust, including the reasonable costs and expenses of
defending itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder.
The Issuers' payment obligations pursuant to this Section 7.08 shall
survive the discharge of this Indenture. When the Trustee incurs expenses after
the occurrence of a Default specified in Section 6.01(g) or 6.01(h), the
expenses are intended to constitute expenses of administration under any
Bankruptcy Law.
SECTION 7.09. Conflicting Interests. If the Trustee has or shall acquire
a conflicting interest within the meaning of the TIA, the Trustee shall either
eliminate such conflicting interest, apply to the SEC for permission to continue
as Trustee with such conflicting interest, or resign, to the extent and in the
manner provided by, and subject to the provisions of, the TIA and this
Indenture. To the extent permitted by such Act, the Trustee shall not be deemed
to have a conflicting interest by virtue of being a trustee under this Indenture
with respect to Original Notes and Additional Notes, or a trustee under any
other indenture between the Issuers and the Trustee.
SECTION 7.10. Corporate Trustee Required; Eligibility. (a) There shall
at all times be one (and only one) Trustee hereunder. The Trustee shall be a
Person that is eligible pursuant to the TIA to act as such and has a combined
capital and surplus of at least $100,000,000. If any such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of this Section
7.10 and to the extent permitted by the TIA, the combined capital and surplus of
such Person shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section
7.10, it shall resign immediately in the manner and with the effect hereinafter
specified in this Article.
SECTION 7.11. Resignation and Removal; Appointment of Successor. (a) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 7.12.
(b) The Trustee may resign at any time by giving written notice thereof
to the Issuers. If the instrument of acceptance by a successor Trustee required
by Section 7.12 shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the Outstanding Notes, delivered to the Trustee
and to the Issuers.
If at any time:
(i) the Trustee shall fail to comply with Section 7.09 after
written request therefor by the Issuers or by any Holder who has been a
bona fide Holder for at least six months, or
(ii) the Trustee shall cease to be eligible under Section 7.10 and
shall fail to resign after written request therefor by the Issuers or by
any such Holder, or
(iii) the Trustee shall become incapable of acting or shall be
adjudged bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (A) the Issuers may remove the Trustee, or (B) subject
to Section 6.11, any Holder who has been a bona fide Holder for at least six
months may, on behalf of itself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee or Trustees.
(d) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Issuers shall promptly appoint a successor Trustee and shall comply with the
applicable requirements of Section 7.12. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Notes delivered to the Issuers and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements of
Section 7.12, become the successor Trustee and to that extent supersede the
successor Trustee appointed by the Issuers. If no successor Trustee shall have
been so appointed by the Issuers or the Holders and accepted appointment in the
manner required by Section 7.12, then, subject to Section 6.11, any Holder who
has been a bona fide Holder for at least six months may, on behalf of itself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee.
(e) The Issuers shall give notice of each resignation and each removal of
the Trustee and each appointment of a successor Trustee to all Holders in the
manner provided in Section 1.10. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.
SECTION 7.12. Acceptance of Appointment by Successor. (a) In case of the
appointment hereunder of a successor Trustee, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Issuers and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Issuers or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
(b) Upon request of any such successor Trustee, the Issuers shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to above.
(c) No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article 7.
SECTION 7.13. Merger, Conversion, Consolidation or Succession to
Business. (a) Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article 7, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Notes shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Notes so authenticated with the same effect
as if such successor Trustee had itself authenticated such Notes.
SECTION 7.14. Preferential Collection of Claims Against the Issuers. (a)
If and when the Trustee shall be or become a creditor of the Issuers (or any
other obligor upon the Notes), the Trustee shall be subject to the provisions of
the TIA regarding the collection of claims against the Issuers (or any such
other obligor).
SECTION 7.15. Appointment of Authenticating Agent. The Trustee may
appoint an Authenticating Agent acceptable to the Issuers to authenticate the
Notes. Any such appointment shall be evidenced by an instrument in writing
signed by a Responsible Officer, a copy of which instrument shall be promptly
furnished to the Issuers. Unless limited by the terms of such appointment, an
Authenticating Agent may authenticate Notes whenever the Trustee may do so. Each
reference in this Indenture to authentication (or execution of a certificate of
authentication) by the Trustee includes authentication (or execution of a
certificate of authentication) by such Authenticating Agent. An Authenticating
Agent has the same rights as any Registrar, Paying Agent or agent for service of
notices and demands.
ARTICLE 8
HOLDERS' LIST AND REPORTS BY TRUSTEE AND THE ISSUERS
SECTION 8.01. The Issuers to Furnish Trustee Names and Addresses of
Holders. (a) The Issuers will furnish or cause to be furnished to the Trustee
(i) semi-annually, not more than 15 days after each Regular Record
Date, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of such Regular Record Date, and
(ii) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Issuers of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
provided, however, that if and so long as the Trustee shall be the Registrar, no
such list need be furnished pursuant to this Section 8.01.
SECTION 8.02. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list, if any, furnished to the Trustee as provided in Section 8.01 and the names
and addresses of Holders received by the Trustee in its capacity as Registrar;
provided, however, that if and so long as the Trustee shall be the Registrar,
the Register shall satisfy the requirements relating to such list. None of the
Issuers, the Trustee or any other Person shall be under any responsibility with
regard to the accuracy of such list. The Trustee may destroy any list furnished
to it as provided in Section 8.01 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with respect
to their rights under this Indenture or under the Notes, and the corresponding
rights and privileges of the Trustee, shall be as provided by the TIA.
(c) Every Holder, by receiving and holding the same, agrees with the
Issuers and the Trustee that neither the Issuers nor the Trustee nor any agent
of either of them shall be held accountable by reason of any disclosure of
information as to names and addresses of Holders made pursuant to the TIA.
SECTION 8.03. Reports by Trustee. (a) The Trustee shall transmit to
Holders such reports concerning the Trustee and its actions under this Indenture
as may be required pursuant to the TIA at the times and in the manner provided
pursuant thereto. A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange, if
any, upon which any Notes are listed, with the SEC and with the Issuers. The
Issuers will notify the Trustee when any Notes are listed on any stock exchange
and of any delisting thereof.
ARTICLE 9
AMENDMENT, SUPPLEMENT OR WAIVER
SECTION 9.01. Without Consent of the Holders. (a) Without the consent
of any Holder, the Issuers and the Trustee may enter into one or more indentures
supplemental hereto, for any of the following purposes:
(i) to cure any ambiguity, omission, defect or inconsistency,
(ii) to provide for the assumption by a successor of the obligations
of an Issuer under this Indenture,
(iii) to provide for uncertificated Notes in addition to or in place
of certificated Notes; provided that the uncertified Notes are issued in
registered form for purposes of Section 163(f) of the Code, or in a
manner such that the uncertificated Notes are described in Section
163(f)(2)(B) of the Code,
(iv) to add Subsidiary Guarantees with respect to the Notes, to
secure the Notes, to confirm and evidence the release, termination or
discharge of any Subsidiary Guaranty or Lien with respect to or securing
the Notes when such release, termination or discharge is provided for
under this Indenture,
(v) to add to the covenants of the Issuers for the benefit of the
Holders or to surrender any right or power conferred upon the Issuers,
(vi) to provide for or confirm the issuance of Additional Notes,
(vii) to make any change that does not adversely affect the rights
of any Holder under the Notes or this Indenture, or
(viii) to comply with any requirement of the SEC in connection with
the qualification of this Indenture under the TIA or otherwise.
SECTION 9.02. With Consent of Holders. (a) Subject to Section 6.07, the
Issuers, the Trustee and (if applicable) any Subsidiary Guarantor may amend or
supplement this Indenture or the Notes with the written consent of the Holders
of not less than a majority in aggregate principal amount of the Outstanding
Notes (including consents obtained in connection with a tender offer or exchange
offer for Notes), and any past Default or compliance with any provisions may
also be waived with the written consent of the Holders of not less than a
majority in aggregate principal amount of the Outstanding Notes (including
consents obtained in connection with a tender offer or exchange offer for
Notes).
(b) Notwithstanding the provisions of this Section 9.02, without the
consent of each Holder affected, an amendment or waiver, including a waiver
pursuant to Section 6.04, may not (with respect to any Notes held by a
nonconsenting Holder):
(i) reduce the amount of Notes whose holders must consent to an
amendment,
(ii) reduce the rate of or extend the time for payment of interest
on any Note,
(iii) reduce the principal or extend the Stated Maturity of any
Note,
(iv) reduce the amount payable upon the redemption of any Note or
change the time at which any Note may be redeemed
(v) make any Note payable in money other than that stated in the
Note,
(vi) impair the right of any holder of the Notes to receive payment
of principal of and interest on such holder's Notes, on or after the due
dates therefor or to institute suit for the enforcement of any payment
on or with respect to such holder's Notes,
(vii) make any change in the amendment provisions which require
each holder's consent or in the waiver provisions,
(viii) make any change to Article 14 of the Indenture that would
adversely affect the Noteholders or
(ix) make any change in any Subsidiary Guaranty that would
adversely affect the Noteholders.
provided that no modification or change may be made to any provision of this
Indenture adversely affecting the rights of any holder of Senior Indebtedness
then outstanding unless the holders of such Senior Indebtedness (or their
Representative) consent to such modification or change.
(c) It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
(d) After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Issuers shall mail to the Holders of each Note affected
thereby, with a copy to the Trustee, a notice briefly describing the amendment,
supplement or waiver. Any failure of the Issuers to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any supplemental indenture or the effectiveness of any such amendment,
supplement or waiver.
SECTION 9.03. Execution of Amendments, Supplements or Waivers. The
Trustee shall sign any amendment, supplement or waiver authorized pursuant to
this Article 9 if the amendment, supplement or waiver does not adversely affect
the rights, duties, liabilities or immunities of the Trustee. If it does, the
Trustee may, but need not, sign it. In signing or refusing to sign such
amendment, supplement or waiver, the Trustee shall be entitled to receive, and
shall be fully protected in relying upon, an Officer's Certificate and an
Opinion of Counsel to the effect that the execution of such amendment,
supplement or waiver has been duly authorized, executed and delivered by the
Issuers and that, subject to applicable bankruptcy, insolvency, fraudulent
transfer, fraudulent conveyance, reorganization, moratorium and other laws now
or hereinafter in effect affecting creditors' rights or remedies generally and
the general principles of equity (including, without limitation, standards of
materiality, good faith, fair dealing and reasonableness), whether considered in
a proceeding at law or at equity, such amendment, supplement or waiver is a
valid and binding agreement of the Issuers, enforceable against it in accordance
with its terms.
SECTION 9.04. Revocation and Effect of Consents. (a) Until an amendment,
supplement or waiver becomes effective, a consent to it by a Holder is a
continuing consent by the Holder and every subsequent Holder of that Note or any
Note that evidences all or any part of the same debt as the consenting Holder's
Note, even if notation of the consent is not made on any Note. Subject to the
following paragraph of this Section 9.04, any such Holder or subsequent Holder
may revoke the consent as to such Holder's Note by notice to the Trustee or the
Issuers received by the Trustee or the Issuers, as the case may be, before the
date on which the Trustee receives an Officer's Certificate certifying that the
Holders of the requisite principal amount of Notes have consented (and not
theretofore revoked such consent) to the amendment, supplement or waiver. The
Issuers may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders entitled to consent to any amendment, supplement or
waiver as set forth in Section 1.08.
(b) After an amendment, supplement or waiver becomes effective, it shall
bind every Holder, unless it makes a change described in any of clauses (i)
through (viii) of the second paragraph of Section 9.02. In that case, the
amendment, supplement or waiver shall bind each Holder of a Note who has
consented to it and every subsequent Holder of such Note or any Note that
evidences all or any part of the same debt as the consenting Holder's Note.
SECTION 9.05. Conformity with TIA. (a) Every amendment or supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the TIA as then in effect.
SECTION 9.06. Notation on or Exchange of Notes. (a) If an amendment,
supplement or waiver changes the terms of a Note, the Trustee shall (if required
by the Issuers and in accordance with the specific direction of the Issuers)
request the Holder to deliver its Note to the Trustee. The Trustee shall (if
required by the Issuers and in accordance with the specific direction of the
Issuers) place an appropriate notation on the Note about the changed terms and
return it to the Holder. Alternatively, if the Issuers or the Trustee so
determines, the Issuers in exchange for the Note shall issue and the Trustee
shall authenticate a new Note that reflects the changed terms. Failure to make
the appropriate notation or issue a new Note shall not affect the validity and
effect of such amendment, supplement or waiver.
ARTICLE 10
REDEMPTION OF NOTES
SECTION 10.01. Right of Redemption. (a) Except as set forth in this
Section 10.01, the Notes will not be redeemable at the option of the Issuers
prior to February 15, 2004. Thereafter, the Notes will be redeemable, at the
option of the Issuers, in whole or in part, at any time or from time to time on
and prior to maturity. Such redemption may be made upon notice mailed by
first-class mail to each Holder's registered address in accordance with Section
10.05. The Notes will be so redeemable at the following Redemption Prices
(expressed as a percentage of principal amount on the relevant Redemption Date),
plus accrued and unpaid interest, if any, to the relevant Redemption Date
(subject to the right of Holders of record on the relevant Regular Record Date
to receive interest due on the relevant Interest Payment Date), if redeemed
during the 12-month period commencing on February 15 of the years set forth
below:
REDEMPTION
YEAR PRICE
- ------ -------------
2004........................................... 105.1250%
2005........................................... 103.4167%
2006........................................... 101.7083%
2007 and thereafter............................ 100.0000%
(b) In addition, at any time and from time to time prior to February 15,
2002, the Issuers at their option may redeem the Notes in an aggregate principal
amount equal to up to 35% of the original aggregate principal amount of the
Notes, with the aggregate proceeds of one or more Qualified Public Equity
Offerings, at a Redemption Price (expressed as a percentage of principal amount
on the relevant Redemption Date) of 110.25% plus accrued and unpaid interest, if
any, to the Redemption Date (subject to the right of Holders of record on the
relevant Regular Record Date to receive interest due on the relevant Interest
Payment Date); provided, however, that (i) an aggregate principal amount of the
Notes equal to at least 65% of the aggregate principal amount of the Notes ever
issued under this Indenture must remain Outstanding and be held, directly or
indirectly by Persons other than the Company and its Affiliates, immediately
after each such redemption and (ii) such redemption shall occur within 60 days
of the date of the closing of the applicable Qualified Public Equity Offering.
