EXHIBIT 20
----------
EXHIBIT 20
NationsBank Loan Documents (Exhibits and Schedules omitted)
REDACTED
PLEDGE AND SECURITY AGREEMENT
PLEDGE AND SECURITY AGREEMENT, dated January 25, 1996, made by DWG
ACQUISITION GROUP, L.P., a Delaware limited partnership (the "PLEDGOR"), in
favor of NATIONSBANK, N.A., (the "BANK"), as collateral agent for the Bank,
NATIONSBANK OF FLORIDA, N.A. (the "FLORIDA BANK") and the permitted successors
and assigns of the Bank and the Florida Bank (in such capacity, the COLLATERAL
AGENT).
W I T N E S S E T H:
WHEREAS, Xxxxxx Xxxxx and Xxxxx Xxx are the sole general partners of the
Pledgor;
WHEREAS, Xxxxxx Xxxxx and Xxxxxxx Xxxxx (collectively, the "XXXXX
BORROWERS") and the Bank are parties to a Credit Agreement dated as of January
18, 1996 (such Agreement, as amended or otherwise modified from time to time,
being hereinafter referred to as the "XXXXX CREDIT AGREEMENT"), pursuant to
which the Bank has agreed to make demand loans to the Xxxxx Borrowers in an
aggregate principal amount at any one time outstanding not to exceed the amount
of the Commitment (as defined in the Xxxxx Credit Agreement)];
WHEREAS, Xxxxx Xxx and Xxxx May (collectively, the "MAY BORROWERS";
together with the Xxxxx Borrowers, collectively the "BORROWERS"),) and the Bank
are parties to a Credit Agreement dated as of January 18, 1996 (such Agreement,
as amended or otherwise modified from time to time, being hereinafter referred
to as the "MAY CREDIT AGREEMENT"; together with the Xxxxx Credit Agreement, the
"CREDIT AGREEMENTS"), pursuant to which the Bank has agreed to make demand loans
to the May Borrowers in an aggregate principal amount at any one time
outstanding not to exceed the amount of the Commitment (as defined in the May
Credit Agreement)];
WHEREAS, the Florida Bank has made (i) a term loan to Xxxxxx Xxxxx in
the original principal amount of $102,000,000 pursuant to the Term Loan
Agreement dated as of July 29, 1994 (such Agreement, as amended or otherwise
modified from time to time, being hereinafter referred to as the "XXXXX TERM
AGREEMENT"), between Xxxxxx Xxxxx and the Florida Bank, and (ii) a term loan to
Xxxxx Xxx in the original principal amount of $51,000,000 pursuant to the Term
Loan Agreement dated as of July 29, 1994 (such Agreement, as amended or
otherwise modified from time to time, being hereinafter referred to as the "MAY
TERM AGREEMENT"; together with the Xxxxx Term Agreement, collectively the "TERM
AGREEMENTS"), between Xxxxx Xxx and the Florida Bank;
WHEREAS, it is a condition precedent to the making of any demand loan by
the Bank pursuant to either Credit Agreement that, among other things, the
Pledgor shall have executed and delivered to the Collateral Agent a pledge and
security agreement providing for the pledge to the Collateral Agent of, and the
grant to the Collateral Agent of a security interest in, certain of the
outstanding shares of capital stock issued by Triarc Companies, Inc. that are
owned by the Pledgor; and
WHEREAS, the Pledgor has determined that its execution, delivery and
performance of this Pledge and Security Agreement directly benefit, and are in
the best interests of, the Pledgor;
NOW, THEREFORE, in consideration of the premises and the agreements
herein and in order to induce the Bank to make and maintain the Demand Loans,
the Pledgor hereby agrees with the Collateral Agent as follows:
SECTION 1. DEFINITIONS. (a) Reference is hereby made to (i) each
Credit Agreement and each Term Agreement for a statement of the respective terms
thereof. All terms used in this Agreement that are defined in a Credit
Agreement, in a Term Agreement (if both Credit Agreements have been terminated)
or in Article 8 or 9 of the Uniform Commercial Code (the "CODE") currently in
effect in the State of New York and that are not otherwise defined herein shall
have the same meanings herein as set forth therein.
(b) As used in this Agreement, the following terms shall
have the respective meanings indicated below, such meanings to be
applicable equally to both the singular and plural forms of the terms
defined:
"DEFAULT" means the occurrence of any "Default" (as defined in any
Credit or Term Agreement).
"EVENT OF DEFAULT" means the occurrence of any
"Event of Default" (as defined in any Credit Agreement or Term
Agreement).
"LOAN DOCUMENTS" means the Term Agreements, the Credit Agreements, the
"Loan Documents" (as defined in the Credit Agreements), each "Pledge
Agreement" (as defined in each Term Agreement), each Note (as defined in
each Term Agreement), this Agreement and all other instruments,
documents and other agreements executed and delivered pursuant hereto or
thereto.
"RULE 144" means Rule 144 promulgated by the Securities and Exchange
Commission under the Securities Act of 1933.
"SHARES" means shares of the common stock of the Issuer (as defined in
Section 2 hereof) of the same class as the Pledged Shares.
SECTION 2. PLEDGE AND GRANT OF SECURITY INTEREST. As collateral
security for all of the Obligations (as defined in Section 3 hereof), the
Pledgor hereby pledges and assigns to the Collateral Agent, for the benefit of
the Collateral Agent, the Bank and the Florida Bank, and grants to the
Collateral Agent, for the benefit of the Collateral Agent, the Bank and the
Carolinas Bank, a continuing security interest in, the following (collectively,
the "PLEDGED COLLATERAL"):
(a) the shares of stock described in item 1 of Schedule I
hereto (the "PLEDGED SHARES") issued by Triarc Companies, Inc. (the
ISSUER"), the certificates representing the Pledged Shares, all options
and other rights, contractual or otherwise, in respect thereof
(including, without limitation, any registration rights, whether under
the Registration Rights Agreement dated as of April 23, 1993 (as amended
or otherwise modified from time to time, the "REGISTRATION RIGHTS
AGREEMENT"), between the Issuer and the Pledgor, or otherwise) and all
dividends, cash, instruments and other property from time to time
received, receivable or otherwise distributed in respect of or in
exchange for any or all of the Pledged Shares; and
(b) all proceeds of any and all of the foregoing;
in each case, whether now owned or hereafter acquired by the Pledgor and
howsoever such interest therein may arise or appear (whether by ownership,
security interest, claim or otherwise).
SECTION 3. SECURITY FOR OBLIGATIONS. The security interest created
hereby in the Pledged Collateral constitutes continuing collateral security for
all of the following obligations, whether now existing or hereafter incurred
(the "OBLIGATIONS"):
(a) the obligation of the Borrowers to pay, as and when due
and payable (on demand, by mandatory prepayment, by scheduled maturity
or otherwise), all amounts from time to time owing by them in respect of
any Loan Document, whether for principal, interest, fees or otherwise
(including, without limitation, amounts that but for the operation of
Section 362(a) of the Bankruptcy Code would become due);
(b) the due performance and observance by the Borrowers of
all of their other obligations from time to time existing under any Loan
Document; and
(c) the due performance and observance by the Pledgor of all
of its obligations under this Agreement and any other Loan Document to
which it is or may become a party.
Without limiting the generality of the foregoing, this Agreement secures the
payment of all amounts that constitute part of the Obligations and would be owed
by a Borrower to the Bank or to the Florida Bank under a Note (as defined in any
Term Agreement or any Credit Agreement) or any of the other Loan Documents but
for the fact that they are unenforceable or not allowable due to the existence
of a bankruptcy, reorganization or similar proceeding involving either Borrower.
SECTION 4. DELIVERY OF THE PLEDGED COLLATERAL.
(a) All certificates representing the Pledged Shares shall
be delivered to the Collateral Agent on or prior to the execution and
delivery of this Agreement. All other certificates and instruments
constituting Pledged Collateral from time to time shall be delivered to
the Collateral Agent promptly upon the receipt thereof by or on behalf
of the Pledgor. All such certificates and instruments shall be held by
or on behalf of the Collateral Agent pursuant hereto and shall be
delivered in suitable form for transfer by delivery or shall be
accompanied by duly executed instruments of transfer or assignment in
blank, all in form and substance satisfactory to the Collateral Agent.
(b) If the Pledgor shall receive, by virtue of the Pledgor's
being or having been an owner of any Pledged Collateral, any (i) stock
certificate (including, without limitation, any certificate representing
a stock dividend or distribution in connection with any increase or
reduction of capital, reclassification, merger, consolidation, sale of
assets, combination of shares, stock split, spinoff or split-off),
promissory note or other instrument, (ii) option or right, whether as an
addition to, substitution for, or in exchange for, any Pledged
Collateral, or otherwise, (iii) dividends payable in cash (except such
dividends permitted to be retained by the Pledgor pursuant to Section
7(a) hereof) or in securities or other property or (iv) dividends or
other distributions in connection with a partial or total liquidation or
dissolution or in connection with a reduction of capital, capital
surplus or paid-in surplus, the Pledgor shall receive such stock
certificate, promissory note, instrument, option, right, payment or
distribution in trust for the benefit of the Collateral Agent, shall
segregate it from the Pledgor's other property and shall deliver it
forthwith to the Collateral Agent in the exact form received, with any
necessary indorsement and/or appropriate stock powers duly executed in
blank, to be held by the Collateral Agent as Pledged Collateral and as
further collateral security for the Obligations.
SECTION 5. REPRESENTATIONS AND WARRANTIES. The Pledgor represents
and warrants as follows:
(a) The Pledgor (i) is a limited partnership duly organized,
validly existing and in good standing under the laws of the state of its
organization as set forth on the first page hereof and (ii) has all
requisite power and authority to execute, deliver and perform this
Agreement.
(b) The execution, delivery and performance by the Pledgor
of this Agreement (i) have been duly authorized by all necessary
partnership action, (ii) do not and will not contravene its Partnership
Agreement, any law or any contractual restriction binding on or
affecting the Pledgor or any of its properties, and (iii) do not and
will not result in or require the creation of any lien, security
interest or other charge or encumbrance upon or with respect to any of
its properties, other than in favor of the Collateral Agent. The
exercise by the Collateral Agent of its rights and remedies under this
Agreement (including, without limitation, the sale or other disposition
of the Pledged Shares) will not violate any contractual restriction
binding on or affecting the Pledgor or the Pledged Shares.
(c) This Agreement constitutes the legal, valid and binding
obligation of the Pledgor, enforceable against the Pledgor in accordance
with its terms.
(d) The Pledged Shares are fully paid and nonassessable and,
to the best of the Pledgor's knowledge, have been duly authorized and
validly issued. All other shares of stock constituting Pledged
Collateral will be duly authorized and validly issued, fully paid and
nonassessable. The Pledgor has legally and beneficially owned the
Pledged Shares since April 23, 1993. The information set forth in
Schedule I hereto is true and correct.
(e) There is no action, suit or proceeding pending or, to
the Pledgor's knowledge, threatened or otherwise affecting the Pledgor
before any court or other governmental authority or arbitrator that is
reasonably likely to materially adversely affect the financial condition
of the Pledgor or the Pledgor's ability to perform its obligations
hereunder and under the other Loan Documents.
(f) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or other regulatory
body or any other Person is required for (i) the due execution, delivery
and performance by the Pledgor of this Agreement or the other Loan
Documents to which the Pledgor is a party, (ii) the grant by the
Pledgor, or the perfection, of the security interest purported to be
created hereby in the Pledged Collateral or (iii) the exercise by the
Collateral Agent of any of its rights and remedies hereunder.
(g) The Pledgor is and will be at all times the legal and
beneficial owner of the Pledged Collateral, free and clear of any lien,
security interest, option or other charge or encumbrance except for the
security interest created by this Agreement. There is no financing
statement naming the Pledgor as debtor (or similar documents or
instrument of registration under the law of any jurisdiction) now on
file or registered in any public office covering any interest of the
Pledgor in the Pledged Collateral.
(h) This Agreement creates a valid security interest in
favor of the Collateral Agent in the Pledged Collateral, as security for
the Obligations. The Collateral Agent's having possession of the Pledged
Shares and all other certificates, instruments and cash constituting
Pledged Collateral from time to time results in the perfection of such
security interest. Such security interest is, or in the case of Pledged
Collateral in which the Pledgor obtains rights after the date hereof,
will be, a perfected, first priority security interest. All action
necessary or desirable to perfect and protect such security interest has
been duly taken, except for the Collateral Agent's having possession of
certificates, instruments and cash constituting Pledged Collateral after
the date hereof.
(i) The information on Exhibit A hereto (the Restricted
Securities Statement) is accurate and complete.
(j) The Pledgor has furnished the Collateral Agent with a
true, correct and complete copy of the Registration Rights Agreement and
each other registration rights and other agreement in respect of or
otherwise affecting any of the Pledged Shares in existence on the date
hereof.
SECTION 6. COVENANTS AS TO THE PLEDGED COLLATERAL. So long as any
of the Obligations shall remain outstanding or the Bank shall have any
Commitment under either Credit Agreement, unless the Collateral Agent shall
otherwise consent in writing:
(a) RECORDS. The Pledgor will keep adequate records
concerning the Pledged Collateral and permit the Collateral Agent or any
agents or representatives of the Collateral Agent at any reasonable time
and from time to time to examine and make copies of and abstracts from
such records.
(b) NOTICES. The Pledgor will, at the expense of the
Pledgor, promptly deliver to the Collateral Agent a copy of each notice
or other communication received by it from any Governmental Authority or
the Issuer in respect of the Pledged Collateral, together with a copy of
any reply by the Pledgor thereto.
(c) DEFEND TITLE. The Pledgor will (at the expense of the
Pledgor) defend its right, title and interest in and to the Pledged
Collateral against the claims of any Person.
(d) FURTHER ASSURANCES. The Pledgor will, at the Pledgor's
expense, at any time and from time to time, promptly execute and deliver
all further instruments and documents and take all further action that
may be necessary or desirable or that the Collateral Agent may
reasonably request in order (i) to perfect and protect the security
interest created or purported to be created hereby (whether pursuant to
laws, rules, regulations or general practices currently in effect or
adopted subsequent to the date hereof); (ii) to enable the Collateral
Agent to exercise and enforce its rights and remedies hereunder in
respect of the Pledged Collateral (including, without limitation, by
executing one or more Forms 144); or (iii) to otherwise effect the
purposes of this Agreement, including, without limitation: (A) at the
request of the Collateral Agent, marking conspicuously each of the
records of the Pledgor pertaining to the Pledged Collateral with a
legend, in form and substance satisfactory to the Collateral Agent,
indicating that such Pledged Collateral is subject to the security
interest created hereby; (B) if any Pledged Collateral shall be
evidenced by a promissory note or other instrument or chattel paper,
delivering and pledging to the Collateral Agent hereunder such note,
instrument or chattel paper duly indorsed and accompanied by executed
instruments of transfer or assignment, all in form and substance
satisfactory to the Collateral Agent; (C) delivering to the Collateral
Agent irrevocable proxies in respect of the Pledged Collateral and
executing and filing such financing or continuation statements, or
amendments thereto, as may be necessary or desirable or that the
Collateral Agent may request in order to perfect and preserve the
security interest created or purported to be created hereby; and (D)
furnishing to the Collateral Agent from time to time statements and
schedules further identifying and describing the Pledged Collateral and
such other reports in connection with the Pledged Collateral as the
Collateral Agent may reasonably request, all in reasonable detail.
(e) TRANSFERS AND OTHER LIENS AND RESTRICTIONS.
(i) The Pledgor will not (i) sell, assign (by
operation of law or otherwise), exchange or otherwise dispose of any of
the Pledged Collateral (except as permitted by Section 7(a) hereof); or
(ii)
(ii) The Pledgor will not sell any securities of the
same class or convertible into the same class of securities as the
Pledged Shares, whether or not such securities are pledged hereunder,
and in the event of any such sale consented to by the Collateral Agent
will furnish the Collateral Agent with a copy of any Form 144 filed in
respect of such sale. The Pledgor will cause any Person with whom it
shall be deemed one "person" for purposes of Rule 144(a)(2) (the Pledgor
and all such parties being hereinafter collectively referred to as the
"ATTRIBUTION GROUP") to refrain from selling any securities of the same
class or convertible into the same class of securities as the Pledged
Shares, whether or not such securities are pledged hereunder, and in the
event of any such sale consented to by the Collateral Agent will furnish
the Collateral Agent with a copy of any Form 144 filed in respect of
such sale.
(iii) The Pledgor will cooperate fully with the
Collateral Agent with respect to any sale by the Collateral Agent of any
of the Pledged Collateral after the occurrence and during the
continuance of an Event of Default, including full and complete
compliance with all requirements of Rule 144, and will give to the
Collateral Agent all information and will do all things necessary,
including the execution of all documents, forms, instruments and other
items, to comply with Rule 144 for the complete and unrestricted sale
and/or transfer of any or all of the Pledged Collateral.
(f) LIEN. The Pledgor will not create or suffer to exist any
(i) Lien upon or with respect to any of the Pledged Collateral except
for the security interests created by this Agreement or (ii) any
contractual restriction on the transferability of any of the Pledged
Collateral (including, without limitation, any market standoff or other
"lock-up" agreement) other than the restriction in the Registration
Rights Agreement (as in effect on the date hereof), which applies only
to the Pledgor (and not to any sale or disposition of the Pledged
Collateral by the Bank).
(g) AGREEMENTS AFFECTING PLEDGED COLLATERAL. The Pledgor
will not make or consent to any amendment or other modification or
waiver with respect to any of the Pledged Collateral (including, without
limitation, to the Registration Rights Agreement), or enter into any
agreement or permit to exist any restriction with respect to any of the
Pledged Collateral other than pursuant hereto.
(h) OTHER ACTIONS. The Pledgor will not take or fail to take
any action that would in any manner impair the value or enforceability
of the Collateral Agent's security interest in the Pledged Collateral.
SECTION 7. VOTING RIGHTS, DIVIDENDS, ETC. IN RESPECT OF THE PLEDGED
COLLATERAL; WITHDRAWAL AND SALE OF PLEDGED COLLATERAL.
(a) So long as no Event of Default or event that, with the
giving of notice or lapse of time or both, would constitute an Event of
Default shall have occurred and be continuing:
(i) the Pledgor may exercise any and all voting and
other consensual rights pertaining to the Pledged Collateral in a manner
not inconsistent with the terms of this Agreement;
(ii) the Pledgor may receive and retain any and all
dividends, principal or interest paid in respect of the Pledged
Collateral; PROVIDED, HOWEVER, that any and all (A) dividends and
interest paid or payable other than in cash in respect of, and
instruments and other property received, receivable or otherwise
distributed in respect of or in exchange for, any Pledged Collateral
(including, without limitation, shares of stock or other instruments
issued in respect of any "spin-off" of any division or subsidiary of the
Issuer), (B) dividends and other distributions paid or payable in cash
in respect of any Pledged Collateral in connection with a partial or
total liquidation or dissolution or in connection with a reduction of
capital, capital surplus or paid-in-surplus, and (C) cash paid, payable
or otherwise distributed in redemption of, or in exchange for, any
Pledged Collateral, shall be, and shall forthwith be delivered to the
Collateral Agent to hold as, Pledged Collateral and shall, if received
by the Pledgor, be received in trust for the benefit of the Collateral
Agent, shall be segregated from the other property or funds of the
Pledgor, and shall be forthwith delivered to the Collateral Agent in the
exact form received with any necessary indorsement and/or appropriate
stock powers duly executed in blank, to be held by the Collateral Agent
as Pledged Collateral and as further collateral security for the
Obligations; and
(iii) the Collateral Agent will execute and deliver
(or cause to be executed and delivered) to the Pledgor all such proxies
and other instruments as the Pledgor may reasonably request for the
purpose of enabling the Pledgor to exercise the voting and other rights
that the Pledgor is entitled to exercise pursuant to paragraph (i) of
this Section 7(a) and to receive the dividends that it is authorized to
receive and retain pursuant to paragraph (ii) of this Section 7(a).
(b) Upon the occurrence and during the continuance of any
Default or Event of Default:
(i) all rights of the Pledgor to exercise the voting
and other consensual rights that the Pledgor would otherwise be entitled
to exercise pursuant to paragraph (i) of this Section 7(a), and to
receive the dividends and interest payments and other distributions that
the Pledgor would otherwise be authorized to receive and retain pursuant
to paragraph (ii) of this Section 7(a), shall cease, and (A) all such
rights shall thereupon become vested in the Collateral Agent, which
shall thereupon have the sole right to exercise such voting and other
consensual rights and to receive and hold as Pledged Collateral such
dividends and interest payments, and (B) the Pledgor shall execute and
deliver all such proxies and other instruments as the Collateral Agent
may reasonably request for the purpose of enabling the Collateral Agent
to exercise the voting and other rights that it is entitled to exercise
pursuant to this Section 7(b)(i);
(ii) without limiting the generality of the
foregoing, the Collateral Agent may at its option exercise any and all
rights of conversion, exchange, subscription or any other rights,
privileges or options pertaining to any of the Pledged Collateral as if
it were the absolute owner thereof, including, without limitation, the
right to exchange, in its discretion, any and all of the Pledged
Collateral upon the merger, consolidation, reorganization,
recapitalization or other adjustment of any issuer of Pledged
Collateral, or upon the exercise by any issuer of Pledged Collateral of
any right, privilege or option pertaining to any Pledged Collateral,
and, in connection therewith, to deposit and deliver any and all of the
Pledged Collateral with any committee, depository, transfer agent,
registrar or other designated agent upon such terms and conditions as it
may determine; and
(iii) all dividends and interest payments and other
distributions that are received by the Pledgor contrary to the
provisions of paragraph (i) of this Section 7(b) shall be received in
trust for the benefit of the Collateral Agent, shall be segregated from
the other funds of the Pledgor, and shall be forthwith paid over to the
Collateral Agent as Pledged Collateral in the exact form received with
any necessary indorsement and/or appropriate stock powers duly executed
in blank, to be held by the Collateral Agent as Pledged Collateral
hereunder.
SECTION 8. ADDITIONAL PROVISIONS CONCERNING THE PLEDGED COLLATERAL.
(a) The Pledgor hereby authorizes the Collateral Agent to
file, without the signatures of the Pledgor where permitted by law, one
or more financing or continuation statements, and amendments thereto,
relating to the Pledged Collateral. The Collateral Agent hereby agrees
to notify the Pledgor promptly after any such filing.
(b) The Pledgor hereby irrevocably appoints the Collateral
Agent the Pledgor's attorney-in-fact and proxy, with full authority in
the place and stead of the Pledgor and in the name of the Pledgor or
otherwise, from time to time in the Collateral Agent's discretion, to
take any action and to execute any instrument (at the expense of the
Pledgor) that the Collateral Agent may reasonably deem necessary or
advisable to accomplish the purposes of this Agreement including,
without limitation, (i) at any time and from time to time, to receive,
indorse and collect all instruments made payable to the Pledgor
representing any distribution in respect of any Pledged Collateral and
to give full discharge for the same, (ii) to complete, execute and file
a Form 144 with respect to any of the Pledged Collateral and (iii) to
receive, endorse and collect any drafts or other instruments, documents
and chattel paper representing any dividend or other distribution in
respect of the Pledged Collateral and, in addition to the foregoing and
without limitation: (A) to ask, demand, collect, xxx for, recover,
compound, receive and give acquittance and receipts for moneys due and
to become due under or in respect of any of the Pledged Collateral and
to receive, indorse, and collect any drafts or other instruments,
documents and chattel paper in connection therewith; and (B) to file any
claims or take any action or institute any proceedings that the
Collateral Agent may deem necessary or desirable for the collection of
any of the Pledged Collateral or otherwise to enforce the rights of the
Collateral Agent with respect to any of the Pledged Collateral;
PROVIDED, HOWEVER, that the Collateral Agent shall exercise such powers
only during the occurrence and continuance of an Event of Default.
(c) If the Pledgor fails to perform any agreement contained
herein, the Collateral Agent (immediately after giving notice to the
Pledgor) may itself perform, or cause performance of, such agreement or
obligation, and the expenses of the Collateral Agent incurred in
connection therewith shall be payable by the Pledgor pursuant to Section
10 hereof, together with interest from the date such expenses are paid
by the Collateral Agent until repaid in full, at the rate for overdue
principal under either Credit Agreement (or, if each Credit Agreement
has been terminated, under either Term Agreement), all payable on
demand.
(d) The powers conferred on the Collateral Agent hereunder
are solely to protect its interest in the Pledged Collateral and shall
not impose any duty upon it to exercise any such powers. Except for the
exercise of reasonable care to assure the safe custody of any Pledged
Collateral in its possession, the Collateral Agent shall have no duty or
liability to preserve rights pertaining thereto and shall be relieved of
all responsibility for the Pledged Collateral upon surrendering it or
tendering surrender of it to the Pledgor. The Collateral Agent shall be
deemed to have exercised reasonable care in the custody and preservation
of the Pledged Collateral in its possession if the Pledged Collateral is
accorded treatment substantially equal to that the Collateral Agent
accords its own property, it being understood that the Collateral Agent
shall not have responsibility for (i) ascertaining or taking action with
respect to calls, conversions, exchanges, maturities, tenders or other
matters relating to any Pledged Collateral, whether or not the
Collateral Agent has or is deemed to have knowledge of such matters, or
(ii) taking any necessary steps to preserve rights against any parties
with respect to any Pledged Collateral.
(e) The Collateral Agent may at any time in its discretion
(i) subject only to the revocable rights of the
Pledgor under Section 7(a) hereof and so long as an Event of Default has
occurred and is continuing, without notice to the Pledgor, transfer or
register in the name of the Collateral Agent or any of its nominees any
or all of the Pledged Collateral, and (ii) exchange certificates or
instruments constituting Pledged Collateral for certificates or
instruments of smaller or larger denominations.
SECTION 9. REMEDIES UPON EVENT OF DEFAULT. If any Event of Default
shall have occurred and be continuing:
(a) The Collateral Agent may exercise in respect of the
Pledged Collateral, in addition to other rights and remedies provided
for herein or otherwise available to it, all of the rights and remedies
of a secured party on default under the Code then in effect in the State
of New York (whether or not the Code applies to the affected Pledged
Collateral); and without limiting the generality of the foregoing, also
may (i) without notice except as specified below, sell the Pledged
Collateral or any part thereof in one or more parcels at public or
private sale, at any exchange or broker's board or elsewhere, at such
price or prices and on such other terms as the Collateral Agent may deem
commercially reasonable. The Pledgor agrees that, to the extent notice
of sale shall be required by law, at least 10 days' notice to the
Pledgor of the time and place of any public sale or the time after which
any private sale is to be made shall constitute reasonable notification.
The Collateral Agent shall not be obligated to make any sale of Pledged
Collateral regardless of notice of sale having been given. The
Collateral Agent may adjourn any public or private sale from time to
time by announcement at the time and place fixed therefor, and such sale
may, without further notice, be made at the time and place to which it
was so adjourned. The Pledgor agrees to complete and execute one or more
Forms 144, and to cooperate in the completion and execution of one or
more Forms 144 if completed and executed by the Collateral Agent, to the
extent necessary or desirable to permit a sale of the Pledged Collateral
in compliance with Rule 144.
(b) The Pledgor agrees that in any sale of any Pledged
Collateral hereunder the Collateral Agent is hereby authorized to comply
with any limitation or restriction in connection with such sale as it
may be advised by counsel is necessary in order to avoid any violation
of applicable law, rule or regulation (including, without limitation,
compliance with such procedures as may restrict the number of
prospective bidders and purchasers, require that such prospective
bidders and purchasers have certain qualifications, and restrict such
prospective bidders and purchases to persons who will represent and
agree that they are purchasing for their own account for investment and
not with a view to the distribution or resale of such Pledged
Collateral), or in order to obtain any required approval of the sale or
of the purchasers by any governmental regulatory authority or official,
and the Pledgor further agrees that such compliance shall not result in
such sale being considered or deemed not to have been made in a
commercially reasonable manner, nor shall the Collateral Agent be liable
or accountable to the Pledgor for any discount allowed by reason of the
fact that such Pledged Collateral is sold in compliance with any such
limitation or restriction.
(c) Notwithstanding the provisions of subsection (b) of this
Section 9, the Pledgor recognizes that the Collateral Agent may deem it
impracticable to effect a public sale of all or any part of the Pledged
Collateral and that the Collateral Agent may, therefore, determine to
make one or more private sales of any such Pledged Collateral to a
restricted group of purchasers who will be obligated to agree, among
other things, to acquire such Pledged Collateral for their own account,
for investment and not with a view to the distribution or resale
thereof. The Pledgor acknowledges that any such private sale may be at
prices and on terms less favorable to the seller than the prices and
other terms that might have been obtained at a public sale and,
notwithstanding the foregoing, agrees that such private sales shall be
deemed to have been made in a commercially reasonable manner and that
the Collateral Agent shall have no obligation to delay sale of any such
securities for the period of time necessary to permit the issuer of any
securities constituting Pledged Collateral (the "SECURITIES") to
register such Securities for public sale under the Securities Act of
1933. The Pledgor further acknowledges and agrees that any offer to sell
such Securities that has been (i) publicly advertised on a BONA FIDE
basis in a newspaper or other publication of general circulation in the
financial community of New York, New York (to the extent that such an
offer may be so advertised without prior registration under the
Securities Act of 1933) or (ii) made privately in the manner described
above to not less than fifteen BONA FIDE offerees shall be deemed to
involve a "public sale" for the purposes of Section 9-504(3) of the UCC
(or any successor or similar, applicable statutory provision) as then in
effect in the State of New York, notwithstanding that such sale may not
constitute a "public offering" under the Securities Act of 1933, and
that the Collateral Agent may, in such event, bid for and purchase such
Securities.
(d) Any cash held by the Collateral Agent as Pledged
Collateral and all cash proceeds received by the Collateral Agent in
respect of any sale of, collection from, or other realization upon, all
or any part of the Pledged Collateral may, in the discretion of the
Collateral Agent, be held by the Collateral Agent as collateral for,
and/or then or at any time thereafter applied (after payment of any
amounts payable to the Collateral Agent pursuant to Section 10 hereof)
in whole or in part by the Collateral Agent against, all or any part of
the Obligations in such order as the Collateral Agent shall elect. Any
surplus of such cash or cash proceeds held by the Collateral Agent and
remaining after payment in full of all of the Obligations after the
termination of the Commitments shall be paid over to the Pledgor or to
such Person as may be lawfully entitled to receive such surplus.
SECTION 10. INDEMNITY AND EXPENSES.
(a) The Pledgor agrees to indemnify the Collateral Agent
from and against any and all claims, losses and liabilities (including,
without limitation, the reasonable fees, client charges and other
expenses of the Collateral Agent's counsel) growing out of or resulting
from this Agreement or the enforcement of any of the terms hereof
(including, without limitation, the sale of Pledged Collateral pursuant
to a public or private offering and each and every document produced in
furtherance thereof), except claims, losses or liabilities resulting
solely and directly from the Collateral Agent's gross negligence or
willful misconduct.
(b) The Pledgor agrees to pay to the Collateral Agent on
demand the amount of any and all costs and expenses, including the
reasonable fees and other client charges of the Collateral Agent's
counsel and of any experts and agents, that the Collateral Agent may
incur in connection with (i) the administration and termination of this
Agreement, (ii) the custody, preservation, use or operation of, or the
sale of, collection from, or other realization upon, any of the Pledged
Collateral (including, without limitation, fees or commissions of any
broker), (iii) the exercise or enforcement of any of the rights of the
Collateral Agent hereunder, (iv) the failure by the Pledgor to perform
or observe any of the provisions hereof.
SECTION 11. NOTICES, ETC. All notices and other communications
provided for hereunder shall be in writing and shall be mailed, telegraphed or
delivered, if to the Pledgor, to the Pledgor at 000 Xxxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, [ REDACTED ], with a copy to Xxxx, Weiss, Rifkind,
Xxxxxxx & Xxxxxxxx, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx Xxx Xxxx 00000.
Attention: Xxxxx Xxxxxx, Esq.; if to the Collateral Agent, to it at its address
at NationsBank, N.A., 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000,
with copies to NationsBank, N.A., 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000-0000, Attention: Xx. Xxxx X. Xxxxxx, Senior Vice President, [
REDACTED ], and Xxxxxxx Xxxx & Xxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxxxx X. Xxxxxxxx, Esq.; or as to any such Person at such
other address as shall be designated by such Person in a written notice to such
other Persons complying as to delivery with the terms of this Section 11. All
such notices and other communications shall be effective (i) if mailed, when
received or three days after mailing, whichever is earlier; (ii) if telecopied,
when received; (iii) if telegraphed, when delivered to the telegraph company; or
(iv) if delivered, upon delivery.
SECTION 12. MISCELLANEOUS.
(a) No amendment of any provision of this Agreement shall be
effective unless it is in writing and signed by the Pledgor and the
Collateral Agent, and no waiver of any provision of this Agreement, and
no consent to any departure by the Pledgor therefrom, shall be effective
unless it is in writing and signed by the Collateral Agent, and then
such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given.
(b) No failure on the part of the Collateral Agent to
exercise, and no delay in exercising, any right hereunder or under any
other Loan Document shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other or
further exercise thereof or the exercise of any other right. The rights
and remedies of the Collateral Agent provided herein and in the other
Loan Documents are cumulative and are in addition to, and not exclusive
of, any rights or remedies provided by law. The rights of the Collateral
Agent against the Pledgor under any Loan Document are not conditional or
contingent on any attempt by the Collateral Agent to exercise any of its
rights under any other Loan Document against the Pledgor or against any
other Person.
(c) Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining portions hereof or thereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
(d) This Agreement shall create a continuing security
interest in the Pledged Collateral and shall (i) remain in full force
and effect until the payment in full or release of the Obligations and
the termination of the Commitments, and (ii) be binding on the Pledgor
and its successors and assigns and shall inure, together with all rights
and remedies of the Collateral Agent hereunder, to the benefit of the
Collateral Agent and its successors, transferees and assigns. Without
limiting the generality of clause (ii) of the immediately preceding
sentence, the Bank may not assign or otherwise transfer its interests
hereunder or under any other Loan Document; PROVIDED, HOWEVER, the Bank
may assign or transfer, as collateral or otherwise, any or all of its
interest hereunder and under the other Loan Documents in accordance with
the applicable provisions of the other Loan Documents. None of the
rights or obligations of the Pledgor hereunder may be assigned or
otherwise transferred without the prior written consent of the
Collateral Agent.
(e) Upon the satisfaction in full of the Obligations and the
termination of the Commitments, (i) this Agreement and the security
interest created hereby shall terminate and all rights to the Pledged
Collateral shall revert to the Pledgor, and (ii) the Collateral Agent
will, upon the Pledgor's request and at the Pledgor's expense, (A)
return to the Pledgor such of the Pledged Collateral as shall not have
been sold or otherwise disposed of or applied pursuant to the terms
hereof and (B) execute and deliver to the Pledgor such documents as the
Pledgor shall reasonably request to evidence such termination.
(f) This Agreement shall be governed by and construed in
accordance with the law of the State of New York, except as required by
mandatory provisions of law and except to the extent that the validity
or perfection and the effect of perfection or non-perfection of the
security interest created hereby, or remedies hereunder, in respect of
any particular Pledged Collateral are governed by the law of a
jurisdiction other than the State of New York.
(g) NOTHING IN THIS AGREEMENT IS INTENDED TO BE AN AMENDMENT
OR MODIFICATION OF, OR LIMITATION OR RESTRICTION UPON, ANY PROVISION OF
THE CREDIT AGREEMENTS (INCLUDING, WITHOUT LIMITATION, THE BORROWERS'
OBLIGATIONS TO PAY THE PRINCIPAL OF AND INTEREST ON THE LOANS MADE
PURSUANT TO THE CREDIT AGREEMENTS UPON DEMAND), AND THE PROVISIONS OF
THE CREDIT AGREEMENTS AND RELATED NOTES SHALL BE CONTROLLING AND FULLY
EFFECTIVE REGARDLESS OF ANYTHING HEREIN TO THE CONTRARY. THE PLEDGOR
HEREBY ACKNOWLEDGES THAT THE BANK MAY, AT ANY TIME, IN ITS SOLE AND
ABSOLUTE DISCRETION, DEMAND PAYMENT OF THE INDEBTEDNESS EVIDENCED BY THE
CREDIT AGREEMENTS AND THE RELATED NOTES EVEN IF THE PLEDGOR HAS FULLY
COMPLIED WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
SECTION 13. SECURITY INTEREST ABSOLUTE. All rights of the Collateral
Agent, all security interests and all obligations of the Pledgor hereunder shall
be absolute and unconditional irrespective of (i) any lack of validity or
enforceability of any Loan Document or any other agreement, instrument or
document relating thereto, (ii) any change in the time, manner or place of
payment of, or in any other term in respect of, all or any of the Obligations,
or any other amendment or waiver of or consent to any departure from any Loan
Document or any other agreement, instrument or document relating thereto, (iii)
any exchange or release of, or non-perfection of any lien on or security
interest in, any collateral for any of the Obligations, or any release or
amendment or waiver of or consent to departure from any guaranty, for all or any
of the Obligations or (iv) any other circumstance which might otherwise
constitute a defense available to, or a discharge of, the Borrower in respect of
any of their obligations under a Credit Agreement or Term Agreement, or the
Pledgor in respect of any of the Obligations.
SECTION 14. ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG
THE PARTIES HERETO INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR ANY RELATED INSTRUMENTS, AGREEMENTS OR DOCUMENTS, INCLUDING
ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED TORT, SHALL BE DETERMINED BY
BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION ACT (OR IF NOT
APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF PRACTICE AND PROCEDURE FOR
THE ARBITRATION OF COMMERCIAL DISPUTES OF J.A.M.S./ENDISPUTE OR ANY SUCCESSOR
THEREOF ("J.A.M.S."), AND THE "SPECIAL RULES" SET FORTH BELOW. IN THE EVENT OF
ANY INCONSISTENCY, THE SPECIAL RULES SHALL CONTROL. JUDGMENT UPON ANY
ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. ANY PARTY TO
THIS AGREEMENT MAY BRING AN ACTION, INCLUDING A SUMMARY OR EXPEDITED PROCEEDING,
TO COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM TO WHICH THIS AGREEMENT
APPLIES IN ANY COURT HAVING JURISDICTION OVER SUCH ACTION.
(i) SPECIAL RULES. THE ARBITRATION SHALL BE
CONDUCTED IN THE COUNTY OF PLEDGOR'S OFFICE REFERRED TO IN SECTION 11
HEREOF AT THE TIME OF THE EXECUTION OF THIS AGREEMENT AND ADMINISTERED
BY J.A.M.S. WHO WILL APPOINT AN ARBITRATOR; IF J.A.M.S. IS UNABLE OR
LEGALLY PRECLUDED FROM ADMINISTERING THE ARBITRATION, THEN THE AMERICAN
ARBITRATION ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL BE
COMMENCED WITHIN 90 DAYS OF THE DEMAND FOR ARBITRATION; FURTHER, THE
ARBITRATOR SHALL ONLY, UPON A SHOWING OF CAUSE, BE PERMITTED TO EXTEND
THE COMMENCEMENT OF SUCH HEARING FOR UP TO AN ADDITIONAL 60 DAYS.
(ii) RESERVATION OF RIGHTS. NOTHING IN THIS
ARBITRATION PROVISION SHALL BE DEEMED TO (I) LIMIT THE APPLICABILITY OF
ANY OTHERWISE APPLICABLE STATUTES OF LIMITATION OR REPOSE AND ANY
WAIVERS CONTAINED IN THIS INSTRUMENT, AGREEMENT, OR DOCUMENT; OR (II) BE
A WAIVER BY THE COLLATERAL AGENT OF THE PROTECTION AFFORDED TO IT BY 12
U.S.C. SEC. 91 OR ANY SUBSTANTIALLY EQUIVALENT STATE LAW; OR (III) LIMIT
THE RIGHT OF THE COLLATERAL AGENT HERETO (A) TO EXERCISE SELF HELP
REMEDIES SUCH AS (BUT NOT LIMITED TO) SETOFF, OR (B) TO FORECLOSE
AGAINST ANY REAL OR PERSONAL PROPERTY COLLATERAL, OR (C) TO OBTAIN FROM
A COURT PROVISIONAL OR ANCILLARY REMEDIES SUCH AS (BUT NOT LIMITED TO)
INJUNCTIVE RELIEF, WRIT OF POSSESSION OR THE APPOINTMENT OF A RECEIVER.