SECTION 10.02. Applicability of Article. Redemption or purchase of
Notes as permitted by Section 10.01 shall be made in accordance with this
Article 10.
SECTION 10.03. Election to Redeem; Notice to Trustee. In case of any
redemption at the election of the Issuers of less than all of the Notes, the
Issuers shall, at least 30 days prior to the Redemption Date initially fixed by
the Issuers (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such Redemption Date and of the principal amount of Notes
to be redeemed.
SECTION 10.04. Selection by Trustee of Notes to Be Redeemed. In the case
of any partial redemption, selection of the Notes for redemption will be made
not more than 60 days prior to the Redemption Date by the Trustee on a pro rata
basis, by lot or by such other method as the Trustee in its sole discretion
shall deem to be fair and appropriate, although no Note of $1,000 in original
principal amount or less shall be redeemed in part; provided that, in the case
of any partial redemption of any Global Note, selection for redemption will be
made by the Depositary in accordance with the procedures of the Depositary
therefor.
(a) The Trustee shall promptly notify the Issuers in writing of the Notes
selected for redemption and, in the case of any Note selected for partial
redemption, the portion of the principal amount thereof to be redeemed. On and
after the Redemption Date, interest will cease to accrue on Notes or portions
thereof called for redemption.
(b) For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Notes shall relate, in
the case of any Note redeemed or to be redeemed only in part, to the portion of
the principal of such Note that has been or is to be redeemed.
SECTION 10.05. Notice of Redemption. (a) Notice of redemption or
purchase as provided in Section 10.01 shall be deemed to have been given upon
the mailing by first class mail, postage prepaid, of such notice to each Holder
of Notes to be redeemed, at its registered address as recorded in the Register,
not later than 30 nor more than 60 days prior to the Redemption Date.
Any such notice shall state:
(i) the expected Redemption Date,
(ii) the Redemption Price,
(iii) if less than all Outstanding Notes are to be redeemed, the
identification (and, in the case of partial redemption, the respective
principal amounts) of the Notes to be redeemed,
(iv) that on the Redemption Date the Redemption Price will become
due and payable upon each such Note, and that, unless the Issuers
default in making such redemption payment or any Paying Agent is
prohibited from making such payment pursuant to the terms of this
Indenture, interest thereon shall cease to accrue from and after said
date,
(v) the place where such Notes are to be surrendered for payment of
the Redemption Price and the name and address of the Paying Agent or
Paying Agents,
(vi) the CUSIP and other security identification numbers, if any,
subject to Section 3.12 hereof, and
(vii) the section of this Indenture pursuant to which the Notes are
to be redeemed.
(b) Notice of such redemption or purchase of Notes to be so redeemed or
purchased at the election of the Issuers shall be given by the Issuers or, at
the written request of the Issuers delivered at least five Business Days prior
to the date proposed for the mailing of such notice, by the Trustee in the name
and at the expense of the Issuers; provided that such notice to the Trustee may
be revoked by the Issuers by written notice delivered to the Trustee prior to
the date proposed for the mailing of the notice of such redemption to the
Holders.
(c) The notice if mailed in the manner herein provided shall be
conclusively presumed to have been given, whether or not the Holder receives
such notice. In any case, failure to give such notice by mail or any defect in
the notice to the Holder of any Note designated for redemption as a whole or in
part shall not affect the validity of the proceedings for the redemption of any
other Note.
SECTION 10.06. Deposit of Redemption Price. (a) On or prior to 10:00
a.m., New York City time on any Redemption Date, the Issuers shall deposit with
the Trustee or with a Paying Agent (or, if the Issuers is acting as its own
Paying Agent, the Issuers shall segregate and hold in trust as provided in
Section 4.03) an amount of money sufficient to pay the Redemption Price of, and
any accrued and unpaid interest on, all the Notes or portions thereof which are
to be redeemed on that date.
SECTION 10.07. Notes Payable on Redemption Date. (a) Notice of
redemption having been given as provided in this Article 10, the Notes so to be
redeemed shall, on the Redemption Date, become due and payable at the Redemption
Price herein specified and from and after such date (unless Issuers shall
default in the payment of the Redemption Price or any Paying Agent is prohibited
from paying the Redemption Price pursuant to the terms of this Indenture) such
Notes shall cease to bear interest. Upon surrender of such Notes for redemption
in accordance with such notice, such Notes shall be paid by the Issuers at the
Redemption Price. Installments of interest whose Interest Payment Date is on or
prior to the Redemption Date shall be payable to the Holders of such Notes
registered as such on the relevant Regular Record Dates according to their terms
and the provisions of Section 3.07.
(b) On and after any Redemption Date, if money sufficient to pay the
Redemption Price of and any accrued and unpaid interest on Notes called for
redemption shall have been made available in accordance with Section 10.06, the
Notes (or the portions thereof) called for redemption will cease to accrue
interest and the only right of the Holders of such Notes (or portions thereof)
will be to receive payment of the Redemption Price of, and subject to the last
sentence of Section 10.07(a), any accrued and unpaid interest on such Notes (or
portions thereof) to the Redemption Date. If any Note (or portion thereof)
called for redemption shall not be so paid upon surrender thereof for
redemption, the principal (and premium, if any) shall, until paid, bear interest
from the Redemption Date at the rate borne by the Note (or portion thereof).
SECTION 10.08. Notes Redeemed in Part. Any Note that is to be redeemed
only in part shall be surrendered at a Place of Payment (with, if the Issuers or
the Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Issuers and the Trustee duly executed by, the Holder
thereof or such Holder's attorney duly authorized in writing) and the Issuers
shall execute and the Trustee shall authenticate and deliver to the Holder of
such Note without service charge, a new Note or Notes, of any authorized
denomination as requested by such Holder in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Note so
surrendered.
ARTICLE 11
SATISFACTION AND DISCHARGE
SECTION 11.01. Satisfaction and Discharges of Indenture. (a) This
Indenture shall cease to be of further effect (except as to any surviving rights
of transfer or exchange of Notes herein provided for), and the Trustee, on
demand of and at the expense of the Issuers, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(i) either
(A) all Notes theretofore authenticated and delivered (other
than (y) Notes that have been destroyed, lost or stolen and that
have been replaced or paid as provided in Section 3.06, and (z)
Notes for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Issuers and
thereafter repaid to the Issuers or discharged from such trust,
as provided in Section 4.03) have been delivered to the Trustee
canceled or for cancellation; or
(B) all such Notes not theretofore delivered to the Trustee
canceled or for cancellation
(x) have become due and payable, or
(y) will become due and payable at their Stated
Maturity within one year, or
(z) are to be called for redemption within one year
under arrangements reasonably satisfactory to the Trustee
for the giving of notice of redemption by the Trustee in
the name, and at the expense, of the Issuers,
(ii) the Issuers have irrevocably deposited or caused to be
deposited with the Trustee an amount in United States dollars, U.S.
Government Obligations, or a combination thereof, sufficient to pay and
discharge the entire Indebtedness on such Notes not theretofore
delivered to the Trustee canceled or for cancellation, for principal
(and premium, if any) and interest to the date of such deposit (in the
case of Notes that have become due and payable), or to the Stated
Maturity or Redemption Date, as the case may be;
(iii) the Issuers have paid or caused to be paid all other sums
then payable hereunder by the Issuers; and
(iv) the Issuers have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel each to the effect that all
conditions precedent provided for in this Section 11.01 relating to the
satisfaction and discharge of this Indenture have been complied with;
provided that any such counsel may rely on any Officer's Certificate as
to matters of fact (including as to compliance with the foregoing
clauses (i), (ii) and (iii)).
(b) Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Issuers to the Trustee under Section 7.08 and, if money shall
have been deposited with the Trustee pursuant to clause (ii) of Section
11.01(a), the obligations of the Trustee under Section 11.02, shall survive.
SECTION 11.02. Application of Trust Money. Subject to the provisions of
the last paragraph of Section 4.03, all money deposited with the Trustee
pursuant to Section 11.01 shall be held in trust and applied by it, in
accordance with the provisions of the Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Issuers acting as
their own Paying Agent) as the Trustee may determine, to the Persons entitled
thereto, of the principal (and premium, if any) and interest on the Notes; but
such money need not be segregated from other funds except to the extent required
by law.
ARTICLE 12
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 12.01. Option of the Issuers to Effect Defeasance or Covenant
Defeasance. The Issuers may at their option by a Board Resolution, at any time,
elect to have either Section 12.02 or Section 12.03 applied to the Outstanding
Notes upon compliance with the conditions set forth below in this Article 12.
Upon compliance with such conditions, each Subsidiary Guarantor will be released
from all of its obligations with respect to its Subsidiary Guarantee.
SECTION 12.02. Legal Defeasance and Discharge. Upon the exercise by the
Issuers under Section 12.01 of the option applicable to this Section 12.02, the
Issuers shall be deemed to have been discharged from any and all Obligations
with respect to all Outstanding Notes (and any Subsidiary Guarantor will be
discharged from any and all Obligations in respect of its Subsidiary Guarantee)
on the date which is the 123rd day after the deposit referred to in Section
12.04(a); provided that all of the conditions set forth below are satisfied
(hereinafter, "Legal Defeasance"). For this purpose, such Legal Defeasance means
that the Issuers shall be deemed to have paid and discharged the entire
Indebtedness represented by the Outstanding Notes, which shall thereafter be
deemed to be "outstanding" only for the purposes of Section 12.05 hereof and the
other Sections of this Indenture referred to in clauses (i) and (ii) of this
Section 12.02, and to have satisfied all its other obligations under such Notes
and this Indenture (and the Trustee, on demand of and at the expense of the
Issuers, shall execute proper instruments acknowledging the same), except for
the following provisions which shall survive until otherwise terminated or
discharged hereunder: (i) the rights of Holders of Outstanding Notes to receive
solely from the trust fund described in Section 12.04 hereof, and as more fully
set forth in such Section, payments in respect of the principal of, premium, if
any, and interest on such Notes when such payments are due, (ii) the obligations
of the Issuers with respect to such Notes under Sections 1.06, 2.03, 3.03, 3.04,
3.05, 3.06, 3.13, 3.14, 4.01, 4.02, 4.03 and 12.05 hereof, (iii) the rights,
powers, trusts, duties and immunities of the Trustee hereunder, including,
without limitation, the Trustee's rights under Section 7.08 hereof, and the
obligations of the Issuers in connection therewith and with this Article 12.
Subject to compliance with this Article 12, the Issuers may exercise their
option under this Section 12.02 notwithstanding the prior exercise of their
option under Section 12.03 hereof with respect to the Notes.
SECTION 12.03. Covenant Defeasance. Upon the exercise by the Issuers
under Section 12.01 of the option applicable to this Section 12.03, the Issuers
shall be released from their obligations under the covenants contained in
Sections 4.04, 4.06 through 4.14 and clause (iii) of Section 5.01 hereof with
respect to the Outstanding Notes and no Default under Section 6.01(e), (f) or
(i) and, with respect to any Subsidiary, (g) or (h), shall thereafter constitute
a Default or Event of Default on the date which is the 123rd day after the
deposit referred to in Section 12.04(a); provided that all of the conditions set
forth below are satisfied (hereinafter, "Covenant Defeasance"), and the Notes
shall thereafter be deemed not Outstanding for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
Outstanding for all other purposes hereunder. For this purpose, such Covenant
Defeasance means that, with respect to the Outstanding Notes, the Issuers may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or
by reason of any reference in any such covenant to any other provision herein or
in any other document and such omission to comply shall not constitute a Default
or an Event of Default under Section 6.01(c) or (d), but, except as specified
above, the remainder of this Indenture and such Notes shall be unaffected
thereby.
SECTION 12.04. Conditions to Legal or Covenant Defeasance. The
following shall be the conditions to application of either Section 12.02 or
Section 12.03 to the Outstanding Notes:
(a) the Issuers have deposited with the Trustee, in trust, money and/or
U.S. Government Obligations that through the payment of interest and principal
in respect thereof in accordance with their terms will provide money in an
amount sufficient, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the
Trustee, to pay (i) the principal of, premium, if any, and accrued interest on
the Notes when such payments are in accordance with the terms of this Indenture
and the Notes or (ii) accrued interest on the Notes through a scheduled
redemption date and the principal of, and premium on the Notes on such
redemption date; provided that, at the time of deposit, the Issuers irrevocably
authorize the Trustee to issue a timely notice of redemption and to take such
other steps reasonably requested by the Trustee to ensure that such redemption
will be effectuated;
(b) in the case of an election under Section 12.02, the Issuers have
delivered to the Trustee (i) either (x) an Opinion of Counsel to the effect that
Holders will not recognize income, gain or loss for Federal income tax purposes
as a result of the exercise by the Issuers of their option under this Article 12
and will be subject to Federal income tax on the same amount and in the same
manner and at the same times as would have been the case if such deposit,
defeasance and discharge had not occurred, which Opinion of Counsel must be
based upon (and accompanied by a copy of) a ruling of the Internal Revenue
Service to the same effect unless there has been a change in applicable Federal
income tax law after the date of this Indenture such that a ruling is no longer
required or (y) a ruling directed to the Trustee received from the Internal
Revenue Service to the same effect as the aforementioned Opinion of Counsel and
(ii) an Opinion of Counsel to the effect that, as a result of the creation of
the defeasance trust, the Issuers will not be required to register under the
Investment Company Act of 1940 and after the passage of 123 days following the
deposit, the trust fund will not be subject to the effect of Section 547 of the
United States Bankruptcy Code or Section 15 of the New York Debtor and Creditor
Law;
(c) in the case of an election under Section 12.03, the delivery by the
Issuers to the Trustee of (i) an Opinion of Counsel to the effect that, among
other things, the Holders will not recognize income, gain or loss for Federal
income tax purposes as a result of such deposit and defeasance and will be
subject to Federal income tax on the same amount and in the same manner and at
the same times as would have been the case if such deposit and defeasance had
not occurred and (ii) an Opinion of Counsel to the effect that, as a result of
the creation of the defeasance trust, the Issuers will not be required to
register under the Investment Company Act of 1940 and after the passage of 123
days following the deposit, the trust fund will not be subject to the effect of
Section 547 of the United States Bankruptcy Code or Section 15 of the New York
Debtor and Creditor Law;
(d) immediately after giving effect to such deposit on a pro forma basis,
no Event of Default, or event that after the giving of notice or lapse of time
or both would become an Event of Default, shall have occurred and be continuing
on the date of such deposit or during the period ending on the 123rd day after
the date of such deposit, and such deposit shall not result in a breach or
violation of, or constitute a default under, any other agreement or instrument
to which the Issuers are a party or by which the Issuers are bound;
(e) if at such time the Notes are listed on a national securities
exchange, the Issuers have delivered to the Trustee an Opinion of Counsel to the
effect that the Notes will not be delisted as a result of such deposit,
defeasance and discharge;
(f) the Issuers shall have delivered to the Trustee Officer's
Certificates stating that the deposit made by the Issuers pursuant to their
election under Sections 12.02 or 12.03 was not made by the Issuers with the
intent of preferring the Holders over the other creditors of the Issuers with
the intent of defeating, hindering, delaying or defrauding creditors of the
Issuers or others; and
(g) the Issuers shall have delivered to the Trustee Officer's
Certificates and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the Legal Defeasance under Section
12.02 or the Covenant Defeasance under Section 12.03 (as the case may be) have
been complied with as contemplated by this Section 12.04.
SECTION 12.05. Deposited Money and Government Securities to Be Held in
Trust; Other Miscellaneous Provisions. Subject to Section 12.06, all money and
U.S. Government Obligations (including the proceeds thereof) deposited with the
Trustee pursuant to Section 12.04 in respect of the Outstanding Notes shall be
held in trust and applied by the Trustee, in accordance with the provisions of
such Notes and this Indenture, to the payment, either directly or through any
Paying Agent (including the Issuers acting as Paying Agent) as the Trustee may
determine, to the Holders of such Notes of all sums due and to become due
thereon in respect of principal of, premium, if any, and interest, but such
money need not be segregated from other funds except to the extent required by
law.
The Issuers shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the money or U.S. Government
Obligations deposited pursuant to Section 12.04 hereof or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the Outstanding Notes.
Anything in this Article 12 to the contrary notwithstanding, the Trustee
shall deliver or pay to the Issuers from time to time upon the request of the
Issuers any money or U.S. Government Obligations held by it as provided in
Section 12.04 hereof which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section
12.04(a) hereof), are in excess of the amount thereof which would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
SECTION 12.06. Repayment to Issuers. Any money deposited with the
Trustee or any Paying Agent, or then held by the Issuers, in trust for the
payment of the principal of, premium, if any, or interest on any Note and
remaining unclaimed for two years after such principal, premium, if any, or
interest has become due and payable shall be paid to the Issuers on their
written request or (if then held by the Issuers) shall be discharged from such
trust; and the Holder of such Note shall thereafter, as an unsecured general
creditor, look only to the Issuers for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Issuers as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Issuers cause to be published once, in The
New York Times and The Wall Street Journal (national edition), notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining will be repaid to the Issuers.
SECTION 12.07. Reinstatement. If the Trustee or Paying Agent is unable
to apply any money or U.S. Government Obligations in accordance with Section
12.02 or 12.03, as the case may be, by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the obligations of the Issuers under this Indenture and
the Notes shall be revived and reinstated as though no deposit had occurred
pursuant to Section 12.02 or 12.03 until such time as the Trustee or Paying
Agent is permitted to apply all such amounts in accordance with Section 12.02 or
12.03 hereof, as the case may be; provided, however, that, if the Issuers makes
any payment of principal of, premium, if any, or interest on any Note following
the reinstatement of its Obligations, the Issuers shall be subrogated to the
rights of the Holder of such Note to receive such payment from the amounts held
by the Trustee or Paying Agent.
ARTICLE 13
SUBSIDIARY GUARANTEES
SECTION 13.01. The Guarantees. (a) Except as specified in clause (b)
below and subject to the provisions of this Article 13, each Subsidiary
Guarantor hereby irrevocably and unconditionally guarantees (the "Guaranteed
Amount"), jointly and severally, on an unsecured senior subordinated basis, the
full and punctual payment (whether at Stated Maturity, upon acceleration,
optional redemption, upon repurchase following a Change of Control Offer or an
Excess Proceeds Offer or otherwise) of the principal of, premium, if any, and
interest on, and all other amounts payable under, each Note provided for under
this Indenture, and the full and punctual payment of all other amounts payable
by the Issuers under this Indenture. Upon failure by the Issuers to pay
punctually any such amount, each Subsidiary Guarantor shall forthwith on demand
pay the amount not so paid at the place and in the manner specified in this
Indenture.
(b) Prior to the date when RC/Arby's existing notes have been redeemed
(the "Redemption Date"), the Guaranteed Amount with respect to RC/Arby's and
each of its Domestic Restricted Subsidiaries shall be zero. On the redemption
date, the Guaranteed Amount with respect to RC/Arby's and each of its Domestic
Restricted Subsidiaries shall automatically, and without the need for further
action, be the amounts described in clause (a).
SECTION 13.02. Guaranty Unconditional. The obligations of the Subsidiary
Guarantors hereunder shall be unconditional and absolute and, without limiting
the generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(a) any extension, renewal, settlement, compromise, waiver or release in
respect of any obligation of the Issuers under this Indenture or any Note, by
operation of law or otherwise;
(b) any modification or amendment of or supplement to this Indenture or
any Note; provided that any such modification which increases the obligations of
each Subsidiary Guarantor hereunder shall not be effective as to such Subsidiary
Guarantor without its consent;
(c) any change in the corporate existence, structure or ownership of any
Issuer, or any insolvency, bankruptcy, reorganization or other similar
proceeding affecting any Issuer or its assets or any resulting release or
discharge of any obligation of an Issuer contained in this Indenture or any
Note;
(d) the existence of any claim, set-off or other rights which the
Subsidiary Guarantors may have at any time against any Issuer, the Trustee or
any other Person, whether in connection with this Indenture or any unrelated
transactions, provided that nothing herein shall prevent the assertion of any
such claim by separate suit or compulsory counterclaim;
(e) any invalidity or unenforceability relating to or against the Issuers
for any reason of this Indenture or any Note, or any provision of applicable law
or regulation purporting to prohibit the payment by the Issuers of the principal
of or interest on any Note or any other amount payable by the Issuers under this
Indenture; or
(f) any other act or omission to act or delay of any kind by the Issuers,
the Trustee or any other Person or any other circumstance whatsoever which
might, but for the provisions of this paragraph, constitute a legal or equitable
discharge of or defense to such Subsidiary Guarantor's obligations hereunder.
SECTION 13.03. Discharge; Reinstatement. The Subsidiary Guarantors'
obligations hereunder shall remain in full force and effect until the principal
of, premium, if any, and interest on the Notes and all other amounts payable by
the Issuers under this Indenture shall have been paid in full. If at any time
any payment of the principal of, premium, if any, or interest on any Note or any
other amount payable by the Issuers under this Indenture is rescinded or must be
otherwise restored or returned upon the insolvency, bankruptcy or reorganization
of an Issuer or otherwise, the Subsidiary Guarantors' obligations hereunder with
respect to such payment shall be reinstated as though such payment had been due
but not made at such time.
SECTION 13.04. Waiver by the Subsidiary Guarantors. The Subsidiary
Guarantors irrevocably waive acceptance hereof, presentment, demand, protest and
any notice not provided for herein, as well as any requirement that at any time
any action be taken by any Person against any Issuer or any other Person.
SECTION 13.05. Subrogation and Contribution. Upon making any payment
with respect to any obligation of the Issuers under this Article 13, the
Subsidiary Guarantor making such payment shall be subrogated to the rights of
the payee against the Issuers with respect to such obligation; provided that
such Subsidiary Guarantor shall not enforce either (i) any right to receive
payment by way of subrogation against the Issuers or against any direct or
indirect security for such obligation, or any other right to be reimbursed,
indemnified or exonerated by or for the account of the Issuers in respect
thereof or (ii) any right to receive payment, in the nature of contribution or
for any other reason, from any other Subsidiary Guarantor with respect to such
payment, in each case so long as any amount payable by the Issuers hereunder or
under the Notes remains unpaid.
SECTION 13.06. Stay of Acceleration. If acceleration of the time for
payment of any amount payable by the Issuers under this Indenture or the Notes
is stayed upon the insolvency, bankruptcy or reorganization of any Issuer, all
such amounts otherwise subject to acceleration under the terms of this Indenture
shall nonetheless be payable by the Subsidiary Guarantors hereunder forthwith on
demand by the Trustee or the Holders.
SECTION 13.07. Subordination. Each Subsidiary Guarantor's Obligations
under its Subsidiary Guarantee shall be junior and subordinated in right of
payment to any Senior Indebtedness of such Subsidiary Guarantor in the same
manner and to the same extent as the Notes are subordinated to Senior
Indebtedness of the Issuers pursuant to Article 14.
SECTION 13.08. Limits of Guarantees. Notwithstanding anything to the
contrary in this Article 13, each Subsidiary Guarantor, and by its acceptance of
Notes, each Holder, hereby confirms that it is the intention of all such parties
that the Subsidiary Guaranty of such Guarantor not constitute a fraudulent
conveyance under applicable fraudulent conveyance provisions of the United
States Bankruptcy Code or any comparable provision of state law. To effectuate
the foregoing intention, the Trustee, the Holders and the Subsidiary Guarantors
hereby irrevocably agree that the obligations of such Subsidiary Guarantor under
its Subsidiary Guaranty and this Article 13 shall be limited to the maximum
amount that would not render such Subsidiary Guarantor's obligations subject to
avoidance under applicable fraudulent conveyance provisions of the United States
Bankruptcy Code or any comparable provision of state law.
SECTION 13.09. Execution and Delivery of Note Guarantee. To evidence its
Subsidiary Guarantee set forth in Section 13.01, each Subsidiary Guarantor
hereby agrees that this Indenture (or a supplemental indenture in the form of
Exhibit B hereto) shall be executed on behalf of such Subsidiary Guarantor by
one of its Officers.
The signature of an Officer of a Subsidiary Guarantor on the Indenture
shall bind such Subsidiary Guarantor, notwithstanding that such individual has
ceased to hold such office prior to the authentication and delivery of any Note
or did not hold such office at the date of such Note.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Subsidiary Guarantee set
forth in this Indenture on behalf of the Subsidiary Guarantors.
ARTICLE 14
SUBORDINATION
SECTION 14.01. Agreement to Subordinate. The Issuers and the Subsidiary
Guarantors agree, and each Holder by accepting a Note agrees, any provision of
this Indenture or the Note to the contrary notwithstanding, that all obligations
owed under and in respect of the Notes and the Subsidiary Guarantees are
subordinated in right of payment, to the extent and in the manner provided in
this Article 14, to the prior payment in full of all Senior Indebtedness of the
Issuers and the Subsidiary Guarantors, and that the subordination of the Notes
and the Subsidiary Guarantees pursuant to this Article 14 is for the benefit of
all holders of all Senior Indebtedness of the Issuers and Subsidiary Guarantors
whether outstanding on the Closing Date or incurred thereafter. For purposes of
this Article, "payment in full", as used with respect to Senior Indebtedness,
means the payment of cash.
SECTION 14.02. Liquidation; Dissolution; Bankruptcy. Upon any payment or
distribution of the assets of an Issuer or Subsidiary Guarantor upon a total or
partial liquidation or dissolution or reorganization of or similar proceeding
relating to such Issuer or its property, the holders of Senior Indebtedness of
such Issuer or Subsidiary Guarantor will be entitled to receive payment in full
of such Senior Indebtedness before the Noteholders are entitled to receive any
payment from such Issuer, and until such Senior Indebtedness is paid in full,
any payment or distribution to which Noteholders would be entitled but for the
subordination provisions of the Indenture will be made to holders of such Senior
Indebtedness as their interests may appear except that Noteholders may receive
shares of stock (other than any shares of stock which, by their terms or the
terms of any security into which they are convertible or for which they are
exchangeable, or upon the happening of any event, mature or are mandatorily
redeemable or are redeemable at the option of the holder thereof, in whole or in
part) and any debt securities that are subordinated to such Senior Indebtedness
to at least the same extent as the Notes; provided that such stock and debt
securities are provided for by a plan of reorganization or readjustment
authorized by an order or decree of a court of competent jurisdiction in a
reorganization proceeding under any applicable bankruptcy, insolvency or other
similar law. If a distribution is made toNoteholders that, due to the
subordination provisions, should not have been made to them, such Noteholders
are required to hold it in trust for the holders of the relevant Senior
Indebtedness and pay it over to them as their interests may appear.