THE COLLATERAL AGENT MAY EXERCISE SUCH SELF HELP RIGHTS, FORECLOSE UPON
SUCH PROPERTY, OR OBTAIN SUCH PROVISIONAL OR ANCILLARY REMEDIES BEFORE,
DURING OR AFTER THE PENDENCY OF ANY ARBITRATION PROCEEDING BROUGHT
PURSUANT TO THIS AGREEMENT. NEITHER THIS EXERCISE OF SELF HELP REMEDIES
NOR THE INSTITUTION OR MAINTENANCE OF AN ACTION FOR FORECLOSURE OR
PROVISIONAL OR ANCILLARY REMEDIES SHALL CONSTITUTE A WAIVER OF THE RIGHT
OF ANY PARTY, INCLUDING THE CLAIMANT IN ANY SUCH ACTION, TO ARBITRATE
THE MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH
REMEDIES.
SECTION 15. OTHER AGREEMENTS.THIS WRITTEN AGREEMENT AND THE OTHER
LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
IN WITNESS WHEREOF, the Pledgor has caused this Agreement to be
executed and delivered by its duly authorized partners on the date first above
written.
DWG ACQUISITION GROUP, L.P.
By: Xxxxxx Xxxxx
--------------------------------
Xxxxxx Xxxxx, a General Partner
By: /s/ Xxxxx Xxx
--------------------------------
Xxxxx Xxx, a General Partner
Acknowledged and Consented to:
NATIONSBANK, N.A., as collateral agent
for itself and for NationsBank of Florida, N.A.
--------------------
By: Xxxx X. Xxxxxx
Title: Senior Vice President
AMENDMENT NO. 1 TO
PLEDGE AND SECURITY AGREEMENT
AMENDMENT NO. 1 dated January 31, 1996, to the PLEDGE AND SECURITY
AGREEMENT, dated January 25, 1996 (the "PLEDGE AGREEMENT"), made by DWG
ACQUISITION GROUP, L.P., a Delaware limited partnership (the "PLEDGOR"), in
favor of NATIONSBANK, N.A. (the "BANK"), as collateral agent for the Bank,
NATIONSBANK OF FLORIDA, N.A. (the "FLORIDA BANK") and the permitted successors
and assigns of the Bank and the Florida Bank (in such capacity, the "COLLATERAL
AGENT").
The Pledgor and the Collateral Agent are parties to the Pledge
Agreement, providing for the pledge to the Collateral Agent of, and the grant to
the Collateral Agent of a security interest in, certain of the outstanding
shares of capital stock issued by Triarc Companies, Inc., a Delaware corporation
("TRIARC"), which are owned by the Pledgor, as collateral security for certain
loans made by the Bank (the "LOANS") to Xxxxxx Xxxxx, Xxxxxxx Xxxxx, Xxxxx Xxx
and Xxxx May and certain other obligations. The Pledgor desires to pledge
additional shares of the common stock of Triarc as collateral for the Loans and
other obligations, and the Collateral Agent is willing to accept such pledge,
subject to the terms and conditions of the Loan Documents.
NOW, THEREFORE, in consideration of the premises and the agreements
herein and in order to induce the Bank to make and maintain the Loans, the
Pledgor hereby agrees with the Collateral Agent as follows:
1. DEFINITIONS. All terms used herein which are defined in the
Pledge Agreement and not otherwise defined herein are used herein as defined
therein.
2. SCHEDULE. Schedule I of the Pledge Agreement is hereby deleted
in its entirety, and Annex A hereto is hereby substituted therefor. Any and all
references to Schedule I in the Pledge Agreement shall be deemed to refer to
Annex A hereto, and all references to "Pledged Shares" in the Pledge Agreement
shall mean the shares of stock described in item 1 of Annex A hereto.
3. REPRESENTATIONS AND WARRANTIES. The Pledgor hereby represents
and warrants to the Collateral Agent as follows:
(a) The representations and warranties made by the Pledgor
in the Pledge Agreement and in each other Loan Document to which it is a party
delivered to the Bank on or prior to the date hereof are true and correct on and
as of the date hereof as though made on and as of the date hereof (except to the
extent such representations and warranties expressly relate to an earlier date).
No Default or Event of Default has occurred and is continuing, or would result
from the execution and delivery of this Amendment No. 1.
(b) The Pledgor (i) is a limited partnership duly organized,
validly existing and in good standing under the laws of the state of its
organization as set forth on the first page hereof and (ii) has all requisite
power and authority to execute, deliver and perform this Amendment and to
perform the Pledge Agreement, as amended hereby.
(c) The execution, delivery and performance by the Pledgor
of this Amendment, and the performance by the Pledgor of the Pledge Agreement,
as amended hereby, (i) have been duly authorized by all necessary partnership
action, (ii) do not and will not contravene its Partnership Agreement, any law
or any contractual restriction binding on or affecting the Pledgor or any of its
properties, and (iii) do not and will not result in or require the creation of
any lien, security interest or other charge or encumbrance upon or with respect
to any of its properties, other than in favor of the Collateral Agent. The
exercise by the Collateral Agent of its rights and remedies under this Amendment
or under the Pledge Agreement, as amended hereby (including, without limitation,
the sale or other disposition of the Pledged Shares) will not violate any
contractual restriction binding on or affecting the Pledgor or the Pledged
Shares.
(d) Each of this Amendment and the Pledge Agreement, as
amended hereby, constitutes the legal, valid and binding obligation of the
Pledgor, enforceable against the Pledgor in accordance with its terms.
4. CONTINUED EFFECTIVENESS OF THE PLEDGE AGREEMENT. Except as
otherwise expressly provided herein, the Pledge Agreement and the other Loan
Documents to which the Pledgor is a party are, and shall continue to be, in full
force and effect and are hereby ratified and confirmed in all respects except
that on and after the date hereof (i) all references in the Pledge Agreement to
"this Agreement", "hereto", "hereof", "hereunder" or words of like import
referring to the Pledge Agreement shall mean the Pledge Agreement as amended by
this Amendment, and (ii) all references in the other Loan Documents to which the
Pledgor is a party to the "Triarc Pledge Agreement", "thereto", "thereof",
"thereunder" or words of like import referring to the Pledge Agreement shall
mean the Pledge Agreement as amended by this Amendment. Except as expressly
provided herein, the execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of the Collateral
Agent under the Pledge Agreement or any other Loan Document, nor constitute a
waiver of any provision of the Pledge Agreement.
5. COUNTERPARTS. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which shall be deemed to be an original, but all of which taken together shall
constitute one and the same agreement.
6. HEADINGS. Section headings herein are included for convenience
of reference only and shall not constitute a part of this Amendment for any
other purpose.
7. GOVERNING LAW. This Amendment shall be governed by, and
construed in accordance with, the law of the State of New York.
8. AMENDMENT AS LOAN DOCUMENT. The Pledgor hereby acknowledges and
agrees that this Amendment constitutes a "Loan Document." Accordingly, it shall
be an Event of Default under each Credit Agreement if (i) any representation or
warranty made by the Pledgor under or in connection with this Amendment shall
have been untrue, false or misleading in any material respect when made, or (ii)
the Pledgor shall fail to perform or observe any term, covenant or agreement
contained in this Amendment.
9. EFFECTIVENESS. This Amendment shall become effective on the date
as of which the Collateral Agent shall have received this Amendment, duly
executed by the Pledgor.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered as of the date first above written.
DWG ACQUISITION GROUP, L.P.
By: /s/ Xxxxxx Xxxxx
--------------------------------
Xxxxxx Xxxxx, General Partner
By: /s/ Xxxxx Xxx
--------------------------------
Xxxxx Xxx, General Partner
NATIONSBANK, N.A., as collateral agent
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Xxxx X. Xxxxxx
Title: Senior Vice President
REDACTED
CREDIT AGREEMENT
THIS CREDIT AGREEMENT (the "AGREEMENT"), dated as of January 18, 1996,
is entered into by and between XXXXX XXX and XXXX MAY, each an individual
residing in the State of New York (the "BORROWERS"), and NATIONSBANK, N.A. (the
"BANK"), a national banking association.
RECITALS
The Borrowers have asked the Bank to make demand loans to the Borrowers
from time to time, from the date hereof through the date preceding the second
anniversary of the date of this Agreement, in an aggregate principal amount at
any one time outstanding not to exceed $20,000,000. The Bank is willing to make
such loans to the Borrowers on the terms and conditions hereinafter set forth.
Accordingly, each Borrower and the Bank hereby agree as follows.
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.1 CERTAIN DEFINED TERMS. As used in this Agreement, the
following terms shall have the respective meanings indicated below, such
meanings to be applicable equally to both the singular and plural forms of such
terms:
"ADJUSTED COLLATERAL VALUE" means the Margin Call Percentage of the
Collateral Value.
"ADJUSTED LIBOR" means, with respect to any Interest Period, (i) the
rate of interest per annum (rounded upward, if necessary, to the next higher
1/16th of one percent) determined by the Bank, in accordance with its customary
general practice from time to time, to be the rate equal to the London Interbank
Offered Rate (expressed as a percentage) for Dollar deposits as would be quoted
by the Bank for 11:00 a.m. London time, or as soon thereafter as practicable, on
the second Business Day immediately preceding the first day of such Interest
Period, for a term comparable to such Interest Period, (ii) as adjusted from
time to time in the Bank's sole discretion for then applicable reserve
requirements, deposit insurance assessment rates and other regulatory costs.
"APPLICABLE MARGIN" means [REDACTED]%. "BASE RATE" means, for any day,
a rate per annum equal to the higher of (i) the Prime Rate for such day, or (ii)
the sum of one half of one percent (1/2%) plus the Federal Funds Rate for such
day.
"BOARD" means the Board of Governors of the Federal Reserve System of
the United States.
"BUSINESS DAY" means any day other than a Saturday, Sunday or other day
on which commercial banks in New York City, New York, or in Charlotte, North
Carolina, are authorized or required by law to close and, if the applicable
Business Day relates to any Interest Period for which interest on a Loan is
determined by reference to the Adjusted LIBOR rate, also includes a day on which
commercial banks are open for international business in London.
"CLOSING DATE" means the date on which the initial Loan is made
hereunder after all of the conditions precedent set forth in Article III have
been satisfied.
"COLLATERAL" means all of the property (tangible and intangible)
purported to be subject to the lien or security interest purported to be created
by any mortgage, deed of trust, security agreement, pledge agreement, assignment
or other security document heretofore or hereafter executed by any Person as
security for all or any part of the Obligations.
"COLLATERAL AGENT" means the Bank, acting as collateral agent under the
Triarc Pledge Agreement.
"COLLATERAL NOTES" means the promissory notes issued by Pechiney and
payable to the order of Xxxxx Xxx, which are further described in the Pechiney
Pledge Agreement.
"COLLATERAL VALUE" means, with respect to any Collateral consisting of
stock, the amount determined by multiplying (i) the per share price of such
stock at the most recent close of trading on a trading exchange or stock market
for such stock, times (ii) the number of shares of such stock held by the Bank
as Collateral, times (iii) the portion of such shares allocable to Xxxxx Xxx,
which initially is onethird.
"COMMITMENT" means the commitment of the Bank to make Loans pursuant to
Section 2.1 hereof in an aggregate principal amount not to exceed $20,000,000 at
any time outstanding, as such amount may be reduced or terminated in accordance
with the terms and conditions of this Agreement.
"DEFAULT" means a condition or event which, after notice or lapse of
time or both, would constitute an Event of Default (including, without
limitation, the obligation to prepay the Loans or provide additional collateral
pursuant to Section 2.5(a) or (b), without regard to whether any grace period
has elapsed).
"DEFAULT RATE" has the meaning specified in Section 2.2.
"DEPOSITARY BANK" means NationsBank of Texas, N.A., as depositary bank
pursuant to the Pechiney Pledge Agreement.
"DOLLARS" and the sign "$" each mean lawful money of the United States
of America.
"DWG" means DWG Acquisition Group, L.P., a Delaware limited
partnership.
"ELIGIBLE INSTITUTION" means (i) a commercial bank organized under the
laws of the United States, or any state thereof, and having a combined capital
and surplus of at least $100,000,000; or (ii) a commercial bank organized under
the laws of any other country which is a member of the Organization for Economic
Cooperation and Development (the "OECD"), or a political subdivision of any such
country, and having a combined capital and surplus of at least $100,000,000,
provided that such bank is acting through a branch or agency located in the
United States or an offshore branch outside the United States at which such bank
books loans bearing interest based on LIBOR and, in the case of a bank described
in either clause (i) or clause (ii), such bank is able to deliver Internal
Revenue Service Form 1001 or 4224 to the Bank with a copy to the Borrowers as of
the day such bank becomes an assignee or participant.
"EVENT OF DEFAULT" has the meaning specified in Section 6.1.
"FEDERAL FUNDS RATE" means, for any day, the rate per annum (rounded
upward to the nearest 1/100th of 1%) equal to the weighted average of the rates
on overnight federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers on such day, as published by the
Federal Reserve Bank of New York on the Business Day next succeeding such day,
PROVIDED that (i) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding Business
Day, and (ii) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate quoted to the
Bank on such day on such transactions as determined by the Bank.
"FLORIDA AGENT" means NationsBank of Florida, N.A., acting as
collateral agent under the Pechiney Pledge Agreement.
"GOVERNMENTAL AUTHORITY" means any nation or government, any federal,
state, city, town, municipality, county, local or other political subdivision
thereof or thereto and any department, commission, board, bureau,
instrumentality, agency or other entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government
and includes, without limitation, the SEC.
"INDEBTEDNESS" means, with respect to any Person, (i) all indebtedness
or other obligations of such Person for borrowed money or for the deferred
purchase price of property or services, (ii) all obligations of such Person
under direct or indirect guaranties in respect of, and contingent or other
obligations of such Person to purchase or otherwise acquire or otherwise assure
a creditor against loss in respect of, indebtedness or other obligations of any
other Person for borrowed money or for the deferred purchase price of property
or services, (iii) all indebtedness or other obligations of any other Person for
borrowed money or for the deferred purchase price of property or services
secured by (or for which the holder of such indebtedness has an existing right,
contingent or otherwise, to be secured by) any lien, security interest or other
charge or encumbrance upon or in property owned by such Person, (iv) all
obligations of such Person to make reimbursement or payment in respect of
letters of credit and bankers' acceptances, and (v) the net liabilities of such
Person under all interest rate swap, interest rate collar, interest rate cap,
interest rate floor, forward rate agreements, commodity swaps or other
agreements or arrangements designed to protect against fluctuations in interest
rates or currency, commodity or equity values, each calculated on a basis
reasonably satisfactory to the Bank and in accordance with accepted practice.
"INTERCREDITOR AGREEMENT" means an Intercreditor Agreement between the
Bank, individually and as collateral agent under the Triarc Pledge Agreement,
and NationsBank of Florida, N.A., individually and as collateral agent under the
Pechiney Pledge Agreement, acknowledged and consented to by Xxxxx Xxx, Xxxx May
and DWG.
"INTEREST PERIOD" means each one (1)-month period during which interest
on each Loan shall be calculated by reference to Adjusted LIBOR, determined as
of the second Business Day before the commencement of that Interest Period;
PROVIDED, HOWEVER, that:
(i) each Interest Period shall commence on the first day of a
month and end on the first day in the immediately following
calendar month thereafter;
(ii) each subsequent Interest Period for a Loan shall commence
on the last day of the immediately preceding Interest Period and
end on the first day in the immediately following calendar month
thereafter; and
(iii) any Interest Period which would otherwise extend beyond
the Termination Date shall end on the Termination Date.
"LETTERS OF CREDIT" means the transferable letters of credit issued by
Banque Nationale de Paris, New York Branch in favor of NationsBank of Florida,
N.A., in support of the Collateral Notes, which are further described in the
Pechiney Pledge Agreement.
"LIEN" means any lien, mortgage, pledge, security interest, charge or
similar encumbrance of any kind (including any conditional sale or other title
retention agreement, any lease in the nature thereof and any agreement to give
any security interest).
"LOAN" means each demand loan made by the Bank to a Borrower pursuant
to Section 2.1 hereof.
"LOAN DOCUMENTS" means this Agreement, the Note, the Triarc Pledge
Agreement, the Pechiney Loan Agreement, the Pechiney Pledge Agreement and all
other instruments, agreements and other documents executed and delivered
pursuant hereto or thereto.
"LOAN PARTIES" means the Borrowers and DWG.
"MARGIN CALL PERCENTAGE" means 70%, subject to decrease in accordance
with Section 2.5(d) hereof.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on any of (a)
the business, properties or prospects of any Loan Party , (b) the ability of any
Loan Party to perform any of the obligations of such Loan Party under this
Agreement or any of the other Loan Documents, (c) the legality, validity or
enforceability of this Agreement or any of the other Loan Documents, (d) the
rights and remedies of the Bank under this Agreement or any of the other Loan
Documents, or (e) the creation, perfection or priority of security in or lien on
any of the Collateral, securing the payment of any of the Obligations.
"NOTE" means a demand promissory note of the Borrowers, substantially
in the form of Exhibit A hereto, evidencing the Indebtedness resulting from the
making of the Loans and delivered to the Bank pursuant to Article III hereof, as
such demand promissory note may be modified or extended from time to time, and
any promissory note or notes issued in exchange or replacement therefor.
"OBLIGATIONS" means (i) the obligation of the Borrowers to pay, as and
when due and payable (on demand, by mandatory prepayment, by scheduled maturity
or otherwise), all amounts from time to time owing by them in respect of any
Loan Document, whether for principal, interest, fees or otherwise, and (ii) the
obligations of the Borrowers to perform or observe all of their other
obligations from time to time existing under any Loan Document.
"ORIGINAL ADVANCE PERCENTAGE" means 65%, subject to decrease in
accordance with Section 2.5(d) hereof.
"PARTNERSHIP AGREEMENT" means the Agreement of Limited Partnership of
DWG dated as of September 25, 1992, as amended by Amendment No. 1 dated as of
November 15, 1992, Amendment No. 2 dated as of March 1, 1993, Amendment No. 3
dated as of April 14, 1993, and Amendment No. 4 dated as of January 1, 1995, by
and among Xxxxxx Xxxxx and Xxxxx Xxx, as general partners, and Xxxxxx Xxxxx,
Xxxxx Xxx and Xxxx Xxxxxxxx, as limited partners, of DWG.
"PECHINEY" means Pechiney Corporation, a Delaware corporation.
"PECHINEY COLLATERAL" means all of the property (tangible and
intangible) purported to be subject to the lien or security interest purported
to be created by the Pechiney Pledge Agreement.
"PECHINEY LOAN AGREEMENT" means the Term Loan Agreement dated as of
July 29, 1994, between Xxxxx Xxx and NationsBank of Florida, N.A., as amended or
otherwise modified from time to time.
"PECHINEY PLEDGE AGREEMENT" means the Amended and Restated Pledge
Agreement dated July 29, 1994, as amended and restated on January 18, 1996, made
Xxxxx Xxx as Pledgor in favor of NationsBank of Florida, N.A., as agent for
itself and the Bank, in respect of certain promissory notes issued by Pechiney
and letters of credit supporting such promissory notes issued by Banque
Nationale de Paris, New York Branch, as amended or otherwise modified from time
to time.
"PECHINEY PROCEEDS" means any principal of or interest on a Collateral
Note, any drawing on a Letter of Credit or any other proceeds received in
respect of a Collateral Note or a Letter of Credit.
"PERSON" means an individual, corporation, partnership, limited
liability company, business trust, association, joint-stock company, trust,
unincorporated organization, joint venture or Governmental Authority or other
regulatory body.
"PLEDGED SHARES" shall have the meaning assigned thereto in the Triarc
Pledge Agreement.
"PRIME RATE" means the annual rate of interest announced from time to
time as the Bank's "prime" lending rate (which the Borrowers acknowledge does
not necessarily represent the best or most favored rate offered by the Bank to
its best or any particular customers). Whenever applicable to a Loan, the
floating interest rate shall be adjusted automatically as and when the Bank's
Prime Rate shall change on any business day(s).
"REGULATION D" means Regulation D of the Board, as in effect from time
to time, or any regulation of the Board that replaces Regulation D.
"REGULATIONS G, T, U OR X" means Regulations G, T, U or X of the Board
as in effect from time to time, or any regulation of the Board that replaces
Regulation G, T, U or X
"RULE 144" means Rule 144 promulgated by the Securities and Exchange
Commission under the Securities Act of 1933.
"SEC" means the Securities and Exchange Commission or any replacement
national securities exchange.
"SIGNING DATE" means the date that this Agreement is executed and
delivered by the Borrowers.
"TERMINATION DATE" means January 18, 1998 or such earlier date on which
the Commitment shall be terminated pursuant to this Agreement. "TRIARC" means
Triarc Companies, Inc., a Delaware corporation.
"TRIARC COLLATERAL" means all of the property (tangible and intangible)
purported to be subject to the lien or security interest purported to be created
by the Triarc Pledge Agreement.
"TRIARC PLEDGE AGREEMENT" means the Pledge and Security Agreement made
by DWG in favor of the Collateral Agent, as agent for itself and NationsBank of
Florida, N.A., in respect of certain shares of stock issued by Triarc, as
amended or otherwise modified from time to time.
Section 1.2 COMPUTATION OF TIME PERIODS. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
means "to but excluding".
Section 1.3 ACCOUNTING AND OTHER TERMS. Unless otherwise expressly
stated herein, all accounting terms used in this Agreement which are not
otherwise defined herein shall be construed in accordance with sound accounting
principles applied on a basis consistent with those used in the preparation of
the financial statements referred to in Section 4.10(a) hereof. All terms used
in this Agreement which are defined in Article 9 of the Uniform Commercial Code
in effect in the State of New York on the date hereof and which are not
otherwise defined herein shall have the same meanings herein as set forth
therein. Any gender specific term is applicable to both genders, as the context
may require, whenever used herein.
ARTICLE II
THE LOANS
Section 2.1 MAKING THE LOANS. The Bank agrees, on the terms and
conditions hereinafter set forth, to make Loans to the Borrowers from the
Closing Date to the Termination Date in an aggregate principal amount at any one
time outstanding not to exceed the amount of the Commitment. The Bank shall have
no obligation to make a Loan if the sum of the aggregate principal amount of the
outstanding Loans plus the principal amount of such requested Loan would exceed
the amount equal to the Original Advance Percentage of the Collateral Value.
Each Loan shall be in an amount equal to $100,000 or an integral multiple of
$100,000 in excess thereof, and shall be made on at least one Business Day prior
written notice. Each request for a Loan (a "NOTICE OF BORROWING") shall be
irrevocable, shall be signed by either Borrower (it being understood that only
the signature of one Borrower shall be required) and shall be in writing,
substantially in the form of Exhibit B hereto, specifying, INTER ALIA, the
proposed amount of such Loan and the Business Day for such Loan. On the Business
Day specified and upon fulfillment of the applicable terms and conditions set
forth in Article III hereof, the Bank will make the proceeds of such Loan
available to the Borrowers by crediting Account Number [ REDACTED ] maintained
with NationsBank of Florida, N.A., at its office in Charlotte, North Carolina,
not later than 2:00 P.M. (Charlotte time) on such date. Within the limits of the
Commitment, the Borrowers may borrow, prepay and reborrow pursuant to this
Article II until the Termination Date.
Section 2.2 INTEREST. The outstanding principal balance of each Loan
will bear interest at a rate per annum equal at all times during each Interest
Period to the sum of the Adjusted LIBOR for such Interest Period plus the
Applicable Margin, from the date of the making of such Loan until such Loan is
paid in full, except that after the occurrence and during the continuance of an
Event of Default, each Loan shall bear interest at a rate per annum equal to the
sum of (i) the Prime Rate in effect from time to time, plus (ii) [REDACTED]%
(the "DEFAULT RATE"). Interest on each Loan shall be paid in arrears on the
first day of each month (in the absence of prior demand) and upon the repayment
of any principal amount of any Loan for any reason.
Section 2.3 REPAYMENT. The Borrowers will repay the unpaid principal
amount of and accrued interest on the Loans UPON DEMAND by the Bank. In the
absence of a prior demand (but without limiting the Bank's right to make a
demand at any time in its sole and absolute discretion) the principal amount of
and accrued interest on the Loans shall in any event be due and payable on the
Termination Date.
Section 2.4 OPTIONAL PREPAYMENT. Any Borrower may prepay any Loan in
whole at any time or in part from time to time, without penalty or premium, each
such prepayment to be accompanied by the payment of accrued interest to the date
of such prepayment on the amount prepaid, PROVIDED that (i) each partial
prepayment shall be in a principal amount equal to $100,000 or an integral
multiple thereof, (ii) a Borrower shall give the Bank irrevocable written notice
at least one Business Day prior to the date of the prepayment of a Loan, and
(iii) after giving effect to any partial prepayment of a Loan the principal
amount thereof remaining outstanding shall not be less than $100,000 or an
integral multiple thereof. Each notice of prepayment shall be irrevocable and
shall specify the date and the amount of the prepayment and identify the Loans
to be prepaid. Any amount of principal of a Loan prepaid may be reborrowed in
accordance with Section 2.1 hereof.
Section 2.5 MANDATORY PREPAYMENT. (a) If at any time the Bank, in its
sole discretion, determines that the transactions contemplated by this Agreement
or any of the other Loan Documents violate any provision of Regulations G, T, U
or X, the Borrowers will, upon five (5) day's written notice from the Bank,
either (A) prepay the Loans by an amount sufficient such that, after such
prepayment, the transactions contemplated by the Loan Documents will not violate
any provision of Regulations G, T, U or X (as determined by the Bank in its sole
discretion), or (B) provide for a grant to the Bank, as collateral security for
the Loans and all other Obligations, a perfected, first priority security
interest in, and lien on, additional collateral that is in such amounts and
having such market values, liquidity, volatility, marketability and other
characteristics as the Bank may in its sole discretion determine to be
sufficient to cause, after the grant of such additional security interest, the
transactions contemplated by the Loan Documents not to violate any provision of
Regulations G, T, U or X (and in connection with such grant, the Borrowers will
execute and deliver such agreements, instruments, legal opinions and other
documents as the Bank may reasonably request).
(b) So long as any Obligation is outstanding or the Bank
shall have any Commitment hereunder, the Borrowers will, unless the Bank shall
otherwise consent in writing, maintain as collateral security for the
Obligations Triarc Collateral with an Adjusted Collateral Value in excess of the
unpaid principal balance of the Obligations. If at any time the Bank determines
that the aggregate principal amount of the outstanding Loans equals or exceeds
an amount equal to the Margin Call Percentage of the Collateral Value of the
Triarc Collateral, the Borrowers will, upon five (5) days' written notice from
the Bank, either (i) prepay the Loans by an amount sufficient such that, after
such prepayment, the aggregate principal amount of the outstanding Loans does
not exceed the amount equal to the Original Advance Percentage of the Collateral
Value of the Triarc Collateral or (ii) provide for a grant to the Collateral
Agent, as collateral security for the Loans and all other Obligations, a
perfected, first priority security interest in, and lien on, additional
collateral that is in such amounts and having such market values, liquidity,
volatility, marketability and other characteristics as the Bank may in its sole
discretion determine to be sufficient to cause, after the grant of such
additional security interest, the aggregate principal amount of the outstanding
Loans not to exceed the amount equal to the sum of (A) the Original Advance
Percentage of the then current Collateral Value of the Triarc Collateral, plus
(B) the loan value assigned by the Bank (in its sole discretion) to any other
Collateral provided to the Collateral Agent pursuant to clause (ii) above (and
in connection with such grant, the Borrowers will execute and deliver such
agreements, instruments, legal opinions and other documents as the Bank may
reasonably request).
(c) If on any date (i) the sum of the aggregate principal
amount of outstanding Loans exceeds (ii) the amount of the Commitment, the
Borrowers shall immediately prepay the Loans in an amount equal to such excess.
It is understood and agreed that after payment of all obligations under the
Pechiney Loan Agreement, an amount equal to any proceeds of the Collateral Notes
and Letters of Credit will be used to satisfy, among other things, any
prepayment obligation arising under this subsection as a result of a decrease of
the amount of the Original Advance Percentage or Margin Call Percentage pursuant
to Section 2.5 hereof.
(d) It is understood and agreed that upon any payment of the
principal amount of one or more Collateral Notes or the proceeds of any drawing
in respect of the Stated Amount/Principal (as defined in any Letter of Credit)
of a Letter of Credit, the Bank may at any time thereafter decrease the Original
Advance Percentage and the Margin Call Percentage (in either case, to such
percentage as the Bank may in its sole and absolute discretion determine) by
giving either Borrower notice of such revised percentage.
(e) Each prepayment of a Loan shall be accompanied by the
payment of accrued interest to the date of such prepayment on the amount
prepaid, and shall be subject to the provisions of Section 2.12 hereof.
Section 2.6 OPTIONAL COMMITMENT REDUCTION. Either Borrower may, upon at
least two Business Days' notice to the Bank, terminate the Commitment at any
time or reduce the amount of the Commitment from time to time during the period
from the date hereof to and including the Termination Date, PROVIDED that each
such reduction shall be in an amount equal to $100,000 or an integral multiple
thereof, and the amount of the Commitment after any reduction shall be greater
than or equal to the aggregate principal amount of all Loans then outstanding.
Section 2.7 EVIDENCE OF CREDIT EXTENSIONS. The Loans shall be evidenced
by the Note. The Bank shall record advances and principal payments thereof on
the grid attached thereto or, at its option, in its records, and the Bank's
record thereof shall be conclusive absent demonstrable error. Notwithstanding
the foregoing, the failure to make or an error in making a notation with respect
to any Loan or any payment shall not limit or otherwise affect the Obligations
of the Borrowers hereunder or under the Note.
Section 2.8 PAYMENT. Payment of principal, interest and any other sums
due under this Agreement or under the Note shall be made without set-off or
counterclaim in dollars and in immediately available funds on the day such
payment is due not later than 12:00 Noon New York time. All sums received after
such time shall be deemed received on the next Business Day and principal
payments or sums (other than interest) due hereunder shall bear interest for an
additional day. All payments shall be made to the Bank, if by wire transfer, to
NationsBank, N.A., Xxx XxxxxxxXxxx Xxxxx, Xxxxxxxxx, XX 00000, ABA [ REDACTED ],
Credit Account: [ REDACTED ], Re: Loan Payment for Xxxxx Xxx, with a Loan Number
to be specified by the Bank, Special Instructions: Contact [ REDACTED ] upon
receipt; if by mail, to NationsBank, N.A., X.X. Xxx 00000, Xxxxxxxxx, XX
00000-0000; or to such other address as the Bank may advise either Borrower in
writing.
Section 2.9 COMPUTATIONS OF INTEREST; BUSINESS DAY.
(a) All computations of interest under this Agreement and
the Note shall be made on the basis of a year of three hundred sixty (360) and
actual days elapsed. Interest shall accrue on each Loan outstanding from and
including the date such Loan is made by the Bank to but excluding the date on
which such Loan is repaid.
(b) Payment of all amounts due hereunder shall be made on a
Business Day. Any payment due on a day that is not a Business Day shall be made
on the next Business Day unless the next Business Day would fall in the next
calendar month, in which case such payment shall be made on the Business Day
immediately preceding the due date.
Section 2.10 INCREASED COSTS, ETC.
(a) If, after the date of this Agreement, due to either (i)
the introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other Governmental Authority (whether or not having the force of law),
there shall be any (x) change in the basis of taxation of payments to the Bank
of the principal of or interest on any Loan (excluding changes in the rate of
tax payable on the Bank's overall income and bank franchise taxes) or (y)
imposition or change in any reserve or similar requirement, and the result of
any of the foregoing is an increase in the cost to the Bank of agreeing to make
or making, funding or maintaining the Loans (which is not otherwise included
pursuant to clause (ii) of the definition of Adjusted LIBOR in its determination
of Adjusted LIBOR), then the Borrowers shall from time to time, upon demand by
the Bank, pay to the Bank an additional amount sufficient to compensate the Bank
for such increased cost. A certificate as to the amount of such increased cost,
submitted to either Borrower by the Bank shall be conclusive and binding for all
purposes, absent demonstrable error.
(b) If the Bank determines that compliance with any law or
regulation or any guideline or request from any central bank or other
Governmental Authority (whether or not having the force of law) affects or would
affect the amount of capital required or expected to be maintained by the Bank
or any corporation controlling the Bank and that the amount of such capital is
increased by or based upon the existence of the Loans or the Bank's Commitment,
then the Borrowers shall, upon demand by the Bank, pay to the Bank an additional
amount sufficient to compensate the Bank or such corporation in the light of
such circumstances, to the extent that the Bank reasonably determines such
increase in capital to be allocable to the existence of the Loans or the Bank's
Commitment. A certificate as to such amounts submitted to the Borrowers by the
Bank shall be conclusive and binding for all purposes, absent demonstrable
error.
(c) Prior to making any demand for compensation under this
Section 2.10, (i) the Bank will use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to file any certificate
or document requested by a Borrower or to change the jurisdiction of its lending
office if the making of such a filing or change would avoid the need for, or
reduce the amount of, any such additional amounts that may thereafter accrue and
would not, in the judgment of the Bank, be otherwise disadvantageous to the
Bank, and (ii) the Bank will permit the Borrowers to prepay all or any part of
the affected Loans, together with interest to the date of payment and payment of
funding losses pursuant to Section 2.12, PROVIDED that nothing herein shall
relieve the Borrowers from their obligations to compensate the Bank for
increased costs or reduced return incurred prior to the taking of the actions
contemplated by clauses (i) and (ii) above.
Section 2.11 ILLEGALITY. If, after the date of this Agreement, the
adoption of any applicable law, rule or regulation, or any change in an existing
law, rule or regulation, or any change in the interpretation or administration
thereof by any Governmental Authority charged with the interpretation or
administration thereof, or compliance by the Bank with any request or directive
(whether or not having the force of law) of any such Governmental Authority,
makes it unlawful or impossible for the Bank to make, maintain or fund any Loan
at an interest rate based on Adjusted LIBOR, the Bank shall forthwith give
notice thereof to the Borrowers, whereupon the obligation of the Bank to make
Loans at a rate based on Adjusted LIBOR shall be suspended until the Bank
notifies the Borrowers that the circumstances giving rise to such suspension no
longer exist. The Bank will use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to file any certificate or
document requested by a Borrower or to change the jurisdiction of its lending
office if the making of such a filing or change would avoid the need for, or
reduce the amount of, any such additional amounts that may thereafter accrue and
would not, in the judgment of the Bank, be otherwise disadvantageous to the
Bank. If the Bank makes a reasoned determination that it may not lawfully
continue to maintain and fund any Loan to maturity at a rate based on Adjusted
LIBOR and so specifies in such notice, then effective on the date specified in
such notice each affected Loan shall bear interest at the Base Rate in effect
from time to time, payable monthly in arrears (in the absence of prior demand).
Section 2.12 FUNDING LOSSES. The Borrowers agree to reimburse the Bank
and to hold the Bank harmless from any loss or expense which the Bank may
sustain or incur as a consequence of:
(a) the failure of the Borrowers to make any payment or
required prepayment of principal of any Loan (including payments made after any
acceleration thereof);
(b) the failure of the Borrowers to make any prepayment
permitted hereunder after giving notice thereof;
(c) the repayment of a Loan on a day which is not the last
day of an Interest Period (whether due to acceleration, DEMAND, or otherwise);
or
(d) the failure for any reason (other than a wrongful
default by the Bank) of a Borrower to borrow any Loan after notice has been
given to the Bank in accordance with Section 2.1 hereof (whether or not such
notice is withdrawn);
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain the Loans hereunder at a rate based on LIBOR
or from fees payable to terminate the deposits from which such funds were
obtained. Solely for purposes of calculating amounts payable by the Borrowers to
the Bank under this section, each Loan bearing interest at a rate based on LIBOR
(and each related reserve, special deposit or similar requirement) shall be
conclusively deemed to have been funded by a matching deposit in Dollars in the
interbank eurodollar market for a comparable amount and for the respective
Interest Period, whether or not such Loan was in fact so funded.
Section 2.13 UNAVAILABILITY. If the Bank determines that for any reason
adequate and reasonable means do not exist for ascertaining LIBOR for any
Interest Period, the Bank will forthwith give notice of such determination to
the Borrowers. Commencing at the end of each Interest Period then in effect, the
respective Loan shall bear interest at the Base Rate (rather than at a rate
based on LIBOR) until the Bank revokes such notice in writing.
Section 2.14 SPECIAL PREPAYMENT. The provisions of Sections 2.10, 2.11
and 2.12 shall also apply to any assignee permitted pursuant to Section 7.7 and
shall apply to any unassigned portion of the Loans retained by the Bank
(regardless of whether the Bank may have sold a participation interest in such
retained portion to a participant permitted pursuant to Section 7.7). If demand
for payment is made pursuant to Section 2.10 or 2.12 or if notice of illegality
is given pursuant to Section 2.11, whether by any such permitted assignee or by
the Bank on behalf of any such permitted participant, then the Borrowers may
prepay in full (but not in part) such assignee's or participant's interest in
the Loans on the last day of the Interest Period during which such demand for
additional amounts was made or during which such notice of illegality was given.
Any principal amount, interest or increased costs received by any such assignee
or participant pursuant to this Section 2.14 shall not be required to be shared
with the Bank and any other assignees or participants.
ARTICLE III
CONDITIONS PRECEDENT
Section 3.1 CONDITIONS TO INITIAL LOAN. The obligation of the Bank to
make the initial Loan is subject to the condition precedent that the Bank shall
have received on or prior to the Closing Date the following, each in form and
substance satisfactory to the Bank and its counsel and, unless indicated
otherwise, dated the Closing Date:
(a) AGREEMENT. A copy of this Agreement, duly executed by
the Borrowers and dated as of the Signing Date.
(b) NOTE. The Note, duly executed by the Borrowers and dated
the Signing Date.
(c) TRIARC PLEDGE AGREEMENT. The Triarc Pledge Agreement,
duly executed by DWG and dated the Closing Date.
(d) PECHINEY PLEDGE AGREEMENT. The Pechiney Pledge
Agreement, duly executed by Xxxxx Xxx and dated the Signing Date.
(e) STOCK CERTIFICATES, ETC. (i) Original stock certificates
representing the shares of stock pledged to the Bank pursuant to the Triarc
Pledge Agreement, together with an undated stock power for each such
certificate, duly executed in blank by an authorized representative of DWG, with
signature medallion guaranteed (or, if any such shares are uncertificated,
confirmation and evidence that appropriate book entries have been made in the
relevant books and records of the issuer of such uncertificated shares or a
financial intermediary, as the case may be, under applicable law), (ii) such
opinion of counsel and such approving certificate of the issuer of such shares
as the Bank may reasonably request in respect of complying with any legend on
any such certificate or any other matter relating to such shares, and (iii) any
registration rights agreement, shareholders' agreement or other agreement,
instrument or document affecting any of the shares of stock pledged to the Bank
pursuant to the Triarc Pledge Agreement.
(f) SEC FORM 144. Ten copies of SEC Form 144, undated and
duly executed in blank by DWG.
(g) FORM U-1. Federal Reserve Forms U-1 provided for in
Regulation U issued by the Board, the statements made in which shall be such, in
the opinion of the Bank, as to permit the transactions contemplated hereby and
by the Pechiney Loan Agreement in accordance with such Regulation, dated the
Closing Date.
(h) RESTRICTED SECURITIES STATEMENT. A Restricted Securities
Statement covering each Pledged Share, substantially in the form attached to the
Triarc Pledge Agreement, duly executed by DWG and dated the Signing Date.