SECTION 14.03. Default on Designated Senior Indebtedness. (a) No direct
or indirect payment, deposit or distribution of any kind or character, whether
in cash, property or securities (including any payment made to the Holders under
the terms of Indebtedness subordinated to the Notes), may be made by set-off or
otherwise, by or on behalf of an Issuer or Subsidiary Guarantor of principal of,
premium (if any) or interest on, or any other obligation in respect of, the
Notes or the Subsidiary Guarantees, whether pursuant to the terms of the Notes
or upon acceleration, by way of repurchase, redemption, defeasance or otherwise
(the making of all such payments, deposits and distributions being referred to
herein, individually and collectively, as to, "Pay the Notes") if any Designated
Senior Indebtedness of such Issuer or Subsidiary Guarantor is not paid when due,
whether at maturity, on account of mandatory redemption or prepayment,
acceleration or otherwise, unless the default has been cured or waived and any
acceleration resulting therefrom has been rescinded or such Designated Senior
Indebtedness has been paid in full. However, such Issuer or Subsidiary Guarantor
may pay the Notes without regard to the foregoing if it and the Trustee receive
written notice approving such payment from the Representative of the Designated
Senior Indebtedness with respect to which the events set forth in the
immediately preceding sentence have occurred and is continuing. During the
continuance of any Default (other than a Default described in the second
preceding sentence) with respect to any Designated Senior Indebtedness of an
Issuer or Subsidiary Guarantor pursuant to which the maturity thereof may be
accelerated immediately without further notice (except such notice as may be
required to effect such acceleration) or upon the expiration of any applicable
grace periods, such Issuer or Subsidiary Guarantor may not pay the Notes for a
period (a "Payment Blockage Period") commencing upon the receipt by the Trustee
(with a copy to such Issuer) of written notice (a "Blockage Notice") of such
default from the Representative of the holders of such Designated Senior
Indebtedness specifying an election to effect a Payment Blockage Period and
ending 179 days thereafter (or earlier if such Payment Blockage Period is
terminated (i) by written notice to the Trustee and such Issuer from the Person
or Persons who gave such Blockage Notice, (ii) because the default giving rise
to such Blockage Notice is no longer continuing or (iii) because such Designated
Senior Indebtedness has been repaid in full). Notwithstanding the provisions
described in the immediately preceding sentence (but subject to the provisions
described in the first sentence of this Section 14.03), unless the holders of
such Designated Senior Indebtedness or the Representative of such holders have
accelerated the maturity of such Designated Senior Indebtedness, such Issuer or
Subsidiary Guarantor may resume payments on the Notes after the end of such
Payment Blockage Period. The Notes shall not be subject to more than one Payment
Blockage Period in any consecutive 360-day period, irrespective of the number of
defaults with respect to Designated Senior Indebtedness during such period.
To the extent any payment of Senior Indebtedness (whether by or on
behalf of the Issuers or the Subsidiary Guarantors, as proceeds of security or
enforcement of any right of setoff or otherwise) is declared to be fraudulent or
preferential, set aside or required to be paid to any receiver, trustee in
bankruptcy, liquidating trustee, agent or other similar Person under any
bankruptcy, insolvency, receivership, fraudulent conveyance or similar law, then
if such payment is recovered by, or paid over to, such receiver, trustee in
bankruptcy, liquidating trustee, agent or other similar Person, the Senior
Indebtedness or part thereof originally intended to be satisfied shall be deemed
to be reinstated and outstanding as if such payment had not occurred. To the
extent the obligation to repay any Senior Indebtedness is declared to be
fraudulent, invalid, or otherwise set aside under any bankruptcy, insolvency,
receivership, fraudulent conveyance or similar law, then the obligation so
declared fraudulent, invalid or otherwise set aside (and all other amounts that
would come due with respect thereto had such obligation not been so affected)
shall be deemed to be reinstated and outstanding as Senior Indebtedness for all
purposes hereof as if such declaration, invalidity or setting aside had not
occurred.
(b) Notwithstanding anything to the contrary in Section 14.02 or this
Section 14.03, Holders may continue to receive payments from any trust
established pursuant to Section 12.04 prior to occurrence of an event
prohibiting payment of or on the Notes.
SECTION 14.04. When Distributions Must Be Paid Over. If any Issuer or
Subsidiary Guarantor shall make any payment to the Trustee on account of the
principal of, or premium, if any, or interest on, the Notes, or the Holders
shall receive from any source any payment on account of the principal of,
premium, if any, or interest on, the Notes or any obligation in respect of the
Notes, at a time when such payment is prohibited by this Article 14, the Trustee
or such Holders shall hold such payment in trust for the benefit of, and shall
pay over and deliver to, the holders of the Senior Indebtedness of such Issuer
or Subsidiary Guarantor (pro rata as to each of such holders on the basis of the
respective amounts of such Senior Indebtedness held by them) or their
Representative, as their respective interests may appear, for application to the
payment of all outstanding Senior Indebtedness of such Issuer or Subsidiary
Guarantor until all such Senior Indebtedness has been paid in full, after giving
effect to all other payments or distributions to, or provisions made for, the
holders of Senior Indebtedness of such Issuer or Subsidiary Guarantor.
With respect to the holders of Senior Indebtedness of the Issuers and
Subsidiary Guarantors, the Trustee undertakes to perform only such obligations
on its part as are specifically set forth in this Article 14, and no implied
covenants or obligations with respect to any holders of the Senior Indebtedness
of the Issuers and the Subsidiary Guarantors shall be read into this Indenture
against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty
to the holders of the Senior Indebtedness of the Issuers and the Subsidiary
Guarantors, and shall not be liable to any holders of such Senior Indebtedness
if the Trustee shall pay over or distribute to, or on behalf of, Holders, the
Issuers, Subsidiary Guarantors or any other Person, money or assets to which any
holders of such Senior Indebtedness are entitled pursuant to this Article 14,
except if such payment is made at a time when a Responsible Officer has actual
knowledge that the terms of this Article 14 prohibit such payment.
SECTION 14.05. Notice. Neither the Trustee nor the Paying Agent shall at
any time be charged with the knowledge of the existence of any facts that would
prohibit the making of any payment to or by the Trustee or Paying Agent under
this Article 14 unless and until the Trustee or Paying Agent shall have received
written notice thereof from an Issuer, a Subsidiary Guarantor or one or more
holders of the Senior Indebtedness of an Issuer or Subsidiary Guarantor or a
representative of any holders of such Senior Indebtedness; and, prior to the
receipt of any such written notice, the Trustee or Paying Agent shall be
entitled to assume conclusively that no such facts exist; provided that if a
Responsible Officer of the Trustee shall not have received the notice provided
for in this Section 14.05 at least one Business Day prior to the date such
payment is due pursuant to the terms hereof, then, notwithstanding anything
herein to the contrary, the Trustee shall have full power and authority to make
such payment and shall not be affected by any notice to the contrary which may
be received by it within one Business Day prior to such date (it being
understood that nothing contained in this Section 14.05 shall limit the rights
of the holders of the Senior Indebtedness of the Issuers and the Subsidiary
Guarantors to recover any payment pursuant to Section 14.04). The Trustee shall
be entitled to rely on the delivery to it of written notice by a Person
representing itself to be a holder of the Senior Indebtedness of an Issuer or a
Subsidiary Guarantor (or a Representative thereof) to establish that such notice
has been given. In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any person as a holder
of Senior Indebtedness of an Issuer or any Subsidiary Guarantor to participate
in any payment or distribution pursuant to this Article, the Trustee may request
such person to furnish evidence to the reasonable satisfaction of the Trustee as
to the amount of such Senior Indebtedness held by such person, the extent to
which such person is entitled to participate in such payment or distribution and
any other facts pertinent to the rights of such person under this Article, and
if such evidence is not furnished, the Trustee may defer any payment which it
may be required to make for the benefit of such person pursuant to the terms of
this Indenture pending judicial determination as to the rights of such person to
receive such payment.
The Issuers and the Subsidiary Guarantors shall promptly notify the
Trustee and the Paying Agent in writing of any facts they know that would cause
a payment of principal of, premium, if any, or interest on, the Notes or any
other obligation in respect of the Notes to violate this Article 14, but failure
to give such notice shall not affect the subordination of the Notes to the
Senior Indebtedness of the Issuers and the Subsidiary Guarantors provided in
this Article 14 or the rights of holders of such Senior Indebtedness under this
Article 14.
SECTION 14.06. Subrogation. After all Senior Indebtedness of the Issuers
and the Subsidiary Guarantors has been paid in full and until the Notes are paid
in full, Holders shall be subrogated (equally and ratably with all other
Indebtedness pari passu with the Notes) to the rights of holders of such Senior
Indebtedness to receive distributions applicable to such Senior Indebtedness to
the extent that distributions otherwise payable to the Holders have been applied
to the payment of such Senior Indebtedness. A distribution made under this
Article 14 to holders of the Senior Indebtedness of the Issuers and the
Subsidiary Guarantors that otherwise would have been made to Holders is not, as
between the relevant Issuer or Subsidiary Guarantor and the Holders, a payment
by such relevant Issuer or Subsidiary Guarantor on its Senior Indebtedness.
SECTION 14.07. Relative Rights. This Article 14 defines the relative
rights of Holders and holders of the Senior Indebtedness of the Issuers and the
Subsidiary Guarantors. Nothing in this Indenture shall: (1) impair, as between
the Issuers and the Subsidiary Guarantors and Holders, the obligations of the
Issuers and the Subsidiary Guarantors, which are absolute and unconditional, to
pay principal of, premium, if any, and interest on the Notes in accordance with
their terms; (2) affect the relative rights of Holders and the creditors of the
relevant Issuer or Subsidiary Guarantor other than their rights in relation to
holders of the Senior Indebtedness of the relevant Issuer or Subsidiary
Guarantor; or (3) prevent the Trustee or any Holder from exercising its
available remedies upon a Default or Event of Default, subject to the rights of
holders of the Senior Indebtedness to receive distributions and payments
otherwise payable to Holders.
The failure to make a payment on account of principal of or interest on
the Notes by reason of any provision of this Article 14 shall not be construed
as preventing the occurrence of an Event of Default under Section 6.01.
SECTION 14.08. The Issuers, Subsidiary Guarantors and Holders May Not
Impair Subordination. (a) No right of any holder of the Senior Indebtedness of
an Issuer or any Subsidiary Guarantor to enforce the subordination as provided
in this Article 14 shall at any time or in any way be prejudiced or impaired by
any act or failure to act by the relevant Issuer or Subsidiary Guarantor or by
any noncompliance by the relevant Issuer or Subsidiary Guarantor with the terms,
provisions and covenants of this Indenture or the Notes or any other agreement
regardless of any knowledge thereof with which any such holder may have or be
otherwise charged.
(b) Without in any way limiting Section 14.08(a), the holders of any
Senior Indebtedness of an Issuer or a Subsidiary Guarantor may, at any time and
from time to time to the extent not otherwise prohibited by this Indenture,
without the consent of or notice to any Holders, without incurring any
liabilities to any Holder and without impairing or releasing the subordination
and other benefits provided in this Indenture or the Holders' obligations to the
holders of such Senior Indebtedness, even if any Holder's right of reimbursement
or subrogation or other right or remedy is affected, impaired or extinguished
thereby, do any one or more of the following: (i) amend, renew, exchange,
extend, modify, increase or supplement in any manner such Senior Indebtedness or
any instrument evidencing or guaranteeing or securing such Senior Indebtedness
or any agreement under which such Senior Indebtedness is outstanding (including,
but not limited to, changing the manner, place or terms of payment or changing
or extending the time of payment of, or renewing, exchanging, amending,
increasing or altering, (A) the terms of such Senior Indebtedness, (B) any
security for, or any Guarantee of, such Senior Indebtedness, (C) any liability
of any obligor on such Senior Indebtedness (including any guarantor) or any
liability incurred in respect of such Senior Indebtedness); (ii) sell, exchange,
release, surrender, realize upon, enforce or otherwise deal with in any manner
and in any order any property pledged, mortgaged or otherwise securing such
Senior Indebtedness or any liability of any obligor thereon, to such holder, or
any liability incurred in respect thereof; (iii) settle or compromise any such
Senior Indebtedness or any other liability of any obligor of such Senior
Indebtedness to such holder or any security therefor or any liability incurred
in respect thereof and apply any sums by whomsoever paid and however realized to
any liability (including, without limitation, payment of any of the Senior
Indebtedness of the Issuers and Subsidiary Guarantors) in any manner or order;
and (iv) fail to take or to record or otherwise perfect, for any reason or for
no reason, any lien or security interest securing such Senior Indebtedness by
whomsoever granted, exercise or delay in or refrain from exercising any right or
remedy against any obligor or any guarantor or any other Person, elect any
remedy and otherwise deal freely with any obligor and any security for such
Senior Indebtedness or any liability of any obligor to the holders of such
Senior Indebtedness or any liability incurred in respect of such Senior
Indebtedness.
(c) Each Holder by accepting a Note agrees not to compromise, release,
forgive or otherwise discharge the obligations with respect to such Holder's
Note unless holders of a majority of the outstanding amount of each class of
Senior Indebtedness of the Issuers and Subsidiary Guarantors consent to such
compromise, release, forgiveness or discharge.
SECTION 14.09. Distribution or Notice to Representative. Whenever a
distribution is to be made, or a notice given, to holders of Senior Indebtedness
of an Issuer or Subsidiary Guarantor, the distribution may be made and the
notice given to their Representative, if any. If any payment or distribution of
the assets of an Issuer or Subsidiary Guarantor is required to be made to
holders of any of the Senior Indebtedness of such Issuer or Subsidiary Guarantor
pursuant to this Article 14, the Trustee and the Holders shall be entitled to
rely upon any order or decree of any court of competent jurisdiction, or upon
any certificate of a representative of such Senior Indebtedness or a custodian,
in ascertaining the holders of such Senior Indebtedness entitled to participate
in any such payment or distribution, the amount to be paid or distributed to
holders of such Senior Indebtedness and all other facts pertinent to such
payment or distribution or to this Article 14.
SECTION 14.10. Rights of Trustee and Paying Agent. The Trustee or Paying
Agent may continue to make payments on the Notes unless prior to any payment
date it has received written notice of facts that would cause a payment of
principal of, or premium, if any, or interest on, the Notes to violate this
Article 14. Only the Issuers, Subsidiary Guarantors, a Representative of Senior
Indebtedness of an Issuer or a Subsidiary Guarantor, or a holder of Senior
Indebtedness of an Issuer or a Subsidiary Guarantor that has no Representative
may give such notice.
To the extent permitted by the TIA, the Trustee in its individual or any
other capacity may hold Indebtedness of the Issuers and Subsidiary Guarantors
(including Senior Indebtedness) with the same rights it would have if it were
not Trustee. Any agent of the Trustee may do the same with like rights.
Nothing in this Article 14 shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 7.08.
SECTION 14.11. Authorization to Effect Subordination. Each Holder by its
acceptance thereof authorizes and directs the Trustee on its behalf to take such
action as may be necessary or appropriate to effectuate the subordination as
provided in this Article 14, and appoints the Trustee as such Holder's
attorney-in-fact for any and all such purposes (including, without limitation,
the timely filing of a claim for the unpaid balance of the Note that such Holder
holds in the form required in any insolvency or liquidation proceeding and
causing such claim to be approved).
If a proper claim or proof of debt in the form required in such
proceeding is not filed by or on behalf of all Holders prior to 30 days before
the expiration of the time to file such claims or proofs, then the holders or a
Representative of any Senior Indebtedness of any Issuer or Subsidiary Guarantor
is hereby authorized, and shall have the right (without any duty), to file an
appropriate claim for and on behalf of the Holders.
SECTION 14.12. Payment. A payment on account of or with respect to any
Note shall include, without limitation, principal, premium or interest with
respect to or in connection with any optional redemption or purchase provisions,
any direct or indirect payment payable by reason of any other Indebtedness or
obligation being subordinated to the Notes, and any direct or indirect payment
or recovery on any claim as a Holder relating to or arising out of this
Indenture or any Note, or the issuance of any Note, or the transactions
contemplated by this Indenture or referred to herein.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the date first written above.
TRIARC CONSUMER PRODUCTS
GROUP, LLC, as Issuer
By: BRIAN L. SCHORR
Title: Executive Vice President
TRIARC BEVERAGE HOLDINGS CORP.,
as Issuer
By: BRIAN L. SCHORR
Title: Executive Vice President
MISTIC BRANDS, INC., as a Subsidiary
Guarantor
By: BRIAN L. SCHORR
Title: Executive Vice President
SNAPPLE BEVERAGE CORP., as a
Subsidiary Guarantor
By: BRIAN L. SCHORR
Title: Executive Vice President
SNAPPLE INTERNATIONAL CORP., as a
Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
SNAPPLE WORLDWIDE CORP., as a
Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
SNAPPLE FINANCE CORP., as a
Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
PACIFIC SNAPPLE DISTRIBUTORS,
INC., as a Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
MR. NATURAL, INC., as a Subsidiary
Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
SNAPPLE CARIBBEAN CORP., as a
Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
KELRAE, INC., as a Subsidiary Guarantor
By: JOHN L. BARNES, JR.
Title: President
RC/ARBY'S CORPORATION, as a
Subsidiary Guarantor
By: CURTIS S. GIMSON
Title: Senior Vice President, General
Counsel and Secretary
RCAC ASSET MANAGEMENT, INC., as a
Subsidiary Guarantor
By: FRANCIS T. MCCARRON
Title: Senior Vice President - Taxes
ARBY'S, INC., as a Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
ARBY'S BUILDING AND
CONSTRUCTION CO., as a Subsidiary
Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
TJ HOLDING COMPANY, INC., as a
Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
ARBY'S RESTAURANT
CONSTRUCTION COMPANY, as a
Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
ARBY'S RESTAURANT
DEVELOPMENT CORPORATION, as
Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
ARBY'S RESTAURANT HOLDING
COMPANY, as a Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
ARBY'S RESTAURANTS, INC., as a
Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
ARBY'S RESTAURANT OPERATIONS
COMPANY, as a Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
RC-11, INC., as a Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
RC LEASING, INC., as a Subsidiary
Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
ROYAL CROWN BOTTLING COMPANY
OF TEXAS, as a Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
ROYAL CROWN COMPANY, INC., as a
Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
RETAILER CONCENTRATE
PRODUCTS, INC., as a Subsidiary
Guarantor
By: FRANCIS T. MCCARRON
Title: Senior Vice President - Taxes
TRIBEV CORPORATION, as a Subsidiary
Guarantor
By: FRANCIS T. MCCARRON
Title: Senior Vice President - Taxes
CABLE CAR BEVERAGE
CORPORATION, as a Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
OLD SAN FRANCISCO SELTZER, INC.,
as a Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
FOUNTAIN CLASSICS, INC., as a
Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
THE BANK OF NEW YORK, as Trustee
By: MARIE TRIMBOLI
Title: Trustee
<PAGE>
List of Omitted Schedules
EXHIBIT A - Form of Note
EXHIBIT B - Form of Supplemental Indenture
EXHIBIT C - Form of Certificate of Beneficial Ownership EXHIBIT D - Form of
Regulation S Certificate EXHIBIT E - Form of Accredited Investor Certificate
The Registrant hereby agrees to furnish supplementaly a copy of any omitted
schedule to the Securities and Exchange Commission upon its request.
Exhibit 4.3
- -------------------------------------------------------------------------------
REGISTRATION RIGHTS AGREEMENT
Dated February 18, 1999
among
TRIARC CONSUMER PRODUCTS GROUP, LLC
TRIARC BEVERAGE HOLDINGS CORP.,
the GUARANTORS party hereto
and
MORGAN STANLEY & CO. INCORPORATED
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
WASSERSTEIN PERELLA SECURITIES, INC.
- -------------------------------------------------------------------------------
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
into February 18, 1999, among TRIARC CONSUMER PRODUCTS GROUP LLC, a Delaware
limited liability company ("Triarc"), TRIARC BEVERAGE HOLDINGS CORP., a Delaware
corporation (the "Co-Issuer" and, together with Triarc, the "Issuers"), each of
the GUARANTORS party hereto (the "Guarantors") and MORGAN STANLEY & CO.
INCORPORATED, DONALDSON LUFKIN & JENRETTE SECURITIES CORPORATION and WASSERSTEIN
PERELLA SECURITIES, INC. (the "Placement Agents").
This Agreement is made pursuant to the Placement Agreement dated
February 18, 1999, among the Issuers, the Guarantors party thereto and the
Placement Agents (the "Placement Agreement"), which provides for the sale by the
Issuers to the Placement Agents of an aggregate of $300,000,000 principal amount
of 10 1/4% Senior Subordinated Notes Due 2009 (the "Notes"). The Issuers are
jointly and severally liable for all payments on the Notes. The Notes will be
unconditionally and irrevocably guaranteed on a senior subordinated basis (the
"Guarantees") as to payment of principal, premium, if any, and interest by the
Guarantors; provided that (i) the amount guaranteed by RC/Arby's Corporation and
each of its direct and indirect subsidiaries will be equal to zero until the
date of redemption (the "Redemption Date") of RC/Arby's Corporation's existing 9
3/4% senior secured notes due 2000 and (ii) the obligations of RC/Arby's
Corporation and its direct and indirect subsidiaries under this Agreement shall
not become operative until the Redemption Date. In order to induce the Placement
Agents to enter into the Placement Agreement, the Issuers and the Guarantors
have agreed to provide to the Placement Agents and their direct and indirect
transferees the registration rights set forth in this Agreement. The execution
of this Agreement by the Issuers and the Guarantors is a condition to the
closing under the Placement Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions.
As used in this Agreement, the following capitalized defined terms shall
have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended from time
to time.
"1934 Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"Blockage Notice" shall have the meaning set forth in Section 3 hereof.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in The City of New York are authorized by law to close.
"Closing Date" shall mean the Closing Date as defined in the Placement
Agreement.
"Co-Issuer" shall have the meaning set forth in the preamble.
"Exchange Notes" shall mean any securities (including the related
guarantees) of the Issuers issued under the Indenture containing terms identical
to the Notes (except that (i) interest thereon shall accrue from the last date
on which interest was paid on the Notes or, if no such interest has been paid,
from February 25, 1999, (ii) the Exchange Notes will not provide for additional
interest accruing thereon following a failure to register such Exchange Notes
under the 1933 Act and (iii) the Exchange Notes will not contain restrictions on
transfer) and to be offered to Holders of Notes in exchange for Notes pursuant
to the Exchange Offer.
"Exchange Offer" shall mean the exchange offer by the Issuers and the
Guarantors of Exchange Notes for Registrable Notes pursuant to Section 2(a)
hereof.
"Exchange Offer Registration" shall mean a registration under the 1933
Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form) and all amendments and supplements to such registration statement, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Guarantors" shall mean the Guarantors listed on the signature pages
hereof, and shall also include any successor to a Guarantor.
"Holder" shall mean the Placement Agents, for so long as they own any
Registrable Notes, and each of their successors, assigns and direct and indirect
transferees who become registered owners of Registrable Notes under the
Indenture; provided that for purposes of Sections 4 and 5 of this Agreement, the
term "Holder" shall include Participating Broker-Dealers (as defined in Section
4(a) hereof).
"Indenture" shall mean the Indenture relating to the Notes dated as of
February 25, 1999 among the Issuers, the Guarantors and The Bank of New York, as
trustee, and as the same may be amended from time to time in accordance with the
terms thereof.
"Issuers" shall have the meaning set forth in the preamble and shall
also include any successor to an Issuer.
"Majority Holders" shall mean the Holders of a majority of the aggregate
principal amount of outstanding Registrable Notes; provided that whenever the
consent or approval of Holders of a specified percentage of Registrable Notes is
required hereunder, Registrable Notes held by the Issuers, the Guarantors or any
of their affiliates (as such term is defined in Rule 405 under the 1933 Act)
shall not be counted in determining whether such consent or approval was given
by the Holders of such required percentage or amount.
"Participating Broker-Dealer" shall have the meaning set forth in
Section 4(a).
"Person" shall mean an individual, partnership, limited liability
company, corporation, trust or unincorporated organization, or a government or
agency or political subdivision thereof.
"Placement Agents" shall have the meaning set forth in the preamble.
"Placement Agreement" shall have the meaning set forth in the preamble.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Notes covered by a Shelf Registration Statement, and by all other
amendments and supplements to such prospectus, including post-effective
amendments, and in each case including all material incorporated by reference
therein.
"Registrable Notes" shall mean the Notes (including the Guarantees);
provided, however, that the Notes shall cease to be Registrable Notes upon the
earliest of (i) when a Registration Statement with respect to such Notes shall
have been declared effective under the 1933 Act and such Notes shall have been
disposed of pursuant to such Registration Statement, (ii) when such Notes are
eligible for sale to the public pursuant to Rule 144(k) (or any similar
provision then in force, but not Rule 144A) under the 1933 Act, (iii) when such
Notes shall have ceased to be outstanding or (iv) such Notes have been exchanged
(other than by a Participating Broker-Dealer) for Exchange Notes upon
consummation of the Exchange Offer.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Issuers and the Guarantors with this
Agreement, including without limitation: (i) all SEC, stock exchange or National
Association of Securities Dealers, Inc. registration and filing fees, (ii) all
fees and expenses incurred in connection with compliance with state securities
or blue sky laws (including reasonable fees and disbursements of counsel for any
underwriters or Holders in connection with blue sky qualification of any of the
Exchange Notes or Registrable Notes), (iii) all expenses of any Persons in
preparing or assisting in preparing, word processing, printing and distributing
any Registration Statement, any Prospectus, any amendments or supplements
thereto, any underwriting agreements, securities sales agreements and other
documents relating to the performance of and compliance with this Agreement,
(iv) all rating agency fees, (v) all fees and disbursements relating to the
qualification of the Indenture under applicable securities laws, (vi) the fees
and disbursements of the Trustee and its counsel, (vii) the fees and
disbursements of counsel for the Issuers and the Guarantors and, in the case of
a Shelf Registration Statement, the reasonable fees and disbursements of one
counsel for the Holders (which counsel shall be selected by the Majority Holders
and which counsel may also be counsel for the Placement Agents) and (viii) the
fees and disbursements of the independent public accountants of the Issuers and
the Guarantors, including the expenses of any special audits or "cold comfort"
letters required by or incident to such performance and compliance, but
excluding fees and expenses of counsel to the underwriters (other than fees and
expenses set forth in clause (ii) above) or the Holders (other than fees and
expenses set forth in clause (vii) above) and underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition of
Registrable Notes by a Holder.