(i) REGISTRATION RIGHTS AGREEMENT. A copy of the
Registration Rights Agreement, dated as of April 23, 1993, as amended, between
Triarc and DWG, as amended to modify the holdback provision in Section 2.4(d)(i)
thereof, certified as of the Signing Date by Xxxxx Xxx.
(j) DWG PARTNERSHIP AGREEMENT. A copy of the Partnership
Agreement, duly certified as of the Signing Date by a partner of DWG.
(k) DWG FINANCIAL STATEMENTS. A copy of the balance sheet of
DWG as at December 31, 1994, duly certified as of the Signing Date by a partner
of DWG.
(l) AMENDMENT. An amendment dated the Signing Date to the
Term Loan Agreement dated as of July 29, 1994, between Xxxxx Xxx and NationsBank
of Florida, N.A. providing, among other things, that any Event of Default under
this Agreement shall constitute an "Event of Default" under such Term Loan
Agreement.
(m) PECHINEY COLLATERAL. Such notices and other documents as
the Bank may reasonably require in connection with the securing of the
Obligations under this Agreement with the Pechiney Collateral (including,
without limitation, note powers (undated and in blank) in respect of the
Collateral Notes, notices to Pechiney with respect to the Pechiney Pledge
Agreement and the payment of principal of the Collateral Notes, and the Escrow
Agreement (as defined in each Letter of Credit).
(n) FEES PAYABLE AT CLOSING. The Borrowers shall pay to the
Bank (i) an arrangement fee equal to $[REDACTED], and (ii) the reasonable legal
fees and other client charges and expenses of such counsel (including, without
limitation, photocopying, travel and word processing charges) incurred by the
Bank in connection with its review of the Triarc Collateral and the Pechiney
Collateral and with the preparation of this Agreement, the Note and the other
Loan Documents, negotiations in connection therewith, and research and other
related expenses.
(o) FINANCING STATEMENTS. Acknowledgment copies of
appropriate financing statements on Form UCC-1, duly executed by the Borrowers
and DWG and duly filed in such office or offices as may be necessary or, in the
opinion of the Bank, desirable to perfect the security interests purported to be
created by the Pechiney Pledge Agreement and the Triarc Pledge Agreement.
(p) LIEN REPORTS. Certified copies of requests for copies or
information on Form UCC-11, listing all effective financing statements which
name either Borrower or DWG as debtor and which are filed in the offices
referred to in paragraph (o) above, together with copies of such financing
statements, none of which, except as otherwise agreed to in writing by the Bank,
shall cover any of the Collateral.
(q) INTERCREDITOR AGREEMENT. The Intercreditor Agreement
between the Bank and NationsBank of Florida, N.A., acknowledged and consented to
by Xxxxx Xxx and Xxxx May and DWG and dated the Signing Date.
(r) RESOLUTION AGREEMENT. A copy of the Resolution
Agreement, dated as of May 1, 1992, as amended, among Xxxxxx Xxxxx, Xxxxx Xxx
and Pechiney, as amended, certified as of the Signing Date by Xxxxx Xxx.
(s) ESCROW AGREEMENT. A copy of the Escrow Agreement, dated
as of December 22, 1988, as amended, among Pechiney Corporation, Banque
Nationale de Paris, New York Branch, Xxxxxx Xxxxx, Xxxxx Xxx and Bank of the
West, as escrow agent, certified as of the Signing Date by Xxxxx Xxx.
(t) OPINION OF COUNSEL TO BORROWERS. An opinion, dated the
Closing Date, of the law firm of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx,
counsel to the Borrowers and DWG, in the form of Exhibit C hereto.
Section 3.2 CONDITIONS TO ALL LOANS. The obligation of the Bank to make
any Loan is subject to the conditions precedent that:
(a) The following statements shall be true, and the
acceptance of the proceeds of such Loan by a Borrower shall be deemed to be a
representation and warranty of each Borrower on the date of such Loan that, (i)
the representations and warranties contained in Article IV of this Agreement and
in each other Loan Document and certificate or other writing delivered to the
Bank pursuant hereto on or prior to the date for such Loan are true and correct
on and as of such date as though made on and as of such date; (ii) no Event of
Default or Default has occurred and is continuing or would result from the
making of such Loan to be made on such date; and (iii) no material adverse
change in the financial condition, properties or prospects of any Loan Party
shall have occurred and be continuing on the date of each request for a Loan;
and
(b) The Bank shall have received a Notice of Borrowing in
accordance with Section 2.1 hereof with respect to such Loan.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants to the Bank that: Section 4.1
GOOD TITLE TO DWG INTEREST. Xxxxxx Xxxxx and Xxxxx Xxx are the sole general
partners of DWG, which interests are owned free and clear of any Lien. Schedule
4.1 hereto sets forth the name and interest of each other partner of DWG.
Section 4.2 NO INSOLVENCY PROCEEDINGS. The Borrowers have no knowledge
of any insolvency proceeding of any type instituted with respect to DWG, Triarc
or Pechiney.
Section 4.3 NO DEFAULT. No Default or Event of Default has occurred and
is continuing.
Section 4.4 ENFORCEABLE OBLIGATIONS. The Borrowers have the legal
capacity and right to execute, deliver and perform this Agreement, the Note and
the other Loan Documents. This Agreement, the Note and the other Loan Documents
constitute legal, valid and binding obligations of the Borrowers, enforceable
against each Borrower that is a party thereto in accordance with their
respective terms.
Section 4.5 NO LEGAL BAR. The execution, delivery and performance of
this Agreement, the Note and the other Loan Documents, and the borrowings
hereunder, will not violate any law or regulation (including, without
limitation, Regulations G, T, U or X) or any contractual obligation of either
Borrower and will not result in the creation or imposition of a Lien on any
property of a Borrower, other than security interests created by the Loan
Documents.
Section 4.6 NO LITIGATION. Except as disclosed on Schedule 4.6, there
is no litigation or proceeding of or before any arbitrator or Governmental
Authority pending or threatened against any Loan Party (as to which either
Borrower has received notice in writing) (a) with respect to this Agreement, any
Loan, the use of the proceeds thereof, the Triarc Collateral or the Pechiney
Collateral, or (b) which could reasonably be expected to have a Material Adverse
Effect.
Section 4.7 TAXES. The Borrowers have filed or caused to be filed all
tax returns which are required to be filed and have paid all taxes shown to be
due and payable on such returns or on any assessments made against them or any
of their property by any Governmental Authority except to the extent any such
taxes are being contested in good faith and any exceptions thereto are set forth
on Schedule 4.7. No tax Lien has been filed with respect to any material tax
liability against either Borrower, and, to the Borrowers' knowledge, no tax
assessment is pending against either Borrower, except as set forth on Schedule
4.7.
Section 4.8 PARTNERSHIP AGREEMENT. The Borrowers have delivered to the
Bank a true and correct copy of the Partnership Agreement, as in effect on the
date hereof.
Section 4.9 APPROVALS. No authorization or approval or other action by,
and no notice to or filing with, any Governmental Authority or other regulatory
body, and no consent of any other Person, is required for the due execution,
delivery and performance by either Borrower of any Loan Document to which such
Person is a party.
Section 4.10 FINANCIAL CONDITION. (a) The personal financial statements
(including the notes relating thereto) of the Borrowers dated September 30,
1995, copies of which have been previously delivered to the Bank, fairly present
the financial condition of the Borrowers as at the date thereof, and since such
date there has been no material adverse change in the financial condition,
properties or prospects of either Borrower.
(b) The balance sheet of DWG as at December 31, 1994, copies
of which have been previously delivered to the Bank, fairly presents the
financial condition of DWG as at such date, all in accordance with sound
accounting principles consistently applied, and since December 31, 1994 there
has been no material adverse change in the financial condition, properties or
prospects of DWG (it being understood that any decrease in the per share price
of common stock of Triarc shall not constitute a material adverse change for
purposes of this paragraph).
Section 4.11 REGULATION U. Such Borrower is not and will not be engaged
in the business of extending credit for the purpose of purchasing or carrying
margin stock (within the meaning of Regulation U issued by the Board), and no
proceeds of any Loan will be used for the purpose, whether immediate, incidental
or ultimate, of purchasing or carrying margin stock, or to refinance any loan or
other Indebtedness the proceeds of which were used to purchase or carry, any
margin stock or to extend credit to others for the purpose of purchasing or
carrying any margin stock.
Section 4.12 PURPOSE OF LOAN. The proceeds of each Loan will be used
only for specific investment purposes, but in no event shall such proceeds be
used for any investment purpose inconsistent with Section 4.11 hereof, or to
repay any Indebtedness incurred to repay Indebtedness owed to any prior pledgee
of the Triarc Shares that was secured (directly or indirectly) by shares of
stock of Triarc.
Section 4.13 FULL DISCLOSURE. No Loan Document or schedule or exhibit
thereto, and no certificate, report, statement or other document or information
furnished to the Bank in connection herewith or with the consummation of the
transactions contemplated hereby, contains any material misstatement of fact or
omits to state a material fact or any fact necessary to make the statements
contained herein or therein not misleading in light of the circumstances under
which they were made. There is no fact known to any Borrower (other than public
information as to matters of a general economic nature) that materially
adversely affects the financial condition of a Borrower or DWG the value of any
of the Collateral that has not been disclosed to the Bank in writing prior to
the Signing Date.
ARTICLE V
COVENANTS
So long as any Obligation is outstanding or the Bank shall have any
Commitment hereunder, the Borrowers will, unless the Bank shall otherwise
consent in writing:
Section 5.1 FINANCIAL STATEMENTS. Deliver to the Bank in form and
detail satisfactory to the Bank:
(a) as soon as available, but not later than sixty (60) days
after the end of each calendar quarter and for that portion of the calendar year
ending with such quarter, a statement of assets and liabilities (including,
without limitation, contingent liabilities) of the Borrowers as of the close of
such quarter, certified by the Borrowers to the best of their knowledge as being
true and complete in all material respects;
(b) together with each statement of assets and liabilities,
(i) a letter showing which assets each Borrower owns
individually, which assets are owned by the other Borrower
individually and which assets are owned jointly by the
Borrowers. Such assets shall be valued on a basis consistent
with that used in the preparation of the September 30, 1995
statement of assets and liabilities, except as explained in any
notes to the quarterly statement which such letter accompanies;
and
(ii) an update on the status of the audit by the
Internal Revenue Service of the Borrower's federal tax returns
(which update may be included in the footnotes to such statement
of assets and liabilities; the level of disclosure for such
updates will be sufficient if the same as for previous updates
included in such footnotes); and
(c) as soon as available and in any event not more than 90
days after the end of each calendar year, (i) a statement of personal cash flow
of the Borrowers for the year then ended and projected cash flow of the
Borrowers for the following year, certified by the Borrowers to the best of
their knowledge as being true and complete in all material respects, and (ii) a
balance sheet of DWG, showing the financial condition of DWG as of the close of
such year and prepared in accordance with sound accounting principles
consistently applied, all certified by its partners as fairly presenting the
financial condition of DWG; and
(d) promptly upon request, such other information concerning
the operations, condition (financial or otherwise), business, assets or
prospects of any Loan Party as the Bank from time to time may reasonably
request.
Section 5.2 NOTICES. Promptly notify the Bank of:
(a) the occurrence of any Default or Event of Default;
(b) (i) any breach or non-performance of, or any default
under, any contractual obligation of any Loan Party which could have a Material
Adverse Effect; and (ii) any action, suit, litigation or proceeding which may
exist at any time which could reasonably be expected to have a Material Adverse
Effect;
(c) the commencement of, or any material development in, any
litigation or proceeding affecting any Loan Party (i) which could reasonably be
expected to have a Material Adverse Effect, (ii) in which the relief sought is
an injunction or other stay of the performance of this Agreement, the Note or
any other Loan Document or (iii) any litigation involving any of the Collateral;
and
(d) any Material Adverse Effect subsequent to the date of
the most recent statement of assets and liabilities of the Borrowers delivered
to the Bank pursuant to Section 5.1.
Each notice pursuant to this section shall be accompanied by a written statement
signed by the Borrowers, setting forth details of the occurrence referred to
therein, and stating what action the Borrowers propose to take with respect
thereto and at what time. Each notice under Section 5.2(a) shall describe with
particularity the provisions of this Agreement, the Note or other Loan Document
that have been breached.
Section 5.3 PAYMENT OF OBLIGATIONS. Pay all taxes, assessments,
governmental charges and other obligations when due, except as may be contested
in good faith or those as to which a bona fide dispute may exist.
Section 5.4 FURTHER ASSURANCES. Execute and deliver to the Bank such
further instruments and do such other further acts as the Bank may reasonably
request to carry out more effectively the purposes of this Agreement, the other
Loan Documents and any agreements and instruments referred to herein.
Section 5.5 DWG. Not permit DWG to (i) conduct, transact or otherwise
engage in, or commit to conduct, transact or otherwise engage in, any
transaction, business or operation other than the ownership of the Pledged
Shares, (ii) incur, create, assume or suffer to exist any Indebtedness or other
liabilities or obligations, except obligations owing by it under the Loan
Documents to which it is a party, (iii) create or suffer to exist any Lien upon
or with respect to any of its properties, whether now owned or hereafter
acquired, or assign any right to receive income , except for any Lien in favor
of the Bank, (iv) liquidate, dissolve, merge or consolidate with, or sell,
assign, lease or otherwise dispose of (whether in one transaction or in a series
of transaction), any of its assets (whether now owned or hereafter acquired) to
any Person, (v) own, lease, manage or otherwise operate any properties or assets
other than the ownership of the Pledged Shares, or (vi) make any payment other
than in accordance with the provisions of the Loan Documents.
Section 5.6 CHANGE IN STATE OF RESIDENCE. Not change the state of their
principal place of residence (which is currently New York) without (a) notifying
the Bank in writing prior to such change, (b) designating in writing an agent
for service of process in the State of New York and notifying the Bank of same
and (c) delivering to the Bank the written acceptance of such agent.
Section 5.7 DWG PARTNERSHIP AGREEMENT. Not amend, modify, alter,
terminate or waive any provision of the Partnership Agreement.
Section 5.8 NET WORTH. Maintain at all times a minimum Net Worth of
$[REDACTED]. As used herein, "Net Worth" means the total assets of the Borrowers
minus the total liabilities of the Borrowers, all determined in accordance with
sound accounting principles.
Section 5.9 RULE 144 COVENANTS. (a) Not sell any securities of the same
class or convertible into the same class of securities as the Triarc Collateral,
whether or not such securities are pledged hereunder, from the date hereof until
the Obligations have been paid in full, and in the event of any such sale
consented to by the Bank will furnish the Bank with a copy of any Form 144 filed
in respect of such sale. The Borrowers will cause any Person with whom it shall
be deemed one "person" for purposes of Rule 144(a)(2) to refrain from selling
any securities of the same class or convertible into the same class of
securities as the Triarc Collateral, whether or not such securities are pledged
hereunder, from the date hereof until the Obligations have been paid in full and
the Commitment terminated, and in the event of any such sale consented to by the
Bank will furnish the Bank with a copy of any Form 144 filed in respect of such
sale.
(b) Cooperate fully with the Bank with respect to any sale
by the Bank of any of the Triarc Collateral, including full and complete
compliance with all requirements of Rule 144, and will give to the Bank all
information and will do all things necessary, including the execution of all
documents, forms, instruments and other items, to comply with Rule 144 for the
complete and unrestricted sale and/or transfer of the Rule 144 Securities.
ARTICLE VI
EVENTS OF DEFAULT
Section 6.1 EVENT OF DEFAULT. Any of the following shall constitute an
"EVENT OF DEFAULT":
(a) NONPAYMENT. Either (i) THE BANK SHALL DEMAND PAYMENT ON
THE NOTE (AT ANY TIME IN ITS SOLE AND ABSOLUTE DISCRETION, AND REGARDLESS OF
WHETHER ANY OTHER DEFAULT OR EVENT OF DEFAULT SHALL HAVE OCCURRED), or (ii)
either Borrower shall fail to pay any principal of a Loan or the Note when due
(whether by scheduled maturity, mandatory prepayment, acceleration, demand or
otherwise), or (iii) either Borrower shall fail to pay any interest on a Loan or
the Note or any other amount payable hereunder and such failure shall continue
for 3 Business Days; or
(b) REPRESENTATION OR WARRANTY. Any representation or
warranty by any Loan Party made or deemed made herein, in any other Loan
Document or in any certificate, document or financial or other statement
furnished by a Loan Party pursuant to a Loan Document shall have been incorrect
or misleading in any material respect on or as of the date made or deemed made;
or
(c) OTHER DEFAULT. (i) A Borrower shall fail to perform or
observe any term or covenant in Section 2.5 hereof after any applicable notice
and cure period expressly set forth therein, or (ii) a Borrower shall fail to
perform or observe any term or covenant in Section 5.1 or 5.2 hereof after any
applicable notice and cure period expressly set forth therein (if any), or (iii)
any Loan Party shall fail to perform or observe any other material term or
covenant contained in this Agreement or any other Loan Document, and not
referred to in another subsection of this Section 6.1, and such default
continues unremedied for a period of 20 days or (iv) a Loan Party shall fail to
perform or observe any other term or covenant contained in this Agreement or any
other Loan Document, and not referred to in clauses (i), (ii) or (iii) of this
subsection (c) or in any other subsection of this Section 6.1, and such default
continues unremedied for a period of 20 days after the Bank gives notice to
either Borrower of same; or
(d) CROSS-DEFAULT. Any Loan Party (i) shall fail to make any
required payment when due in respect of any Indebtedness having a principal or
face amount of [ REDACTED ] or more when due (whether at scheduled maturity or
required prepayment or by acceleration, demand, or otherwise); or (ii) shall
fail to perform or observe any other condition or covenant, or any other event
shall occur or condition exist, under any agreement or instrument relating to
any such Indebtedness, and such failure continues after the applicable grace or
notice period, if any, specified in the document relating thereto, if the effect
of such failure, event or condition is to cause, or to permit the holder or
holders of such indebtedness or beneficiary or beneficiaries of such
Indebtedness (or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause such Indebtedness to be declared to be
due and payable prior to its stated maturity, or such contingent obligation to
become payable or cash collateral in respect thereof to be demanded; or
(e) VOLUNTARY PROCEEDINGS. Any Loan Party (i) becomes
insolvent, or generally fails to pay, or admits in writing the inability to pay
such Loan Party's debts as they become due, subject to applicable grace periods,
if any, whether at stated maturity or otherwise; (ii) commences a proceeding
under the bankruptcy laws of any state or of the United States with respect to
such Loan Party; or (iii) takes any action to effectuate or authorize any of the
foregoing; or
(f) INVOLUNTARY PROCEEDINGS. (i) Any involuntary bankruptcy
proceeding is commenced or filed against any Loan Party or any writ, judgment,
warrant of attachment, execution or similar process, is issued or levied against
a substantial part of any Loan Party's properties, and any such proceeding or
petition is not dismissed, or such writ, judgment, warrant of attachment,
execution or similar process is not released, vacated or fully bonded within 90
days after commencement, filing or levy; (ii) any Loan Party admits the material
allegations of a petition against such Loan Party in any insolvency proceeding,
or an order for relief (or similar order under non-U.S. law) is ordered in any
insolvency proceeding; or (iii) any Loan Party acquiesces in the appointment of
a receiver, trustee, custodian, conservator, liquidator, mortgagee in possession
(or agent therefor), or other similar person for a substantial portion of such
Loan Party's property or business; or
(g) MONETARY JUDGMENTS; LIENS. One or more final
(non-interlocutory) judgments, orders or decrees is entered against any Loan
Party or a Lien is filed against property of any Loan Party (other than as
contemplated hereby) involving in the aggregate liability (not fully covered by
independent third-party insurance) as to any single or related series of
transactions, incidents or conditions, of [ REDACTED ]or more, and the same
remains unvacated and unstayed pending appeal (if a judgment) or unbonded (if a
Lien) for a period of 10 days after the entry thereof; or
(h) TRIARC PLEDGE AGREEMENT. Any provision of the Triarc
Pledge Agreement ceases to be valid and binding on or enforceable against DWG,
the Triarc Pledge Agreement ceases to create a valid security interest in the
collateral purported to be covered thereby or such security interest ceases for
any reason to be a perfected and first priority security interest; or
(i) PECHINEY PLEDGE AGREEMENT. Any provision of the Pechiney
Pledge Agreement ceases to be valid and binding on or enforceable against Xxxxx
Xxx, the Pechiney Pledge Agreement ceases to create a valid security interest in
the collateral purported to be covered thereby or such security interest ceases
for any reason to be a perfected and first priority security interest; or
(j) TERM LOAN AGREEMENT. An "Event of Default" shall occur
under the Term Loan Agreement dated as of July 29, 1994, as amended or otherwise
modified from time to time, between Xxxxx Xxx and NationsBank of Florida, N.A.;
or
(k) PUBLIC INFORMATION. Triarc shall at any time cease to
satisfy either of the conditions set forth in paragraph (c) of Rule 144 (unless
at such time pursuant to paragraph (k) of Rule 144 the Bank can sell all of the
Triarc Class A Common Stock pledged to the Bank); or shares of the Triarc Class
A Common Stock shall cease to be listed on the New York Stock Exchange or the
American Stock Exchange or included for trading on the NASDAQ Stock
Market/National Market System; or
(l) DWG CONTROL. Xxxxx Xxx shall cease to own directly,
beneficially and of record, 33-1/3% of the partnership interests in DWG, or
Xxxxxx Xxxxx and Xxxxx Xxx shall cease collectively to own directly,
beneficially and of record, 100% of the partnership interests in DWG (except for
the limited partnership interest of Xxxx Xxxxxxxx); or
(m) DEATH OR INCAPACITY. Xxxxx Xxx shall die or shall cease
to have legal capacity.
Section 6.2 REMEDIES. If any Event of Default occurs, the Bank may:
(a) declare the aggregate principal amount of the
outstanding Loans, all interest accrued and unpaid thereon, and all other
Obligations to be immediately due and payable, whereupon such Loans, all
interest accrued and unpaid thereon, and all other Obligations shall become and
be forthwith due and payable without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by the Borrowers;
(b) exercise all rights and remedies available to it
hereunder, under the Note, any other Loan Document or applicable law;
(c) declare the Commitment to be terminated, whereupon the
Commitment shall forthwith terminate; and
(d) enforce, as Collateral Agent, and direct the Florida
Agent to enforce (subject to Section 8 of the Intercreditor Agreement), all of
the Liens and security interests created pursuant to the Loan Documents;
PROVIDED, HOWEVER, that (i) upon the occurrence of any event specified in
paragraph (c)(i), (f) or (g) of Section 6.1 above (in the case of clause (i) of
paragraph (f), after the 90-day period expressly set forth therein), the
Commitment shall automatically terminate and the aggregate principal amount of
the outstanding Loans, all interest accrued and unpaid thereon, and all other
Obligations shall automatically become due and payable, without presentment,
demand, protest or further notice of any kind, all of which are hereby expressly
waived by the Borrowers, and (ii) in the case of any event specified in
paragraph (c)(i) of Section 6.1 above (after the five-day period expressly set
forth in Section 2.5(b) hereof), and notwithstanding any notice provisions in
any other Loan Document, (A) the Collateral Agent may sell all or any part of
the Triarc Collateral and (B) the Florida Agent may (subject to Section 8 of the
Intercreditor Agreement) sell all or any part of the Pechiney Collateral, and in
each case the Bank may apply the proceeds of such Collateral to the payment of
the Obligations.
Section 6.3 RIGHTS NOT EXCLUSIVE. The rights provided in this
Agreement, the Note and the other Loan Documents are cumulative and are not
exclusive of any other rights, powers, privileges or remedies provided by law or
in equity, or under any other instrument, document or agreement now existing or
hereafter arising.
ARTICLE VII
MISCELLANEOUS
Section 7.1 AMENDMENT AND WAIVER. No modification, consent, amendment
or waiver of any provision of this Agreement, nor consent to any departure by
either Borrower therefrom, shall be effective unless the same shall be in
writing and signed by a Vice President or higher level officer of the Bank, and
then shall be effective only in the specific instance and for the purpose for
which given.
Section 7.2 COSTS AND EXPENSES. The Borrowers shall:
(a) reimburse the Bank within five (5) Business Days after
demand for all costs and expenses incurred by the Bank, including, without
limitation, the reasonable fees and disbursements of counsel and paralegals, in
connection with the development, preparation, delivery, administration and
execution of, and any amendment, supplement, waiver or modification to, this
Agreement, the Note or any of the other Loan Documents, the review of the
Collateral and the consummation of the transactions contemplated hereby;
(b) reimburse the Bank within five (5) Business Days after
demand for all costs and expenses incurred by it, including, without limitation,
the fees and disbursements of counsel and paralegals, in connection with the
enforcement, attempted enforcement, or preservation of any rights or remedies
(including in connection with any "workout" or restructuring regarding any of
the Loans and any insolvency proceeding or appellate proceeding) under this
Agreement, the Note or any other Loan Document or in respect of any of the
Collateral; and
(c) reimburse the Bank within five (5) Business Days after
demand for all costs and expenses incurred by the Bank in connection with
litigation involving the Triarc Collateral, whether related to enforcement
thereof or otherwise.
Section 7.3 JOINT AND SEVERAL OBLIGATIONS. All of the Obligations of
the Borrowers hereunder and under the Note and the other Loan Documents are
joint and several. The Bank may, in its sole and absolute discretion, enforce
the provisions hereof against either of the Borrowers and shall not be required
to proceed against both Borrowers jointly or seek payment from the Borrowers
ratably. In addition, the Bank may, in its sole and absolute discretion, select
the Collateral of any one or more of the Loan Parties for sale or application to
the Obligations, without regard to the ownership of such Collateral, and shall
not be required to make such selection ratably from the Collateral owned by the
Loan Parties (it being understood that any sale or disposition of the Pechiney
Collateral shall be subject to Section 8 of the Intercreditor Agreement). It is
understood and agreed that Xxxxxx Xxxxx and Xxxxx Xxx have agreed between
themselves that Xxxxxx Xxxxx shall have a two-thirds interest, and Xxxxx Xxx
shall have a one-third interest, in DWG and its assets, and the Bank hereby
agrees that in the event the Bank shall sell or otherwise dispose of any of the
Triarc Collateral, the Bank shall apply one third of the proceeds of such Triarc
Collateral to the Obligations.
Section 7.4 DEMAND OBLIGATION. Nothing in this Agreement or in any
other Loan Document is intended to be an amendment or modification of, or
limitation or restriction upon, any provision of the Note (including, without
limitation, the Borrower's obligation under the Note to pay principal and
interest ON DEMAND), and the provisions of the Note shall be controlling and
fully effective regardless of anything herein to the contrary. The Borrowers
hereby acknowledge that the Bank may at any time, in its sole and absolute
discretion, demand payment of the Note, even if the Borrowers have fully
complied with all of the terms and conditions of this Agreement and the other
Loan Documents. This Agreement, the Note and the other Loan Documents constitute
the entire agreement among the parties with respect to the borrowings
contemplated hereunder and supersede all prior agreements, written or oral, with
respect to the borrowings contemplated hereunder. THE NOTE AND THE BORROWERS'
OBLIGATIONS ARE PAYABLE UPON DEMAND BY THE BANK (IN ITS SOLE AND ABSOLUTE
DISCRETION).
Section 7.5 SET-OFF. If an Event of Default exists, the Bank is
authorized to set-off and apply any and all deposits (general or special, time
or demand, provisional or final) at any time held by, and other indebtedness at
any time owing to, the Bank to or for the credit or the account of any Borrower
against any and all Obligations owing to the Bank, now or hereafter existing,
whether or not the Bank has made demand under this Agreement, the Note or any
other Loan Document and although such Obligations may be contingent or
unmatured. The Borrowers hereby waive prior notice of such action. The Bank,
however, agrees promptly to notify the Borrowers after any such set-off;
PROVIDED, HOWEVER, that the failure to give such notice shall not affect the
validity of such set-off. The rights of the Bank under this Section 7.5 are in
addition to the other rights and remedies (including other rights of set-off)
which the Bank may have.
Section 7.6 WAIVER. No failure or delay on the part of the Bank or the
Borrowers in exercising any right, power or privilege under this Agreement and
no course of dealing between the Borrowers or any other person and the Bank or
any other person shall operate as a waiver hereof or thereof.
Section 7.7 SUCCESSORS AND ASSIGNS.
(a) This Agreement shall be binding upon and inure to the
benefit of each party hereto and its successors and assigns, except that the
Borrowers shall not be entitled to assign or transfer all or any of their
rights, benefits or obligations hereunder, except for their death or mental
incapacity.
(b) The Bank may not assign or otherwise transfer any of its
rights or obligations under this Agreement except as provided in this Section
7.7(b):
(i) Prior to approaching any Eligible Institution
for the purpose of assigning a portion of its interest herein or
selling a participation in its rights and obligations under this
Agreement, the Bank shall discuss with a Borrower the names of
such potential participants or assignees. The Bank shall not
assign or sell a participation in its rights and obligations
under this Agreement to any person unless a Borrower shall have
consented thereto (which consent shall not be unreasonably
withheld).
(ii) The Borrowers shall be given prompt written
notice of any grant of any such participation or assignment,
which notice shall include (x) the name and jurisdiction of
organization of the participant and (y) the amount of such
participation or assignment.
(iii) The Bank agrees that:
(A) it will not assign an interest in, or
sell a participation in, the outstanding Loans and the
Commitment in an amount less than 15% of the Commitment;
(B) it will at all times retain not less
than 15% of the outstanding Loans and the Commitment;
(C) it will provide in any assignment or
participation agreement with any assignee or participant that
such assignee or participant may not make a subparticipation or
assign any portion of its interest in outstanding Loans and the
Commitment if, after giving effect to such participation or
assignment, such participant or assignee would hold less than
15% of the outstanding Loans and the Commitment;
(D) the Bank will not assign an interest or
sell a participation in any Loan or the Commitment to any
assignee or participant who would be entitled to receive
additional compensation under Section 2.10 at the time of such
assignment or sale by the Bank, nor to any assignee or
participant who would find it unlawful or impossible to make,
maintain or fund its assigned interest or participation in the
Loan at a rate based on Adjusted LIBOR as provided in Section
2.11, at the time of such assignment or sale by the Bank;
(E) with respect to any matter on which the
Bank and any assignee or participant is required to vote or is
solicited to consent pursuant to the terms of a participation
agreement or an assignment agreement, as the case may be,
between the Bank and such person, if the matter to be decided is
one that does not require the unanimous consent of all assignees
or participants, financial institutions holding 51% of the
outstanding Loans shall decide the issue, provided that such 51%
includes the Bank; and
(F) in any participation agreement or
assignment agreement with any participant or assignee, as the
case may be, the Bank will:
(x) require that any bank organized
outside the United States will deliver to the Bank with a copy
to either Borrower Internal Revenue Service Form 4224 or 1001,
duly completed and signed; and
(y) provide that each participant or
assignee, as the case may be, will agree to be bound by all the
terms of this Agreement as if it were a signatory hereto.
(iv) The Bank may, in connection with any proposed
participation or assignment, disclose to the proposed
participant or assignee any information relating to the
Borrowers furnished to the Bank by or on behalf of the
Borrowers; PROVIDED, that prior to any such disclosure, the
proposed participant or assignee shall agree in writing to
preserve the confidentiality of any confidential information
relating to the Borrowers received by it from the Bank to the
same extent as is required of the Bank.
(v) The Bank shall act as agent in connection with
any transfer permitted hereunder and the administration of the
Loans, and shall remain the holder of the Triarc Collateral and
act as collateral agent of the Triarc Collateral holding the
same for its benefit and the benefit of the permitted assignees
and participants hereunder. The Borrowers shall not be required
to deal with any participant or assignee in connection with the
administration of the Loans, and each assignment agreement or
participation agreement shall provide that each such assignee or
participant shall deal solely with the Bank as agent and not
directly with the Borrowers.
Section 7.8 CONFIDENTIALITY. The Bank agrees to take normal and
reasonable precautions and exercise due care to maintain the confidentiality of
all information identified as "confidential" by the Borrowers and provided to it
by the Borrowers in connection with this Agreement, and it shall not use any
such information for any purpose or in any manner other than pursuant to the
terms contemplated by this Agreement; except to the extent such information (i)
was or becomes generally available to the public other than as a result of a
disclosure by the Bank, or (ii) was or becomes available on a non-confidential
basis from a source other than the Borrowers, provided that such source is not
bound by a confidentiality agreement with the Borrowers known to the Bank;
PROVIDED FURTHER, HOWEVER, that the Bank may disclose such information: (A) at
the request or pursuant to any requirement of any Governmental Authority to
which the Bank is subject or in connection with an examination of the Bank by
any such authority; (B) pursuant to subpoena or other court process; (C) when
required to do so in accordance with the provisions of any applicable
requirement of law; (D) to the Bank's independent auditors and other
professional advisors, all of whom shall have been advised of the confidential
nature of such information; and (E) to proposed assignees or participants in
accordance with Section 7.8(b)(iv). It is understood that the financial
information to be delivered pursuant to Section 5.1 or any similar financial
information delivered prior to the Closing Date shall be deemed to have been
identified as confidential by the Borrowers.
Section 7.9 COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed an original, and it shall not be
necessary in making proof of this Agreement to produce or account for more than
one such counterpart.
Section 7.10 SEVERABILITY. Any provision of this Agreement which is
illegal, invalid or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such illegality, invalidity or
unenforceability without invalidating the remaining provisions hereof or
affecting the legality, validity or enforceability of such provision in any
other jurisdiction.
Section 7.11 NOTICES. Unless otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing and
shall be mailed, telegraphed, telecopied or delivered, if to the Borrowers, to
c/o Triarc Companies, Inc., 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Telecopy No. [ REDACTED ], Telephone No.: [ REDACTED ], with a copy to
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx
Xxx Xxxx 00000. Attention: Xxxxx Xxxxxx, Esq., Telecopier No.: [ REDACTED ],
Telephone No.: [ REDACTED ]; if to the Bank, to it at its address at
NationsBank, N.A., 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, with
copies to NationsBank, N.A., 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, Attention: Xx. Xxxx X. Xxxxxx, Senior Vice President, Telecopier No.
[ REDACTED ], Telephone No. [ REDACTED ], and Xxxxxxx Xxxx & Xxxxx, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxxx X. Xxxxxxxx, Esq.,
Telecopier No. [ REDACTED ], Telephone No.[ REDACTED ]; or, as to each party, at
such other address as shall be designated by such party in a written notice to
the other party complying as to delivery with the terms of this Section 7.11.
Any notice to the Bank by any Borrower or Borrowers shall be binding on all of
the Borrowers. The Bank may, and is hereby authorized, in its sole discretion,
to act in accordance with the terms hereof upon receipt of any notice,
including, without limitation, a Notice of Borrowing, by any Borrower or
Borrowers as though such notice had been signed by both of the Borrowers, and
all of the rights and remedies of the Bank, and Obligations of the Borrowers,
shall be in full force and effect notwithstanding that any Borrower did not
execute or consent to such Notice of Borrowing or other notice. All such notices
and other communications shall be effective (i) if mailed, when deposited in the
mails, (ii) if telegraphed, when delivered to the telegraph company, (iii) if
telecopied, upon receipt, or (iv) if delivered, upon delivery, except that
notices to the Bank pursuant to Article II hereof shall not be effective until
received by the Bank.
Section 7.12 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 7.13 ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE
PARTIES HERETO INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR ANY RELATED INSTRUMENTS, AGREEMENTS OR DOCUMENTS, INCLUDING
ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED TORT, SHALL BE DETERMINED BY
BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION ACT (OR IF NOT
APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF PRACTICE AND PROCEDURE FOR
THE ARBITRATION OF COMMERCIAL DISPUTES OF J.A.M.S./ENDISPUTE OR ANY SUCCESSOR
THEREOF ("J.A.M.S."), AND THE "SPECIAL RULES" SET FORTH BELOW. IN THE EVENT OF
ANY INCONSISTENCY, THE SPECIAL RULES SHALL CONTROL. JUDGMENT UPON ANY
ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. ANY PARTY TO
THIS AGREEMENT MAY BRING AN ACTION, INCLUDING A SUMMARY OR EXPEDITED PROCEEDING,
TO COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM TO WHICH THIS AGREEMENT
APPLIES IN ANY COURT HAVING JURISDICTION OVER SUCH ACTION.
(i) SPECIAL RULES. THE ARBITRATION SHALL BE
CONDUCTED IN THE COUNTY OF ANY BORROWER'S DOMICILE AT THE TIME
OF THE EXECUTION OF THIS AGREEMENT AND ADMINISTERED BY J.A.M.S.
WHO WILL APPOINT AN ARBITRATOR; IF J.A.M.S. IS UNABLE OR LEGALLY
PRECLUDED FROM ADMINISTERING THE ARBITRATION, THEN THE AMERICAN
ARBITRATION ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS
WILL BE COMMENCED WITHIN 90 DAYS OF THE DEMAND FOR ARBITRATION;
FURTHER, THE ARBITRATOR SHALL ONLY, UPON A SHOWING OF CAUSE, BE
PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH HEARING FOR UP TO
AN ADDITIONAL 60 DAYS.
(ii) RESERVATION OF RIGHTS. NOTHING IN THIS
ARBITRATION PROVISION SHALL BE DEEMED TO (I) LIMIT THE
APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF LIMITATION
OR REPOSE AND ANY WAIVERS CONTAINED IN THIS INSTRUMENT,
AGREEMENT, OR DOCUMENT; OR (II) BE A WAIVER BY THE BANK OF THE
PROTECTION AFFORDED TO IT BY 12 U.S.C. SEC. 91 OR ANY
SUBSTANTIALLY EQUIVALENT STATE LAW; OR (III) LIMIT THE RIGHT OF
THE BANK HERETO (A) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT
NOT LIMITED TO) SETOFF, OR (B) TO FORECLOSE AGAINST ANY REAL OR
PERSONAL PROPERTY COLLATERAL, OR (C) TO OBTAIN FROM A COURT
PROVISIONAL OR ANCILLARY REMEDIES SUCH AS (BUT NOT LIMITED TO)
INJUNCTIVE RELIEF, WRIT OF POSSESSION OR THE APPOINTMENT OF A
RECEIVER. THE BANK MAY EXERCISE SUCH SELF HELP RIGHTS, FORECLOSE
UPON SUCH PROPERTY, OR OBTAIN SUCH PROVISIONAL OR ANCILLARY
REMEDIES BEFORE, DURING OR AFTER THE PENDENCY OF ANY ARBITRATION
PROCEEDING BROUGHT PURSUANT TO THIS AGREEMENT. NEITHER THIS
EXERCISE OF SELF HELP REMEDIES NOR THE INSTITUTION OR
MAINTENANCE OF AN ACTION FOR FORECLOSURE OR PROVISIONAL OR
ANCILLARY REMEDIES SHALL CONSTITUTE A WAIVER OF THE RIGHT OF ANY
PARTY, INCLUDING THE CLAIMANT IN ANY SUCH ACTION, TO ARBITRATE
THE MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING RESORT TO
SUCH REMEDIES.
Section 7.14 THIS WRITTEN AGREEMENT AND THE OTHER LOAN DOCUMENTS
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered as of the date first above
written.
/s/ Xxxxx Xxx
---------------------------------
XXXXX XXX
/s/ Xxxx May
---------------------------------
XXXX MAY
NATIONSBANK, N.A.
By: /s/ Xxxx X. Xxxxxx, S.V.P.
-----------------------------
Title: AUTHORIZED SIGNATORY
REDACTED
TERM LOAN AGREEMENT
dated as of July 29, 1994
between
XXXXX X. MAY
and
NATIONSBANK OF FLORIDA, N.A.