"Registration Statement" shall mean any registration statement of the
Issuers and the Guarantors that covers any of the Exchange Notes or Registrable
Notes pursuant to the provisions of this Agreement and all amendments and
supplements to any such Registration Statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Issuers and the Guarantors pursuant to the provisions of
Section 2(b) of this Agreement which covers all of the Registrable Notes on an
appropriate form under Rule 415 under the 1933 Act, or any similar rule that may
be adopted by the SEC, and all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
"Triarc" shall have the meaning set forth in the preamble.
"Trustee" shall mean the trustee with respect to the Notes under the
Indenture.
"Underwriter" shall have the meaning set forth in Section 3 hereof.
"Underwritten Registration" or "Underwritten Offering" shall mean a
registration in which Registrable Notes are sold to an Underwriter for
reoffering to the public.
2. Registration Under the 1933 Act.
(a) To the extent not prohibited by any applicable law or applicable
interpretation of the Staff of the SEC, the Issuers and the Guarantors shall use
their best efforts to cause to be filed an Exchange Offer Registration Statement
covering the offer by the Issuers and the Guarantors to the Holders to exchange
all of the Registrable Notes for Exchange Notes and to have such Registration
Statement remain effective until the closing of the Exchange Offer. The Issuers
and the Guarantors shall commence the Exchange Offer promptly after the Exchange
Offer Registration Statement has been declared effective by the SEC. The Issuers
and the Guarantors shall commence the Exchange Offer by mailing the related
exchange offer Prospectus and accompanying documents to each Holder stating, in
addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Agreement
and that all Registrable Notes validly tendered will be accepted
for exchange;
(ii) the dates of acceptance for exchange (which shall be a period
of at least 20 business days from the date such notice is mailed)
(the "Exchange Dates");
(iii) that any Registrable Note not tendered will remain outstanding
and continue to accrue interest, but will not retain any rights under
this Agreement;
(iv) that Holders electing to have a Registrable Note exchanged
pursuant to the Exchange Offer will be required to surrender such
Registrable Note, together with the enclosed letters of transmittal,
to the institution and at the address (located in the Borough of Man-
hattan, The City of New York) specified in the notice prior to the close
of business on the last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not
later than the close of business on the last Exchange Date, by sending
to the institution and at the address (located in the Borough of Man-
hattan, The City of New York) specified in the notice a telegram, telex,
facsimile transmission or letter setting forth the name of such
Holder, the principal amount of Registrable Notes delivered for
exchange and a statement that such Holder is withdrawing his election
to have such Notes exchanged.
As soon as practicable after the last Exchange Date, the Issuers and the
Guarantors shall:
(i) accept for exchange Registrable Notes or portions thereof
validly tendered and not validly withdrawn pursuant to the Exchange
Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancel-
lation all Registrable Notes or portions thereof so accepted for ex-
change by the Issuers and the Guarantors and issue, and cause the
Trustee to promptly authenticate and mail to each Holder, an Exchange
Note equal in principal amount to the principal amount of the
Registrable Notes surrendered by such Holder.
Each of the Issuers and the Guarantors shall use its best efforts to
complete the Exchange Offer as provided above and shall comply with the
applicable requirements of the 1933 Act, the 1934 Act and other applicable laws
and regulations in connection with the Exchange Offer. The Exchange Offer shall
not be subject to any conditions, other than (i) that the Exchange Offer does
not violate applicable law or any applicable interpretation of the Staff of the
SEC and (ii) the tendering of Registrable Notes in accordance with the Exchange
Offer and (iii) that there is no injunction, order or decree by any court
or any governmental agency that would prohibit, prevent or otherwise materially
impair the ability of the Issuers or the Guarantors to proceed with the Exchange
Offer. Each Holder of Registrable Notes (other than Participating Broker-
Dealers) who wishes to exchange such Registrable Notes for Exchange Notes
in the Exchange Offer (a) shall have represented (or by tendering its Regis-
trable Notes, be deemed to have represented) that (i) it is not an affiliate
(as defined in Rule 405 under the 1933 Act) of any Issuer or Guarantor, (ii) any
Exchange Notes to be received by it were acquired in the ordinary course of its
business and (iii) at the time of the commencement of the Exchange Offer, it
has no arrangement with any person to participate in the distribution (within
the meaning of the 1933 Act) of the Exchange Notes and (b) shall have
made such other representations as may reasonably be necessary under appli-
cable SEC rules, regulations or interpretations to render the use of Form
S-4 or another appropriate form under the 1933 Act available. The Issuers
and the Guarantors shall inform the Placement Agents of the names and addresses
of the Holders to whom the Exchange Offer is made, and the Placement Agents
shall have the right, subject to applicable law, to contact such Holders and
otherwise facilitate the tender of Registrable Notes in the Exchange Offer.
Upon consummation of the Exchange Offer in accordance with this Section 2, the
registration provisions of this Agreement will continue to apply solely with
respect to the Registrable Notes referred to in Section 2(b)(iii) and any
Registrable Notes held by a Participating Broker-Dealer, and no Issuer or
Guarantor shall have any further obligations to register any other Registrable
Notes pursuant to this Agreement.
(b) In the event that (i) the Issuers and the Guarantors determine that
the Exchange Offer Registration provided for in Section 2(a) above is not
available or may not be consummated as soon as practicable after the last
Exchange Date because it would violate applicable law or the applicable
interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any
other reason consummated by September 23, 1999 or (iii) in the opinion of
counsel for the Placement Agents a Registration Statement must be filed and a
Prospectus must be delivered by the Placement Agents in connection with any
offering or sale of Registrable Notes, the Issuers and the Guarantors shall use
their best efforts to cause to be filed as soon as practicable after such
determination, date or notice of such opinion of counsel is given to the
Issuers, as the case may be, a Shelf Registration Statement providing for the
sale by the Holders of all of the Registrable Notes and to have such Shelf
Registration Statement declared effective by the SEC; provided, that no Holder
(other than a Placement Agent) shall be entitled to have the Registrable Notes
held by it covered by such Shelf Registration Statement unless such Holder
agrees to be bound by all of the provisions of this Agreement applicable to such
Holder and furnishes to the Issuers in writing the information specified in
Items 507 and Item 508 of Regulation S-K (or any successor provision), as appli-
cable. No such Holder shall be entitled to any additional amounts under
Section 2(d) until such Holder shall have provided all such information which
is required by SEC rules to be included in the Shelf Registration Statement
prior to the time it is declared effective. In the event the Issuers and the
Guarantors are required to file a Shelf Registration Statement solely as a
result of the matters referred to in clause (iii) of the preceding sentence,
the Issuers and the Guarantors shall use their best efforts to file and have
declared effective by the SEC both an Exchange Offer Registration Statement
pursuant to Section 2(a) with respect to all Registrable Notes and a Shelf
Registration Statement (which may be a combined Registration Statement
with the Exchange Offer Registration Statement) with respect to offers and
sales of Registrable Notes held by the Placement Agents after completion of the
Exchange Offer. The Issuers and the Guarantors agree to use their best
efforts to keep the Shelf Registration Statement continuously effective until
the expiration of the period referred to in Rule 144(k) with respect to the
Registrable Notes or such shorter period that will terminate when all of the
Registrable Notes covered by the Shelf Registration Statement have been sold
pursuant to the Shelf Registration Statement or otherwise cease to be Regis-
trable Notes. The Issuers and the Guarantors further agree to supplement or
amend the Shelf Registration Statement if required by the rules, regulations
or instructions applicable to the registration form used by them for such Shelf
Registration Statement or by the 1933 Act or by any other rules and regulations
thereunder for shelf registration or if reasonably requested by a Holder with
respect to information relating to such Holder, and to use their best efforts
to cause any such amendment to become effective and such Shelf Registration
Statement to become usable as soon as thereafter practicable. The Issuers
and the Guarantors agree to furnish to the Holders of Registrable Notes copies
of any such supplement or amendment promptly after its being used or filed with
the SEC.
(c) The Issuers and the Guarantors shall pay all Registration Expenses in
connection with the registration pursuant to Section 2(a) and Section 2(b). Each
Holder shall pay all underwriting discounts and commissions and transfer taxes,
if any, relating to the sale or disposition of such Holder's Registrable Notes
pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a)
hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will
not be deemed to have become effective unless it has been declared effective by
the SEC; provided, however, that, if, after it has been declared effective, the
offering of Registrable Notes pursuant to a Shelf Registration Statement is
interfered with by any stop order, injunction or other order or requirement of
the SEC or any other governmental agency or court, such Registration Statement
will be deemed not to have become effective during the period of such
interference until the offering of Registrable Notes pursuant to such Regis-
tration Statement may legally resume. In the event that neither the Ex-
change Offer Registration Statement nor the Shelf Registration Statement is
declared effective on or prior to August 24, 1999 (the "Effectiveness Dead-
line"), the interest rate on the Notes will be increased by a per annum
rate of 0.5% until the Exchange Offer Registration Statement or the Shelf
Registration Statement is declared effective by the SEC. In the event that the
Exchange Offer Registration Statement is declared effective but the Exchange
Offer is not consummated on or prior to the earlier to occur of the date that
is thirty Business Days after the date of effectiveness of the Exchange Offer
Registration Statement or the date that is thirty days after the Effectiveness
Deadline, the annual interest rate borne by the Notes will be increased by a per
annum rate of 0.5% from such time until the Exchange Offer is consummated. The
interest rate borne by the Notes will not be subject to increase of more than
0.5% per annum notwithstanding the failure by the Issuers and the Guarantors
to meet more than one of such registration requirements or the duration of
any such failures.
(e) Without limiting the remedies available to the Placement Agents and
the Holders, each of the Issuers and the Guarantors acknowledges that any
failure by it to comply with its obligations under Section 2(a) and Section 2(b)
hereof may result in material irreparable injury to the Placement Agents or the
Holders for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the event
of any such failure, the Placement Agents or any Holder may obtain such relief
as may be required to specifically enforce such Issuer's or Guarantor's
obligations under Section 2(a) and Section 2(b) hereof; provided that, in the
case of any terms of this Agreement for which additional interest pursuant to
Section 2(d) is expressly provided as a remedy of a violation of such terms,
such additional interest shall be the sole monetary damages for such violation.
3. Registration Procedures. In connection with the obligations of the
Issuers and the Guarantors with respect to the Registration Statements pursuant
to Section 2(a) and Section 2(b) hereof, the Issuers and the Guarantors shall as
expeditiously as practicable:
(a) prepare and file with the SEC a Registration Statement on
the appropriate form under the 1933 Act, which form (x) shall be select-
ed by the Issuers and the Guarantors and (y) shall, in the case of a
Shelf Registration, be available for the sale of the Registrable Notes
by the selling Holders thereof and (z) shall comply as to form in all
material respects with the requirements of the applicable form and
include all financial statements required by the SEC to be filed there-
with, and use their best efforts to cause such Registration State-
ment to become effective and remain effective in accordance with
Section 2 hereof;
(b) subject to their ability to issue a Blockage Notice, prepare and
file with the SEC such amendments and post-effective amendments to
each Registration Statement as may be necessary to keep such Regis-
tration Statement effective for the applicable period and cause each
Prospectus to be supplemented by any required prospectus supplement
and, as so supplemented, to be filed pursuant to Rule 424 under the
1933 Act; and to keep each Prospectus current during the period
described under Section 4(3) and Rule 174 under the 1933 Act that
is applicable to transactions by brokers or dealers with respect to
the Registrable Notes or Exchange Notes;
(c) in the case of a Shelf Registration, furnish to each Holder of
Registrable Notes, to counsel for the Placement Agents, to counsel for
the Holders and to each Underwriter of an Underwritten Offering of
Registrable Notes, if any, without charge, as many copies of each
Prospectus, including each preliminary Prospectus, and any amendment or
supplement thereto and such other documents as such Holder or
Underwriter may reasonably request, in order to facilitate the public
sale or other disposition of the Registrable Notes; and, subject to the
penultimate paragraph of this Section 3, the Issuers and the Guarantors
consent to the use of such Prospectus and any amendment or supplement
thereto in accordance with applicable law by each of the selling Holders
of Registrable Notes and any such Underwriters in connection with the
offering and sale of the Registrable Notes covered by and in the manner
described in such Prospectus or any amendment or supplement thereto in
accordance with applicable law;
(d) use their best efforts to register or qualify the Registrable
Notes under all applicable state securities or "blue sky" laws of such
jurisdictions in the United States as any Holder of Registrable Notes
covered by a Registration Statement shall reasonably request in writing,
to cooperate with such Holders in connection with any filings required
to be made with the National Association of Securities Dealers, Inc. and
do any and all other acts and things which may be reasonably necessary
or advisable to enable such Holder to consummate the disposition in each
such jurisdiction of such Registrable Notes owned by such Holder;
provided, however, that no Issuer or Guarantor shall be required to (i)
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to qualify but for
this Section 3(d), (ii) file any general consent to service of
process or (iii) subject itself to taxation in any such jurisdiction
if it is not so subject;
(e) in the case of a Shelf Registration, notify each Holder of
Registrable Notes, counsel for the Holders and counsel for the Placement
Agents promptly and, if requested by any such Holder or counsel, confirm
such advice in writing (i) when a Registration Statement has been filed
becomes effective and when any post-effective amendment thereto has been
filed and becomes effective, (ii) of any request by the SEC or any state
securities authority for amendments and supplements to a Registration
Statement and Prospectus or for additional information after the
Registration Statement has become effective, (iii) of the issuance by
the SEC or any state securities authority of any stop order suspending
the effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose, (iv) if, between the effective date of a
Registration Statement and the closing of any sale of Registrable Notes
covered thereby, the representations and warranties of any Issuer or
Guarantor contained in any underwriting agreement, securities sales
agreement or other similar agreement, if any, relating to the offering
cease to be true and correct in all material respects or if any Issuer
or Guarantor receives any notification with respect to the suspension of
the qualification of the Registrable Notes for sale in any jurisdiction
or the initiation of any proceeding for such purpose, (v) of the
happening of any event during the period a Shelf Registration Statement
is effective which makes any statement of material fact made in such
Registration Statement or the related Prospectus untrue in any material
respect or which requires the making of any changes in such Registration
Statement or Prospectus in order to make the statements therein not
misleading and (vi) of any determination by an Issuer or Guarantor that
a post-effective amendment to a Registration Statement would be
appropriate;
(f) use its reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the earliest
possible moment and provide immediate notice to each Holder of the
withdrawal of any such order;
(g) in the case of a Shelf Registration, furnish to each Holder of
Registrable Notes, without charge, at least one conformed copy of each
Registration Statement and any post-effective amendment thereto (without
documents incorporated therein by reference or exhibits thereto, unless
requested);
(h) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Notes to facilitate the timely preparation and
delivery of certificates representing Registrable Notes to be sold and
not bearing any restrictive legends and enable such Registrable Notes to
be in such denominations (consistent with the provisions of the
Indenture) and registered in such names as the selling Holders may
reasonably request at least one business day prior to the closing of any
sale of Registrable Notes;
(i) in the case of a Shelf Registration, upon the occurrence of any
event contemplated by Section 3(e)(v) hereof, subject to the ability
of the Issuers and the Guarantors to issue a Blockage Notice, use their
best efforts to prepare and file with the SEC a supplement or post-
effective amendment to a Registration Statement or the related Prospec-
tus or any document incorporated therein by reference or file any other
required document so that, as thereafter delivered to the purchasers of
the Registrable Notes, such Prospectus will not contain any untrue
statement of a material fact or omit to state a material fact necessary
to make the statements therein, in light of the circumstances under
which they were made, not misleading. The Issuers and the Guarantors
agree to notify the Holders to suspend use of the Prospectus as promptly
as practicable after the occurrence of such an event, and the Holders
hereby agree to suspend use of the Prospectus until the Issuers and the
Guarantors have amended or supplemented the Prospectus to correct such
misstatement or omission;
(j) a reasonable time prior to the filing of any Registration State-
ment, any Prospectus, any amendment to a Registration Statement or
amendment or supplement to a Prospectus or any document which is to be
incorporated by reference into a Registration Statement or a Prospectus
after initial filing of a Registration Statement, provide copies of such
document to the Placement Agents and their counsel (and, in the case of
a Shelf Registration Statement, the Holders and their counsel) and make
such of the representatives of the Issuers and the Guarantors as shall
be reasonably requested by the Placement Agents or their counsel (and,
in the case of a Shelf Registration Statement, the Holders or their
counsel) available for discussion of such document, and shall not at any
time file or make any amendment to the Registration Statement, any
Prospectus or any amendment of or supplement to a Registration Statement
or a Prospectus or any document which is to be incorporated by reference
into a Registration Statement or a Prospectus, of which the Placement
Agents and their counsel (and, in the case of a Shelf Registration
Statement, the Holders and their counsel) shall not have previously been
advised and furnished a copy or to which the Placement Agents or their
counsel (and, in the case of a Shelf Registration Statement, the Majori-
ty Holders or their counsel) shall reasonably object;
(k) obtain a CUSIP number for all Exchange Notes or Registrable
Notes, as the case may be, not later than the effective date of a
Registration Statement and provide the Trustee under the Indenture
with printed certificates for the Exchange Notes or Registrable Notes in
a form eligible for deposit with The Depository Trust Company;
(l) cause the Indenture to be qualified under the Trust Indenture
Act of 1939, as amended (the "TIA"), in connection with the registration
of the Exchange Notes or Registrable Notes, as the case may be, co-
operate with the Trustee and the Holders to effect such changes to the
Indenture as may be required for the Indenture to be so qualified in
accordance with the terms of the TIA and execute, and use their best
efforts to cause the Trustee to execute, all documents as may be re-
quired to effect such changes and all other forms and documents required
to be filed with the SEC to enable the Indenture to be so qualified in a
timely manner;
(m) in the case of a Shelf Registration, make available for inspec-
tion by a representative of the Holders of the Registrable Notes, any
Underwriter participating in any disposition pursuant to such Shelf
Registration Statement, and attorneys and accountants designated by the
Holders, at reasonable times and in a reasonable manner, all financial
and other records, pertinent documents and properties of the Issuers and
the Guarantors, and cause the respective officers, directors and
employees of the Issuers and the Guarantors to supply all information
reasonably requested by any such representative, Underwriter, attorney
or accountant in connection with a Shelf Registration Statement;
provided that such persons shall first agree in writing with the Issuers
that any information that is reasonably and in good faith designated by
the Issuers in writing as confidential at the time of delivery of such
information shall be kept confidential by such persons unless (i)
disclosure of such information is required by court or administrative
order is necessary to respond to inquiries of regulatory authorities,
(ii) disclosure of such information is required by law (including any
disclosure requirements pursuant to Federal securities laws in
connection with the filing of the Shelf Registration Statement or the
use of any Prospectus) (iii) such information becomes generally
available to the public other than as a result of disclosure or failure
to safeguard by any such person or (iv) such information becomes
available to any such person from a source other than the Issuers and
such source is not bound by a confidentiality agreement or other
obligation not to disclose such information;
(n) use their best efforts to cause the Exchange Notes or Registra-
ble Notes, as the case may be, to be rated by two nationally recognized
statistical rating organizations (as such term is defined in Rule
436(g)(2) under the 1933 Act);
(o) if reasonably requested by any Holder of Registrable Notes cov-
ered by a Registration Statement, (i) promptly incorporate in a
Prospectus supplement or post-effective amendment such information with
respect to such Holder as such Holder reasonably requests to be included
therein and (ii) make all required filings of such Prospectus supplement
or such post-effective amendment as soon as any Issuer or Guarantor has
received notification of the matters to be incorporated in such filing;
provided that they shall not required to take any such action that is
not, in the opinion of counsel for the Issuers and the Guarantors, in
compliance with applicable law; and
(p) in the case of a Shelf Registration, enter into such customary
agreements and take all such other customary and appropriate actions in
connection therewith (including those requested by the Holders of a
majority of the Registrable Notes being sold) in order to expedite or
facilitate the disposition of such Registrable Notes including, but not
limited to, an Underwritten Offering and in such connection, (i) to the
extent possible, make such representations and warranties to the Holders
and any Underwriters of such Registrable Notes with respect to the
business of the Issuers, the Guarantors and their respective
subsidiaries, the Registration Statement, Prospectus and documents
incorporated by reference or deemed incorporated by reference, if any,
in each case, in form, substance and scope as are customarily made by
issuers to underwriters in underwritten offerings and confirm the same
if and when requested, (ii) obtain opinions of counsel to the Issuers
and the Guarantors (which counsel and opinions, in form, scope and
substance, shall be reasonably satisfactory to the Holders of a majority
of the Registrable Notes being sold and such Underwriters and their
respective counsel) addressed to each selling Holder and Underwriter, if
any, of Registrable Notes, covering the matters customarily covered in
opinions requested in underwritten offerings, (iii) obtain "cold
comfort" letters from the independent certified public accountants of
the Issuers and the Guarantors (and, if necessary, any other certified
public accountant of any subsidiary of any Issuer or Guarantor, or of
any business acquired by any Issuer or Guarantor for which financial
statements and financial data are or are required to be included in the
Registration Statement) addressed to each selling Holder and Underwriter
of Registrable Notes, such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort" letters in
connection with underwritten offerings, and (iv) deliver such
documents and certificates as may be reasonably requested by the
Holders of a majority in principal amount of the Registrable Notes
being sold or the Underwriters, and which are customarily delivered
in underwritten offerings, to evidence the continued validity of
the representations and warranties of the Issuers and the Guarantors
made pursuant to clause (i) above and to evidence compliance with any
customary conditions contained in an underwriting agreement.
In the case of a Shelf Registration Statement, the Issuers and the
Guarantors (as a condition to such Holder's participation in the Shelf
Registration Statement) may require each Holder of Registrable Notes to furnish
to them such information regarding the Holder and the proposed distribution by
such Holder of such Registrable Notes as they may from time to time reasonably
request in writing.
In the case of a Shelf Registration Statement, each Holder agrees that,
upon receipt of any notice from an Issuer or Guarantor of the happening of any
event of the kind described in Section 3(e)(v) hereof (a "Blockage Notice"),
such Holder will forthwith discontinue disposition of Registrable Notes pursuant
to a Registration Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(i) hereof, and, if
so directed by such Issuer or Guarantor, such Holder will deliver to such Issuer
or Guarantor (at its expense) all copies in its possession, other than permanent
file copies then in such Holder's possession, of the Prospectus covering such
Registrable Notes current at the time of receipt of such notice. Each Holder
agrees to keep confidential the cause of any such notice of suspension or other
information provided to them by an Issuer or Guarantor with respect thereto. If
an Issuer or Guarantor shall give any such notice to suspend the disposition of
Registrable Notes pursuant to a Registration Statement, the Issuers and the
Guarantors shall extend the period during which the Registration Statement shall
be maintained effective pursuant to this Agreement by the number of days during
the period from and including the date of the giving of such notice to and
including the date when the Holders shall have received copies of the
supplemented or amended Prospectus necessary to resume such dispositions. Such
notice may be given only twice during any 365 day period and any such
suspensions may not exceed 30 days for each suspension and there may not be more
than two suspensions in effect during any 365 day period.
The Holders of Registrable Notes covered by a Shelf Registration
Statement who desire to do so may sell such Registrable Notes in an Underwritten
Offering. In any such Underwritten Offering, the investment banker or investment
bankers and manager or managers (the "Underwriters") that will administer the
offering will be selected by the Majority Holders of the Registrable Notes
included in such offering with the prior written consent of the Issuers, which
consent shall not be unreasonably withheld. No Holder of Registrable Notes may
participate in any Underwritten Offering hereunder unless such Holder (a) agrees
to sell such Holder's Registrable Notes on the basis provided in any
underwriting agreements approved by the Majority Holders of the Registrable
Notes included in such offering and (b) completes and executes all customary and
appropriate questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting
agreements.
4. Participation of Broker-Dealers in Exchange Offer.
(a) The Staff of the SEC has taken the position that any broker-dealer
that receives Exchange Notes for its own account in the Exchange Offer in
exchange for Notes that were acquired by such broker-dealer as a result of
market-making or other trading activities and not directly from an Issuer or
Guarantor (a "Participating Broker-Dealer"), may be deemed to be an
"underwriter" within the meaning of the 1933 Act and must deliver a prospectus
meeting the requirements of the 1933 Act in connection with any resale of such
Exchange Notes.
The Issuers and the Guarantors understand that it is the Staff's
position that if the Prospectus contained in the Exchange Offer Registration
Statement includes a plan of distribution containing a statement to the above
effect and the means by which Participating Broker-Dealers may resell the
Exchange Notes, without naming the Participating Broker-Dealers or specifying
the amount of Exchange Notes owned by them, such Prospectus may be delivered by
Participating Broker-Dealers to satisfy their prospectus delivery obligation
under the 1933 Act in connection with resales of Exchange Notes for their own
accounts, so long as the Prospectus otherwise meets the requirements of the 1933
Act.
(b) In light of the above, notwithstanding the other provisions of this
Agreement, the Issuers and the Guarantors agree that the provisions of this
Agreement as they relate to a Shelf Registration shall also apply to an Exchange
Offer Registration to the extent, and with such reasonable modifications thereto
as may be, reasonably requested by the Placement Agents or by one or more
Participating Broker-Dealers, in each case as provided in clause (ii) below, in
order to expedite or facilitate the disposition of any Exchange Notes by
Participating Broker-Dealers consistent with the positions of the Staff recited
in Section 4(a) above; provided that:
(i) the Issuers and the Guarantors shall not be required to amend or
supplement the Prospectus contained in the Exchange Offer Registration
Statement, as would otherwise be contemplated by Section 3(i), for a
period exceeding 180 days after the last Exchange Date (as such period
may be extended pursuant to the penultimate paragraph of Section 3 of
this Agreement) and Participating Broker-Dealers shall not be authorized
by the Issuers and the Guarantors to deliver and shall not deliver such
Prospectus after such period in connection with the resales contemplated
by this Section 4; and
(ii) the application of the Shelf Registration procedures set forth
in Section 3 of this Agreement to an Exchange Offer Registration, to
the extent not required by the positions of the Staff of the SEC or the
1933 Act and the rules and regulations thereunder, will be in conformity
with the reasonable request to the Issuers and the Guarantors by the
Placement Agents or with the reasonable request in writing to the
Issuers and the Guarantors by one or more broker-dealers who certify to
the Placement Agents, the Issuers and the Guarantors in writing that
they anticipate that they will be Participating Broker-Dealers; and
provided further that, in connection with such application of the Shelf
Registration procedures set forth in Section 3 to an Exchange Offer
Registration, the Issuers and the Guarantors shall be obligated (x) to
deal only with one entity representing the Participating Broker-Dealers,
which shall be Morgan Stanley & Co. Incorporated unless it elects not to
act as such representative, (y) to pay the fees and expenses of only one
counsel representing the Participating Broker-Dealers, which shall be
counsel to the Placement Agents unless such counsel elects not to so act
and (z) to cause to be delivered only one, if any, "cold comfort" letter
with respect to the Prospectus in the form existing on the last Exchange
Date and with respect to each subsequent amendment or supplement, if
any, effected during the period specified in clause (i) above.