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS...................................1
Section 1.1 Certain Defined Terms...........................................1
ARTICLE II THE LOAN...........................................................6
Section 2.1 Amount of the Loan..............................................6
Section 2.2 Interest........................................................6
Section 2.3 Payment Under Collateral Notes and Letters of Credit............7
Section 2.4 Payment of Principal............................................8
Section 2.5 Optional Prepayment.............................................8
Section 2.6 Mandatory Prepayment............................................8
Section 2.7 Evidence of Credit Extensions...................................8
Section 2.8 Payment.........................................................8
Section 2.9 Computations of Interest; Business Day..........................8
Section 2.10 Increased Costs, Etc............................................9
Section 2.11 Illegality.....................................................10
Section 2.12 Funding Losses.................................................11
Section 2.13 Unavailability.................................................11
Section 2.14 Special Prepayment.............................................11
ARTICLE III CONDITIONS PRECEDENT.............................................12
Section 3.1 Deliveries.....................................................12
Section 3.2 Representations Correct........................................13
Section 3.3 Release of Credit Suisse Lien..................................13
ARTICLE IV REPRESENTATIONS AND WARRANTIES....................................13
Section 4.1 Good Title to Collateral.......................................13
Section 4.2 Enforceable Collateral Notes; No Default.......................14
Section 4.3 No Defense to or Prepayment of Collateral Notes................14
Section 4.4 No Misrepresentation...........................................14
Section 4.5 No Insolvency Proceedings......................................14
Section 4.6 No Default.....................................................14
Section 4.7 Enforceable Obligations........................................14
Section 4.8 No Legal Bar...................................................14
Section 4.9 No Litigation..................................................15
Section 4.10 Taxes..........................................................15
Section 4.11 Margin Stock...................................................15
Section 4.12 Purpose of Loan................................................15
Section 4.13 Pledge Agreement...............................................15
Section 4.14 Escrow Agreement...............................................15
ARTICLE V COVENANTS..........................................................16
Section 5.1 Financial Statements...........................................16
Section 5.2 Notices........................................................17
Section 5.3 Payment of Obligations.........................................17
Section 5.4 Further Assurances.............................................17
Section 5.5 Notice to Pechiney and Escrow Agent............................18
Section 5.6 Amendments to Escrow Agreement.................................18
Section 5.7 Change in State of Residence...................................18
ARTICLE VI EVENTS OF DEFAULT.................................................18
Section 6.1 Event of Default...............................................18
(a) Non-Payment........................................................18
(b) Representation or Warranty.........................................19
(c) Other Default......................................................19
(d) Cross-Default......................................................19
(e) Material Adverse Change............................................20
(f) Insolvent Voluntary Proceedings....................................20
(g) Involuntary Proceedings............................................20
(h) Monetary Judgments; Liens..........................................20
(i) Pledge Agreement...................................................20
Section 6.2 Remedies.......................................................21
Section 6.3 Rights Not Exclusive...........................................21
ARTICLE VII MISCELLANEOUS....................................................21
Section 7.1 Amendment and Waiver...........................................21
Section 7.2 Costs and Expenses.............................................22
Section 7.3 Indemnification................................................22
Section 7.4 GOVERNING LAW AND SUBMISSION TO JURISDICTION...................23
Section 7.5 Set-Off........................................................23
Section 7.6 Waiver.........................................................24
Section 7.7 Successors and Assigns.........................................24
Section 7.8 Confidentiality................................................26
Section 7.9 Counterparts...................................................27
Section 7.10 Severability...................................................27
Section 7.11 Notices........................................................27
Section 7.12 Document Stamp Taxes...........................................27
Section 7.13 WAIVER OF JURY TRIAL...........................................27
SCHEDULES
Schedule 2.2 - Interest Payment Dates
Schedule 4.9 - Litigation, Tax Audits
Schedule 4.10 - Tax Assessments
EXHIBITS
Exhibit A - Note
Exhibit B - Pledge Agreement
Exhibit C - Direction to Demand Payment, Accelerate or Draw
TERM LOAN AGREEMENT
THIS TERM LOAN AGREEMENT (the "Agreement"), dated as of July 29,1994,
is entered into by and between XXXXX X. MAY (the "Borrower"), an individual
residing in the State of New York, and NATIONSBANK OF FLORIDA, N.A. (the
"Bank"), a national banking association.
RECITALS
The Borrower has requested that the Bank make a term loan (the "Loan")
available to the Borrower in an amount not in excess of Fifty-One Million
Dollars ($51,000,000), which Loan is to be secured by the pledge to the Bank by
the Borrower of promissory notes (the "Collateral Notes") issued by Pechiney
Corporation, a Delaware corporation ("Pechiney"), payable to the Borrower in an
aggregate principal amount of $60,000,000. Payment of the Collateral Notes is
supported by transfer letters of credit issued by Banque Nationale de Paris, New
York Branch, which, on the Closing Date, will issue new letters of credit naming
the Bank as beneficiary. The Bank will hold such letters of credit for itself
and as collateral agent for any Eligible Institution (as defined herein) to
which the Bank sells a participation in the Loan or to which the Bank assigns a
portion of its interest therein.
The Bank has agreed to make the loan to the Borrower on the terms set
forth herein.
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.1 Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings: "Adjusted LIBOR" means, with
respect to any Interest Period, a rate per annum (rounded upward, if necessary,
to the nearest 1/100th of one percent), determined pursuant to the following
formula:
LIBOR
1.00 minus the Eurodollar Reserve Percentage
"Applicable Margin" means:
(i) prior to a Rating Change, [REDACTED]%; and
(ii) after a Rating Change and during the continuance
thereof, [REDACTED]%.
Any change in the Applicable Margin shall take effect on the date of any Rating
Change.
"Base Rate" means, for any day, a simple rate per annum equal to the
higher of (i) the Prime Rate for such day, or (ii) the sum of one half of one
percent ( 1/2 %) plus the Federal Funds Rate for such day.
"BNP" means Banque Nationale de Paris, New York Branch.
"Business Day" means any day other than a Saturday, Sunday or other day
on which commercial banks in New York City are authorized or required by law to
close and, if the applicable Business Day relates to any Interest Period for
which interest on the Loan is determined by reference to the Adjusted LIBOR
rate, also includes a day on which commercial banks are open for international
business in London.
"Closing Date" means July 29, 1994.
"Collateral Notes" has the meaning assigned to it in the Recitals.
"Default" means a condition or event which, after notice or lapse of
time or both, would constitute an Event of Default.
"Default Rate" has the meaning specified in Section 2.2.
"Direction to Demand Payment, Accelerate or Draw" means a direction, in
the form attached hereto as Exhibit C, dated and signed by the Borrower.
"Dollars" and the sign "$" each mean lawful money of the United States
of America.
"Eligible Institution" means (i) a commercial bank organized under the
laws of the United States, or any state thereof, and having a combined capital
and surplus of at least $100,000,000; or (ii) a commercial bank organized under
the laws of any other country which is a member of the Organization for Economic
Cooperation and Development (the "OECD"), or a political subdivision of any such
country, and having a combined capital and surplus of at least $100,000,000,
provided that such bank is acting through a branch or agency located in the
United States or an offshore branch outside the United States at which such bank
books loans bearing interest based on LIBOR and, in the case of a bank described
in either clause (i) or clause (ii), such bank is able to deliver Internal
Revenue Service Form 1001 or 4224 to the Bank with a copy to the Borrower as of
the day such bank becomes an assignee or participant.
"Escrow Agreement" means that certain Escrow Agreement, dated as of
December 22, 1988, among Pechiney, BNP, the Borrower, Xxxxxx Xxxxx and Bank of
the West as Escrow Agent, as amended from time to time.
"Eurodollar Reserve Percentage" means, with respect to each Interest
Period, the maximum reserve percentage (expressed as a decimal fraction), in
effect on the date LIBOR for such Interest Period is determined (whether or not
applicable to the Bank), prescribed by the Board of Governors of the Federal
Reserve System (or any successor) for determining reserve requirements generally
applicable to financial institutions regulated by the Board of Governors of the
Federal Reserve System (including without limitation any basic, emergency,
supplemental or other marginal reserve requirements) with respect to
Eurocurrency liabilities pursuant to Regulation D or any other then applicable
regulation of the Board of Governors of the Federal Reserve System which
prescribes reserve requirements applicable to "Eurocurrency liabilities" as
presently defined in Regulation D (or any other category of liabilities which
includes deposits by reference to which the interest rate is determined or any
category or extension of credit which includes loans by a non-United States
office of the Bank to United States residents). Each determination by the Bank
of the Eurodollar Reserve Percentage shall, in the absence of demonstrable
error, be binding and conclusive.
"Event of Default" has the meaning specified in Section 6.1.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward to the nearest 1/100th of 1%) equal to the weighted average of the rates
on overnight federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers on such day, as published by the
Federal Reserve Bank of New York on the Business Day next succeeding such day,
provided that (i) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding Business
Day, and (ii) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate quoted to the
Bank on such day on such transactions as determined by the Bank.
"Interest Period" means each three (3) month period during which
interest on the Loan shall be calculated by reference to Adjusted LIBOR
determined as of the second Business Day before the commencement of that
Interest Period; provided, however, that:
(i) if any Interest Period would end on a day not a
Business Day, it shall end on the next Business Day unless the
next Business Day would fall in the next calendar month, in
which case the Interest Period shall end on the Business Day
immediately preceding the last day of such Interest Period but
for such change;
(ii) if any Interest Period would end on a day for
which there is no corresponding day in such month, it shall end
on the immediately preceding Business Day;
(iii) any Interest Period which would otherwise extend
beyond the Termination Date shall end on the Termination Date;
and
(iv) the first Interest Period shall commence on the
Closing Date and shall be a period of more or less than three
(3) months so that it may end on a date set forth on Schedule
2.2 for an interest payment by the Borrower; thereafter, each
Interest Period shall commence upon the expiration of the
preceding Interest Period.
"Letters of Credit" means (i) when used with respect to the letters of
credit issued by BNP naming the Bank as beneficiary in its capacity as
collateral agent, such letters of credit and (ii) when used with respect to
letters of credit supporting payment of the Collateral Notes prior to the
Closing Date, such letters of credit.
"LIBOR" means, for each Interest Period, the interest rate per annum
displayed on Telerate page 3750 (or such other page as may replace such page on
that service for the purpose of displaying interest rates at which Dollar
deposits are offered by prime banks in the London interbank market), as of 11:00
a.m., London, England time, on the day which is two (2) Business Days prior to
the first day of the applicable Interest Period, rounded to the nearest .0625 of
one percent. If Telerate ceases to quote LIBOR at any time during the term of
this Agreement, then LIBOR shall mean the rate of interest per annum at which
deposits in U.S. Dollars are offered to the Bank by prime banks in the London
interbank market at approximately 11:00 a.m. London time two (2) Business Days
before the first day of such Interest Period for amounts approximately equal to
the outstanding principal amount of the Loan, and for a period comparable to the
applicable Interest Period. LIBOR shall be adjusted from time to time for the
aggregate reserve requirements (including, without limitation, all basic,
supplemental, marginal and other reserve requirements and taking into account
any transitional adjustments or other scheduled changes in reserve requirements
during any Interest Period) specified in Regulation D of the Board of Governors
of the Federal Reserve System, or any subsequent regulations of similar effect,
as applicable to "Eurocurrency liabilities" (as presently defined in Regulation
D) of the Bank to the extent actually complied with by same.
"Loan" has the meaning specified in the Recitals.
"Lien" means any lien, mortgage, pledge, security interest, charge or
similar encumbrance of any kind (including any conditional sale or other title
retention agreement, any lease in the nature thereof and any agreement to give
any security interest).
"Material Adverse Effect" means that the Net Worth of the Borrower is
less than $[REDACTED].
"Missed Interest Payment" has the meaning specified in Section 6.1(a).
"Net Worth" means, at any time of determination thereof, when used with
respect to the Borrower, the net worth of the Borrower as reflected on the
quarterly statement of assets and liabilities of the Borrower prepared on a
basis consistent with that used in the preparation of the Borrower's March 31,
1994 statement of assets and liabilities (except as explained in any notes to
such quarterly statement).
"Note" means a promissory note in the form attached hereto as Exhibit
A, as such note may be modified, amended, supplemented or restated from time to
time.
"Pledge Agreement" means a pledge agreement in the form attached hereto
as Exhibit B, as such agreement may be amended, modified, restated or
supplemented from time to time.
"Prime Rate" means the annual rate of interest announced from time to
time during the term of the Loan as the Bank's "prime" lending rate (which the
Borrower acknowledges does not necessarily represent the best or most favored
rate offered by the Bank to its best or any particular customers). Whenever
applicable to the Loan, the floating interest rate shall be adjusted
automatically as and when the Bank's Prime Rate shall change on any business
day(s) during the term of the Loan.
"Rating Change" means that either Standard & Poor's Corporation or
Xxxxx'x Investors Service, Inc. has rated the long-term senior debt of BNP below
investment grade or has withdrawn its rating.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as in effect from time to time. "Reinstatement Event of
Default" means that on three successive interest payment dates under the
Collateral Notes an event of default under the Collateral Notes has occurred as
a result of the failure of BNP to reinstate any interest amount drawn under the
Letters of Credit within five Business Days after such drawing.
"Termination Date" means the earliest to occur of
(i) January 4, 1999
(ii) the date on which, prior to the date set forth
in clause (i) above, the Loan is accelerated pursuant to Article
VI, and
(iii) the date on which prior to the dates set forth
in clauses (i) or (ii) above, the Loan is prepaid by the
Borrower in accordance with a notice to that effect given to the
Bank by the Borrower pursuant to Section 2.5.
ARTICLE II
THE LOAN
Section 2.1 Amount of the Loan. On the Closing Date, the Bank, on the
terms and conditions hereinafter set forth, will (a) make a Loan to the Borrower
in an amount not in excess of Fifty-One Million Dollars ($51,000,000) and (b)
deliver to the Borrower Internal Revenue Form 1001 or 4224 duly completed (if
applicable).
Section 2.2 Interest. The outstanding principal balance of the Loan
will bear interest at a rate per annum equal to Adjusted LIBOR plus the
Applicable Margin from the date of the making of the Loan until the Loan is paid
in full, except that after the occurrence of an Event of Default, the Loan shall
bear interest at a rate per annum equal A to the sum of (i) Adjusted LIBOR, (ii)
the Applicable Margin and (iii) [REDACTED] %(the "Default Rate"). Interest on
the Loan shall be paid in arrears on each date set forth on Schedule 2.2.
Interest will continue to accrue on the Loan until all interest then due is paid
even though the Bank may have drawn under the Letter of Credit for an interest
payment and shall accrue thereon at the Default Rate if interest is not paid
within three Business Days after the due date therefor, whether or not a drawing
has been made under the Letter of Credit.
Section 2.3 Payment Under Collateral Notes and Letters of Credit. If an
event of default occurs under a Collateral Note and the Borrower desires that
the Bank demand payment under the Collateral Notes, accelerate the Collateral
Notes or draw under one or more Letters of Credit as a result of such event of
default, the Borrower shall promptly notify the Bank of same, and the Borrower
shall direct the Bank to take such action by delivering to the Bank a Direction
to Demand Payment, Accelerate or Draw, specifying the event which caused such
event of default, the date of the occurrence thereof (if known) and, if the date
of such occurrence is not known, the date on which the Borrower obtained
knowledge of such occurrence as well as the action the Borrower desires that the
Bank take upon receipt of such Direction to Demand Payment, Accelerate or Draw,
the Bank shall forthwith take the requested action. If the Bank is not paid by
Pechiney or BNP, if the Bank is not paid the full amount for which it draws
under the Letters of Credit or if the amount drawn is withheld and placed in
escrow, then the Bank shall notify the Borrower of same. The proceeds of any
funds received directly from Pechiney after a demand by the Bank under the
Collateral Notes or as proceeds following a drawing under the Letters of Credit
shall be used by the Bank to pay any sums then due and unpaid under this
Agreement and the Note. If, at the time the Bank receives such payment from
either Pechiney or BNP, or the Borrower makes any payment to the Bank, there is
then no other Default or Event of Default under this Agreement, any excess
proceeds shall be remitted to the Borrower within one Business Day after
applying such payments.
Any action taken by the Bank pursuant to a Direction to Demand Payment,
Accelerate or Draw shall not affect or impair the Borrower's obligation
hereunder or under the Note to pay the amounts due hereunder. The Bank may draw
under the Letters of Credit even though it has not received a Direction to
Demand Payment, Accelerate or Draw, except that the Bank shall not accelerate
the Collateral Notes or make a drawing under the Letters of Credit for the
principal amount due under the Collateral Notes as a result solely of a Missed
Interest Payment unless a Reinstatement Event of Default has occurred and is
continuing.
Section 2.4 Payment of Principal. The Borrower shall repay the
principal amount outstanding under the Note on January 4, 1999, together with
all accrued and unpaid interest thereon and all fees and other amounts owing
hereunder and under the Pledge Agreement and the Note.
Section 2.5 Optional Prepayment. At any time and from time to time, the
Borrower may, subject to Section 2.12, prepay all or any part of the Loan
together with interest to date of payment, except that if the Loan is prepaid in
full during the twelve-month period commencing on the Closing Date, the Borrower
shall also pay to the Bank on the date of prepayment a cancellation fee of
$100,000.
Section 2.6 Mandatory Prepayment. If, as a result of acceleration,
voluntary prepayment or otherwise in respect of the Collateral Notes, the
Borrower receives any payment of the principal amount of one or more Collateral
Notes prior to January 4, 1999, the Borrower shall immediately prepay the
principal amount of the Note in the principal amount prepaid on the Collateral
Notes.
Section 2.7 Evidence of Credit Extensions. The Loan shall be evidenced
by the Note, executed by the Borrower, payable to the order of the Bank and
dated the Closing Date. The Bank shall record advances and principal payments
thereof on the grid attached thereto or, at its option, in its records, and the
Bank's record thereof shall be conclusive absent demonstrable error.
Notwithstanding the foregoing, the failure to make or an error in making a
notation with respect to any payment shall not limit or otherwise affect the
obligations of the Borrower hereunder or under the Note.
Section 2.8 Payment. Payment of principal, interest and any other sums
due under this Agreement or under the Note shall be made without set-off or
counterclaim in dollars in immediately available funds on the day such payment
is due not later than 12:00 Noon New York time. All sums received after such
time shall be deemed received on the next Business Day and principal payments or
sums (other than interest) due hereunder shall bear interest for an additional
day. All payments shall be made to the Bank at the address set forth beneath its
name on the signature pages hereof or to such other address as the Bank may
advise the Borrower in writing.
Section 2.9 Computations of Interest; Business Day.
(a) All computations of interest under this Agreement and
the Note shall be made on the basis of a year of three hundred sixty
(360) and actual days elapsed. Interest shall accrue on the principal
balance outstanding, under the Note from and including the Closing Date
to but excluding the date on which such principal balance is repaid.
(b) Payment of all amounts due hereunder shall be made on a
Business Day. Any payment due on a day that is not a Business Day shall
be made on the next Business Day unless the next Business Day would
fall in the next calendar month, in which case such payment shall be
made on the Business Day immediately preceding the due date.
Section 2.10 Increased Costs, Etc.
(a) If, after the date of this Agreement, due to either (i)
the introduction of or any change in or in the interpretation of any
law or regulation or (ii) the compliance with any guideline or request
from any central bank or other governmental authority (whether or not
having the force of law), there shall be any (x) change in the basis of
taxation of payments to the Bank of the principal of or interest on the
Loan (excluding changes in the rate of tax payable on the Bank's
overall income and bank franchise taxes) or (y) imposition or change in
any reserve or similar requirement, and the result of any of the
foregoing is an increase in the cost to the Bank of agreeing to make or
making, funding or maintaining the Loan (other than the Eurodollar
Reserve Percentage), then the Borrower shall from time to time, upon
demand by the Bank and within 15 days thereof, pay to the Bank an
additional amount sufficient to compensate the Bank for such increased
cost. A certificate as to the amount of such increased cost, submitted
to the Borrower by the Bank, shall be conclusive and binding for all
purposes, absent demonstrable error.
(b) If the Bank determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects
or would affect the amount of capital required or expected to be
maintained by the Bank or any corporation controlling the Bank and that
the amount of such capital is increased by or based upon the existence
of the Loan or the Bank's commitment to lend hereunder, then the
Borrower shall, within fifteen (15) days after demand by the Bank, pay
to the Bank an additional amount sufficient to compensate the Bank or
such corporation in the light of such circumstances, to the extent that
the Bank reasonably determines such increase in capital to be allocable
to the existence of the Loan or the Bank's commitment to lend
hereunder. A certificate as to such amounts submitted to the Borrower
by the Bank shall be conclusive and binding for all purposes, absent
demonstrable error.
(c) Prior to making any demand for compensation under this
Section 2.10, unless such action would be economically or legally
disadvantageous to the Bank in the reasoned opinion of its tax or
regulatory advisors, the Bank will (i) designate a different lending
office if such designation will avoid the need for, or reduce the
amount of, such compensation to which the Bank is entitled pursuant to
this Section 2.10 and (ii) permit the Borrower to prepay all or any
part of the Loan together with interest to the date of payment, subject
to payment of the cancellation fee in Section 2.5 (if applicable) and
payment of funding losses pursuant to Section 2.12.
Section 2.11 Illegality. If, after the date of this Agreement, the
adoption of any applicable law, rule or regulation, or any change in an existing
law, rule or regulation, or any change in the interpretation or administration
thereof by any governmental authority charged with the interpretation or
administration thereof, or compliance by the Bank with any request or directive
(whether or not having the force of law) of any such governmental authority,
makes it unlawful or impossible for the Bank in the reasoned opinion of its
legal or regulatory advisors to make, maintain or fund the Loan at an interest
rate based on LIBOR, the Bank shall forthwith give notice thereof to the
Borrower, whereupon the obligation of the Bank to make the Loan at a rate based
on LIBOR shall be suspended until the Bank notifies the Borrower that the
circumstances giving rise to such suspension no longer exist. Before giving any
notice to the Borrower pursuant to this section, the Bank shall designate a
different lending office if such designation will avoid the need for giving such
notice (unless such action would be economically or legally disadvantageous to
the Bank in the reasoned opinion of its tax or regulatory advisors). If the Bank
makes a reasoned determination that it may not lawfully continue to maintain and
fund any of the Loan to maturity at a rate based on LIBOR and so specifies in
such notice, the Bank shall immediately convert the Loan into a loan bearing
interest at the Base Rate in an equal principal amount.
Section 2.12 Funding Losses. The Borrower agrees to reimburse the Bank
and to hold the Bank harmless from any loss or expense which the Bank may
sustain or incur as a consequence of:
(a) the failure of the Borrower to make any payment or
required prepayment of principal of the Loan (including payments made
after any acceleration thereof);
(b) the failure of the Borrower to make any prepayment
permitted hereunder after giving notice thereof, or
(c) the repayment of the Loan on a day which is not the last
day of an Interest Period;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain the Loan hereunder at a rate based on LIBOR
or from fees payable to terminate the deposits from which such funds were
obtained. Solely for purposes of calculating amounts payable by the Borrower to
the Bank under this section, the Loan bearing interest at a rate based on LIBOR
(and each related reserve, special deposit or similar requirement) shall be
conclusively deemed to have been funded by a matching deposit in Dollars in the
interbank eurodollar market for a comparable amount and for the respective
Interest Period, whether or not the Loan was in fact so funded.
Section 2.13 Unavailability. If the Bank determines that for any reason
adequate and reasonable means do not exist for ascertaining LIBOR for any
Interest Period, the Bank will forthwith give notice of such determination to
the Borrower. Commencing at the end of the Interest Period then in effect, the
Loan shall bear interest at the Base Rate (rather than at a rate based on LIBOR)
until the Bank revokes such notice in writing.
Section 2.14 Special Prepayment. The provisions of Sections 2.10, 2.11,
and 2.12 shall also apply to any assignee permitted pursuant to Section 7.7 and
shall apply to any unassigned portion of the Loan retained by the Bank
(regardless of whether the Bank may have sold a participation interest in such
retained portion to a participant permitted pursuant to Section 7.7). If demand
for payment is made pursuant to Section 2.10 or 2.12 or if notice of illegality
is given pursuant to Section 2.11, whether by any such permitted assignment or
by the Bank on behalf of any such permitted participant, then the Borrower may
prepay in full (but not in part) such assignee's or participant's interest in
the Loan on the last day of the Interest Period during which such demand for
additional amounts was made or during which such notice of illegality was given.
Any principal amount, interest or increased costs received by any such assignee
or participant pursuant to this Section 2.14 shall not be required to be shared
with the Bank and any other assignees or participants.
ARTICLE III
CONDITIONS PRECEDENT
Section 3.1 Deliveries. The obligation of the Bank to make the Loan is
subject to the condition precedent that on the Closing Date the following items
shall have been delivered to the Bank in form and substance satisfactory to the
Bank and its counsel:
(a) Agreement. A copy of this Agreement duly executed by the
Borrower.
(b) Note. The Note, duly executed by the Borrower.
(c) Pledge Agreement. The Pledge Agreement, duly executed by
the Borrower.
(d) Pechiney Resolutions, etc. Copies of (i) resolutions of
the Board of Directors of Pechiney, authorizing the issuance of the
Collateral Notes and the agreement to provide the Letters of Credit and
the other related documents; and (ii) a certificate of incumbency for
Pechiney, certified as true and correct by the Secretary or an
Assistant Secretary of Pechiney; all of which were delivered to the
Borrower by Pechiney in connection with the delivery to the Borrower of
the Collateral Notes (or any predecessor note which the Borrower
exchanged for the Collateral Notes).
(e) Collateral Notes. The Collateral Notes in a principal
amount of at least [REDACTED ], indorsed in blank by the Borrower on
note allonges relating thereto.
(f) Letters of Credit. The Letters of Credit issued to the
Bank as the beneficiary thereof in its capacity as collateral agent.
(g) Fees Payable at Closing. The legal fees and expenses
(including, without limitation, photocopying, travel and word
processing charges) incurred by the Bank in connection with its review
of the Collateral Notes and the Letters of Credit and with its
preparation of this Agreement, the Note and the Pledge Agreement,
negotiations in connection therewith, and research and other related
expenses.
(h) Funding Instructions. At least one Business Day prior to
the Closing Date, the Borrower shall have delivered written
instructions to the Bank directing the manner of the payment of funds,
and setting forth (1) the name of the transferee bank or banks, (2)
each such transferee bank's ABA number, (3) the account names and
numbers into which such amount is to be deposited, and (4) the names
and telephone numbers of the account representative responsible for
verifying receipt of such funds.
(i) Opinion of Counsel. An opinion, dated the Closing Date,
of the law firm of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, counsel to
the Borrower, in form and content reasonably satisfactory to the Bank
and its counsel.
Section 3.2 Representations Correct. The obligation of the Bank to make
the Loan is subject to the condition precedent that on the Closing Date the
representations and warranties contained in Article IV shall be true and correct
in all material respects.
Section 3.3 Release of Credit Suisse Lien. The obligation of the Bank
to make the Loan is subject to the condition precedent that on the Closing Date
the Bank shall have received evidence in form and substance satisfactory to it
and its counsel that Credit Suisse shall have unconditionally released all the
Liens in favor of it encumbering the Collateral Notes.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower warrants that:
Section 4.1 Good Title to Collateral. He has good title to and is the
sole owner of the Collateral Notes, free and clear of any lien, and the pledge
of the Collateral Notes by the Borrower to the Bank is not prohibited in any
manner by, and does not require the consent of any party under, any other
agreement, subject in each case to the Lien in favor of Credit Suisse
encumbering the Collateral Notes, which Lien is being terminated simultaneously
with the consummation of the transactions contemplated hereby.
Section 4.2 Enforceable Collateral Notes; No Default. Except for an
amendment to the Collateral Notes dated as of July 29, 1994 and attached to each
original Collateral Note delivered to the Bank by the Borrower, there has been
no modification of the terms that appear on the face of the Collateral Notes,
and the Collateral Notes are enforceable against Pechiney in accordance with
their terms. To the best of the Borrower's knowledge, there is no uncured
default under the Collateral Notes.
Section 4.3 No Defense to or Prepayment of Collateral Notes. There is
no defense, right of offset or counterclaim of Pechiney affecting the
enforceability of the Collateral Notes. There has been no prepayment of
principal under any of the Collateral Notes, and the principal amount
outstanding under each Collateral Note is the full original principal sum stated
on the face of such Collateral Note. Pechiney has paid and the Borrower has
collected all payments of interest heretofore coming due under the Collateral
Notes, and no such interest payments hereafter coming due under the Collateral
Notes have been prepaid by Pechiney or collected by the Borrower.
Section 4.4 No Misrepresentation. The Borrower has not made any
misrepresentation to Pechiney which has resulted in or may result in any
defense, or the assertion of any defense, by Pechiney with respect to its
obligations to pay under the Collateral Notes.
Section 4.5 No Insolvency Proceedings. The Borrower has no knowledge of
any insolvency proceeding of any type instituted with respect to Pechiney.
Section 4.6 No Default. No Default or Event of Default has occurred and
is continuing.
Section 4.7 Enforceable Obligations. The Borrower has the legal right
to execute, deliver and perform this Agreement, the Note and the Pledge
Agreement. No consent or authorization of, filing with or act by or in respect
of any other person is required in connection with the borrowings hereunder or
with the execution, delivery or performance of this Agreement, the Note or the
Pledge Agreement. This Agreement, the Note and the Pledge Agreement constitute
legal, valid and binding obligations of the Borrower, enforceable against the
Borrower in accordance with their respective terms.
Section 4.8 No Legal Bar. The execution, delivery and performance of
this Agreement, the Note and the Pledge Agreement, and the borrowing hereunder,
will not violate any contractual obligation of the Borrower and will not result
in the creation or imposition of a Lien on any of the Borrower's property (other
than the Lien created by the Pledge Agreement).
Section 4.9 No Litigation. Except as disclosed on Schedule 4.9, there
is no litigation or proceeding of or before any arbitrator or governmental
authority pending against the Borrower (as to which the Borrower has received
notice in writing) (a) with respect to this Agreement, the Loan, the use of the
proceeds thereof, the Collateral Notes or the Letters of Credit or (b) which
could reasonably be expected to (i) affect the legality, validity or
enforceability of this Agreement, the Collateral Notes or the Letters of Credit,
or (ii) otherwise have a Material Adverse Effect.
Section 4.10 Taxes. The Borrower has filed or caused to be filed all
tax returns which are required to be filed and has paid all taxes shown to be
due and payable on such returns or on any assessments made against it or any of
its property by any governmental authority except to the extent any such taxes
are being contested in good faith and any exceptions thereto are set forth on
Schedule 4.10. No tax Lien has been filed with respect to any material tax
liability against the Borrower, and, to the Borrower's knowledge, no tax
assessment is pending against the Borrower, except as set forth on Schedule
4.10.
Section 4.11 Margin Stock. No part of the proceeds of the Loan will be
used for "purchasing" or "carrying" any "margin stock" within the meaning of
such terms under Regulation U of the Board of Governors of the Federal Reserve
System.
Section 4.12 Purpose of Loan. The proceeds of the Loan will be used to
refund indebtedness of the Borrower to Credit Suisse, to obtain a release of the
lien in favor of Credit Suisse against the Collateral Notes, and to fund
business and investment purposes of the Borrower.
Section 4.13 Pledge Agreement. The Pledge Agreement is effective to
create in favor of the Bank a legal, valid and enforceable security interest in
the Collateral Notes. The execution and delivery by the Borrower of the Pledge
Agreement and the delivery to the Bank of the Collateral Notes shall together
constitute a fully perfected first priority Lien on all right, title and
interest of the Borrower in the Collateral Notes and the proceeds thereof prior
and superior in right to any other person.
Section 4.14 Escrow Agreement. The Borrower has delivered to the Bank
on or prior to the Closing Date a true and correct copy of the Escrow Agreement.
No modification has been made to the Escrow Agreement since the date of the last
modification, a copy of which was delivered by the Borrower to the Bank.
ARTICLE V
COVENANTS
So long as any amount is outstanding under this Agreement and the Note,
the Borrower shall:
Section 5.1 Financial Statements. Deliver to the Bank in form and
detail satisfactory to the Bank:
(a) as soon as available, but not later than sixty (60) days
after the end of each calendar quarter and for that portion of the
calendar year ending with such quarter, a statement of assets and
liabilities of the Borrower as of the close of such quarter, certified
by the Borrower to the best of his knowledge as being true and complete
in all material respects; and
(b) together with each statement of assets and liabilities,
(i) a letter showing which assets he owns
individually, which assets his wife owns individually and which
assets he owns jointly with his wife. Such assets shall be
valued on a basis consistent with that used in the preparation
of his March 31, 1994 statement of assets and liabilities,
except as explained in any notes to the quarterly statement
which such letter accompanies; and
(ii) an update on the status of the audit by the
Internal Revenue Service of the Borrower's federal tax returns
(which update may be included in the footnotes to such statement
of assets and liabilities; the level of disclosure for such
updates will be sufficient if the same as for previous updates
included in such footnotes).
Section 5.2 Notices. Promptly notify the Bank of:
(a) the occurrence of any Default or Event of Default;
(b) (i) any breach or non-performance of, or any default
under, any contractual obligation of the Borrower which could result in
a Material Adverse Effect; and (ii) any litigation or proceeding which
may exist at any time between the Borrower and any governmental
authority which could result in a Material Adverse Effect;
(c) the commencement of, or any material development in, any
litigation or proceeding affecting the Borrower (i) which could
reasonably be expected to have a Material Adverse Effect, (ii) in which
the relief sought is an injunction or other stay of the performance of
this Agreement, the Note or the Pledge Agreement or (iii) any
litigation involving any of the Collateral Notes or any of the Letters
of Credit (or other promissory notes or Letters of Credit issued in the
same transaction in which the Borrower acquired the Collateral Notes
and the Letters of Credit; and
(d) any Material Adverse Effect subsequent to the date of
the most recent statement of assets and liabilities of the Borrower
delivered to the Bank pursuant to Section 5.1. Each notice pursuant to
this section shall be accompanied by a written statement signed by the
Borrower, setting forth details of the occurrence referred to therein,
and stating what action the Borrower proposes to take with respect
thereto and at what time. Each notice under subsection 5.2(a) shall
describe with particularity the provisions of this Agreement, the Note
or the Pledge Agreement that have been breached.
Section 5.3 Payment of Obligations. Pay all taxes, assessments,
governmental charges and other obligations when due, except as may be contested
in good faith or those as to which a bona fide dispute may exist.
Section 5.4 Further Assurances. Execute and deliver to the Bank such
further instruments and do such other further acts as the Bank may reasonably
request to carry out more effectively the purposes of this Agreement and any
agreements and instruments referred to herein. Section 5.5 Notice to Pechiney
and Escrow Agent. Deliver to the Bank within ten (10) Business Days after the
Closing Date evidence satisfactory to the Bank that the Borrower has notified
Pechiney that the Collateral Notes have been pledged to the Bank as collateral
and that the Bank is holding the Collateral Notes on its own behalf and as
collateral agent for any assignees permitted under this Agreement.
Section 5.6 Amendments to Escrow Agreement. Not amend the Escrow
Agreement in any manner that would change the terms of the Collateral Notes
pledged to the Bank under the Pledge Agreement and, promptly after each
amendment to the Escrow Agreement, deliver to the Bank a copy of each such
amendment.
Section 5.7 Change in State of Residence. Not change the state of his
principal place of residence without (a) notifying the Bank in writing prior to
such change, (b) designating in writing an agent for service of process in the
State of New York and notifying the Bank of same and (c) delivering to the Bank
the written acceptance of such agent.
ARTICLE VI
EVENTS OF DEFAULT
Section 6.1 Event of Default. Any of the following shall constitute an
"Event of Default":
(a) Non-Payment. (i) The Borrower fails to pay any amount of
principal of the Loan when due, whether at maturity, as a result of
acceleration or otherwise, including any mandatory prepayment; or (ii)
the Borrower fails to pay, within 3 Business Days after the same is
due, any interest, or other amount payable hereunder, under the Note or
under the Pledge Agreement; provided, however, that it shall not be an
Event of Default under clause (ii) of this subsection (a) if (w) the
failure to pay interest under the Note or hereunder results from a
failure of Pechiney to pay interest owed to the Borrower under one or
more Collateral Notes (a "Missed Interest Payment"), (x) the Borrower
notifies the Bank of same pursuant to Section 2.3 hereof and directs
the Bank to demand payment under the Collateral Notes and/or to draw
under the Letters of Credit for the Missed Interest Payment, (y) the
Bank takes such action and receives the requested payment from Pechiney
or is paid the amount of the drawing by BNP and (z) such amount,
together with any amount paid by the Borrower in respect of interest
then due hereunder, is equal to or greater than the amount then owed to
the Bank as interest hereunder; or
(b) Representation or Warranty. Any representation or
warranty by the Borrower made or deemed made herein or in the Pledge
Agreement, or which is contained in any certificate, document or
financial or other statement furnished by the Borrower, at any time
under this Agreement or the Pledge Agreement, proves to have been
incorrect or misleading in any material respect on or as of the date
made or deemed made; or
(c) Other Default. The Borrower (i) fails to perform or
observe Section 5.1 or 5.2, or (ii) fails to perform or observe any
other material term or covenant contained in this Agreement, and not
referred to in another subsection of this Section 6.1, and such default
continues unremedied for a period of 20 days or (iii) fails to perform
or observe any other term or covenant contained in this Agreement, and
not referred to in clauses (i) or (ii) of this subsection (c) or in any
other subsection of this Section 6.1, and such default continues
unremedied for a period of 20 days after the Bank gives notice to the
Borrower of same; or
(d) Cross-Default. The Borrower (i) fails to make any
required payment when due in respect of any indebtedness or contingent
obligation having a principal or face amount of [ REDACTED] or more
when due (whether at scheduled maturity or required prepayment or by
acceleration, demand, or otherwise); or (ii) fails to perform or
observe any other condition or covenant, or any other event shall occur
or condition exist, under any agreement or instrument relating to any
such indebtedness or contingent obligation, and such failure continues
after the applicable grace or notice period, if any, specified in the
document relating thereto, if the effect of such failure, event or
condition is to cause, or to permit the holder or holders of such
indebtedness or beneficiary or beneficiaries of such Indebtedness (or a
trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause such indebtedness to be declared to be due and
payable prior to its stated maturity, or such contingent obligation to
become payable or cash collateral in respect thereof to be demanded; or
(e) Material Adverse Change. A Material Adverse Effect
occurs; or
(f) Insolvent Voluntary Proceedings. The Borrower (i)
becomes insolvent, or generally fails to pay, or admits in writing his
inability to pay, his debts as they become due, subject to applicable
grace periods, if any, whether at stated maturity or otherwise; (ii)
commences a proceeding under the bankruptcy laws of any state or of the
United States with respect to himself; or (iii) takes any action to
effectuate or authorize any of the foregoing; or
(g) Involuntary Proceedings. (i) Any involuntary bankruptcy
proceeding is commenced or filed against the Borrower or any writ,
judgment, warrant of attachment, execution or similar process, is
issued or levied against a substantial part of the Borrower's
properties, and any such proceeding or petition is not dismissed, or
such writ, judgment, warrant of attachment, execution or similar
process is not released, vacated or fully bonded within 90 days after
commencement, filing or levy; (ii) the Borrower admits the material
allegations of a petition against him in any insolvency proceeding, or
an order for relief (or similar order under non-U.S. law) is ordered in
any insolvency proceeding; or (iii) the Borrower acquiesces in the
appointment of a receiver, trustee, custodian, conservator, liquidator,
mortgagee in possession (or agent therefor), or other similar person
for a substantial portion of his property or business; or
(h) Monetary Judgments; Liens. One or more final (non-
interlocutory) judgments, orders or decrees is entered against the
Borrower or a Lien is filed against property of the Borrower involving
in the aggregate a liability (not fully covered by independent
third-party insurance) as to any single or related series of
transactions, incidents or conditions, of [ REDACTED ] or more, and the
same remains unvacated and unstayed pending appeal (if a judgment) or
unbonded (if a Lien) for a period of 10 days after the entry thereof,
or
(i) Pledge Agreement. Any provision of the Pledge Agreement
ceases to be valid and binding on or enforceable against the Borrower,
or the Pledge Agreement ceases to create a valid security interest in
the Collateral Notes or such security interest ceases for any reason to
be a perfected and first priority security interest, except if the Bank
fails to take any action exclusively in its control.