(c) The Placement Agents shall have no liability to the Issuers, the
Guarantors or any Holder with respect to any request that they may make pursuant
to Section 4(b) above.
5. Indemnification and Contribution.
(a) The Issuers and the Guarantors, jointly and severally, agree to
indemnify and hold harmless the Placement Agents, each Holder and each Person,
if any, who controls any Placement Agent or any Holder within the meaning of
either Section 15 of the 1933 Act or Section 20 of the 1934 Act, or is under
common control with, or is controlled by, any Placement Agent or any Holder,
from and against all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred by any Placement
Agent, any Holder or any such controlling or affiliated Person in connection
with defending or investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment thereto) pursuant to which Exchange
Notes or Registrable Notes were registered under the 1933 Act, including all
documents incorporated therein by reference, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, or caused by any
untrue statement or alleged untrue statement of a material fact contained in any
Prospectus (as amended or supplemented if an Issuer or Guarantor shall have
furnished any amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact necessary to make the
statements therein in light of the circumstances under which they were made not
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any such untrue statement or omission or alleged untrue statement or
omission based upon information relating to the Placement Agents or any Holder
furnished to the Issuers in writing through Morgan Stanley & Co. Incorporated or
any selling Holder expressly for use therein; provided that the Issuers and the
Guarantors shall not be liable to any Placement Agent, any Holder or any such
controlling or affiliated Person to the extent that any such losses, claims,
damages or liabilities (the "Losses") arise out of or are based upon an untrue
statement or alleged untrue statement of material fact or omission or alleged
omission if either (A)(i) such Placement Agent or Holder was required by law to
send or deliver, and failed to send or deliver, a copy of the Prospectus with or
prior to delivery of written confirmation of the sale by such Placement Agent or
Holder to the person asserting the claims from which such Losses arise and (ii)
the Prospectus would have corrected such untrue statement or alleged untrue
statement or omission or alleged omission, (B)(x) such untrue statement or
alleged untrue statement or omission or alleged omission is corrected in an
amendment to the Prospectus and (y) having been previously furnished by or on
behalf of the Issuers and the Guarantors with copies of the Prospectus as so
amended or supplemented, such Placement Agent or Holder failed to send or
deliver a copy of such amendment to the Prospectus with or prior to the delivery
of written confirmation of the sale of a Registrable Note to the person
asserting the claim from which such Losses arise or (C)(i) such Holder disposed
of Registrable Notes to the person asserting the claim from which such Losses
arise pursuant to a Registration Statement and sent or delivered, or was
required by law to send or deliver, a Prospectus to such person in connection
with such disposition, (ii) such Holder received a Blockage Notice in writing at
least four Business Days prior to the date of such disposition and (iii) such
untrue statement or alleged untrue statement or omission or alleged omission was
the reason for the Blockage Notice. In connection with any Underwritten Offer-
ing permitted by Section 3, the Issuers and the Guarantors will also
indemnify the Underwriters, if any, selling brokers, dealers and similar
securities industry professionals participating in the distribution, their
officers and directors and each Person who controls such Persons (within the
meaning of the 1933 Act and the 1934 Act) to the same extent as provided above
with respect to the indemnification of the Holders, if requested in connection
with any Registration Statement.
(b) (i) Each Holder agrees, severally and not jointly, to indemnify and
hold harmless the Issuers and the Guarantors, the Placement Agents and the other
selling Holders, and each of their respective directors, officers who sign the
Registration Statement and each Person, if any, who controls any Issuer or
Guarantor, any Placement Agent and any other selling Holder within the meaning
of either Section 15 of the 1933 Act or Section 20 of the 1934 Act to the same
extent as the foregoing indemnity from the Issuers and the Guarantors to the
Placement Agents and the Holders, but only (i) with reference to information
relating to such Holder furnished to the Issuers in writing by such Holder
expressly for use in any Registration Statement (or any amendment thereto) or
any Prospectus (or any amendment or supplement thereto) and (ii) with respect to
any Losses that may arise as a result of the disposition by such Holder of
Registrable Notes to the person asserting the claim from which such Losses arise
pursuant to a Registration Statement if such Holder sent or delivered, or was
required by law to send or deliver, a Prospectus in connection with such
disposition, such Holder received a Blockage Notice with respect to such
Prospectus in writing at least four Business Days prior to the date of such
disposition and the untrue statement or alleged untrue statement or omission or
alleged omission was the reason for the Blockage Notice.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any Person in respect of which indemnity may be
sought pursuant to either paragraph (a) or paragraph (b) above, such Person or
Persons (the "imdemnified party") shall promptly notify the Person or Persons
against whom such indemnity may be sought (the "indemnifying party") in writing
and the indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel shall
be at the expense of such indemnified party unless (i) the indemnifying party
and the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood
that the indemnifying party shall not, in connection with any proceeding
or related proceedings in the same jurisdiction, be liable for (a) the fees and
expenses of more than one separate firm (in addition to any local counsel) for
the Placement Agents and all Persons, if any, who control any Placement Agent
within the meaning of either Section 15 of the 1933 Act or Section 20 of the
1934 Act, (b) the fees and expenses of more than one separate firm (in addition
to any local counsel) for the Issuers and the Guarantors, its directors, its
officers who sign the Registration Statement and each Person, if any, who con-
trols any Issuer or Guarantor within the meaning of either such Section and (c)
the fees and expenses of more than one separate firm (in addition to any local
counsel) for all Holders and all Persons, if any, who control any Holders within
the meaning of either such Section, and that all such fees and expenses shall be
reimbursed as they are incurred. In such case involving the Placement Agents
and Persons who control the Placement Agents, such firm shall be designated in
writing by Morgan Stanley & Co. Incorporated. In such case involving the Holders
and such Persons who control Holders, such firm shall be designated in writing
by the Majority Holders. In all other cases, such firm shall be designated by
the Issuers. The indemnifying party shall not be liable for any settlement of
any proceeding effected without its written consent but, if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which such
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) If the indemnification provided for in paragraph (a) or paragraph (b)
of this Section 5 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities, then each indemnifying
party under such paragraph, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party or parties on the one hand and of the indemnified party or parties on the
other hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Issuers and the Guarantors, on the one
hand, and the Holders, on the other hand, shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to in-
formation supplied by an Issuer or Guarantor or by the Holders and the parties'
relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission. The Holders' respective obligations to
contribute pursuant to this Section 5(d) are several in proportion to the re-
spective principal amount of Registrable Notes of such Holder that were
registered pursuant to a Registration Statement.
(e) Each Issuer, Guarantor and Holder agrees that it would not be just or
equitable if contribution pursuant to this Section 5 were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in paragraph (d) above. The amount paid
or payable by an indemnified party as a result of the losses, claims, damages
and liabilities referred to in paragraph (d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 5, no Holder shall be required to indemnify or contribute any amount in
excess of the amount by which the total price at which Registrable Notes were
sold by such Holder exceeds the amount of any damages that such Holder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any Person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 5 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this Section 5
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
the Placement Agents, any Holder or any Person controlling any Placement Agent
or any Holder, or by or on behalf of the Issuers and the Guarantors, their
officers or directors or any Person controlling an Issuer or Guarantor, (iii)
acceptance of any of the Exchange Notes and (iv) any sale of Registrable Notes
pursuant to a Shelf Registration Statement.
6. Miscellaneous.
(a) No Inconsistent Agreements. None of the Issuers or the Guarantors has
entered into, and on or after the date of this Agreement will not enter into,
any agreement which is inconsistent with the rights granted to the Holders of
Registrable Notes in this Agreement or otherwise conflicts with the provisions
hereof. The rights granted to the Holders hereunder do not in any way conflict
with and are not inconsistent with the rights granted to the holders of other
issued and outstanding securities of any Issuer or Guarantor under any such
agreements.
(b) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given unless the Issuers and the Guarantors have obtained the written consent of
Holders of at least a majority in aggregate principal amount of the outstanding
Registrable Notes affected by such amendment, modification, supplement, waiver
or consent; provided, however, that no amendment, modification, supplement,
waiver or consent to any departure from the provisions of Section 5 hereof shall
be effective as against any Holder of Registrable Notes unless consented to in
writing by such Holder.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder to
the Issuers by means of a notice given in accordance with the provisions of this
Section 6(c), which address initially is, with respect to the Placement Agents,
the address set forth in the Placement Agreement; and (ii) if to the Issuers and
the Guarantors, initially at the address of the Issuers set forth in the
Placement Agreement and thereafter at such other address, notice of which is
given in accordance with the provisions of this Section 6(c).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next business day if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Notes in
violation of the terms of the Placement Agreement. If any transferee of any
Holder shall acquire Registrable Notes, in any manner, whether by operation of
law or otherwise, such Registrable Notes shall be held subject to all of the
terms of this Agreement, and by taking and holding such Registrable Notes such
Person shall be conclusively deemed to have agreed to be bound by and to per-
form all of the terms and provisions of this Agreement and such Person shall
be entitled to receive the benefits hereof. The Placement Agents (in their
capacity as Placement Agents) shall have no liability or obligation to the
Issuers and the Guarantors with respect to any failure by a Holder to comply
with, or any breach by any Holder of, any of the obligations of such Holder
under this Agreement.
(e) Purchases and Sales of Notes. The Issuers and the Guarantors shall
not, and shall use their best efforts to cause their respective affiliates (as
defined in Rule 405 under the 1933 Act) not to, purchase and then resell or
otherwise transfer any Notes; provided that (i) Nelson Peltz and Peter May (or
any entity that they wholly own) may purchase Notes from the Placement Agents on
the Closing Date as contemplated in the Placement Agreement and resell or
otherwise transfer such Notes in compliance with the transfer restrictions
applicable thereto and (ii) the Issuers, the Guarantors and their respective
affiliates may resell any of the Notes purchased by them pursuant to an
effective registration statement so long as the two-year period referred to in
Rule 144(k) under the Securities Act with respect to all Notes other than those
being sold under such registration statement shall have expired prior to the
date of such sale.
(f) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Issuers and the
Guarantors, on the one hand, and the Placement Agents, on the other hand, and
shall have the right to enforce such agreements directly to the extent it deems
such enforcement necessary or advisable to protect its rights or the rights of
Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. This Agreement shall be governed by the laws of the
State of New York.
(j) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
TRIARC CONSUMER PRODUCTS
GROUP, LLC
By: BRIAN L. SCHORR
Title: Executive Vice President
TRIARC BEVERAGE HOLDINGS CORP.
By: BRIAN L. SCHORR
Title: Executive Vice President
MISTIC BRANDS, INC., as a Subsidiary
Guarantor
By: BRIAN L. SCHORR
Title: Executive Vice President
SNAPPLE BEVERAGE CORP., as a
Subsidiary Guarantor
By: BRIAN L. SCHORR
Title: Executive Vice President
SNAPPLE INTERNATIONAL CORP., as a
Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
SNAPPLE WORLDWIDE CORP., as a
Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
SNAPPLE FINANCE CORP., as a
Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
PACIFIC SNAPPLE DISTRIBUTORS,
INC., as a Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
MR. NATURAL, INC., as a Subsidiary
Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
SNAPPLE CARIBBEAN CORP., as a
Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
KELRAE, INC., as a Subsidiary Guarantor
By: JOHN L. BARNES, JR.
Title: President
RC/ARBY'S CORPORATION, as a
Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
RCAC ASSET MANAGEMENT, INC., as a
Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
ARBY'S, INC., as a Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
ARBY'S BUILDING AND
CONSTRUCTION CO., as a Subsidiary
Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
TJ HOLDINGS COMPANY, INC., as a
Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
ARBY'S RESTAURANT
CONSTRUCTION COMPANY, as a
Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
ARBY'S RESTAURANT
DEVELOPMENT CORPORATION, as
Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
ARBY'S RESTAURANT HOLDING
COMPANY, as a Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
ARBY'S RESTAURANTS, INC., as a
Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
ARBY'S RESTAURANT OPERATIONS
COMPANY, as a Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
RC-11, INC., as a Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
RC LEASING, INC., as a Subsidiary
Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
ROYAL CROWN BOTTLING COMPANY
OF TEXAS, as a Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
ROYAL CROWN COMPANY, INC., as a
Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
RETAILER CONCENTRATE
PRODUCTS, INC., as a Subsidiary
Guarantor
By: FRANCIS T. MCCARRON
Title: Senior Vice President - Taxes
TRIBEV CORPORATION, as a Subsidiary
Guarantor
By: FRANCIS T. MCCARRON
Title: Senior Vice President - Taxes
CABLE CAR BEVERAGE
CORPORATION, as a Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
OLD SAN FRANCISCO SELTZER, INC.,
as a Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
FOUNTAIN CLASSICS, INC., as a
Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
Confirmed and accepted as of
the date first above written:
MORGAN STANLEY & CO. INCORPORATED
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
WASSERSTEIN PERELLA SECURITIES, INC.
By: MORGAN STANLEY & CO. INCORPORATED
By: KARL N. BEINKAMPEN
Title: Vice President