Section 6.2 Remedies. If any Event of Default occurs, the Bank may:
(a) declare the unpaid principal amount of the Loan, all
interest accrued and unpaid thereon, and all other amounts owing or
payable hereunder or under the Note and the Pledge Agreement to be
immediately due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby expressly waived by
the Borrower; and
(b) exercise all rights and remedies available to it
hereunder, under the Note and under the Pledge Agreement or applicable
law;
provided, however, that upon the occurrence of any event specified in paragraph
(f) or (g) of Section 6.1 above (in the case of clause (i) of paragraph (g) upon
the expiration of the 90-day period mentioned therein), the obligation of the
Bank to extend credit to the Borrower shall automatically terminate without
notice to the Borrower and the unpaid principal amount of the Loan and all
interest and other amounts due under this Agreement shall automatically become
due and payable without further act of the Bank and without notice to the
Borrower; and provided, further, that the Bank will not accelerate the
Collateral Notes or draw under the Letters of Credit for the principal amount
owed under the Collateral Notes as a result solely of a Missed Interest Payment
unless a Reinstatement Event of Default then exists.
Section 6.3 Rights Not Exclusive. The rights provided in this
Agreement, the Note and the Pledge Agreement are cumulative and are not
exclusive of any other rights, powers, privileges or remedies provided by law or
in equity, or under any other instrument, document or agreement now existing or
hereafter arising.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Amendment and Waiver. This Agreement may be amended,
changed, waived, discharged or terminated only by an instrument in writing
signed by the parties hereto.
Section 7.2 Costs and Expenses. The Borrower shall:
(a) reimburse the Bank within five (5) Business Days after
demand for all costs and expenses incurred by the Bank, including,
without limitation, the fees and disbursements of counsel and
paralegals, in connection with the development, preparation, delivery,
administration and execution of, and any amendment, supplement, waiver
or modification to, this Agreement, the Note and the Pledge Agreement,
the review of the Collateral Notes and Letters of Credit and any
amendment thereof, the transfer of the Letters of Credit to the Bank as
beneficiary and the consummation of the transactions contemplated
hereby;
(b) reimburse the Bank within five (5) Business Days after
demand for all costs and expenses incurred by it, including, without
limitation, the fees and disbursements of counsel and paralegals, in
connection with the enforcement, attempted enforcement or preservation
of any rights or remedies (including in connection with any "workout,"
or restructuring regarding the Loan and any insolvency proceeding or
appellate proceeding) under this Agreement, the Note or the Pledge
Agreement or in respect of the Collateral Notes or the Letters of
Credit; and
(c) reimburse the Bank within five (5) Business Days after
demand for all costs and expenses incurred by the Bank in connection
with litigation involving the Collateral Notes or the Letters of
Credit, whether related to enforcement thereof or otherwise.
Section 7.3 Indemnification. The Borrower shall pay, defend, indemnify
and hold the Bank and its officers, directors, employees, counsel, agents and
attorneys-in-fact (each, an "Indemnified Person") harmless from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, costs, charges, expenses or disbursements of any kind or nature
arising out of a drawing by the Bank under a Letter of Credit after receiving a
Direction to Demand Payment, Accelerate or Draw (all of the foregoing,
collectively, the "Indemnified Liabilities"); provided that the Borrower shall
have no obligation hereunder to any Indemnified Person with respect to
Indemnified Liabilities arising from the gross negligence or willful misconduct
of such Indemnified Person. The obligations in this Section 7.3 shall survive
payment and cancellation of all other obligations hereunder. At the election of
any Indemnified Person, the Borrower shall defend such Indemnified Person using
legal counsel satisfactory to such Indemnified Person in such person's sole
discretion and at the sole cost and expense of the Borrower. All amounts owing
under this Section 7.3 shall be paid within 15 days after demand therefor.
Section 7.4 GOVERNING LAW AND SUBMISSION TO JURISDICTION. THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK. THE BORROWER AND THE BANK EACH HEREBY SUBMIT TO THE
EXCLUSIVE JURISDICTION OF (i) XXX XXXXXX XX XXX XXXXX XX XXX XXXX SITTING IN NEW
YORK CITY AND (ii) THE UNITED STATES COURTS SITTING IN NEW YORK CITY, IN ANY
ACTION OR PROCEEDING BROUGHT AGAINST HIM OR IT HEREUNDER UNDER THE NOTE OR UNDER
THE PLEDGE AGREEMENT. IN CONNECTION THEREWITH, THE BORROWER AND THE BANK EACH
WAIVES (A) ALL OBJECTIONS TO VENUE IN THE COURTS DESCRIBED IN CLAUSES (i) AND
(ii) OR THE PRECEDING SENTENCE AND (B) ANY ARGUMENT THAT SUCH A FORUM IS
INCONVENIENT. SERVICE OF SUMMONS OR OTHER LEGAL PROCESS MAY BE MADE BY MAILING A
COPY OF ANY SUMMONS OR OTHER LEGAL PROCESS IN ANY SUCH ACTION OR PROCEEDING TO
THE BORROWER OR THE BANK IN ANY SUCH ACTION OR PROCEEDING TO THE BORROWER OR THE
BANK (AS THE CASE MAY BE) BY CERTIFIED MAIL. THE MAILING, AS HEREIN PROVIDED, OF
SUCH SUMMONS OR OTHER LEGAL PROCESS IN ANY SUCH ACTION OR PROCEEDING SHALL BE
DEEMED PERSONAL SERVICE AND ACCEPTED BY THE BORROWER OR THE BANK (AS THE CASE
MAY BE) FOR ALL PURPOSES OF ANY SUCH ACTION OR PROCEEDING. FINAL JUDGMENT SHALL
BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE
JUDGMENT, AND A CERTIFIED OR EXEMPLIFIED COPY OF A FINAL JUDGMENT SHALL BE
CONCLUSIVE EVIDENCE OF THE FACT AND OF THE AMOUNT OF ANY INDEBTEDNESS OF THE
BORROWER OR THE BANK (AS THE CASE MAY BE) IN ANY SUCH ACTION OR PROCEEDING. THE
BORROWER AND THE BANK EACH AGREES TO BRING ANY ACTION ARISING OUT OF OR RELATING
TO THIS AGREEMENT, THE NOTES, OR ANY RELATED DOCUMENTS EXCLUSIVELY IN THE COURTS
OF THE STATE OF NEW YORK OR IN THE UNITED STATES FEDERAL COURTS SITTING IN NEW
YORK, NEW YORK.
Section 7.5 Set-Off. If an Event of Default exists, the Bank is
authorized to set-off and apply any and all deposits (general or special, time
or demand, provisional or final) at any time held by, and other indebtedness at
any time owing to, the Bank to or for the credit or the account of the Borrower
against any and all obligations owing to the Bank, now or hereafter existing,
whether or not the Bank has made demand under this Agreement, the Note or the
Pledge Agreement and although such obligations may be contingent or unmatured.
The Borrower hereby waives prior notice of such action. The Bank, however,
agrees promptly to notify the Borrower after any such set-off, provided,
however, that the failure to give such notice shall not affect the validity of
such setoff. The rights of the Bank under this Section 7.5 are in addition to
the other rights and remedies (including other rights of set-off) which the Bank
may have.
Section 7.6 Waiver. No failure or delay on the part of the Bank or the
Borrower in exercising any right, power or privilege under this Agreement and no
course of dealing between the Borrower or any other person and the Bank or any
other person shall operate as a waiver hereof or thereof.
Section 7.7 Successors and Assigns.
(a) This Agreement shall be binding upon and inure to the
benefit of each party hereto and its successors and assigns, except
that the Borrower shall not be entitled to assign or transfer all or
any of his rights, benefits or obligations hereunder, except for his
death or mental incapacity.
(b) The Bank may not assign or otherwise transfer any of its
rights or obligations under this Agreement except as provided in this
Section 7.7(b):
(i) Prior to approaching any Eligible Institution
for the purpose of assigning a portion of its interest herein or
selling a participation in its rights and obligations under this
Agreement, the Bank shall discuss with the Borrower the names of
such potential participants or assignees. The Bank shall not
assign or sell a participation in its rights and obligations
under this Agreement to any person unless the Borrower shall
have consented thereto (which consent shall not be unreasonably
withheld).
(ii) The Borrower shall be given prompt written
notice of any grant of any such participation or assignment,
which notice shall include (x) the name and jurisdiction of
organization of the participant and (y) the amount of such
participation or assignment.
(iii) The Bank agrees that:
(A) it will not assign an interest in, or
sell a participation in, the Loan in an amount less than
$15,000,000;
(B) it will at all times retain not less
than $15,000,000 of the Loan;
(C) it will provide in any assignment or
participation agreement with any assignee or participant that
such assignee or participant may not make a subparticipation or
assign any portion of its interest in the Loan if, after giving
effect to such participation or assignment, such participant or
assignee would hold less than $15,000,000 of the Loan;
(D) the Bank will not assign an interest or
sell a participation in the Loan to any assignee or participant
who would be entitled to receive additional compensation under
Section 2.10 at the time of such assignment or sale by the Bank,
nor to any assignee or participant who would find it unlawful or
impossible to make, maintain or fund its assigned interest or
participation in the Loan at a rate based on LIBOR as provided
in Section 2.11, at the time of such assignment or sale by the
Bank;
(E) with respect to any matter on which the
Bank and any assignee or participant is required to vote or is
solicited to consent pursuant to the terms of a participation
agreement or an assignment agreement, as the case may be,
between the Bank and such person, if the matter to be decided is
one that does not require the unanimous consent of all assignees
or participants, financial institutions holding 51% of the
outstanding Loan shall decide the issue, provided that such 51%
includes the Bank; and
(F) in any participation agreement or
assignment agreement with any participant or assignee, as the
case may be, the Bank will:
(x) require that any bank organized
outside the United States will deliver to the Bank with a copy
to the Borrower Internal Revenue Service Form 4224 or 1001, duly
completed and signed; and
(y) provide that each participant or
assignee, as the case may be, will agree to be bound by all the
terms of this Agreement as if it were a signatory hereto.
(iv) The Bank may, in connection with any proposed
participation or assignment, disclose to the proposed
participant or assignee any information relating to the Borrower
furnished to the Bank by or on behalf of the Borrower; provided,
that prior to any such disclosure, the proposed participant or
assignee shall agree in writing to preserve the confidentiality
of any confidential information relating to the Borrower
received by it from the Bank to the same extent as is required
of the Bank.
(v) The Bank shall act as agent in connection with
any transfer permitted hereunder and the administration of the
Loan and shall remain the holder of the Collateral Notes and act
as collateral agent of the Collateral Notes holding the same for
its benefit and the benefit of the permitted assignees and
participants hereunder. The Borrower shall not be required to
deal with any participant or assignee in connection with the
administration of the Loan, and each assignment agreement or
participation agreement shall provide that each such assignee or
participant shall deal solely with the Bank as agent and not
directly with the Borrower.
Section 7.8 Confidentiality. The Bank agrees to take normal and
reasonable precautions and exercise due care to maintain the confidentiality of
all information identified as "confidential" by the Borrower and provided to it
by the Borrower in connection with this Agreement, and it shall not use any such
information for any purpose or in any manner other than pursuant to the terms
contemplated by this Agreement; except to the extent such information (i) was or
becomes generally available to the public other than as a result of a disclosure
by the Bank, or (ii) was or becomes available on a non-confidential basis from a
source other than the Borrower, provided that such source is not bound by a
confidentiality agreement with the Borrower known to the Bank; provided further,
however, that the Bank may disclose such information: (A) at the request or
pursuant to any requirement of any governmental authority to which the Bank is
subject or in connection with an examination of the Bank by any such authority;
(B) pursuant to subpoena or other court process; (C) when required to do so in
accordance with the provisions of any applicable requirement of law; (D) to the
Bank's independent auditors and other professional advisors, all of whom shall
have been advised of the confidential nature of such information; and (E) to
proposed assignees or participants in accordance with Subsection 7.7(b)(iv). It
is understood that the financial information to be delivered pursuant to Section
5.1 or any similar financial information delivered prior to the Closing Date
shall be deemed to have been identified as confidential by the Borrower.
Section 7.9 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, and it shall not be
necessary in making proof of this Agreement to produce or account for more than
one such counterpart.
Section 7.10 Severability. Any provision of this Agreement which is
illegal, invalid or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such illegality, invalidity or
unenforceability without invalidating the remaining provisions hereof or
affecting the legality, validity or enforceability of such provision in any
other jurisdiction.
Section 7.11 Notices. Unless specifically indicated otherwise herein,
all notices, requests and other communications provided for hereunder shall be
in writing (including, without limitation, by facsimile transmission) and shall
be sent to the parties hereto at the address for notice specified beneath their
names on the signature pages hereof or to such other address as may be
designated by a party in a written notice to the other party. Any notice or
other communication hereunder shall be deemed given when delivered to the
addressee in writing or when given by telephone immediately confirmed in writing
by tested telex, facsimile (electronic answer back received) or other
telecommunication device.
Section 7.12 Document Stamp Taxes. The Borrower represents and warrants
to the Bank that this Agreement has been executed and delivered by the Borrower
to the Bank outside of the State of Florida, and that the Note and the Pledge
Agreement have been or shall be executed and delivered by the Borrower to the
Bank outside of the State of Florida. The Borrower agrees to indemnify, defend
and hold the Bank harmless against any Florida documentary stamp taxes that may
be assessed or asserted against this Agreement, the Note, the Pledge Agreement,
the Loan, or any such security therefor, or any renewal, modification or
amendment thereof, or any renewal, modification or amendment thereof from time
to time, and against any and all liability, costs, attorneys' fees, penalties,
interest or expenses relating to any such Florida documentary stamp taxes, as
and when the same may be assessed or asserted.
Section 7.13 WAIVER OF JURY TRIAL. THE BORROWER AND THE BANK HEREBY
WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR
DEFEND ANY RIGHTS (i) UNDER THIS AGREEMENT, THE NOTE OR THE PLEDGE AGREEMENT OR
(ii) ARISING FROM ANY RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT,
AND AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND
NOT BEFORE A JURY.
IN WITNESS WHEREOF, the parties hereto have caused the Agreement to be
executed and delivered as of the date first above
/s/ Xxxxx X. May
------------------------------
XXXXX X. MAY
Address for Notices:
c/o Triarc Companies, Inc
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: [ REDACTED ]
Telecopier No.: [ REDACTED ]
with a copy to
Xxxx, Weiss, Rifkind, Xxxxxxx
& Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Telephone No.: [ REDACTED ]
Telecopier No.: [ REDACTED ]
Attention: Xxxxx X. Xxxxxx
NATIONSBANK OF FLORIDA, N.A.
By:
---------------------------------
Title: Authorized Signatory
Address for Notices:
NationsBank of Florida, N.A.
Private Banking
000 Xxxxx Xxxx Xxx
Xxxx Xxxxx, Xxxxxxx 00000
Telephone No.: [ REDACTED ]
Telecopier No.: [ REDACTED ]
Attention: Xxxx Xxxxxxx
Addresses for Payment:
NationsBank of Florida, N.A.
Private Banking
000 Xxxxx Xxxx Xxx
Xxxx Xxxxx, Xxxxxxx 00000
Telephone No.: [ REDACTED ]
Telecopier No.: [ REDACTED ]
ABA #: [ REDACTED ]
Account No.: [ REDACTED ]
Re: Xxxxx X. May Loan
# [ REDACTED ], Note # [ REDACTED ]
AMENDMENT NO. 1 TO
TERM LOAN AGREEMENT
AMENDMENT NO. 1 dated January 18, 1996, to the TERM LOAN AGREEMENT
dated as of July 29, 1994 (the "LOAN AGREEMENT"), by and between XXXXX XXX (the
"BORROWER") and NATIONSBANK OF FLORIDA, N.A. (the "BANK").
The Borrower and the Bank are parties to the Loan Agreement, pursuant
to which the Bank made a term loan to the Borrower in the original principal
amount of $51,000,000. The Borrower has requested that NationsBank, N.A., an
affiliate of the Bank (the "CAROLINA BANK"), provide a revolving credit facility
to the Borrower and Xxxx May. In accordance with such request, the Borrower and
Xxxx May and the Carolina Bank are entering into a Credit Agreement dated as of
January 18, 1996 (such Agreement, as amended or otherwise modified from time to
time, being hereinafter referred to as the "CREDIT AGREEMENT"), pursuant to
which the Carolina Bank has agreed to make loans (the "DEMAND LOANS"), to the
Borrower and Xxxx May in an aggregate principal amount at any one time
outstanding not to exceed the amount of the Commitment (as defined in the Credit
Agreement). It is a condition precedent to the making of any Demand Loan by the
Carolina Bank that, among other things, the Loan Agreement be amended to provide
that any "Event of Default" under the Credit Agreement shall constitute an Event
of Default under the Loan Agreement and to amend certain other provisions of the
Loan Agreement as hereinafter set forth. Accordingly, the Borrower and the Bank
hereby agree as follows:
1. DEFINITIONS. All terms used herein which are defined in the Loan
Agreement and not otherwise defined herein are used herein as defined therein.
2. ADDITIONAL DEFINITIONS. Section 1.1 of the Credit Agreement is
hereby amended by adding the following definitions (in appropriate alphabetical
order):
""CAROLINAS AGENT" means NationsBank, N.A., acting as collateral
agent under the Triarc Pledge Agreement.
"COLLATERAL AGENT" means the Bank, acting as collateral agent
under the Pledge Agreement.
"DEMAND LOANS" means the loans made by NationsBank, N.A.
pursuant to the Triarc Credit Agreement.
"DEPOSITARY BANK" means NationsBank of Texas, N.A., as
depositary bank pursuant to the Pledge Agreement.
"DWG" means DWG Acquisition Group, L.P., a Delaware limited
partnership.
"PECHINEY" means Pechiney Corporation, a Delaware corporation.
"PECHINEY PROCEEDS" means any principal of or interest on a
Collateral Note, any drawing on a Letter of Credit or any other
proceeds received in respect of a Collateral Note or a Letter of
Credit.
"TRIARC CREDIT AGREEMENT" means the Credit Agreement dated as of
January 18, 1996, by and among Xxxxx Xxx and Xxxx May and NationsBank,
N.A., as amended or otherwise modified from time to time.
"TRIARC PLEDGE AGREEMENT" means the Pledge and Security
Agreement made by DWG in favor of NationsBank, N.A., as collateral
agent for itself and for NationsBank of Florida, N.A., in respect of
certain shares of stock issued by Triarc Companies, Inc., as amended or
otherwise modified from time to time."
3. PAYMENT UNDER COLLATERAL NOTES AND LETTERS OF CREDIT. The last
two sentences of the first paragraph of Section 2.3 are hereby deleted in their
entirety, and the following hereby substituted therefor:
"The parties hereby confirm that pursuant to the Pledge Agreement, (i)
the Borrower shall receive all payments by Pechiney of interest on the
Collateral Notes, subject to the provisions of Section 6 of the Pledge
Agreement, Section 6.1(a) hereof and the other provisions of this
Section 2.3, (ii) the Depositary Bank shall receive all payments by
Pechiney of principal of the Collateral Notes, and (iii) the Collateral
Agent shall receive the proceeds of all drawings on the Letters of
Credit. Pechiney Proceeds in respect of interest shall be applied in
accordance with Sections 6 and 11(d) of the Pledge Agreement and
Sections 2.6 and 6.2 hereof. Pechiney Proceeds in respect of principal
shall be applied in accordance with Sections 2.6 (b) and (c) and 6.2
hereof, Sections 6 and 11(d) of the Pledge Agreement and Sections 2.5
and 6.2 of the Triarc Credit Agreement."
4. AMENDMENT TO MANDATORY PREPAYMENT. Section 2.6 of the Loan
Agreement is hereby amended by deleting it in its entirety and by substituting
therefor the following:
"Section 2.6 MANDATORY PREPAYMENT. (a) If, as a result of acceleration,
voluntary prepayment, scheduled payment or otherwise in respect of the
Collateral Notes, Pechiney at any time or from time to time makes any
payment of principal of a Collateral Note (each a "PRINCIPAL PAYMENT"),
the Borrower shall immediately prepay the principal amount of the Note.
Such prepayment shall be equal to 85% of such Principal Payment, and,
provided that no Default (under either this Agreement or under the
Triarc Credit Agreement) or Event of Default has occurred and is
continuing (and the Borrower shall immediately provide to the Bank a
certificate confirming that no Default or Event of Default has occurred
and is continuing), promptly and in any event within three Business
Days an amount (the "EXCESS PORTION") equal to 15% of such Principal
Payment shall be paid to the Borrower. The Bank agrees to direct the
Depositary Bank and the Collateral Agent to pay the Excess Portion of
the Principal Payment to the Borrower in accordance with, but subject
to, the foregoing sentence. It is understood and agreed that if the
amount equal to 85% of the Principal Payment exceeds the outstanding
principal amount of the Note, an amount equal to such excess shall be
paid by the Borrower to NationsBank, N.A. for application against the
aggregate principal amount of the Demand Loans outstanding and other
obligations under the Triarc Credit Agreement.
(b) If any Default or Event of Default has occurred and is
continuing when any Pechiney Proceeds are received or otherwise being
held by the Depositary Bank, the Collateral Agent or the Bank, the
entire amount of such Pechiney Proceeds shall be paid to the Bank and
applied by the Bank as a payment of principal of the Note or applied by
the Bank as a payment of interest on the Note or other obligations of
the Borrower hereunder, as the Bank in its sole discretion shall
determine (it being understood that the Borrower shall have no right
whatsoever to receive any portion of such proceeds, except pursuant to
Section 15 of the Pledge Agreement). If the Pechiney Proceeds exceed
the principal of and interest on the Note and the other obligations of
the Borrower hereunder, the Borrower shall pay an amount equal to such
excess to NationsBank, N.A. for application against the aggregate
principal amount of Demand Loans and other obligations outstanding
under the Triarc Credit Agreement. It is also understood that upon the
payment of any Pechiney Proceeds in respect of the principal of the
Collateral Notes, NationsBank, N.A. may at any time thereafter decrease
the Original Advance Percentage (as defined in the Triarc Credit
Agreement) and the Margin Call Percentage (as defined in the Triarc
Credit Agreement)(in either case, to such percentage as the Bank may in
its sole and absolute discretion determine) by giving either Borrower
thereunder notice of such revised percentage. If such a decrease
results in a "Default" under the Triarc Credit Agreement, then (i) the
decrease will constitute a Default hereunder, (ii) so long as any such
"Default", or any other Default or Event of Default, shall occur and be
continuing, the Borrower shall no right to receive any portion of the
Pechiney Proceeds, (iii) if any "Event of Default" (as defined in the
Triarc Credit Agreement), or any other Event of Default shall occur and
be continuing, such Pechiney Proceeds may be applied to the payment of
the Borrower's obligations hereunder or to the obligations under the
Triarc Credit Agreement, and (iv) if such "Default" under the Triarc
Credit Agreement is cured or waived, and no other Default, Event of
Default or "Event of Default" (as defined in the Triarc Credit
Agreement) has occurred and is continuing, the Bank will upon request
promptly and in any event within three Business Days return to the
Borrower the Excess Portion of such Principal Payment, to the extent
not applied to the Borrower's obligations hereunder or under the Triarc
Credit Agreement in accordance with clause (iii) hereof (and the Bank
agrees to direct the Depositary Bank and the Collateral Agent to pay
the Excess Portion of the Principal Payment to the Borrower in
accordance with, but subject to, this clause (iv)).
(c) Each prepayment shall be accompanied by the payment of
accrued interest to the date of such prepayment on the amount prepaid,
and shall be subject to the provisions of Section 2.12 hereof."
5. AMENDMENT TO REPRESENTATION EVENT OF DEFAULT. Subsection (b) of
Section 6.1 of the Loan Agreement is hereby amended by deleting it in its
entirety and by substituting therefor the following:
"(b) REPRESENTATION OR WARRANTY. Any representation or warranty by the
Borrower made or deemed made herein or in the Pledge Agreement, or by
DWG made or deemed made in the Triarc Pledge Agreement, or which is
contained in any certificate, document or financial or other statement
furnished by the Borrower or DWG at any time under this Agreement, the
Pledge Agreement or the Triarc Pledge Agreement, proves to have been
incorrect or misleading in any material respect on or as of the date
made or deemed made; or"
6. AMENDMENT TO COVENANT EVENT OF DEFAULT. Subsection (c) of
Section 6.1 of the Loan Agreement is hereby amended by deleting it in its
entirety and by substituting therefor the following:
"(c) OTHER DEFAULT. (i) The Borrower fails to perform or observe
Section 5.1 or 5.2, or (ii) the Borrower fails to perform or observe
any other material term or covenant contained in this Agreement, and
not referred to in another subsection of this Section 6.1, and such
default continues unremedied for a period of 20 days, or (iii) the
Borrower fails to perform or observe any other term or covenant
contained in this Agreement or in the Pledge Agreement and not referred
to in clauses (i) or (ii) of this subsection (c) or in any other
subsection of this Section 6.1, and such default continues unremedied
for a period of 20 days after the Bank gives notice to the Borrower of
same, or (iv) DWG fails to perform or observe any term or covenant
contained in the Triarc Pledge Agreement and such default continues
unremedied for a period of 20 days after the Bank gives notice to DWG
of same; or"
7. ADDITIONAL EVENTS OF DEFAULT. Section 6.1 of the Loan Agreement
is hereby amended (a) by deleting the period at the end of subsection (i), and
by substituting "; or" in lieu thereof, and (b) by inserting immediately after
subsection (i) of Section 6.1 of the Loan Agreement the following:
"(j) TRIARC PLEDGE AGREEMENT. Any provision of the Triarc Pledge
Agreement ceases to be valid and binding on or enforceable against DWG,
the Triarc Pledge Agreement ceases to create a valid security interest
in the collateral purported to be covered thereby or such security
interest ceases for any reason to be a perfected and first priority
security interest, except if the Bank fails to take any action
exclusively within its control; or
(k) TRIARC CREDIT AGREEMENT. An "Event of Default" shall occur under
the Credit Agreement dated as of January 18, 1996, as amended or
otherwise modified from time to time, between Xxxxx Xxx and Xxxx May
and NationsBank, N.A."
8. ADDITIONAL REMEDIES. Section 6.2 of the Loan Agreement is hereby
amended (a) by adding the word "and" at the end of subsection (b) thereof, and
(b) by inserting immediately after subsection (b) of Section 6.2 of the Loan
Agreement and before the proviso the following: "(c) enforce, as Collateral
Agent, and direct the Carolinas Agent to enforce, all of the Liens and security
interests pursuant to the Pledge Agreement and the other Loan Documents (as
defined in the Triarc Credit Agreement);"
9. REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents
and warrants to the Bank as follows:
(a) The representations and warranties made by the Borrower
in Article IV of the Loan Agreement, the Pledge Agreement and in each
other related document, certificate and other writing delivered to the
Bank on or prior to the date hereof are true and correct on and as of
the date hereof as though made on and as of the date hereof (except to
the extent such representations and warranties expressly relate to an
earlier date). No Default or Event of Default has occurred and is
continuing, or would result from the execution and delivery of this
Amendment No. 1.
(b) The Borrower has the legal capacity to execute, deliver
and perform this Amendment, and to perform the Loan Agreement, as
amended hereby.
(c) The execution, delivery and performance by the Borrower
of, and the consummation of each transaction contemplated by, this
Amendment and the Loan Agreement, as amended hereby, (i) require no
governmental authority or other regulatory body approval or action by
or in respect of any governmental authority or other regulatory body
and (ii) do not (A) contravene, or constitute a default under, any
provision of any applicable law or regulation, or any agreement,
indenture, judgment, order, decree or other instrument binding upon the
Borrower or his properties, or (B) result in the creation or imposition
of any Lien on any asset of the Borrower.
(d) This Amendment has been duly executed and delivered by
the Borrower. Each of this Amendment and the Loan Agreement, as amended
hereby, constitutes the legal, valid and binding obligation of the
Borrower enforceable against the Borrower in accordance with its terms.
10. EXPENSES. The Borrower will pay on demand all fees, costs and
expenses of the Bank in connection with the preparation, execution and delivery
of this Amendment and all other agreements, instruments and other documents
related to the foregoing, including, without limitation, the reasonable fees,
client charges and other expenses of counsel to the Bank.
11. INDEMNIFICATION. It is understood and agreed that Section 7.3 of
the Loan Agreement shall benefit both the Bank and the Collateral Agent, and
every reference therein to "Bank" shall be deemed to include "the Collateral
Agent."
12. MISCELLANEOUS.
(a) CONTINUED EFFECTIVENESS OF THE LOAN AGREEMENT. Except as
otherwise expressly provided herein, the Loan Agreement and the other
related agreements, instruments and documents (the "LOAN DOCUMENTS")
are, and shall continue to be, in full force and effect and are hereby
ratified and confirmed in all respects except that on and after the
date hereof (i) all references in the Loan Agreement to "this
Agreement", "hereto", "hereof", "hereunder" or words of like import
referring to the Loan Agreement shall mean the Loan Agreement as
amended by this Amendment, and (ii) all references in the other Loan
Documents to which the Borrower is a party to the "Loan Agreement",
"thereto", "thereof", "thereunder" or words of like import referring to
the Loan Agreement shall mean the Loan Agreement as amended by this
Amendment. Except as expressly provided herein, the execution, delivery
and effectiveness of this Amendment shall not operate as a waiver of
any right, power or remedy of the Bank under the Loan Agreement or any
other Loan Document, nor constitute a waiver of any provision of the
Loan Agreement.
(b) COUNTERPARTS. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which shall be deemed to be an original, but all
of which taken together shall constitute one and the same agreement.
(c) HEADINGS. Section headings herein are included for
convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
(d) GOVERNING LAW. This Amendment shall be governed by, and
construed in accordance with, the law of the State of New York.
(e) EFFECTIVENESS. This Amendment shall become effective on
the date as of which the Bank shall have received this Amendment, duly
executed by the Borrower.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered as of the date first above written.
Xxxxx Xxx
NATIONSBANK OF FLORIDA, N.A.
By: Xxxx X. Xxxxxx, S.V.P.
Title: Vice President
REDACTED
INTERCREDITOR AGREEMENT
INTERCREDITOR AGREEMENT dated January 25, 1996, by and between
NATIONSBANK OF FLORIDA, N.A. (the "FLORIDA BANK"), NATIONSBANK OF FLORIDA, N.A.,
as agent for NationsBank, N.A. and NationsBank of Florida, N.A. (the "FLORIDA
AGENT"), NATIONSBANK, N.A. (the "CAROLINAS BANK"; together with the Florida
Bank, the "BANKS") and NATIONSBANK, N.A., as agent for NationsBank of Florida,
N.A. and NationsBank, N.A. (the "CAROLINAS AGENT"; together with the Florida
Agent, the "AGENTS").
W I T N E S S E T H:
WHEREAS, Xxxxx Xxx and Xxxx May (collectively, the "BORROWERS") and the
Carolinas Bank are parties to the Credit Agreement dated as of January 18, 1996
(such Agreement, as amended or otherwise modified from time to time, being
hereinafter referred to as the "REVOLVING CREDIT AGREEMENT"), pursuant to which
the Carolinas Bank has agreed to make loans (the "DEMAND LOANS") to the
Borrowers in an aggregate principal amount at any one time outstanding not to
exceed the amount of the Commitment (as defined in the Credit Agreement), which
Demand Loans will be evidenced by a demand promissory note dated the date hereof
(as such demand promissory note may be modified or extended from time to time,
and any promissory note or notes issued in exchange or replacement therefor, the
"DEMAND NOTE"), made by the Borrowers to the order of the Carolinas Bank and in
the original principal amount of the Commitment;
WHEREAS, Xxxxx Xxx and the Florida Bank are parties to the Term Loan
Agreement dated as of July 29, 1994 (such Agreement, as amended or otherwise
modified from time to time, being hereinafter referred to as the "TERM
AGREEMENT"; together with the Revolving Credit Agreement, the "CREDIT
AGREEMENTS"), pursuant to which the Florida Bank made a term loan (the "TERM
LOAN") to Xxxxx Xxx in the original principal amount of $60,000,000, which Term
Loan is evidenced by a term promissory note dated June 29, 1994 (as such term
promissory note may be modified or extended from time to time, and any
promissory note or notes issued in exchange or replacement therefor, the "TERM
NOTE"), made by Xxxxx Xxx to the order of the Florida Bank and in the original
principal amount of the Term Loan;
WHEREAS, it is a condition precedent to the making of any Demand Loan
pursuant to the Revolving Credit Agreement that (i) DWG Acquisition Group, L.P.,
a Delaware limited partnership, shall have executed and delivered to the
Carolinas Agent a pledge and security agreement (as amended or otherwise
modified from time to time, the "TRIARC PLEDGE AGREEMENT"), providing for the
assignment to the Carolinas Agent, for the benefit of the Carolinas Bank and the
Florida Bank, and the grant to the Carolinas Agent, for the benefit of the
Carolinas Bank and the Florida Bank, of a security interest in, certain of the
outstanding shares of capital stock issued by Triarc Companies, Inc., and (ii)
Xxxxx Xxx shall have executed and delivered to the Florida Agent an Amended and
Restated Pledge Agreement dated July 29, 1994, as amended and restated on the
date hereof (as so amended, and as hereafter amended or otherwise modified from
time to time, the "PECHINEY PLEDGE AGREEMENT"; together with the Triarc Pledge
Agreement, the "PLEDGE AGREEMENTS"), made by Xxxxx Xxx in favor of the Florida
Agent, providing for the pledge to the Florida Agent, for the benefit of the
Carolinas Bank and the Florida Bank, and the grant to the Florida Agent, for the
benefit of the Carolinas Bank and the Florida Bank, of a security interest in,
certain debt issued by Pechiney Corporation and the related letters of credit;
WHEREAS, the Banks and the Agents wish to set forth their agreement as
to the exercise of certain of their respective rights and obligations with
respect to the Credit Agreements, the Pledge Agreements and the Collateral (as
hereinafter defined);
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms
shall have the respective meanings indicated below, such meanings to be
applicable equally to both the singular and plural forms of such terms:
"COLLATERAL" means the Triarc Collateral and the Pechiney
Collateral.
"FINANCING DOCUMENTS" means the Security Documents and the Loan
Documents.
"LOAN DOCUMENTS" means the Credit Agreements, the Notes and all
other instruments, agreements and documents executed and delivered pursuant to
any of the foregoing.
"NOTES" means the Demand Note and the Term Note.
"OBLIGATIONS" means (i) the obligations of the Borrowers and DWG
to pay, as and when due and payable (on demand, by mandatory prepayment, by
scheduled maturity or otherwise), all amounts from time to time owing by them in
respect of any Financing Document to which such person or entity is a party,
whether for principal, interest, fees or otherwise, and (ii) the obligations of
the Borrowers and DWG to perform or observe all of their other obligations from
time to time existing under any Financing Document to which such person or
entity is a party.
"PECHINEY COLLATERAL" means all of the property (tangible and
intangible) purported to be subject to the lien or security interest created by
the Pechiney Pledge Agreement.
"SECURITY DOCUMENTS" means the Triarc Pledge Agreement, the
Pechiney Pledge Agreement, and all other instruments, agreements or documents
executed and delivered pursuant to either Pledge Agreement.
"TRIARC COLLATERAL" means all of the property (tangible and
intangible) purported to be subject to the lien or security interest created by
the Triarc Pledge Agreement.
2. NOTIFICATION AND ACKNOWLEDGMENT OF SECURITY INTEREST, ETC.
Pursuant to Sections 8-313 and 9-305 of the New York Uniform Commercial Code:
(a) Each Bank hereby confirms, and notifies the Carolinas
Agent, that DWG has granted to the Carolinas Agent a lien on, and
security interest in, the Triarc Collateral, as collateral security for
all obligations now or hereafter existing under the Credit Agreements,
the Notes and the other Financing Documents. The Carolinas Agent hereby
(i) acknowledges that from and after the date hereof, it shall,
pursuant to Sections 8-313 and 9-305 of the New York Uniform Commercial
Code, hold all Collateral now or hereafter in its possession as Agent
under the Triarc Pledge Agreement for the benefit of each Bank, and
(ii) agrees, promptly upon the satisfaction in full of the Obligations
owing to the Carolinas Bank and the Carolinas Agent after the
termination of the Commitment, to deliver to the Florida Bank upon
request such of the proceeds of the Triarc Collateral as shall not have
been applied pursuant to the terms of the Triarc Pledge Agreement or
this Agreement to the payment of any Obligations of the Borrowers.
(b) Each Bank hereby confirms, and notifies the Florida
Agent, that Xxxxx Xxx has granted to the Florida Agent a lien on, and
security interest in, the Pechiney Collateral, as collateral security
for all obligations now or hereafter existing under the Credit
Agreements, the Notes and the other Financing Documents. The Florida
Agent hereby (i) acknowledges that from and after the date hereof, it
shall, pursuant to Sections 8-313 and 9-305 of the New York Uniform
Commercial Code, hold all Collateral now or hereafter in its possession
as Agent under the Pechiney Pledge Agreement for the benefit of each
Bank, and (ii) agrees, promptly upon the satisfaction in full of the
Obligations owing to the Florida Bank and the Florida Agent, to deliver
to the Carolinas Bank upon request such of the proceeds of the
Collateral as shall not have been applied pursuant to the terms of the
Pechiney Pledge Agreement or this Agreement to the payment of any
Obligations of Xxxxx Xxx.
3. ENFORCEMENT. Each Agent agrees to make such demands and give
such notices under the Security Documents as a Bank may request, and to take
such action to enforce the terms and conditions of such Security Document and to
foreclose upon, collect and dispose of the Collateral or any portion thereof as
may be directed by such Bank; PROVIDED, HOWEVER, that (i) neither Agent shall be
required to take any action that is in its opinion contrary to law or to the
terms of this Agreement, any Credit Agreement or any other Financing Document,
or which would in its opinion subject it or any of its officers, employees or
directors to liability, and (ii) neither Agent shall be required to take any
action under this Agreement or any Security Document unless and until such Agent
shall be indemnified to its satisfaction by the requesting Bank against any and
all loss, cost, expense or liability in connection therewith.
4. APPLICATION OF PROCEEDS AND PAYMENTS. Anything in any Financing
Document to the contrary notwithstanding, all cash and other payments received
by an Agent pursuant to a Pledge Agreement shall be applied based on the mutual
agreement of the Banks and, after the payment in full of all Obligations and, in
the case of the Triarc Pledge Agreement, the termination of the Commitment, any
surplus proceeds and Collateral will be distributed pursuant to the terms and
conditions of the related Pledge Agreement.
5. THE AGENTS. Each Bank agrees with each Agent as follows:
(a) The Carolinas Bank is hereby appointed Agent hereunder
and under the Triarc Pledge Agreement, and the Florida Bank is hereby
appointed Agent hereunder and under the Pechiney Pledge Agreement. Each
of the Banks irrevocably authorizes the Agents to act as the agent of
such Bank for the purposes of enforcing the rights and remedies of the
Banks in respect of the Collateral and the Security Documents. Each
Agent agrees to act as such upon the express conditions contained in
this Section.
(b) Each Agent shall have and may exercise such powers
hereunder as are specifically delegated to such Agent by the terms
hereof and the applicable Security Document, together with such powers
as are reasonably incidental thereto. The Agents shall have no implied
duties to the Banks or any other person or entity, or any obligation to
take any action hereunder or under any other Financing Document, except
any action specifically provided by this Agreement and the Security
Documents to be taken by such Agent.
(c) The Banks agree to reimburse and indemnify each Agent
ratably in proportion to the Obligations owed under the Credit
Agreements (i) for any amounts not reimbursed by a Borrower for which
an Agent is entitled to reimbursement by a Borrower under any Financing
Document, (ii) for any other expenses incurred by an Agent on behalf of
the Banks, in connection with the preparation, execution, delivery,
administration and enforcement of this Agreement or any Security
Document, and (iii) for any liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind and nature whatsoever which may be imposed on, incurred by
or asserted against an Agent in any way relating to or arising out of a
Security Document, this Agreement or any other or the transactions
contemplated hereby or the enforcement of any of the terms hereof or of
any such other documents, PROVIDED that no Bank shall be liable for any
of the foregoing to the extent they arise from the gross negligence or
willful misconduct of either Agent.
(d) Either Agent may resign at any time by giving written
notice thereof to the Banks and the Borrowers. Upon any such
resignation, the Banks shall have the right to appoint, on behalf of
the Banks, a successor Agent. Such successor Agent shall be an
affiliate of a Bank or an Eligible Institution (as defined in each
Credit Agreement) that owns all or part of the Obligations. Upon the
acceptance of any appointment as an Agent hereunder by a successor
Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its
duties and obligations hereunder and under the applicable Security
Documents. After any retiring Agent's resignation hereunder as Agent,
the provisions of this Section shall continue in effect for its benefit
in respect of any actions taken or omitted to be taken by it while it
was acting as an Agent hereunder.
7. NO THIRD PARTY BENEFICIARY. This Agreement is intended to
establish the relative rights and obligations of the Banks and the Agents with
respect to the subject matter hereof and, except as otherwise expressly provided
in Section 8 hereof, shall not be deemed to create any rights or priorities in
any other individual or entity.
8. DISPOSITION OF COLLATERAL. (a) It is the intention of the
Carolinas Bank and the Borrowers that if the Carolinas Bank wishes to sell or
otherwise dispose of Collateral during the occurrence and continuance of an
Event of Default (as defined in the Revolving Credit Agreement), the Carolinas
Bank will sell or otherwise dispose of, or cause the Carolinas Agent to sell or
otherwise dispose of, the Triarc Collateral (the "RELATED TRIARC COLLATERAL")
allocable to the Borrowers (each a "DISPOSITION"), prior to the sale or other
disposition of, or prior to causing the Florida Agent to sell or otherwise
dispose of, the Pechiney Collateral.
(b) Notwithstanding anything in subsection 8(a) to the
contrary, the Carolinas Bank will have no obligation under subsection
8(a) whatsoever, and the Carolinas Bank may sell or otherwise dispose
of, or direct the sale or other disposition of, any of the Collateral
in such order as the Carolinas Bank may determine (in its sole and
absolute discretion) if the Carolinas Bank determines (which
determination shall be conclusive) that: (i) the prompt Disposition of
the Related Triarc Collateral may contravene any law, rule or
regulation of any Governmental Authority (as defined in the Revolving
Credit Agreement), including, without limitation, by reason of (A) the
bankruptcy, insolvency, reorganization or other event described in
Section 6.1(e) or (f) of the Revolving Credit Agreement (without regard
to whether the grace period referred to in Section 6.1(f) thereof has
elapsed) with respect to DWG Acquisition Group, L.P., (B) the
commencement of any legal action or proceeding that stays or enjoins,
or seeks to stay or enjoin, the Disposition of any of the Related
Triarc Collateral, or (C) a possible violation of the securities laws;
(ii) the Disposition of any of the Related Triarc Collateral (at such
time as the Carolinas Bank may elect) may subject it, the Carolinas
Agent, any affiliate, or any officer, employee or director of the
foregoing, to liability; (iii) the value of any of the Pechiney
Collateral threatens to decline rapidly in value; (iv) there is a
reasonable good-faith basis to conclude that delaying the sale or other
disposition of the Pechiney Collateral until after the Disposition of
the Related Triarc Collateral may adversely affect the ability of the
Carolinas Bank to receive payment in full of the principal of, and
interest on, the Demand Loans and all of the related Obligations; (v)
either Borrower, DWG Acquisition Group, L.P. or any affiliate has taken
any action, or has failed to take any action requested by the Carolinas
Bank, that the Carolinas Bank reasonably believes may prevent, delay,
impede or materially and adversely affect the ability of the Carolinas
Bank or the Carolinas Agent to sell or otherwise dispose of the Triarc
Collateral; or (vi) the Carolinas Bank or the Carolinas Agent is unable
to sell the Triarc Collateral within a 90-day period, during which the
Carolinas Bank or the Carolinas Agent exercises reasonable, good faith
efforts to so sell the Triarc Collateral.
(c) It is understood and agreed that nothing in this Section
8 shall affect any of the other rights, remedies, powers and privileges
of the Florida Agent and Florida Bank with respect to the Pechiney
Collateral (including, without limitation, (i) to collect the interest
on the Collateral Notes (as defined in each Term Agreement), under the
circumstances provided in the Term Agreement or the Pechiney Pledge
Agreement, (ii) to maintain its security interest in the Collateral
Account (as defined in the Pechiney Pledge Agreement), (iii) to draw on
the Letters of Credit (as defined in each Term Agreement), under the
circumstances provided in the Term Agreement or the Pechiney Pledge
Agreement, (iv) to sell or otherwise dispose of any of the Pechiney
Collateral upon the occurrence and continuance of an Event of Default
under the Term Agreement, and (v) to take any action and to execute
such other instrument as the Florida Agent may deem necessary or
advisable to accomplish the purposes of the Pechiney Pledge Agreement).
9. MISCELLANEOUS.
(a) No amendment, waiver or other modification of any
provision of this Agreement shall be effective unless it is in writing
and signed by each Bank and Agent. No waiver or approval by any Bank or
Agent under this Agreement shall, except as may be otherwise stated in
such waiver or approval, be applicable to subsequent transactions.
(b) No failure or delay on the part of any Bank or Agent in
exercising any power or right under this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any such
power or right preclude any other or further exercise thereof or the
exercise of any other power or right.
(c) All notices and other communications provided for
hereunder shall be in writing and shall be mailed, telecopied,
telegraphed or delivered to it at its address set forth on the
signature pages of this Agreement; or, as to each party, at such other
address as shall be designated by such party in a written notice to the
other parties complying as to delivery with the terms of this
subsection. All such notices and other communications shall be
effective (i) if mailed, three days after being deposited in the mails,
(ii) if telegraphed when delivered to the telegraph company, or (iii)
if telecopied, telexed or delivered, upon delivery.
(d) Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions of this Agreement or
affecting the validity or enforceability of such provision in any other
jurisdiction.
(e) Each Bank and Agent agrees to cooperate fully with each
other party hereto, to effect the intent and provisions of this
Agreement and, from time to time, to execute and deliver any and all
other agreements, documents or instruments, and to take such other
actions, as may be reasonably necessary or desirable to effectuate the
intent and provisions of this Agreement.
(f) The various headings of this Agreement are inserted for
convenience only and shall not affect the meaning or interpretation of
this Agreement or any provision hereof.
(g) This Agreement may be executed by the parties hereto in
several counterparts, and each such counterpart shall be deemed to be
an original and all of which shall constitute together but one and the
same agreement.
(h) This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto, their respective successors and
assigns.
(i) This Agreement shall be governed by, and construed in
accordance with, the law of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
NATIONSBANK, N.A., individually and as agent
By: /s/ Xxxx X. Xxxxxx
----------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
All notices and other communications to:
NationsBank, N.A., 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000, with copies to NationsBank, N.A., 000 Xxxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: Xx. Xxxx X. Xxxxxx, Senior
Vice President, Telecopier No. [ REDACTED ].
NATIONSBANK OF FLORIDA, N.A.,
individually and as agent
By: /s/ Xxxx X. Xxxxxx
----------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
All notices and other communications to:
NationsBank of Florida, N.A., 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000, with copies to NationsBank of Florida, N.A., 000 Xxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: Xx. Xxxx X. Xxxxxx, Senior Vice
President, Telecopier No. [ REDACTED ].
CONSENT
The undersigned hereby consents and agrees to the terms of the
Intercreditor Agreement to which this Consent is attached.
Date: January 25, 1996
Xxxxx Xxx
Xxxx May
DWG ACQUISITION GROUP, L.P.
By:
------------------------------
By:
------------------------------
REDACTED
CREDIT AGREEMENT
THIS CREDIT AGREEMENT (the "AGREEMENT"), dated as of January 18, 1996,
is entered into by and between XXXXXX XXXXX and XXXXXXX XXXXX, each an
individual residing in the State of New York (the "BORROWERS"), and NATIONSBANK,
N.A. (the "BANK"), a national banking association.
RECITALS
The Borrowers have asked the Bank to make demand loans to the Borrowers
from time to time, from the date hereof through the date preceding the second
anniversary of the date of this Agreement, in an aggregate principal amount at
any one time outstanding not to exceed $40,000,000. The Bank is willing to make
such loans to the Borrowers on the terms and conditions hereinafter set forth.
Accordingly, each Borrower and the Bank hereby agree as follows.
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.1 CERTAIN DEFINED TERMS. As used in this Agreement, the
following terms shall have the respective meanings indicated below, such
meanings to be applicable equally to both the singular and plural forms of such
terms:
"ADJUSTED COLLATERAL VALUE" means the Margin Call Percentage of the
Collateral Value.
"ADJUSTED LIBOR" means, with respect to any Interest Period, (i) the
rate of interest per annum (rounded upward, if necessary, to the next higher
1/16th of one percent) determined by the Bank, in accordance with its customary
general practice from time to time, to be the rate equal to the London Interbank
Offered Rate (expressed as a percentage) for Dollar deposits as would be quoted
by the Bank for 11:00 a.m. London time, or as soon thereafter as practicable, on
the second Business Day immediately preceding the first day of such Interest
Period, for a term comparable to such Interest Period, (ii) as adjusted from
time to time in the Bank's sole discretion for then applicable reserve
requirements, deposit insurance assessment rates and other regulatory costs.
"APPLICABLE MARGIN" means [ REDACTED ]%.
"BASE RATE" means, for any day, a rate per annum equal to the higher of
(i) the Prime Rate for such day, or (ii) the sum of one half of one percent
(1/2%) plus the Federal Funds Rate for such day.
"BOARD" means the Board of Governors of the Federal Reserve System of
the United States.
"BUSINESS DAY" means any day other than a Saturday, Sunday or other day
on which commercial banks in New York City, New York, or in Charlotte, North
Carolina, are authorized or required by law to close and, if the applicable
Business Day relates to any Interest Period for which interest on a Loan is
determined by reference to the Adjusted LIBOR rate, also includes a day on which
commercial banks are open for international business in London.
"CLOSING DATE" means the date on which the initial Loan is made
hereunder after all of the conditions precedent set forth in Article III have
been satisfied.
"COLLATERAL" means all of the property (tangible and intangible)
purported to be subject to the lien or security interest purported to be created
by any mortgage, deed of trust, security agreement, pledge agreement, assignment
or other security document heretofore or hereafter executed by any Person as
security for all or any part of the Obligations.
"COLLATERAL AGENT" means the Bank, acting as collateral agent under the
Triarc Pledge Agreement.
"COLLATERAL NOTES" means the promissory notes issued by Pechiney and
payable to the order of Xxxxxx Xxxxx, which are further described in the
Pechiney Pledge Agreement.
"COLLATERAL VALUE" means, with respect to any Collateral consisting of
stock, the amount determined by multiplying (i) the per share price of such
stock at the most recent close of trading on a trading exchange or stock market
for such stock, times (ii) the number of shares of such stock held by the Bank
as Collateral, times (iii) the portion of such shares allocable to Xxxxxx Xxxxx,
which initially is twothirds.
"COMMITMENT" means the commitment of the Bank to make Loans pursuant to
Section 2.1 hereof in an aggregate principal amount not to exceed $40,000,000 at
any time outstanding, as such amount may be reduced or terminated in accordance
with the terms and conditions of this Agreement.
"DEFAULT" means a condition or event which, after notice or lapse of
time or both, would constitute an Event of Default (including, without
limitation, the obligation to prepay the Loans or provide additional collateral
pursuant to Section 2.5(a) or (b), without regard to whether any grace period
has elapsed).
"DEFAULT RATE" has the meaning specified in Section 2.2.
"DEPOSITARY BANK" means NationsBank of Texas, N.A., as depositary bank
pursuant to the Pechiney Pledge Agreement.
"DOLLARS" and the sign "$" each mean lawful money of the United States
of America.
"DWG" means DWG Acquisition Group, L.P., a Delaware limited
partnership.
"ELIGIBLE INSTITUTION" means (i) a commercial bank organized under the
laws of the United States, or any state thereof, and having a combined capital
and surplus of at least $100,000,000; or (ii) a commercial bank organized under
the laws of any other country which is a member of the Organization for Economic
Cooperation and Development (the "OECD"), or a political subdivision of any such
country, and having a combined capital and surplus of at least $100,000,000,
provided that such bank is acting through a branch or agency located in the
United States or an offshore branch outside the United States at which such bank
books loans bearing interest based on LIBOR and, in the case of a bank described
in either clause (i) or clause (ii), such bank is able to deliver Internal
Revenue Service Form 1001 or 4224 to the Bank with a copy to the Borrowers as of
the day such bank becomes an assignee or participant.
"EVENT OF DEFAULT" has the meaning specified in Section 6.1.
"FEDERAL FUNDS RATE" means, for any day, the rate per annum (rounded
upward to the nearest 1/100th of 1%) equal to the weighted average of the rates
on overnight federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers on such day, as published by the
Federal Reserve Bank of New York on the Business Day next succeeding such day,
PROVIDED that (i) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding Business
Day, and (ii) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate quoted to the
Bank on such day on such transactions as determined by the Bank.
"FLORIDA AGENT" means NationsBank of Florida, N.A., acting as
collateral agent under the Pechiney Pledge Agreement.
"GOVERNMENTAL AUTHORITY" means any nation or government, any federal,
state, city, town, municipality, county, local or other political subdivision
thereof or thereto and any department, commission, board, bureau,
instrumentality, agency or other entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government
and includes, without limitation, the SEC.
"INDEBTEDNESS" means, with respect to any Person, (i) all indebtedness
or other obligations of such Person for borrowed money or for the deferred
purchase price of property or services, (ii) all obligations of such Person
under direct or indirect guaranties in respect of, and contingent or other
obligations of such Person to purchase or otherwise acquire or otherwise assure
a creditor against loss in respect of, indebtedness or other obligations of any
other Person for borrowed money or for the deferred purchase price of property
or services, (iii) all indebtedness or other obligations of any other Person for
borrowed money or for the deferred purchase price of property or services
secured by (or for which the holder of such indebtedness has an existing right,
contingent or otherwise, to be secured by) any lien, security interest or other
charge or encumbrance upon or in property owned by such Person, (iv) all
obligations of such Person to make reimbursement or payment in respect of
letters of credit and bankers' acceptances, and (v) the net liabilities of such
Person under all interest rate swap, interest rate collar, interest rate cap,
interest rate floor, forward rate agreements, commodity swaps or other
agreements or arrangements designed to protect against fluctuations in interest
rates or currency, commodity or equity values, each calculated on a basis
reasonably satisfactory to the Bank and in accordance with accepted practice.
"INTERCREDITOR AGREEMENT" means an Intercreditor Agreement between the
Bank, individually and as collateral agent under the Triarc Pledge Agreement,
and NationsBank of Florida, N.A., individually and as collateral agent under the
Pechiney Pledge Agreement, acknowledged and consented to by Xxxxxx Xxxxx,
Xxxxxxx Xxxxx and DWG.
"INTEREST PERIOD" means each one (1)-month period during which interest
on each Loan shall be calculated by reference to Adjusted LIBOR, determined as
of the second Business Day before the commencement of that Interest Period;
PROVIDED, HOWEVER, that:
(i) each Interest Period shall commence on the first
day of a month and end on the first day in the immediately
following calendar month thereafter;
(ii) each subsequent Interest Period for a Loan shall
commence on the last day of the immediately preceding Interest
Period and end on the first day in the immediately following
calendar month thereafter; and
(iii) any Interest Period which would otherwise extend
beyond the Termination Date shall end on the Termination Date.
"LETTERS OF CREDIT" means the transferable letters of credit issued by
Banque Nationale de Paris, New York Branch in favor of NationsBank of Florida,
N.A., in support of the Collateral Notes, which are further described in the
Pechiney Pledge Agreement.
"LIEN" means any lien, mortgage, pledge, security interest, charge or
similar encumbrance of any kind (including any conditional sale or other title
retention agreement, any lease in the nature thereof and any agreement to give
any security interest).
"LOAN" means each demand loan made by the Bank to a Borrower pursuant
to Section 2.1 hereof.
"LOAN DOCUMENTS" means this Agreement, the Note, the Triarc Pledge
Agreement, the Pechiney Loan Agreement, the Pechiney Pledge Agreement and all
other instruments, agreements and other documents executed and delivered
pursuant hereto or thereto.
"LOAN PARTIES" means the Borrowers and DWG.
"MARGIN CALL PERCENTAGE" means 70%, subject to decrease in accordance
with Section 2.5(d) hereof.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on any of (a)
the business, properties or prospects of any Loan Party , (b) the ability of any
Loan Party to perform any of the obligations of such Loan Party under this
Agreement or any of the other Loan Documents, (c) the legality, validity or
enforceability of this Agreement or any of the other Loan Documents, (d) the
rights and remedies of the Bank under this Agreement or any of the other Loan
Documents, or (e) the creation, perfection or priority of security in or lien on
any of the Collateral, securing the payment of any of the Obligations.
"NOTE" means a demand promissory note of the Borrowers, substantially
in the form of Exhibit A hereto, evidencing the Indebtedness resulting from the
making of the Loans and delivered to the Bank pursuant to Article III hereof, as
such demand promissory note may be modified or extended from time to time, and
any promissory note or notes issued in exchange or replacement therefor.
"OBLIGATIONS" means (i) the obligation of the Borrowers to pay, as and
when due and payable (on demand, by mandatory prepayment, by scheduled maturity
or otherwise), all amounts from time to time owing by them in respect of any
Loan Document, whether for principal, interest, fees or otherwise, and (ii) the
obligations of the Borrowers to perform or observe all of their other
obligations from time to time existing under any Loan Document.
"ORIGINAL ADVANCE PERCENTAGE" means 65%, subject to decrease in
accordance with Section 2.5(d) hereof.
"PARTNERSHIP AGREEMENT" means the Agreement of Limited Partnership of
DWG dated as of September 25, 1992, as amended by Amendment No. 1 dated as of
November 15, 1992, Amendment No. 2 dated as of March 1, 1993, Amendment No. 3
dated as of April 14, 1993, and Amendment No. 4 dated as of January 1, 1995, by
and among Xxxxxx Xxxxx and Xxxxx Xxx, as general partners, and Xxxxxx Xxxxx,
Xxxxx Xxx and Xxxx Xxxxxxxx, as limited partners, of DWG.
"PECHINEY" means Pechiney Corporation, a Delaware corporation.
"PECHINEY COLLATERAL" means all of the property (tangible and
intangible) purported to be subject to the lien or security interest purported
to be created by the Pechiney Pledge Agreement.
"PECHINEY LOAN AGREEMENT" means the Term Loan Agreement dated as of
July 29, 1994, between Xxxxxx Xxxxx and NationsBank of Florida, N.A., as amended
or otherwise modified from time to time.
"PECHINEY PLEDGE AGREEMENT" means the Amended and Restated Pledge
Agreement dated July 29, 1994, as amended and restated on January 18, 1996, made
by Xxxxxx Xxxxx as Pledgor in favor of NationsBank of Florida, N.A., as agent
for itself and the Bank, in respect of certain promissory notes issued by
Pechiney and letters of credit supporting such promissory notes issued by Banque
Nationale de Paris, New York Branch, as amended or otherwise modified from time
to time.
"PECHINEY PROCEEDS" means any principal of or interest on a Collateral
Note, any drawing on a Letter of Credit or any other proceeds received in
respect of a Collateral Note or a Letter of Credit.
"PERSON" means an individual, corporation, partnership, limited
liability company, business trust, association, joint-stock company, trust,
unincorporated organization, joint venture or Governmental Authority or other
regulatory body.
"PLEDGED SHARES" shall have the meaning assigned thereto in the Triarc
Pledge Agreement.
"PRIME RATE" means the annual rate of interest announced from time to
time as the Bank's "prime" lending rate (which the Borrowers acknowledge does
not necessarily represent the best or most favored rate offered by the Bank to
its best or any particular customers). Whenever applicable to a Loan, the
floating interest rate shall be adjusted automatically as and when the Bank's
Prime Rate shall change on any business day(s).
"REGULATION D" means Regulation D of the Board, as in effect from time
to time, or any regulation of the Board that replaces Regulation D.
"REGULATIONS G, T, U OR X" means Regulations G, T, U or X of the Board
as in effect from time to time, or any regulation of the Board that replaces
Regulation G, T, U or X
"RULE 144" means Rule 144 promulgated by the Securities and Exchange
Commission under the Securities Act of 1933.
"SEC" means the Securities and Exchange Commission or any replacement
national securities exchange.
"SIGNING DATE" means the date that this Agreement is executed and
delivered by the Borrowers.
"TERMINATION DATE" means January 18, 1998 or such earlier date on which
the Commitment shall be terminated pursuant to this Agreement.
"TRIARC" means Triarc Companies, Inc., a Delaware corporation.
"TRIARC COLLATERAL" means all of the property (tangible and intangible)
purported to be subject to the lien or security interest purported to be created
by the Triarc Pledge Agreement.
"TRIARC PLEDGE AGREEMENT" means the Pledge and Security Agreement made
by DWG in favor of the Collateral Agent, as agent for itself and NationsBank of
Florida, N.A., in respect of certain shares of stock issued by Triarc, as
amended or otherwise modified from time to time.
Section 1.2 COMPUTATION OF TIME PERIODS. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
means "to but excluding".
Section 1.3 ACCOUNTING AND OTHER TERMS. Unless otherwise expressly
stated herein, all accounting terms used in this Agreement which are not
otherwise defined herein shall be construed in accordance with sound accounting
principles applied on a basis consistent with those used in the preparation of
the financial statements referred to in Section 4.10(a) hereof. All terms used
in this Agreement which are defined in Article 9 of the Uniform Commercial Code
in effect in the State of New York on the date hereof and which are not
otherwise defined herein shall have the same meanings herein as set forth
therein. Any gender specific term is applicable to both genders, as the context
may require, whenever used herein.
ARTICLE II
THE LOANS
Section 2.1 MAKING THE LOANS. The Bank agrees, on the terms and
conditions hereinafter set forth, to make Loans to the Borrowers from the
Closing Date to the Termination Date in an aggregate principal amount at any one
time outstanding not to exceed the amount of the Commitment. The Bank shall have
no obligation to make a Loan if the sum of the aggregate principal amount of the
outstanding Loans plus the principal amount of such requested Loan would exceed
the amount equal to the Original Advance Percentage of the Collateral Value.
Each Loan shall be in an amount equal to $100,000 or an integral multiple of
$100,000 in excess thereof, and shall be made on at least one Business Day's
prior written notice. Each request for a Loan (a "NOTICE OF BORROWING") shall be
irrevocable, shall be signed by either Borrower (it being understood that only
the signature of one Borrower shall be required) and shall be in writing,
substantially in the form of Exhibit B hereto, specifying, INTER ALIA, the
proposed amount of such Loan and the Business Day for such Loan. On the Business
Day specified and upon fulfillment of the applicable terms and conditions set
forth in Article III hereof, the Bank will make the proceeds of such Loan
available to the Borrowers by crediting Account Number [ REDACTED ] maintained
with NationsBank of Florida, N.A., at its office in Charlotte, North Carolina,
not later than 2:00 P.M. (Charlotte time) on such date. Within the limits of the
Commitment, the Borrowers may borrow, prepay and reborrow pursuant to this
Article II until the Termination Date.
Section 2.2 INTEREST. The outstanding principal balance of each Loan
will bear interest at a rate per annum equal at all times during each Interest
Period to the sum of the Adjusted LIBOR for such Interest Period plus the
Applicable Margin, from the date of the making of such Loan until such Loan is
paid in full, except that after the occurrence and during the continuance of an
Event of Default, each Loan shall bear interest at a rate per annum equal to the
sum of (i) the Prime Rate in effect from time to time, plus (ii) [ REDACTED ]%
(the "DEFAULT RATE"). Interest on each Loan shall be paid in arrears on the
first day of each month (in the absence of prior demand) and upon the repayment
of any principal amount of any Loan for any reason.
Section 2.3 REPAYMENT. The Borrowers will repay the unpaid principal
amount of and accrued interest on the Loans UPON DEMAND by the Bank. In the
absence of a prior demand (but without limiting the Bank's right to make a
demand at any time in its sole and absolute discretion) the principal amount of
and accrued interest on the Loans shall in any event be due and payable on the
Termination Date.
Section 2.4 OPTIONAL PREPAYMENT. Any Borrower may prepay any Loan in
whole at any time or in part from time to time, without penalty or premium, each
such prepayment to be accompanied by the payment of accrued interest to the date
of such prepayment on the amount prepaid, PROVIDED that (i) each partial
prepayment shall be in a principal amount equal to $100,000 or an integral
multiple thereof, (ii) a Borrower shall give the Bank irrevocable written notice
at least one Business Day prior to the date of the prepayment of a Loan, and
(iii) after giving effect to any partial prepayment of a Loan the principal
amount thereof remaining outstanding shall not be less than $100,000 or an
integral multiple thereof. Each notice of prepayment shall be irrevocable and
shall specify the date and the amount of the prepayment and identify the Loans
to be prepaid. Any amount of principal of a Loan prepaid may be reborrowed in
accordance with Section 2.1 hereof.
Section 2.5 MANDATORY PREPAYMENT. (a)If at any time the Bank, in its
sole discretion, determines that the transactions contemplated by this Agreement
or any of the other Loan Documents violate any provision of Regulations G, T, U
or X, the Borrowers will, upon five (5) day's written notice from the Bank,
either (A) prepay the Loans by an amount sufficient such that, after such
prepayment, the transactions contemplated by the Loan Documents will not violate
any provision of Regulations G, T, U or X (as determined by the Bank in its sole
discretion), or (B) provide for a grant to the Bank, as collateral security for
the Loans and all other Obligations, a perfected, first priority security
interest in, and lien on, additional collateral that is in such amounts and
having such market values, liquidity, volatility, marketability and other
characteristics as the Bank may in its sole discretion determine to be
sufficient to cause, after the grant of such additional security interest, the
transactions contemplated by the Loan Documents not to violate any provision of
Regulations G, T, U or X (and in connection with such grant, the Borrowers will
execute and deliver such agreements, instruments, legal opinions and other
documents as the Bank may reasonably request).
(b) So long as any Obligation is outstanding or the Bank
shall have any Commitment hereunder, the Borrowers will, unless the
Bank shall otherwise consent in writing, maintain as collateral
security for the Obligations Triarc Collateral with an Adjusted
Collateral Value in excess of the unpaid principal balance of the
Obligations. If at any time the Bank determines that the aggregate
principal amount of the outstanding Loans equals or exceeds an amount
equal to the Margin Call Percentage of the Collateral Value of the
Triarc Collateral, the Borrowers will, upon five (5) days' written
notice from the Bank, either (i) prepay the Loans by an amount
sufficient such that, after such prepayment, the aggregate principal
amount of the outstanding Loans does not exceed the amount equal to the
Original Advance Percentage of the Collateral Value of the Triarc
Collateral or (ii) provide for a grant to the Collateral Agent, as
collateral security for the Loans and all other Obligations, a
perfected, first priority security interest in, and lien on, additional
collateral that is in such amounts and having such market values,
liquidity, volatility, marketability and other characteristics as the
Bank may in its sole discretion determine to be sufficient to cause,
after the grant of such additional security interest, the aggregate
principal amount of the outstanding Loans not to exceed the amount
equal to the sum of (A) the Original Advance Percentage of the then
current Collateral Value of the Triarc Collateral, plus (B) the loan
value assigned by the Bank (in its sole discretion) to any other
Collateral provided to the Collateral Agent pursuant to clause (ii)
above (and in connection with such grant, the Borrowers will execute
and deliver such agreements, instruments, legal opinions and other
documents as the Bank may reasonably request).
(c) If on any date (i) the sum of the aggregate principal
amount of outstanding Loans exceeds (ii) the amount of the Commitment,
the Borrowers shall immediately prepay the Loans in an amount equal to
such excess. It is understood and agreed that after payment of all
obligations under the Pechiney Loan Agreement, an amount equal to any
proceeds of the Collateral Notes and Letters of Credit will be used to
satisfy, among other things, any prepayment obligation arising under
this subsection as a result of a decrease of the amount of the Original
Advance Percentage or Margin Call Percentage pursuant to Section 2.5
hereof.
(d) It is understood and agreed that upon any payment of the
principal amount of one or more Collateral Notes or the proceeds of any
drawing in respect of the Stated Amount/Principal (as defined in any
Letter of Credit) of a Letter of Credit, the Bank may at any time
thereafter decrease the Original Advance Percentage and the Margin Call
Percentage (in either case, to such percentage as the Bank may in its
sole and absolute discretion determine) by giving either Borrower
notice of such revised percentage.
(e) Each prepayment of a Loan shall be accompanied by the
payment of accrued interest to the date of such prepayment on the
amount prepaid, and shall be subject to the provisions of Section 2.12
hereof.
Section 2.6 OPTIONAL COMMITMENT REDUCTION. Either Borrower may, upon at
least two Business Days' notice to the Bank, terminate the Commitment at any
time or reduce the amount of the Commitment from time to time during the period
from the date hereof to and including the Termination Date, PROVIDED that each
such reduction shall be in an amount equal to $100,000 or an integral multiple
thereof, and the amount of the Commitment after any reduction shall be greater
than or equal to the aggregate principal amount of all Loans then outstanding.
Section 2.7 EVIDENCE OF CREDIT EXTENSIONS. The Loans shall be evidenced
by the Note. The Bank shall record advances and principal payments thereof on
the grid attached thereto or, at its option, in its records, and the Bank's
record thereof shall be conclusive absent demonstrable error. Notwithstanding
the foregoing, the failure to make or an error in making a notation with respect
to any Loan or any payment shall not limit or otherwise affect the Obligations
of the Borrowers hereunder or under the Note.
Section 2.8 PAYMENT. Payment of principal, interest and any other sums
due under this Agreement or under the Note shall be made without set-off or
counterclaim in dollars and in immediately available funds on the day such
payment is due not later than 12:00 Noon New York time. All sums received after
such time shall be deemed received on the next Business Day and principal
payments or sums (other than interest) due hereunder shall bear interest for an
additional day. All payments shall be made to the Bank, if by wire transfer, to
NationsBank, N.A., Xxx XxxxxxxXxxx Xxxxx, Xxxxxxxxx, XX 00000, ABA #[ REDACTED
], Credit Account: [ REDACTED ], Re: Loan Payment for Xxxxxx Xxxxx, with a Loan
Number to be specified by the Bank, Special Instructions: Contact [ REDACTED ]
upon receipt; if by mail, to NationsBank, N.A., X.X. Xxx 00000, Xxxxxxxxx, XX
00000-0000; or to such other address as the Bank may advise either Borrower in
writing.
Section 2.9 COMPUTATIONS OF INTEREST; BUSINESS DAY.
(a) All computations of interest under this Agreement and
the Note shall be made on the basis of a year of three hundred sixty
(360) and actual days elapsed. Interest shall accrue on each Loan
outstanding from and including the date such Loan is made by the Bank
to but excluding the date on which such Loan is repaid.
(b) Payment of all amounts due hereunder shall be made on a
Business Day. Any payment due on a day that is not a Business Day shall
be made on the next Business Day unless the next Business Day would
fall in the next calendar month, in which case such payment shall be
made on the Business Day immediately preceding the due date.
Section 2.10 INCREASED COSTS, ETC.
(a) If, after the date of this Agreement, due to either (i)
the introduction of or any change in or in the interpretation of any
law or regulation or (ii) the compliance with any guideline or request
from any central bank or other Governmental Authority (whether or not
having the force of law), there shall be any (x) change in the basis of
taxation of payments to the Bank of the principal of or interest on any
Loan (excluding changes in the rate of tax payable on the Bank's
overall income and bank franchise taxes) or (y) imposition or change in
any reserve or similar requirement, and the result of any of the
foregoing is an increase in the cost to the Bank of agreeing to make or
making, funding or maintaining the Loans (which is not otherwise
included pursuant to clause (ii) of the definition of Adjusted LIBOR in
its determination of Adjusted LIBOR), then the Borrowers shall from
time to time, upon demand by the Bank, pay to the Bank an additional
amount sufficient to compensate the Bank for such increased cost. A
certificate as to the amount of such increased cost, submitted to
either Borrower by the Bank shall be conclusive and binding for all
purposes, absent demonstrable error.
(b) If the Bank determines that compliance with any law or
regulation or any guideline or request from any central bank or other
Governmental Authority (whether or not having the force of law) affects
or would affect the amount of capital required or expected to be
maintained by the Bank or any corporation controlling the Bank and that
the amount of such capital is increased by or based upon the existence
of the Loans or the Bank's Commitment,
then the Borrowers shall, upon demand by the Bank, pay to the Bank an
additional amount sufficient to compensate the Bank or such corporation
in the light of such circumstances, to the extent that the Bank
reasonably determines such increase in capital to be allocable to the
existence of the Loans or the Bank's Commitment. A certificate as to
such amounts submitted to the Borrowers by the Bank shall be conclusive
and binding for all purposes, absent demonstrable error.
(c) Prior to making any demand for compensation under this
Section 2.10, (i) the Bank will use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions) to file any
certificate or document requested by a Borrower or to change the
jurisdiction of its lending office if the making of such a filing or
change would avoid the need for, or reduce the amount of, any such
additional amounts that may thereafter accrue and would not, in the
judgment of the Bank, be otherwise disadvantageous to the Bank, and
(ii) the Bank will permit the Borrowers to prepay all or any part of
the affected Loans, together with interest to the date of payment and
payment of funding losses pursuant to Section 2.12, PROVIDED that
nothing herein shall relieve the Borrowers from their obligations to
compensate the Bank for increased costs or reduced return incurred
prior to the taking of the actions contemplated by clauses (i) and (ii)
above.
Section 2.11 ILLEGALITY. If, after the date of this Agreement, the
adoption of any applicable law, rule or regulation, or any change in an existing
law, rule or regulation, or any change in the interpretation or administration
thereof by any Governmental Authority charged with the interpretation or
administration thereof, or compliance by the Bank with any request or directive
(whether or not having the force of law) of any such Governmental Authority,
makes it unlawful or impossible for the Bank to make, maintain or fund any Loan
at an interest rate based on Adjusted LIBOR, the Bank shall forthwith give
notice thereof to the Borrowers, whereupon the obligation of the Bank to make
Loans at a rate based on Adjusted LIBOR shall be suspended until the Bank
notifies the Borrowers that the circumstances giving rise to such suspension no
longer exist. The Bank will use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to file any certificate or
document requested by a Borrower or to change the jurisdiction of its lending
office if the making of such a filing or change would avoid the need for, or
reduce the amount of, any such additional amounts that may thereafter accrue and
would not, in the judgment of the Bank, be otherwise disadvantageous to the
Bank. If the Bank makes a reasoned determination that it may not lawfully
continue to maintain and fund any Loan to maturity at a rate based on Adjusted
LIBOR and so specifies in such notice, then effective on the date specified in
such notice each affected Loan shall bear interest at the Base Rate in effect
from time to time, payable monthly in arrears (in the absence of prior demand).
Section 2.12 FUNDING LOSSES. The Borrowers agree to reimburse the Bank
and to hold the Bank harmless from any loss or expense which the Bank may
sustain or incur as a consequence of:
(a) the failure of the Borrowers to make any payment or
required prepayment of principal of any Loan (including payments made
after any acceleration thereof);
(b) the failure of the Borrowers to make any prepayment
permitted hereunder after giving notice thereof;
(c) the repayment of a Loan on a day which is not the last
day of an Interest Period (whether due to acceleration, DEMAND, or
otherwise); or
(d) the failure for any reason (other than a wrongful
default by the Bank) of a Borrower to borrow any Loan after notice has
been given to the Bank in accordance with Section 2.1 hereof (whether
or not such notice is withdrawn);
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain the Loans hereunder at a rate based on LIBOR
or from fees payable to terminate the deposits from which such funds were
obtained. Solely for purposes of calculating amounts payable by the Borrowers to
the Bank under this section, each Loan bearing interest at a rate based on LIBOR
(and each related reserve, special deposit or similar requirement) shall be
conclusively deemed to have been funded by a matching deposit in Dollars in the
interbank eurodollar market for a comparable amount and for the respective
Interest Period, whether or not such Loan was in fact so funded.
Section 2.13 UNAVAILABILITY. If the Bank determines that for any reason
adequate and reasonable means do not exist for ascertaining LIBOR for any
Interest Period, the Bank will forthwith give notice of such determination to
the Borrowers. Commencing at the end of each Interest Period then in effect, the
respective Loan shall bear interest at the Base Rate (rather than at a rate
based on LIBOR) until the Bank revokes such notice in writing.
Section 2.14 SPECIAL PREPAYMENT. The provisions of Sections 2.10, 2.11
and 2.12 shall also apply to any assignee permitted pursuant to Section 7.7 and
shall apply to any unassigned portion of the Loans retained by the Bank
(regardless of whether the Bank may have sold a participation interest in such
retained portion to a participant permitted pursuant to Section 7.7). If demand
for payment is made pursuant to Section 2.10 or 2.12 or if notice of illegality
is given pursuant to Section 2.11, whether by any such permitted assignee or by
the Bank on behalf of any such permitted participant, then the Borrowers may
prepay in full (but not in part) such assignee's or participant's interest in
the Loans on the last day of the Interest Period during which such demand for
additional amounts was made or during which such notice of illegality was given.
Any principal amount, interest or increased costs received by any such assignee
or participant pursuant to this Section 2.14 shall not be required to be shared
with the Bank and any other assignees or participants.
ARTICLE III
CONDITIONS PRECEDENT
Section 3.1 CONDITIONS TO INITIAL LOAN. The obligation of the Bank to
make the initial Loan is subject to the condition precedent that the Bank shall
have received on or prior to the Closing Date the following, each in form and
substance satisfactory to the Bank and its counsel and, unless indicated
otherwise, dated the Closing Date:
(a) AGREEMENT. A copy of this Agreement, duly executed by
the Borrowers and dated as of the Signing Date.
(b) NOTE. The Note, duly executed by the Borrowers and dated
the Signing Date.
(c) TRIARC PLEDGE AGREEMENT. The Triarc Pledge Agreement,
duly executed by DWG and dated the Closing Date.
(d) PECHINEY PLEDGE AGREEMENT. The Pechiney Pledge
Agreement, duly executed by Xxxxxx Xxxxx and dated the Signing Date.
(e) STOCK CERTIFICATES, ETC. (i) Original stock certificates
representing the shares of stock pledged to the Bank pursuant to the
Triarc Pledge Agreement, together with an undated stock power for each
such certificate, duly executed in blank by an authorized
representative of DWG, with signature medallion guaranteed (or, if any
such shares are uncertificated, confirmation and evidence that
appropriate book entries have been made in the relevant books and
records of the issuer of such uncertificated shares or a financial
intermediary, as the case may be, under applicable law), (ii) such
opinion of counsel and such approving certificate of the issuer of such
shares as the Bank may reasonably request in respect of complying with
any legend on any such certificate or any other matter relating to such
shares, and (iii) any registration rights agreement, shareholders'
agreement or other agreement, instrument or document affecting any of
the shares of stock pledged to the Bank pursuant to the Triarc Pledge
Agreement.
(f) SEC FORM 144. Ten copies of SEC Form 144, undated and
duly executed in blank by DWG.
(g) FORM U-1. Federal Reserve Forms U-1 provided for in
Regulation U issued by the Board, the statements made in which shall be
such, in the opinion of the Bank, as to permit the transactions
contemplated hereby and by the Pechiney Loan Agreement in accordance
with such Regulation, dated the Closing Date.
(h) RESTRICTED SECURITIES STATEMENT. A Restricted Securities
Statement covering each Pledged Share, substantially in the form
attached to the Triarc Pledge Agreement, duly executed by DWG and dated
the Signing Date.
(i) REGISTRATION RIGHTS AGREEMENT. A copy of the
Registration Rights Agreement, dated as of April 23, 1993, as amended,
between Triarc and DWG, as amended to modify the holdback provision in
Section 2.4(d)(i) thereof, certified as of the Signing Date by Xxxxxx
Xxxxx.
(j) DWG PARTNERSHIP AGREEMENT. A copy of the Partnership
Agreement, duly certified as of the Signing Date by a partner of DWG.
(k) DWG FINANCIAL STATEMENTS. A copy of the balance sheet of
DWG as at December 31, 1994, duly certified as of the Signing Date by a
partner of DWG.
(l) AMENDMENT. An amendment dated the Signing Date to the
Term Loan Agreement dated as of July 29, 1994, between Xxxxxx Xxxxx and
NationsBank of Florida, N.A. providing, among other things, that any
Event of Default under this Agreement shall constitute an "Event of
Default" under such Term Loan Agreement.
(m) PECHINEY COLLATERAL. Such notices and other documents as
the Bank may reasonably require in connection with the securing of the
Obligations under this Agreement with the Pechiney Collateral
(including, without limitation, note powers (undated and in blank) in
respect of the Collateral Notes, notices to Pechiney with respect to
the Pechiney Pledge Agreement and the payment of principal of the
Collateral Notes, and the Escrow Agreement (as defined in each Letter
of Credit).
(n) FEES PAYABLE AT CLOSING. The Borrowers shall pay to the
Bank (i) an arrangement fee equal to [ REDACTED ], and (ii) the
reasonable legal fees and other client charges and expenses of such
counsel (including, without limitation, photocopying, travel and word
processing charges) incurred by the Bank in connection with its review
of the Triarc Collateral and the Pechiney Collateral and with the
preparation of this Agreement, the Note and the other Loan Documents,
negotiations in connection therewith, and research and other related
expenses.
(o) FINANCING STATEMENTS. Acknowledgment copies of
appropriate financing statements on Form UCC-1, duly executed by the
Borrowers and DWG and duly filed in such office or offices as may be
necessary or, in the opinion of the Bank, desirable to perfect the
security interests purported to be created by the Pechiney Pledge
Agreement and the Triarc Pledge Agreement.
(p) LIEN REPORTS. Certified copies of requests for copies or
information on Form UCC-11, listing all effective financing statements
which name either Borrower or DWG as debtor and which are filed in the
offices referred to in paragraph (o) above, together with copies of
such financing statements, none of which, except as otherwise agreed to
in writing by the Bank, shall cover any of the Collateral.
(q) INTERCREDITOR AGREEMENT. The Intercreditor Agreement
between the Bank and NationsBank of Florida, N.A., acknowledged and
consented to by Xxxxxx Xxxxx, Xxxxxxx Xxxxx and DWG and dated the
Signing Date.
(r) RESOLUTION AGREEMENT. A copy of the Resolution
Agreement, dated as of May 1, 1992, as amended, among Xxxxxx Xxxxx,
Xxxxx Xxx and Pechiney, as amended, certified as of the Signing Date by
Xxxxxx Xxxxx.
(s) ESCROW AGREEMENT. A copy of the Escrow Agreement, dated
as of December 22, 1988, as amended, among Pechiney Corporation, Banque
Nationale de Paris, New York Branch, Xxxxxx Xxxxx, Xxxxx Xxx and Bank
of the West, as escrow agent, certified as of the Signing Date by
Xxxxxx Xxxxx.
(t) OPINION OF COUNSEL TO BORROWERS. An opinion, dated the
Closing Date, of the law firm of Xxxx, Weiss, Rifkind, Xxxxxxx &
Xxxxxxxx, counsel to the Borrowers and DWG, in the form of Exhibit C
hereto.
Section 3.2 CONDITIONS TO ALL LOANS. The obligation of the Bank to make
any Loan is subject to the conditions precedent that:
(a) The following statements shall be true, and the
acceptance of the proceeds of such Loan by a Borrower shall be deemed
to be a representation and warranty of each Borrower on the date of
such Loan that, (i) the representations and warranties contained in
Article IV of this Agreement and in each other Loan Document and
certificate or other writing delivered to the Bank pursuant hereto on
or prior to the date for such Loan are true and correct on and as of
such date as though made on and as of such date; (ii) no Event of
Default or Default has occurred and is continuing or would result from
the making of such Loan to be made on such date; and (iii) no material
adverse change in the financial condition, properties or prospects of
any Loan Party shall have occurred and be continuing on the date of
each request for a Loan; and
(b) The Bank shall have received a Notice of Borrowing in
accordance with Section 2.1 hereof with respect to such Loan.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants to the Bank that: Section 4.1GOOD
TITLE TO DWG INTEREST. Xxxxxx Xxxxx and Xxxxx Xxx are the sole general partners
of DWG, which interests are owned free and clear of any Lien. Schedule 4.1
hereto sets forth the name and interest of each other partner of DWG.
Section 4.2 NO INSOLVENCY PROCEEDINGS. The Borrowers have no knowledge
of any insolvency proceeding of any type instituted with respect to DWG, Triarc
or Pechiney.
Section 4.3 NO DEFAULT. No Default or Event of Default has occurred and
is continuing.
Section 4.4 ENFORCEABLE OBLIGATIONS. The Borrowers have the legal
capacity and right to execute, deliver and perform this Agreement, the Note and
the other Loan Documents. This Agreement, the Note and the other Loan Documents
constitute legal, valid and binding obligations of the Borrowers, enforceable
against each Borrower that is a party thereto in accordance with their
respective terms.
Section 4.5 NO LEGAL BAR. The execution, delivery and performance of
this Agreement, the Note and the other Loan Documents, and the borrowings
hereunder, will not violate any law or regulation (including, without
limitation, Regulations G, T, U or X) or any contractual obligation of either
Borrower and will not result in the creation or imposition of a Lien on any
property of a Borrower, other than security interests created by the Loan
Documents.
Section 4.6 NO LITIGATION. Except as disclosed on Schedule 4.6, there
is no litigation or proceeding of or before any arbitrator or Governmental
Authority pending or threatened against any Loan Party (as to which either
Borrower has received notice in writing) (a) with respect to this Agreement, any
Loan, the use of the proceeds thereof, the Triarc Collateral or the Pechiney
Collateral, or (b) which could reasonably be expected to have a Material Adverse
Effect.
Section 4.7 TAXES. The Borrowers have filed or caused to be filed all
tax returns which are required to be filed and have paid all taxes shown to be
due and payable on such returns or on any assessments made against them or any
of their property by any Governmental Authority except to the extent any such
taxes are being contested in good faith and any exceptions thereto are set forth
on Schedule 4.7. No tax Lien has been filed with respect to any material tax
liability against either Borrower, and, to the Borrowers' knowledge, no tax
assessment is pending against either Borrower, except as set forth on Schedule
4.7.
Section 4.8 PARTNERSHIP AGREEMENT. The Borrowers have delivered to the
Bank a true and correct copy of the Partnership Agreement, as in effect on the
date hereof.
Section 4.9 APPROVALS. No authorization or approval or other action by,
and no notice to or filing with, any Governmental Authority or other regulatory
body, and no consent of any other Person, is required for the due execution,
delivery and performance by either Borrower of any Loan Document to which such
Person is a party.
Section 4.10 FINANCIAL CONDITION. (a) The personal financial statements
(including the notes relating thereto) of the Borrowers dated September 30,
1995, copies of which have been previously delivered to the Bank, fairly present
the financial condition of the Borrowers as at the date thereof, and since such
date there has been no material adverse change in the financial condition,
properties or prospects of either Borrower.
(b) The balance sheet of DWG as at December 31, 1994, copies
of which have been previously delivered to the Bank, fairly presents
the financial condition of DWG as at such date, all in accordance with
sound accounting principles consistently applied, and since December
31, 1994 there has been no material adverse change in the financial
condition, properties or prospects of DWG (it being understood that any
decrease in the per share price of common stock of Triarc shall not
constitute a material adverse change for purposes of this paragraph).
Section 4.11 REGULATION U. Such Borrower is not and will not be engaged
in the business of extending credit for the purpose of purchasing or carrying
margin stock (within the meaning of Regulation U issued by the Board), and no
proceeds of any Loan will be used for the purpose, whether immediate, incidental
or ultimate, of purchasing or carrying margin stock, or to refinance any loan or
other Indebtedness the proceeds of which were used to purchase or carry, any
margin stock or to extend credit to others for the purpose of purchasing or
carrying any margin stock.
Section 4.12 PURPOSE OF LOAN. The proceeds of each Loan will be used
only for specific investment purposes, but in no event shall such proceeds be
used for any investment purpose inconsistent with Section 4.11 hereof, or to
repay any Indebtedness incurred to repay Indebtedness owed to any prior pledgee
of the Triarc Shares that was secured (directly or indirectly) by shares of
stock of Triarc.
Section 4.13 FULL DISCLOSURE. No Loan Document or schedule or exhibit
thereto, and no certificate, report, statement or other document or information
furnished to the Bank in connection herewith or with the consummation of the
transactions contemplated hereby, contains any material misstatement of fact or
omits to state a material fact or any fact necessary to make the statements
contained herein or therein not misleading in light of the circumstances under
which they were made. There is no fact known to any Borrower (other than public
information as to matters of a general economic nature) that materially
adversely affects the financial condition of a Borrower or DWG the value of any
of the Collateral that has not been disclosed to the Bank in writing prior to
the Signing Date.
ARTICLE V
COVENANTS
So long as any Obligation is outstanding or the Bank shall have any
Commitment hereunder, the Borrowers will, unless the Bank shall otherwise
consent in writing:
Section 5.1 FINANCIAL STATEMENTS. Deliver to the Bank in form and
detail satisfactory to the Bank:
(a) as soon as available, but not later than sixty (60) days
after the end of each calendar quarter and for that portion of the
calendar year ending with such quarter, a statement of assets and
liabilities (including, without limitation, contingent liabilities) of
the Borrowers as of the close of such quarter, certified by the
Borrowers to the best of their knowledge as being true and complete in
all material respects;
(b) together with each statement of assets and liabilities,
(i) a letter showing which assets each Borrower owns
individually, which assets are owned by the other Borrower
individually and which assets are owned jointly by the
Borrowers. Such assets shall be valued on a basis consistent
with that used in the preparation of the September 30, 1995
statement of assets and liabilities, except as explained in any
notes to the quarterly statement which such letter accompanies;
and
(ii) an update on the status of the audit by the
Internal Revenue Service of the Borrower's federal tax returns
(which update may be included in the footnotes to such statement
of assets and liabilities; the level of disclosure for such
updates will be sufficient if the same as for previous updates
included in such footnotes); and
(c) as soon as available and in any event not more than 90
days after the end of each calendar year, (i) a statement of personal
cash flow of the Borrowers for the year then ended and projected cash
flow of the Borrowers for the following year, certified by the
Borrowers to the best of their knowledge as being true and complete in
all material respects, and (ii) a balance sheet of DWG, showing the
financial condition of DWG as of the close of such year and prepared in
accordance with sound accounting principles consistently applied, all
certified by its partners as fairly presenting the financial condition
of DWG; and
(d) promptly upon request, such other information concerning
the operations, condition (financial or otherwise), business, assets or
prospects of any Loan Party as the Bank from time to time may
reasonably request.
Section 5.2 NOTICES. Promptly notify the Bank of:
(a) the occurrence of any Default or Event of Default;
(b) (i) any breach or non-performance of, or any default
under, any contractual obligation of any Loan Party which could have a
Material Adverse Effect; and (ii) any action, suit, litigation or
proceeding which may exist at any time which could reasonably be
expected to have a Material Adverse Effect;
(c) the commencement of, or any material development in, any
litigation or proceeding affecting any Loan Party (i) which could
reasonably be expected to have a Material Adverse Effect, (ii) in which
the relief sought is an injunction or other stay of the performance of
this Agreement, the Note or any other Loan Document or (iii) any
litigation involving any of the Collateral; and
(d) any Material Adverse Effect subsequent to the date of
the most recent statement of assets and liabilities of the Borrowers
delivered to the Bank pursuant to Section 5.1.
Each notice pursuant to this section shall be accompanied by a written statement
signed by the Borrowers, setting forth details of the occurrence referred to
therein, and stating what action the Borrowers propose to take with respect
thereto and at what time. Each notice under Section 5.2(a) shall describe with
particularity the provisions of this Agreement, the Note or other Loan Document
that have been breached.
Section 5.3 PAYMENT OF OBLIGATIONS. Pay all taxes, assessments,
governmental charges and other obligations when due, except as may be contested
in good faith or those as to which a bona fide dispute may exist.
Section 5.4 FURTHER ASSURANCES. Execute and deliver to the Bank such
further instruments and do such other further acts as the Bank may reasonably
request to carry out more effectively the purposes of this Agreement, the other
Loan Documents and any agreements and instruments referred to herein.
Section 5.5 DWG. Not permit DWG to (i) conduct, transact or otherwise
engage in, or commit to conduct, transact or otherwise engage in, any
transaction, business or operation other than the ownership of the Pledged
Shares, (ii) incur, create, assume or suffer to exist any Indebtedness or other
liabilities or obligations, except obligations owing by it under the Loan
Documents to which it is a party, (iii) create or suffer to exist any Lien upon
or with respect to any of its properties, whether now owned or hereafter
acquired, or assign any right to receive income , except for any Lien in favor
of the Bank, (iv) liquidate, dissolve, merge or consolidate with, or sell,
assign, lease or otherwise dispose of (whether in one transaction or in a series
of transaction), any of its assets (whether now owned or hereafter acquired) to
any Person, (v) own, lease, manage or otherwise operate any properties or assets
other than the ownership of the Pledged Shares, or (vi) make any payment other
than in accordance with the provisions of the Loan Documents.
Section 5.6 CHANGE IN STATE OF RESIDENCE. Not change the state of their
principal place of residence (which is currently New York) without (a) notifying
the Bank in writing prior to such change, (b) designating in writing an agent
for service of process in the State of New York and notifying the Bank of same
and (c) delivering to the Bank the written acceptance of such agent.
Section 5.7 DWG PARTNERSHIP AGREEMENT. Not amend, modify, alter,
terminate or waive any provision of the Partnership Agreement.
Section 5.8 NET WORTH. Maintain at all times a minimum Net Worth of
$[REDACTED]. As used herein, "Net Worth" means the total assets of the Borrowers
minus the total liabilities of the Borrowers, all determined in accordance with
sound accounting principles.
Section 5.9 RULE 144 COVENANTS. (a) Not sell any securities of the same
class or convertible into the same class of securities as the Triarc Collateral,
whether or not such securities are pledged hereunder, from the date hereof until
the Obligations have been paid in full, and in the event of any such sale
consented to by the Bank will furnish the Bank with a copy of any Form 144 filed
in respect of such sale. The Borrowers will cause any Person with whom it shall
be deemed one "person" for purposes of Rule 144(a)(2) to refrain from selling
any securities of the same class or convertible into the same class of
securities as the Triarc Collateral, whether or not such securities are pledged
hereunder, from the date hereof until the Obligations have been paid in full and
the Commitment terminated, and in the event of any such sale consented to by the
Bank will furnish the Bank with a copy of any Form 144 filed in respect of such
sale.
(b) Cooperate fully with the Bank with respect to any sale
by the Bank of any of the Triarc Collateral, including full and
complete compliance with all requirements of Rule 144, and will give to
the Bank all information and will do all things necessary, including
the execution of all documents, forms, instruments and other items, to
comply with Rule 144 for the complete and unrestricted sale and/or
transfer of the Rule 144 Securities.
ARTICLE VI
EVENTS OF DEFAULT
Section 6.1 EVENT OF DEFAULT. Any of the following shall constitute an
"EVENT OF DEFAULT":
(a) NONPAYMENT. Either (i) THE BANK SHALL DEMAND PAYMENT ON
THE NOTE (AT ANY TIME IN ITS SOLE AND ABSOLUTE DISCRETION, AND
REGARDLESS OF WHETHER ANY OTHER DEFAULT OR EVENT OF DEFAULT SHALL HAVE
OCCURRED), or (ii) either Borrower shall fail to pay any principal of a
Loan or the Note when due (whether by scheduled maturity, mandatory
prepayment, acceleration, demand or otherwise), or (iii) either
Borrower shall fail to pay any interest on a Loan or the Note or any
other amount payable hereunder and such failure shall continue for 3
Business Days; or
(b) REPRESENTATION OR WARRANTY. Any representation or
warranty by any Loan Party made or deemed made herein, in any other
Loan Document or in any certificate, document or financial or other
statement furnished by a Loan Party pursuant to a Loan Document shall
have been incorrect or misleading in any material respect on or as of
the date made or deemed made; or
(c) OTHER DEFAULT. (i) A Borrower shall fail to perform or
observe any term or covenant in Section 2.5 hereof after any applicable
notice and cure period expressly set forth therein, or (ii) a Borrower
shall fail to perform or observe any term or covenant in Section 5.1 or
5.2 hereof after any applicable notice and cure period expressly set
forth therein (if any), or (iii) any Loan Party shall fail to perform
or observe any other material term or covenant contained in this
Agreement or any other Loan Document, and not referred to in another
subsection of this Section 6.1, and such default continues unremedied
for a period of 20 days or (iv) a Loan Party shall fail to perform or
observe any other term or covenant contained in this Agreement or any
other Loan Document, and not referred to in clauses (i), (ii) or (iii)
of this subsection (c) or in any other subsection of this Section 6.1,
and such default continues unremedied for a period of 20 days after the
Bank gives notice to either Borrower of same; or
(d) CROSS-DEFAULT. Any Loan Party (i) shall fail to make any
required payment when due in respect of any Indebtedness having a
principal or face amount of [ REDACTED ] or more when due (whether at
scheduled maturity or required prepayment or by acceleration, demand,
or otherwise); or (ii) shall fail to perform or observe any other
condition or covenant, or any other event shall occur or condition
exist, under any agreement or instrument relating to any such
Indebtedness, and such failure continues after the applicable grace or
notice period, if any, specified in the document relating thereto, if
the effect of such failure, event or condition is to cause, or to
permit the holder or holders of such indebtedness or beneficiary or
beneficiaries of such Indebtedness (or a trustee or agent on behalf of
such holder or holders or beneficiary or beneficiaries) to cause such
Indebtedness to be declared to be due and payable prior to its stated
maturity, or such contingent obligation to become payable or cash
collateral in respect thereof to be demanded; or
(e) VOLUNTARY PROCEEDINGS. Any Loan Party (i) becomes
insolvent, or generally fails to pay, or admits in writing the
inability to pay such Loan Party's debts as they become due, subject to
applicable grace periods, if any, whether at stated maturity or
otherwise; (ii) commences a proceeding under the bankruptcy laws of any
state or of the United States with respect to such Loan Party; or (iii)
takes any action to effectuate or authorize any of the foregoing; or
(f) INVOLUNTARY PROCEEDINGS. (i) Any involuntary bankruptcy
proceeding is commenced or filed against any Loan Party or any writ,
judgment, warrant of attachment, execution or similar process, is
issued or levied against a substantial part of any Loan Party's
properties, and any such proceeding or petition is not dismissed, or
such writ, judgment, warrant of attachment, execution or similar
process is not released, vacated or fully bonded within 90 days after
commencement, filing or levy; (ii) any Loan Party admits the material
allegations of a petition against such Loan Party in any insolvency
proceeding, or an order for relief (or similar order under non-U.S.
law) is ordered in any insolvency proceeding; or (iii) any Loan Party
acquiesces in the appointment of a receiver, trustee, custodian,
conservator, liquidator, mortgagee in possession (or agent therefor),
or other similar person for a substantial portion of such Loan Party's
property or business; or
(g) MONETARY JUDGMENTS; LIENS. One or more final
(non-interlocutory) judgments, orders or decrees is entered against any
Loan Party or a Lien is filed against property of any Loan Party (other
than as contemplated hereby) involving in the aggregate liability (not
fully covered by independent third-party insurance) as to any single or
related series of transactions, incidents or conditions, of [ REDACTED
] or more, and the same remains unvacated and unstayed pending appeal
(if a judgment) or unbonded (if a Lien) for a period of 10 days after
the entry thereof; or
(h) TRIARC PLEDGE AGREEMENT. Any provision of the Triarc
Pledge Agreement ceases to be valid and binding on or enforceable
against DWG, the Triarc Pledge Agreement ceases to create a valid
security interest in the collateral purported to be covered thereby or
such security interest ceases for any reason to be a perfected and
first priority security interest; or
(i) PECHINEY PLEDGE AGREEMENT. Any provision of the Pechiney
Pledge Agreement ceases to be valid and binding on or enforceable
against Xxxxxx Xxxxx, the Pechiney Pledge Agreement ceases to create a
valid security interest in the collateral purported to be covered
thereby or such security interest ceases for any reason to be a
perfected and first priority security interest; or
(j) TERM LOAN AGREEMENT. An "Event of Default" shall occur
under the Term Loan Agreement dated as of July 29, 1994, as amended or
otherwise modified from time to time, between Xxxxxx Xxxxx and
NationsBank of Florida, N.A.; or
(k) PUBLIC INFORMATION. Triarc shall at any time cease to
satisfy either of the conditions set forth in paragraph (c) of Rule 144
(unless at such time pursuant to paragraph (k) of Rule 144 the Bank can
sell all of the Triarc Class A Common Stock pledged to the Bank); or
shares of the Triarc Class A Common Stock shall cease to be listed on
the New York Stock Exchange or the American Stock Exchange or included
for trading on the NASDAQ Stock Market/National Market System; or
(l) DWG CONTROL. Xxxxxx Xxxxx shall cease to own directly,
beneficially and of record, 66-2/3% of the partnership interests in
DWG, or Xxxxxx Xxxxx and Xxxxx Xxx shall cease collectively to own
directly, beneficially and of record, 100% of the partnership interests
in DWG (except for the limited partnership interest of Xxxx Xxxxxxxx);
or
(m) DEATH OR INCAPACITY. Xxxxxx Xxxxx shall die or shall
cease to have legal capacity.
Section 6.2 REMEDIES. If any Event of Default occurs, the Bank may:
(a) declare the aggregate principal amount of the
outstanding Loans, all interest accrued and unpaid thereon, and all
other Obligations to be immediately due and payable, whereupon such
Loans, all interest accrued and unpaid thereon, and all other
Obligations shall become and be forthwith due and payable without
presentment, demand, protest or further notice of any kind, all of
which are hereby expressly waived by the Borrowers;
(b) exercise all rights and remedies available to it
hereunder, under the Note, any other Loan Document or applicable law;
(c) declare the Commitment to be terminated, whereupon the
Commitment shall forthwith terminate; and
(d) enforce, as Collateral Agent, and direct the Florida
Agent to enforce (subject to Section 8 of the Intercreditor Agreement),
all of the Liens and security interests created pursuant to the Loan
Documents;
PROVIDED, HOWEVER, that (i) upon the occurrence of any event specified in
paragraph (c)(i), (f) or (g) of Section 6.1 above (in the case of clause (i) of
paragraph (f), after the 90-day period expressly set forth therein), the
Commitment shall automatically terminate and the aggregate principal amount of
the outstanding Loans, all interest accrued and unpaid thereon, and all other
Obligations shall automatically become due and payable, without presentment,
demand, protest or further notice of any kind, all of which are hereby expressly
waived by the Borrowers, and (ii) in the case of any event specified in
paragraph (c)(i) of Section 6.1 above (after the five-day period expressly set
forth in Section 2.5(b) hereof), and notwithstanding any notice provisions in
any other Loan Document, (A) the Collateral Agent may sell all or any part of
the Triarc Collateral and (B) the Florida Agent may (subject to Section 8 of the
Intercreditor Agreement) sell all or any part of the Pechiney Collateral, and in
each case the Bank may apply the proceeds of such Collateral to the payment of
the Obligations.
Section 6.3 RIGHTS NOT EXCLUSIVE. The rights provided in this
Agreement, the Note and the other Loan Documents are cumulative and are not
exclusive of any other rights, powers, privileges or remedies provided by law or
in equity, or under any other instrument, document or agreement now existing or
hereafter arising.
ARTICLE VII
MISCELLANEOUS
Section 7.1 AMENDMENT AND WAIVER. No modification, consent, amendment
or waiver of any provision of this Agreement, nor consent to any departure by
either Borrower therefrom, shall be effective unless the same shall be in
writing and signed by a Vice President or higher level officer of the Bank, and
then shall be effective only in the specific instance and for the purpose for
which given.
Section 7.2 COSTS AND EXPENSES. The Borrowers shall:
(a) reimburse the Bank within five (5) Business Days after
demand for all costs and expenses incurred by the Bank, including,
without limitation, the reasonable fees and disbursements of counsel
and paralegals, in connection with the development, preparation,
delivery, administration and execution of, and any amendment,
supplement, waiver or modification to, this Agreement, the Note or any
of the other Loan Documents, the review of the Collateral and the
consummation of the transactions contemplated hereby;
(b) reimburse the Bank within five (5) Business Days after
demand for all costs and expenses incurred by it, including, without
limitation, the fees and disbursements of counsel and paralegals, in
connection with the enforcement, attempted enforcement, or preservation
of any rights or remedies (including in connection with any "workout"
or restructuring regarding any of the Loans and any insolvency
proceeding or appellate proceeding) under this Agreement, the Note or
any other Loan Document or in respect of any of the Collateral; and
(c) reimburse the Bank within five (5) Business Days after
demand for all costs and expenses incurred by the Bank in connection
with litigation involving the Triarc Collateral, whether related to
enforcement thereof or otherwise.
Section 7.3 JOINT AND SEVERAL OBLIGATIONS. All of the Obligations of
the Borrowers hereunder and under the Note and the other Loan Documents are
joint and several. The Bank may, in its sole and absolute discretion, enforce
the provisions hereof against either of the Borrowers and shall not be required
to proceed against both Borrowers jointly or seek payment from the Borrowers
ratably. In addition, the Bank may, in its sole and absolute discretion, select
the Collateral of any one or more of the Loan Parties for sale or application to
the Obligations, without regard to the ownership of such Collateral, and shall
not be required to make such selection ratably from the Collateral owned by the
Loan Parties (it being understood that any sale or disposition of the Pechiney
Collateral shall be subject to Section 8 of the Intercreditor Agreement). It is
understood and agreed that Xxxxxx Xxxxx and Xxxxx Xxx have agreed between
themselves that Xxxxxx Xxxxx shall have a two-thirds interest, and Xxxxx Xxx
shall have a one-third interest, in DWG and its assets, and the Bank hereby
agrees that in the event the Bank shall sell or otherwise dispose of any of the
Triarc Collateral, the Bank shall apply two-thirds of the proceeds of such
Triarc Collateral to the Obligations.
Section 7.4 DEMAND OBLIGATION. Nothing in this Agreement or in any
other Loan Document is intended to be an amendment or modification of, or
limitation or restriction upon, any provision of the Note (including, without
limitation, the Borrower's obligation under the Note to pay principal and
interest ON DEMAND), and the provisions of the Note shall be controlling and
fully effective regardless of anything herein to the contrary. The Borrowers
hereby acknowledge that the Bank may at any time, in its sole and absolute
discretion, demand payment of the Note, even if the Borrowers have fully
complied with all of the terms and conditions of this Agreement and the other
Loan Documents. This Agreement, the Note and the other Loan Documents constitute
the entire agreement among the parties with respect to the borrowings
contemplated hereunder and supersede all prior agreements, written or oral, with
respect to the borrowings contemplated hereunder. THE NOTE AND THE BORROWERS'
OBLIGATIONS ARE PAYABLE UPON DEMAND BY THE BANK (IN ITS SOLE AND ABSOLUTE
DISCRETION).
Section 7.5 SET-OFF. If an Event of Default exists, the Bank is
authorized to set-off and apply any and all deposits (general or special, time
or demand, provisional or final) at any time held by, and other indebtedness at
any time owing to, the Bank to or for the credit or the account of any Borrower
against any and all Obligations owing to the Bank, now or hereafter existing,
whether or not the Bank has made demand under this Agreement, the Note or any
other Loan Document and although such Obligations may be contingent or
unmatured. The Borrowers hereby waive prior notice of such action. The Bank,
however, agrees promptly to notify the Borrowers after any such set-off;
PROVIDED, HOWEVER, that the failure to give such notice shall not affect the
validity of such set-off. The rights of the Bank under this Section 7.5 are in
addition to the other rights and remedies (including other rights of set-off)
which the Bank may have.
Section 7.6 WAIVER. No failure or delay on the part of the Bank or the
Borrowers in exercising any right, power or privilege under this Agreement and
no course of dealing between the Borrowers or any other person and the Bank or
any other person shall operate as a waiver hereof or thereof.
Section 7.7 SUCCESSORS AND ASSIGNS.
(a) This Agreement shall be binding upon and inure to the
benefit of each party hereto and its successors and assigns, except
that the Borrowers shall not be entitled to assign or transfer all or
any of their rights, benefits or obligations hereunder, except for
their death or mental incapacity.
(b) The Bank may not assign or otherwise transfer any of its
rights or obligations under this Agreement except as provided in this
Section 7.7(b):
(i) Prior to approaching any Eligible Institution
for the purpose of assigning a portion of its interest herein or
selling a participation in its rights and obligations under this
Agreement, the Bank shall discuss with a Borrower the names of
such potential participants or assignees. The Bank shall not
assign or sell a participation in its rights and obligations
under this Agreement to any person unless a Borrower shall have
consented thereto (which consent shall not be unreasonably
withheld).
(ii) The Borrowers shall be given prompt written
notice of any grant of any such participation or assignment,
which notice shall include (x) the name and jurisdiction of
organization of the participant and (y) the amount of such
participation or assignment.
(iii) The Bank agrees that:
(A) it will not assign an interest in, or
sell a participation in, the outstanding Loans and the
Commitment in an amount less than 15% of the Commitment;
(B) it will at all times retain not less
than 15% of the outstanding Loans and the Commitment;
(C) it will provide in any assignment or
participation agreement with any assignee or participant that
such assignee or participant may not make a subparticipation or
assign any portion of its interest in outstanding Loans and the
Commitment if, after giving effect to such participation or
assignment, such participant or assignee would hold less than
15% of the outstanding Loans and the Commitment;
(D) the Bank will not assign an interest or
sell a participation in any Loan or the Commitment to any
assignee or participant who would be entitled to receive
additional compensation under Section 2.10 at the time of such
assignment or sale by the Bank, nor to any assignee or
participant who would find it unlawful or impossible to make,
maintain or fund its assigned interest or participation in the
Loan at a rate based on Adjusted LIBOR as provided in Section
2.11, at the time of such assignment or sale by the Bank;
(E) with respect to any matter on which the
Bank and any assignee or participant is required to vote or is
solicited to consent pursuant to the terms of a participation
agreement or an assignment agreement, as the case may be,
between the Bank and such person, if the matter to be decided is
one that does not require the unanimous consent of all assignees
or participants, financial institutions holding 51% of the
outstanding Loans shall decide the issue, provided that such 51%
includes the Bank; and
(F) in any participation agreement or
assignment agreement with any participant or assignee, as the
case may be, the Bank will:
(x) require that any bank organized
outside the United States will deliver to the Bank with a copy
to either Borrower Internal Revenue Service Form 4224 or 1001,
duly completed and signed; and
(y) provide that each participant or
assignee, as the case may be, will agree to be bound by all the
terms of this Agreement as if it were a signatory hereto.
(iv) The Bank may, in connection with any proposed
participation or assignment, disclose to the proposed
participant or assignee any information relating to the
Borrowers furnished to the Bank by or on behalf of the
Borrowers;
PROVIDED, that prior to any such disclosure, the proposed
participant or assignee shall agree in writing to preserve the
confidentiality of any confidential information relating to the
Borrowers received by it from the Bank to the same extent as is
required of the Bank.
(v) The Bank shall act as agent in connection with
any transfer permitted hereunder and the administration of the
Loans, and shall remain the holder of the Triarc Collateral and
act as collateral agent of the Triarc Collateral holding the
same for its benefit and the benefit of the permitted assignees
and participants hereunder. The Borrowers shall not be required
to deal with any participant or assignee in connection with the
administration of the Loans, and each assignment agreement or
participation agreement shall provide that each such assignee or
participant shall deal solely with the Bank as agent and not
directly with the Borrowers.
Section 7.8 CONFIDENTIALITY. The Bank agrees to take normal and
reasonable precautions and exercise due care to maintain the confidentiality of
all information identified as "confidential" by the Borrowers and provided to it
by the Borrowers in connection with this Agreement, and it shall not use any
such information for any purpose or in any manner other than pursuant to the
terms contemplated by this Agreement; except to the extent such information (i)
was or becomes generally available to the public other than as a result of a
disclosure by the Bank, or (ii) was or becomes available on a non-confidential
basis from a source other than the Borrowers, provided that such source is not
bound by a confidentiality agreement with the Borrowers known to the Bank;
PROVIDED FURTHER, HOWEVER, that the Bank may disclose such information: (A) at
the request or pursuant to any requirement of any Governmental Authority to
which the Bank is subject or in connection with an examination of the Bank by
any such authority; (B) pursuant to subpoena or other court process; (C) when
required to do so in accordance with the provisions of any applicable
requirement of law; (D) to the Bank's independent auditors and other
professional advisors, all of whom shall have been advised of the confidential
nature of such information; and (E) to proposed assignees or participants in
accordance with Section 7.8(b)(iv). It is understood that the financial
information to be delivered pursuant to Section 5.1 or any similar financial
information delivered prior to the Closing Date shall be deemed to have been
identified as confidential by the Borrowers.
Section 7.9 COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed an original, and it shall not be
necessary in making proof of this Agreement to produce or account for more than
one such counterpart.
Section 7.10 SEVERABILITY. Any provision of this Agreement which is
illegal, invalid or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such illegality, invalidity or
unenforceability without invalidating the remaining provisions hereof or
affecting the legality, validity or enforceability of such provision in any
other jurisdiction.
Section 7.11 NOTICES. Unless otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing and
shall be mailed, telegraphed, telecopied or delivered, if to the Borrowers, to
c/o Triarc Companies, Inc., 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Telecopy No. [ REDACTED ], Telephone No.: [ REDACTED ], with a copy to
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx
Xxx Xxxx 00000. Attention: Xxxxx Xxxxxx, Esq., Telecopier No.: [ REDACTED ],
Telephone No.: [ REDACTED ]; if to the Bank, to it at its address at
NationsBank, N.A., 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, with
copies to NationsBank, N.A., 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, Attention: Xx. Xxxx X. Xxxxxx, Senior Vice President, Telecopier No.
[ REDACTED ], Telephone No. [ REDACTED ], and Xxxxxxx Xxxx & Xxxxx, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxxx X. Xxxxxxxx, Esq.,
Telecopier No. [ REDACTED ], Telephone No.[ REDACTED ]; or, as to each party, at
such other address as shall be designated by such party in a written notice to
the other party complying as to delivery with the terms of this Section 7.11.
Any notice to the Bank by any Borrower or Borrowers shall be binding on all of
the Borrowers. The Bank may, and is hereby authorized, in its sole discretion,
to act in accordance with the terms hereof upon receipt of any notice,
including, without limitation, a Notice of Borrowing, by any Borrower or
Borrowers as though such notice had been signed by both of the Borrowers, and
all of the rights and remedies of the Bank, and Obligations of the Borrowers,
shall be in full force and effect notwithstanding that any Borrower did not
execute or consent to such Notice of Borrowing or other notice. All such notices
and other communications shall be effective (i) if mailed, when deposited in the
mails, (ii) if telegraphed, when delivered to the telegraph company, (iii) if
telecopied, upon receipt, or (iv) if delivered, upon delivery, except that
notices to the Bank pursuant to Article II hereof shall not be effective until
received by the Bank.
Section 7.12 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 7.13 ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE
PARTIES HERETO INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR ANY RELATED INSTRUMENTS, AGREEMENTS OR DOCUMENTS, INCLUDING
ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED TORT, SHALL BE DETERMINED BY
BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION ACT (OR IF NOT
APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF PRACTICE AND PROCEDURE FOR
THE ARBITRATION OF COMMERCIAL DISPUTES OF J.A.M.S./ENDISPUTE OR ANY SUCCESSOR
THEREOF ("J.A.M.S."), AND THE "SPECIAL RULES" SET FORTH BELOW. IN THE EVENT OF
ANY INCONSISTENCY, THE SPECIAL RULES SHALL CONTROL. JUDGMENT UPON ANY
ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. ANY PARTY TO
THIS AGREEMENT MAY BRING AN ACTION, INCLUDING A SUMMARY OR EXPEDITED PROCEEDING,
TO COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM TO WHICH THIS AGREEMENT
APPLIES IN ANY COURT HAVING JURISDICTION OVER SUCH ACTION.
(i) SPECIAL RULES. THE ARBITRATION SHALL BE
CONDUCTED IN THE COUNTY OF ANY BORROWER'S DOMICILE AT THE TIME
OF THE EXECUTION OF THIS AGREEMENT AND ADMINISTERED BY J.A.M.S.
WHO WILL APPOINT AN ARBITRATOR; IF J.A.M.S. IS UNABLE OR LEGALLY
PRECLUDED FROM ADMINISTERING THE ARBITRATION, THEN THE AMERICAN
ARBITRATION ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS
WILL BE COMMENCED WITHIN 90 DAYS OF THE DEMAND FOR ARBITRATION;
FURTHER, THE ARBITRATOR SHALL ONLY, UPON A SHOWING OF CAUSE, BE
PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH HEARING FOR UP TO
AN ADDITIONAL 60 DAYS.
(ii) RESERVATION OF RIGHTS. NOTHING IN THIS
ARBITRATION PROVISION SHALL BE DEEMED TO (I) LIMIT THE
APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF LIMITATION
OR REPOSE AND ANY WAIVERS CONTAINED IN THIS INSTRUMENT,
AGREEMENT, OR DOCUMENT; OR (II) BE A WAIVER BY THE BANK OF THE
PROTECTION AFFORDED TO IT BY 12 U.S.C. SEC. 91 OR ANY
SUBSTANTIALLY EQUIVALENT STATE LAW; OR (III) LIMIT THE RIGHT OF
THE BANK HERETO (A) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT
NOT LIMITED TO) SETOFF, OR (B) TO FORECLOSE AGAINST ANY REAL OR
PERSONAL PROPERTY COLLATERAL, OR (C) TO OBTAIN FROM A COURT
PROVISIONAL OR ANCILLARY REMEDIES SUCH AS (BUT NOT LIMITED TO)
INJUNCTIVE RELIEF, WRIT OF POSSESSION OR THE APPOINTMENT OF A
RECEIVER. THE BANK MAY EXERCISE SUCH SELF HELP RIGHTS, FORECLOSE
UPON SUCH PROPERTY, OR OBTAIN SUCH PROVISIONAL OR ANCILLARY
REMEDIES BEFORE, DURING OR AFTER THE PENDENCY OF ANY ARBITRATION
PROCEEDING BROUGHT PURSUANT TO THIS AGREEMENT. NEITHER THIS
EXERCISE OF SELF HELP REMEDIES NOR THE INSTITUTION OR
MAINTENANCE OF AN ACTION FOR FORECLOSURE OR PROVISIONAL OR
ANCILLARY REMEDIES SHALL CONSTITUTE A WAIVER OF THE RIGHT OF ANY
PARTY, INCLUDING THE CLAIMANT IN ANY SUCH ACTION, TO ARBITRATE
THE MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING RESORT TO
SUCH REMEDIES.
Section 7.14 THIS WRITTEN AGREEMENT AND THE OTHER LOAN DOCUMENTS
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first above written.
XXXXXX XXXXX
XXXXXXX XXXXX
NATIONSBANK, N.A.
By:
Title: AUTHORIZED SIGNATORY
REDACTED
TERM LOAN AGREEMENT
dated as of July 29, 1994
between
XXXXXX XXXXX
and
NATIONSBANK OF FLORIDA, N.A.
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS....................................1
Section 1.1 Certain Defined Terms...........................................1
ARTICLE II THE LOAN...........................................................6
Section 2.1 Amount of the Loan..............................................6
Section 2.2 Interest........................................................6
Section 2.3 Payment Under Collateral Notes and Letters of Credit............7
Section 2.4 Payment of Principal............................................8
Section 2.5 Optional Prepayment.............................................8
Section 2.6 Mandatory Prepayment............................................8
Section 2.7 Evidence of Credit Extensions...................................8
Section 2.8 Payment.........................................................8
Section 2.9 Computations of Interest; Business Day..........................8
Section 2.10 Increased Costs, Etc............................................9
Section 2.11 Illegality.....................................................10
Section 2.12 Funding Losses.................................................11
Section 2.13 Unavailability.................................................11
Section 2.14 Special Prepayment.............................................11
ARTICLE III CONDITIONS PRECEDENT.............................................12
Section 3.1 Deliveries.....................................................12
Section 3.2 Representations Correct........................................13
Section 3.3 Release of Credit Suisse Lien..................................13
ARTICLE IV REPRESENTATIONS AND WARRANTIES....................................13
Section 4.1 Good Title to Collateral.......................................13
Section 4.2 Enforceable Collateral Notes; No Default.......................14
Section 4.3 No Defense to or Prepayment of Collateral Notes................14
Section 4.4 No Misrepresentation...........................................14
Section 4.5 No Insolvency Proceedings......................................14
Section 4.6 No Default.....................................................14
Section 4.7 Enforceable Obligations........................................14
Section 4.8 No Legal Bar...................................................14
Section 4.9 No Litigation..................................................15
Section 4.10 Taxes..........................................................15
Section 4.11 Margin Stock...................................................15
Section 4.12 Purpose of Loan................................................15
Section 4.13 Pledge Agreement...............................................15
Section 4.14 Escrow Agreement...............................................15
ARTICLE V COVENANTS..........................................................16
Section 5.1 Financial Statements...........................................16
Section 5.2 Notices........................................................16
Section 5.3 Payment of Obligations.........................................17
Section 5.4 Further Assurances.............................................17
Section 5.5 Notice to Pechiney and Escrow Agent............................17
Section 5.6 Amendments to Escrow Agreement.................................18
Section 5.7 Change in State of Residence...................................18
ARTICLE VI EVENTS OF DEFAULT.................................................18
Section 6.1 Event of Default...............................................18
(a) Non-Payment....................................................18
(b) Representation or Warranty.....................................19
(c) Other Default..................................................19
(d) Cross-Default..................................................19
(e) Material Adverse Change........................................20
(f) Insolvent Voluntary Proceedings................................20
(g) Involuntary Proceedings........................................20
(h) Monetary Judgements; Liens.....................................20
(i) Pledge Agreement...............................................20
Section 6.2 Remedies.......................................................21
Section 6.3 Rights Not Exclusive...........................................21
ARTICLE VII MISCELLANEOUS....................................................21
Section 7.1 Amendment and Waiver...........................................21
Section 7.2 Costs and Expenses.............................................22
Section 7.3 Indemnification................................................22
Section 7.4 GOVERNING LAW AND SUBMISSION TO JURISDICTION...................23
Section 7.5 Set-Off........................................................23
Section 7.6 Waiver.........................................................24
Section 7.7 Successors and Assigns.........................................24
Section 7.8 Confidentiality................................................26
Section 7.9 Counterparts...................................................27
Section 7.10 Severability...................................................27
Section 7.11 Notices........................................................27
Section 7.12 Document Stamp Taxes...........................................27
Section 7.13 WAIVER OF JURY TRIAL...........................................27
SCHEDULES
Schedule 2.2 - Interest Payment Dates
Schedule 4.9 - Litigation, Tax Audits
Schedule 4.10 - Tax Assessments
EXHIBITS
Exhibit A - Note
Exhibit B - Pledge Agreement
Exhibit C - Direction to Demand Payment, Accelerate or Draw
TERM LOAN AGREEMENT
THIS TERM LOAN AGREEMENT (the "Agreement"), dated as of July 29,1994,
is entered into by and between XXXXXX XXXXX (the "Borrower"), an individual
residing in the State of New York, and NATIONSBANK OF FLORIDA, N.A. (the
"Bank"), a national banking association.
RECITALS
The Borrower has requested that the Bank make a term loan (the "Loan")
available to the Borrower in an amount not in excess of One Hundred Two Million
Dollars ($102,000,000), which Loan is to be secured by the pledge to the Bank by
the Borrower of promissory notes (the "Collateral Notes") issued by Pechiney
Corporation, a Delaware corporation ("Pechiney"), payable to the Borrower in an
aggregate principal amount of $120,000,000. Payment of the Collateral Notes is
supported by transfer letters of credit issued by Banque Nationale de Paris, New
York Branch, which, on the Closing Date, will issue new letters of credit naming
the Bank as beneficiary. The Bank will hold such letters of credit for itself
and as collateral agent for any Eligible Institution (as defined herein) to
which the Bank sells a participation in the Loan or to which the Bank assigns a
portion of its interest therein.
The Bank has agreed to make the loan to the Borrower on the terms set
forth herein.
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.1 Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings: "Adjusted LIBOR" means, with
respect to any Interest Period, a rate per annum (rounded upward, if necessary,
to the nearest 1/100th of one percent), determined pursuant to the following
formula:
LIBOR
1.00 minus the Eurodollar Reserve Percentage
"Applicable Margin" means:
(i) prior to a Rating Change, [ REDACTED ]%; and
(ii) after a Rating Change and during the continuance
thereof, [ REDACTED ]%.
Any change in the Applicable Margin shall take effect on the date of any Rating
Change.
"Base Rate" means, for any day, a simple rate per annum equal to the
higher of (i) the Prime Rate for such day, or (ii) the sum of one half of one
percent ( 1/2 %) plus the Federal Funds Rate for such day.
"BNP" means Banque Nationale de Paris, New York Branch.
"Business Day" means any day other than a Saturday, Sunday or other day
on which commercial banks in New York City are authorized or required by law to
close and, if the applicable Business Day relates to any Interest Period for
which interest on the Loan is determined by reference to the Adjusted LIBOR
rate, also includes a day on which commercial banks are open for international
business in London.
"Closing Date" means July 29, 1994.
"Collateral Notes" has the meaning assigned to it in the Recitals.
"Default" means a condition or event which, after notice or lapse of
time or both, would constitute an Event of Default.
"Default Rate" has the meaning specified in Section 2.2.
"Direction to Demand Payment, Accelerate or Draw" means a direction, in
the form attached hereto as Exhibit C, dated and signed by the Borrower.
"Dollars" and the sign "$" each mean lawful money of the United States
of America.
"Eligible Institution" means (i) a commercial bank organized under the
laws of the United States, or any state thereof, and having a combined capital
and surplus of at least $100,000,000; or (ii) a commercial bank organized under
the laws of any other country which is a member of the Organization for Economic
Cooperation and Development (the "OECD"), or a political subdivision of any such
country, and having a combined capital and surplus of at least $100,000,000,
provided that such bank is acting through a branch or agency located in the
United States or an offshore branch outside the United States at which such bank
books loans bearing interest based on LIBOR and, in the case of a bank described
in either clause (i) or clause (ii), such bank is able to deliver Internal
Revenue Service Form 1001 or 4224 to the Bank with a copy to the Borrower as of
the day such bank becomes an assignee or participant.
"Escrow Agreement" means that certain Escrow Agreement, dated as of
December 22, 1988, among Pechiney, BNP, the Borrower, Xxxxx X. May and Bank of
the West as Escrow Agent, as amended from time to time.
"Eurodollar Reserve Percentage" means, with respect to each Interest
Period, the maximum reserve percentage (expressed as a decimal fraction), in
effect on the date LIBOR for such Interest Period is determined (whether or not
applicable to the Bank), prescribed by the Board of Governors of the Federal
Reserve System (or any successor) for determining reserve requirements generally
applicable to financial institutions regulated by the Board of Governors of the
Federal Reserve System (including without limitation any basic, emergency,
supplemental or other marginal reserve requirements) with respect to
Eurocurrency liabilities pursuant to Regulation D or any other then applicable
regulation of the Board of Governors of the Federal Reserve System which
prescribes reserve requirements applicable to "Eurocurrency liabilities" as
presently defined in Regulation D (or any other category of liabilities which
includes deposits by reference to which the interest rate is determined or any
category or extension of credit which includes loans by a non-United States
office of the Bank to United States residents). Each determination by the Bank
of the Eurodollar Reserve Percentage shall, in the absence of demonstrable
error, be binding and conclusive.
"Event of Default" has the meaning specified in Section 6.1.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward to the nearest 1/100th of 1%) equal to the weighted average of the rates
on overnight federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers on such day, as published by the
Federal Reserve Bank of New York on the Business Day next succeeding such day,
provided that (i) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding Business
Day, and (ii) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate quoted to the
Bank on such day on such transactions as determined by the Bank.
"Interest Period" means each three (3) month period during which
interest on the Loan shall be calculated by reference to Adjusted LIBOR
determined as of the second Business Day before the commencement of that
Interest Period; provided, however, that:
(i) if any Interest Period would end on a day not a
Business Day, it shall end on the next Business Day unless the
next Business Day would fall in the next calendar month, in
which case the Interest Period shall end on the Business Day
immediately preceding the last day of such Interest Period but
for such change;
(ii) if any Interest Period would end on a day for
which there is no corresponding day in such month, it shall end
on the immediately preceding Business Day;
(iii) any Interest Period which would otherwise extend
beyond the Termination Date shall end on the Termination Date;
and
(iv) the first Interest Period shall commence on the
Closing Date and shall be a period of more or less than three
(3) months so that it may end on a date set forth on Schedule
2.2 for an interest payment by the Borrower; thereafter, each
Interest Period shall commence upon the expiration of the
preceding Interest Period.
"Letters of Credit" means (i) when used with respect to the letters of
credit issued by BNP naming the Bank as beneficiary in its capacity as
collateral agent, such letters of credit and (ii) when used with respect to
letters of credit supporting payment of the Collateral Notes prior to the
Closing Date, such letters of credit.
"LIBOR" means, for each Interest Period, the interest rate per annum
displayed on Telerate page 3750 (or such other page as may replace such page on
that service for the purpose of displaying interest rates at which Dollar
deposits are offered by prime banks in the London interbank market), as of 11:00
a.m., London, England time, on the day which is two (2) Business Days prior to
the first day of the applicable Interest Period, rounded to the nearest .0625 of
one percent. If Telerate ceases to quote LIBOR at any time during the term of
this Agreement, then LIBOR shall mean the rate of interest per annum at which
deposits in U.S. Dollars are offered to the Bank by prime banks in the London
interbank market at approximately 11:00 a.m. London time two (2) Business Days
before the first day of such Interest Period for amounts approximately equal to
the outstanding principal amount of the Loan, and for a period comparable to the
applicable Interest Period. LIBOR shall be adjusted from time to time for the
aggregate reserve requirements (including, without limitation, all basic,
supplemental, marginal and other reserve requirements and taking into account
any transitional adjustments or other scheduled changes in reserve requirements
during any Interest Period) specified in Regulation D of the Board of Governors
of the Federal Reserve System, or any subsequent regulations of similar effect,
as applicable to "Eurocurrency liabilities" (as presently defined in Regulation
D) of the Bank to the extent actually complied with by same.
"Loan" has the meaning specified in the Recitals.
"Lien" means any lien, mortgage, pledge, security interest, charge or
similar encumbrance of any kind (including any conditional sale or other title
retention agreement, any lease in the nature thereof and any agreement to give
any security interest).
"Material Adverse Effect" means that the Net Worth of the Borrower is
less than $[ REDACTED ]. "Missed Interest Payment" has the meaning specified in
Section 6.1(a).
"Net Worth" means, at any time of determination thereof, when used with
respect to the Borrower, the net worth of the Borrower as reflected on the
quarterly statement of assets and liabilities of the Borrower prepared on a
basis consistent with that used in the preparation of the Borrower's March 31,
1994 statement of assets and liabilities (except as explained in any notes to
such quarterly statement).
"Note" means a promissory note in the form attached hereto as Exhibit
A, as such note may be modified, amended, supplemented or restated from time to
time.
"Pledge Agreement" means a pledge agreement in the form attached hereto
as Exhibit B, as such agreement may be amended, modified, restated or
supplemented from time to time.
"Prime Rate" means the annual rate of interest announced from time to
time during the term of the Loan as the Bank's "prime" lending rate (which the
Borrower acknowledges does not necessarily represent the best or most favored
rate offered by the Bank to its best or any particular customers). Whenever
applicable to the Loan, the floating interest rate shall be adjusted
automatically as and when the Bank's Prime Rate shall change on any business
day(s) during the term of the Loan.
"Rating Change" means that either Standard & Poor's Corporation or
Xxxxx'x Investors Service, Inc. has rated the long-term senior debt of BNP below
investment grade or has withdrawn its rating.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as in effect from time to time.
"Reinstatement Event of Default" means that on three successive
interest payment dates under the Collateral Notes an event of default under the
Collateral Notes has occurred as a result of the failure of BNP to reinstate any
interest amount drawn under the Letters of Credit within five Business Days
after such drawing.
"Termination Date" means the earliest to occur of
(i) January 4, 1999
(ii) the date on which, prior to the date set forth
in clause (i) above, the Loan is accelerated pursuant to Article
VI, and
(iii) the date on which prior to the dates set forth
in clauses (i) or (ii) above, the Loan is prepaid by the
Borrower in accordance with a notice to that effect given to the
Bank by the Borrower pursuant to Section 2.5.
ARTICLE II
THE LOAN
Section 2.1 Amount of the Loan. On the Closing Date, the Bank, on the
terms and conditions hereinafter set forth, will (a) make a Loan to the Borrower
in an amount not in excess of One Hundred Two Million Dollars ($102,000,000) and
(b) deliver to the Borrower Internal Revenue Form 1001 or 4224 duly completed
(if applicable).
Section 2.2 Interest. The outstanding principal balance of the Loan
will bear interest at a rate per annum equal to Adjusted LIBOR plus the
Applicable Margin from the date of the making of the Loan until the Loan is paid
in full, except that after the occurrence of an Event of Default, the Loan shall
bear interest at a rate per annum equal A to the sum of (i) Adjusted LIBOR, (ii)
the Applicable Margin and (iii)[REDACTED]% (the "Default Rate"). Interest on the
Loan shall be paid in arrears on each date set forth on Schedule 2.2. Interest
will continue to accrue on the Loan until all interest then due is paid even
though the Bank may have drawn under the Letter of Credit for an interest
payment and shall accrue thereon at the Default Rate if interest is not paid
within three Business Days after the due date therefor, whether or not a drawing
has been made under the Letter of Credit.
Section 2.3 Payment Under Collateral Notes and Letters of Credit. If an
event of default occurs under a Collateral Note and the Borrower desires that
the Bank demand payment under the Collateral Notes, accelerate the Collateral
Notes or draw under one or more Letters of Credit as a result of such event of
default, the Borrower shall promptly notify the Bank of same, and the Borrower
shall direct the Bank to take such action by delivering to the Bank a Direction
to Demand Payment, Accelerate or Draw, specifying the event which caused such
event of default, the date of the occurrence thereof (if known) and, if the date
of such occurrence is not known, the date on which the Borrower obtained
knowledge of such occurrence as well as the action the Borrower desires that the
Bank take upon receipt of such Direction to Demand Payment, Accelerate or Draw,
the Bank shall forthwith take the requested action. If the Bank is not paid by
Pechiney or BNP, if the Bank is not paid the full amount for which it draws
under the Letters of Credit or if the amount drawn is withheld and placed in
escrow, then the Bank shall notify the Borrower of same. The proceeds of any
funds received directly from Pechiney after a demand by the Bank under the
Collateral Notes or as proceeds following a drawing under the Letters of Credit
shall be used by the Bank to pay any sums then due and unpaid under this
Agreement and the Note. If, at the time the Bank receives such payment from
either Pechiney or BNP, or the Borrower makes any payment to the Bank, there is
then no other Default or Event of Default under this Agreement, any excess
proceeds shall be remitted to the Borrower within one Business Day after
applying such payments.
Any action taken by the Bank pursuant to a Direction to Demand Payment,
Accelerate or Draw shall not affect or impair the Borrower's obligation
hereunder or under the Note to pay the amounts due hereunder. The Bank may draw
under the Letters of Credit even though it has not received a Direction to
Demand Payment, Accelerate or Draw, except that the Bank shall not accelerate
the Collateral Notes or make a drawing under the Letters of Credit for the
principal amount due under the Collateral Notes as a result solely of a Missed
Interest Payment unless a Reinstatement Event of Default has occurred and is
continuing.
Section 2.4 Payment of Principal. The Borrower shall repay the
principal amount outstanding under the Note on January 4, 1999, together with
all accrued and unpaid interest thereon and all fees and other amounts owing
hereunder and under the Pledge Agreement and the Note.
Section 2.5 Optional Prepayment. At any time and from time to time, the
Borrower may, subject to Section 2.12, prepay all or any part of the Loan
together with interest to date of payment, except that if the Loan is prepaid in
full during the twelve-month period commencing on the Closing Date, the Borrower
shall also pay to the Bank on the date of prepayment a cancellation fee of
$100,000.
Section 2.6 Mandatory Prepayment. If, as a result of acceleration,
voluntary prepayment or otherwise in respect of the Collateral Notes, the
Borrower receives any payment of the principal amount of one or more Collateral
Notes prior to January 4, 1999, the Borrower shall immediately prepay the
principal amount of the Note in the principal amount prepaid on the Collateral
Notes.
Section 2.7 Evidence of Credit Extensions. The Loan shall be evidenced
by the Note, executed by the Borrower, payable to the order of the Bank and
dated the Closing Date. The Bank shall record advances and principal payments
thereof on the grid attached thereto or, at its option, in its records, and the
Bank's record thereof shall be conclusive absent demonstrable error.
Notwithstanding the foregoing, the failure to make or an error in making a
notation with respect to any payment shall not limit or otherwise affect the
obligations of the Borrower hereunder or under the Note.
Section 2.8 Payment. Payment of principal, interest and any other sums
due under this Agreement or under the Note shall be made without set-off or
counterclaim in dollars in immediately available funds on the day such payment
is due not later than 12:00 Noon New York time. All sums received after such
time shall be deemed received on the next Business Day and principal payments or
sums (other than interest) due hereunder shall bear interest for an additional
day. All payments shall be made to the Bank at the address set forth beneath its
name on the signature pages hereof or to such other address as the Bank may
advise the Borrower in writing.
Section 2.9 Computations of Interest; Business Day.
(a) All computations of interest under this Agreement and
the Note shall be made on the basis of a year of three hundred sixty
(360) and actual days elapsed. Interest shall accrue on the principal
balance outstanding, under the Note from and including the Closing Date
to but excluding the date on which such principal balance is repaid.
(b) Payment of all amounts due hereunder shall be made on a
Business Day. Any payment due on a day that is not a Business Day shall
be made on the next Business Day unless the next Business Day would
fall in the next calendar month, in which case such payment shall be
made on the Business Day immediately preceding the due date.
Section 2.10 Increased Costs, Etc.
(a) If, after the date of this Agreement, due to either
(i) the introduction of or any change in or in the
interpretation of any law or regulation or (ii) the compliance
with any guideline or request from any central bank or other
governmental authority (whether or not having the force of law),
there shall be any (x) change in the basis of taxation of
payments to the Bank of the principal of or interest on the Loan
(excluding changes in the rate of tax payable on the Bank's
overall income and bank franchise taxes) or (y) imposition or
change in any reserve or similar requirement, and the result of
any of the foregoing is an increase in the cost to the Bank of
agreeing to make or making, funding or maintaining the Loan
(other than the Eurodollar Reserve Percentage), then the
Borrower shall from time to time, upon demand by the Bank and
within 15 days thereof, pay to the Bank an additional amount
sufficient to compensate the Bank for such increased cost. A
certificate as to the amount of such increased cost, submitted
to the Borrower by the Bank, shall be conclusive and binding for
all purposes, absent demonstrable error.
(b) If the Bank determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects
or would affect the amount of capital required or expected to be
maintained by the Bank or any corporation controlling the Bank and that
the amount of such capital is increased by or based upon the existence
of the Loan or the Bank's commitment to lend hereunder, then the
Borrower shall, within fifteen (15) days after demand by the Bank, pay
to the Bank an additional amount sufficient to compensate the Bank or
such corporation in the light of such circumstances, to the extent that
the Bank reasonably determines such increase in capital to be allocable
to the existence of the Loan or the Bank's commitment to lend
hereunder. A certificate as to such amounts submitted to the Borrower
by the Bank shall be conclusive and binding for all purposes, absent
demonstrable error.
(c) Prior to making any demand for compensation under this
Section 2.10, unless such action would be economically or legally
disadvantageous to the Bank in the reasoned opinion of its tax or
regulatory advisors, the Bank will (i) designate a different lending
office if such designation will avoid the need for, or reduce the
amount of, such compensation to which the Bank is entitled pursuant to
this Section 2.10 and (ii) permit the Borrower to prepay all or any
part of the Loan together with interest to the date of payment, subject
to payment of the cancellation fee in Section 2.5 (if applicable) and
payment of funding losses pursuant to Section 2.12.
Section 2.11 Illegality. If, after the date of this Agreement, the
adoption of any applicable law, rule or regulation, or any change in an existing
law, rule or regulation, or any change in the interpretation or administration
thereof by any governmental authority charged with the interpretation or
administration thereof, or compliance by the Bank with any request or directive
(whether or not having the force of law) of any such governmental authority,
makes it unlawful or impossible for the Bank in the reasoned opinion of its
legal or regulatory advisors to make, maintain or fund the Loan at an interest
rate based on LIBOR, the Bank shall forthwith give notice thereof to the
Borrower, whereupon the obligation of the Bank to make the Loan at a rate based
on LIBOR shall be suspended until the Bank notifies the Borrower that the
circumstances giving rise to such suspension no longer exist. Before giving any
notice to the Borrower pursuant to this section, the Bank shall designate a
different lending office if such designation will avoid the need for giving such
notice (unless such action would be economically or legally disadvantageous to
the Bank in the reasoned opinion of its tax or regulatory advisors). If the Bank
makes a reasoned determination that it may not lawfully continue to maintain and
fund any of the Loan to maturity at a rate based on LIBOR and so specifies in
such notice, the Bank shall immediately convert the Loan into a loan bearing
interest at the Base Rate in an equal principal amount.
Section 2.12 Funding Losses. The Borrower agrees to reimburse the Bank
and to hold the Bank harmless from any loss or expense which the Bank may
sustain or incur as a consequence of:
(a) the failure of the Borrower to make any payment or
required prepayment of principal of the Loan (including payments made
after any acceleration thereof);
(b) the failure of the Borrower to make any prepayment
permitted hereunder after giving notice thereof, or
(c) the repayment of the Loan on a day which is not the last
day of an Interest Period;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain the Loan hereunder at a rate based on LIBOR
or from fees payable to terminate the deposits from which such funds were
obtained. Solely for purposes of calculating amounts payable by the Borrower to
the Bank under this section, the Loan bearing interest at a rate based on LIBOR
(and each related reserve, special deposit or similar requirement) shall be
conclusively deemed to have been funded by a matching deposit in Dollars in the
interbank eurodollar market for a comparable amount and for the respective
Interest Period, whether or not the Loan was in fact so funded.
Section 2.13 Unavailability. If the Bank determines that for any reason
adequate and reasonable means do not exist for ascertaining LIBOR for any
Interest Period, the Bank will forthwith give notice of such determination to
the Borrower. Commencing at the end of the Interest Period then in effect, the
Loan shall bear interest at the Base Rate (rather than at a rate based on LIBOR)
until the Bank revokes such notice in writing.
Section 2.14 Special Prepayment. The provisions of Sections 2.10, 2.11,
and 2.12 shall also apply to any assignee permitted pursuant to Section 7.7 and
shall apply to any unassigned portion of the Loan retained by the Bank
(regardless of whether the Bank may have sold a participation interest in such
retained portion to a participant permitted pursuant to Section 7.7). If demand
for payment is made pursuant to Section 2.10 or 2.12 or if notice of illegality
is given pursuant to Section 2.11, whether by any such permitted assignment or
by the Bank on behalf of any such permitted participant, then the Borrower may
prepay in full (but not in part) such assignee's or participant's interest in
the Loan on the last day of the Interest Period during which such demand for
additional amounts was made or during which such notice of illegality was given.
Any principal amount, interest or increased costs received by any such assignee
or participant pursuant to this Section 2.14 shall not be required to be shared
with the Bank and any other assignees or participants.
ARTICLE III
CONDITIONS PRECEDENT
Section 3.1 Deliveries. The obligation of the Bank to make the Loan is
subject to the condition precedent that on the Closing Date the following items
shall have been delivered to the Bank in form and substance satisfactory to the
Bank and its counsel:
(a) Agreement. A copy of this Agreement duly executed by the
Borrower.
(b) Note. The Note, duly executed by the Borrower.
(c) Pledge Agreement. The Pledge Agreement, duly executed by
the Borrower.
(d) Pechiney Resolutions, etc. Copies of (i) resolutions of
the Board of Directors of Pechiney, authorizing the issuance of the
Collateral Notes and the agreement to provide the Letters of Credit and
the other related documents; and (ii) a certificate of incumbency for
Pechiney, certified as true and correct by the Secretary or an
Assistant Secretary of Pechiney; all of which were delivered to the
Borrower by Pechiney in connection with the delivery to the Borrower of
the Collateral Notes (or any predecessor note which the Borrower
exchanged for the Collateral Notes).
(e) Collateral Notes. The Collateral Notes in a principal
amount of at least [ REDACTED ], indorsed in blank by the Borrower on
note allonges relating thereto.
(f) Letters of Credit. The Letters of Credit issued to the
Bank as the beneficiary thereof in its capacity as collateral agent.
(g) Fees Payable at Closing. The legal fees and expenses
(including, without limitation, photocopying, travel and word
processing charges) incurred by the Bank in connection with its review
of the Collateral Notes and the Letters of Credit and with its
preparation of this Agreement, the Note and the Pledge Agreement,
negotiations in connection therewith, and research and other related
expenses.
(h) Funding Instructions. At least one Business Day prior to
the Closing Date, the Borrower shall have delivered written
instructions to the Bank directing the manner of the payment of funds,
and setting forth (1) the name of the transferee bank or banks, (2)
each such transferee bank's ABA number, (3) the account names and
numbers into which such amount is to be deposited, and (4) the names
and telephone numbers of the account representative responsible for
verifying receipt of such funds.
(i) Opinion of Counsel. An opinion, dated the Closing Date,
of the law firm of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, counsel to
the Borrower, in form and content reasonably satisfactory to the Bank
and its counsel.
Section 3.2 Representations Correct. The obligation of the Bank to make
the Loan is subject to the condition precedent that on the Closing Date the
representations and warranties contained in Article IV shall be true and correct
in all material respects.
Section 3.3 Release of Credit Suisse Lien. The obligation of the Bank
to make the Loan is subject to the condition precedent that on the Closing Date
the Bank shall have received evidence in form and substance satisfactory to it
and its counsel that Credit Suisse shall have unconditionally released all the
Liens in favor of it encumbering the Collateral Notes.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower warrants that:
Section 4.1 Good Title to Collateral. He has good title to and is the
sole owner of the Collateral Notes, free and clear of any lien, and the pledge
of the Collateral Notes by the Borrower to the Bank is not prohibited in any
manner by, and does not require the consent of any party under, any other
agreement, subject in each case to the Lien in favor of Credit Suisse
encumbering the Collateral Notes, which Lien is being terminated simultaneously
with the consummation of the transactions contemplated hereby.
Section 4.2 Enforceable Collateral Notes; No Default. Except for an
amendment to the Collateral Notes dated as of July 29, 1994 and attached to each
original Collateral Note delivered to the Bank by the Borrower, there has been
no modification of the terms that appear on the face of the Collateral Notes,
and the Collateral Notes are enforceable against Pechiney in accordance with
their terms. To the best of the Borrower's knowledge, there is no uncured
default under the Collateral Notes.
Section 4.3 No Defense to or Prepayment of Collateral Notes. There is
no defense, right of offset or counterclaim of Pechiney affecting the
enforceability of the Collateral Notes. There has been no prepayment of
principal under any of the Collateral Notes, and the principal amount
outstanding under each Collateral Note is the full original principal sum stated
on the face of such Collateral Note. Pechiney has paid and the Borrower has
collected all payments of interest heretofore coming due under the Collateral
Notes, and no such interest payments hereafter coming due under the Collateral
Notes have been prepaid by Pechiney or collected by the Borrower.
Section 4.4 No Misrepresentation. The Borrower has not made any
misrepresentation to Pechiney which has resulted in or may result in any
defense, or the assertion of any defense, by Pechiney with respect to its
obligations to pay under the Collateral Notes.
Section 4.5 No Insolvency Proceedings. The Borrower has no knowledge of
any insolvency proceeding of any type instituted with respect to Pechiney.
Section 4.6 No Default. No Default or Event of Default has occurred and
is continuing.
Section 4.7 Enforceable Obligations. The Borrower has the legal right
to execute, deliver and perform this Agreement, the Note and the Pledge
Agreement. No consent or authorization of, filing with or act by or in respect
of any other person is required in connection with the borrowings hereunder or
with the execution, delivery or performance of this Agreement, the Note or the
Pledge Agreement. This Agreement, the Note and the Pledge Agreement constitute
legal, valid and binding obligations of the Borrower, enforceable against the
Borrower in accordance with their respective terms.
Section 4.8 No Legal Bar. The execution, delivery and performance of
this Agreement, the Note and the Pledge Agreement, and the borrowing hereunder,
will not violate any contractual obligation of the Borrower and will not result
in the creation or imposition of a Lien on any of the Borrower's property (other
than the Lien created by the Pledge Agreement).
Section 4.9 No Litigation. Except as disclosed on Schedule 4.9, there
is no litigation or proceeding of or before any arbitrator or governmental
authority pending against the Borrower (as to which the Borrower has received
notice in writing) (a) with respect to this Agreement, the Loan, the use of the
proceeds thereof, the Collateral Notes or the Letters of Credit or (b) which
could reasonably be expected to (i) affect the legality, validity or
enforceability of this Agreement, the Collateral Notes or the Letters of Credit,
or (ii) otherwise have a Material Adverse Effect.
Section 4.10 Taxes. The Borrower has filed or caused to be filed all
tax returns which are required to be filed and has paid all taxes shown to be
due and payable on such returns or on any assessments made against it or any of
its property by any governmental authority except to the extent any such taxes
are being contested in good faith and any exceptions thereto are set forth on
Schedule 4.10. No tax Lien has been filed with respect to any material tax
liability against the Borrower, and, to the Borrower's knowledge, no tax
assessment is pending against the Borrower, except as set forth on Schedule
4.10.
Section 4.11 Margin Stock. No part of the proceeds of the Loan will be
used for "purchasing" or "carrying" any "margin stock" within the meaning of
such terms under Regulation U of the Board of Governors of the Federal Reserve
System.
Section 4.12 Purpose of Loan. The proceeds of the Loan will be used to
refund indebtedness of the Borrower to Credit Suisse, to obtain a release of the
lien in favor of Credit Suisse against the Collateral Notes, and to fund
business and investment purposes of the Borrower.
Section 4.13 Pledge Agreement. The Pledge Agreement is effective to
create in favor of the Bank a legal, valid and enforceable security interest in
the Collateral Notes. The execution and delivery by the Borrower of the Pledge
Agreement and the delivery to the Bank of the Collateral Notes shall together
constitute a fully perfected first priority Lien on all right, title and
interest of the Borrower in the Collateral Notes and the proceeds thereof prior
and superior in right to any other person.
Section 4.14 Escrow Agreement. The Borrower has delivered to the Bank
on or prior to the Closing Date a true and correct copy of the Escrow Agreement.
No modification has been made to the Escrow Agreement since the date of the last
modification, a copy of which was delivered by the Borrower to the Bank.
ARTICLE V
COVENANTS
So long as any amount is outstanding under this Agreement and the Note,
the Borrower shall:
Section 5.1 Financial Statements. Deliver to the Bank in form and
detail satisfactory to the Bank:
(a) as soon as available, but not later than sixty (60) days
after the end of each calendar quarter and for that portion of the
calendar year ending with such quarter, a statement of assets and
liabilities of the Borrower as of the close of such quarter, certified
by the Borrower to the best of his knowledge as being true and complete
in all material respects; and
(b) together with each statement of assets and liabilities,
(i) a letter showing which assets he owns
individually, which assets his wife owns individually and which
assets he owns jointly with his wife. Such assets shall be
valued on a basis consistent with that used in the preparation
of his March 31, 1994 statement of assets and liabilities,
except as explained in any notes to the quarterly statement
which such letter accompanies; and
(ii) an update on the status of the audit by the
Internal Revenue Service of the Borrower's federal tax returns
(which update may be included in the footnotes to such statement
of assets and liabilities; the level of disclosure for such
updates will be sufficient if the same as for previous updates
included in such footnotes).
Section 5.2 Notices. Promptly notify the Bank of:
(a) the occurrence of any Default or Event of Default;
(b) (i) any breach or non-performance of, or any default
under, any contractual obligation of the Borrower which could result in
a Material Adverse Effect; and (ii) any litigation or proceeding which
may exist at any time between the Borrower and any governmental
authority which could result in a Material Adverse Effect;
(c) the commencement of, or any material development in, any
litigation or proceeding affecting the Borrower (i) which could
reasonably be expected to have a Material Adverse Effect, (ii) in which
the relief sought is an injunction or other stay of the performance of
this Agreement, the Note or the Pledge Agreement or (iii) any
litigation involving any of the Collateral Notes or any of the Letters
of Credit (or other promissory notes or Letters of Credit issued in the
same transaction in which the Borrower acquired the Collateral Notes
and the Letters of Credit; and
(d) any Material Adverse Effect subsequent to the date of
the most recent statement of assets and liabilities of the Borrower
delivered to the Bank pursuant to Section 5.1.
Each notice pursuant to this section shall be accompanied by a written
statement signed by the Borrower, setting forth details of the occurrence
referred to therein, and stating what action the Borrower proposes to take with
respect thereto and at what time. Each notice under subsection 5.2(a) shall
describe with particularity the provisions of this Agreement, the Note or the
Pledge Agreement that have been breached.
Section 5.3 Payment of Obligations. Pay all taxes, assessments,
governmental charges and other obligations when due, except as may be contested
in good faith or those as to which a bona fide dispute may exist.
Section 5.4 Further Assurances. Execute and deliver to the Bank such
further instruments and do such other further acts as the Bank may reasonably
request to carry out more effectively the purposes of this Agreement and any
agreements and instruments referred to herein.
Section 5.5 Notice to Pechiney and Escrow Agent. Deliver to the Bank
within ten (10) Business Days after the Closing Date evidence satisfactory to
the Bank that the Borrower has notified Pechiney that the Collateral Notes have
been pledged to the Bank as collateral and that the Bank is holding the
Collateral Notes on its own behalf and as collateral agent for any assignees
permitted under this Agreement.
Section 5.6 Amendments to Escrow Agreement. Not amend the Escrow
Agreement in any manner that would change the terms of the Collateral Notes
pledged to the Bank under the Pledge Agreement and, promptly after each
amendment to the Escrow Agreement, deliver to the Bank a copy of each such
amendment.
Section 5.7 Change in State of Residence. Not change the state of his
principal place of residence without (a) notifying the Bank in writing prior to
such change, (b) designating in writing an agent for service of process in the
State of New York and notifying the Bank of same and (c) delivering to the Bank
the written acceptance of such agent.
ARTICLE VI
EVENTS OF DEFAULT
Section 6.1 Event of Default. Any of the following shall constitute an
"Event of Default":
(a) Non-Payment. (i) The Borrower fails to pay any amount of
principal of the Loan when due, whether at maturity, as a result of
acceleration or otherwise, including any mandatory prepayment; or (ii)
the Borrower fails to pay, within 3 Business Days after the same is
due, any interest, or other amount payable hereunder, under the Note or
under the Pledge Agreement; provided, however, that it shall not be an
Event of Default under clause (ii) of this subsection (a) if (w) the
failure to pay interest under the Note or hereunder results from a
failure of Pechiney to pay interest owed to the Borrower under one or
more Collateral Notes (a "Missed Interest Payment"), (x) the Borrower
notifies the Bank of same pursuant to Section 2.3 hereof and directs
the Bank to demand payment under the Collateral Notes and/or to draw
under the Letters of Credit for the Missed Interest Payment, (y) the
Bank takes such action and receives the requested payment from Pechiney
or is paid the amount of the drawing by BNP and (z) such amount,
together with any amount paid by the Borrower in respect of interest
then due hereunder, is equal to or greater than the amount then owed to
the Bank as interest hereunder; or
(b) Representation or Warranty. Any representation or
warranty by the Borrower made or deemed made herein or in the Pledge
Agreement, or which is contained in any certificate, document or
financial or other statement furnished by the Borrower, at any time
under this Agreement or the Pledge Agreement, proves to have been
incorrect or misleading in any material respect on or as of the date
made or deemed made; or
(c) Other Default. The Borrower (i) fails to perform or
observe Section 5.1 or 5.2, or (ii) fails to perform or observe any
other material term or covenant contained in this Agreement, and not
referred to in another subsection of this Section 6.1, and such default
continues unremedied for a period of 20 days or (iii) fails to perform
or observe any other term or covenant contained in this Agreement, and
not referred to in clauses (i) or (ii) of this subsection (c) or in any
other subsection of this Section 6.1, and such default continues
unremedied for a period of 20 days after the Bank gives notice to the
Borrower of same; or
(d) Cross-Default. The Borrower (i) fails to make any
required payment when due in respect of any indebtedness or contingent
obligation having a principal or face amount of [REDACTED ] or more
when due (whether at scheduled maturity or required prepayment or by
acceleration, demand, or otherwise); or (ii) fails to perform or
observe any other condition or covenant, or any other event shall occur
or condition exist, under any agreement or instrument relating to any
such indebtedness or contingent obligation, and such failure continues
after the applicable grace or notice period, if any, specified in the
document relating thereto, if the effect of such failure, event or
condition is to cause, or to permit the holder or holders of such
indebtedness or beneficiary or beneficiaries of such Indebtedness (or a
trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause such indebtedness to be declared to be due and
payable prior to its stated maturity, or such contingent obligation to
become payable or cash collateral in respect thereof to be demanded; or
(e) Material Adverse Change. A Material Adverse Effect
occurs; or
(f) Insolvent Voluntary Proceedings. The Borrower (i)
becomes insolvent, or generally fails to pay, or admits in writing his
inability to pay, his debts as they become due, subject to applicable
grace periods, if any, whether at stated maturity or otherwise; (ii)
commences a proceeding under the bankruptcy laws of any state or of the
United States with respect to himself; or (iii) takes any action to
effectuate or authorize any of the foregoing; or
(g) Involuntary Proceedings. (i) Any involuntary bankruptcy
proceeding is commenced or filed against the Borrower or any writ,
judgment, warrant of attachment, execution or similar process, is
issued or levied against a substantial part of the Borrower's
properties, and any such proceeding or petition is not dismissed, or
such writ, judgment, warrant of attachment, execution or similar
process is not released, vacated or fully bonded within 90 days after
commencement, filing or levy; (ii) the Borrower admits the material
allegations of a petition against him in any insolvency proceeding, or
an order for relief (or similar order under non-U.S. law) is ordered in
any insolvency proceeding; or (iii) the Borrower acquiesces in the
appointment of a receiver, trustee, custodian, conservator, liquidator,
mortgagee in possession (or agent therefor), or other similar person
for a substantial portion of his property or business; or
(h) Monetary Judgments; Liens. One or more final (non-
interlocutory) judgments, orders or decrees is entered against the
Borrower or a Lien is filed against property of the Borrower involving
in the aggregate a liability (not fully covered by independent
third-party insurance) as to any single or related series of
transactions, incidents or conditions, of [ REDACTED ] or more, and the
same remains unvacated and unstayed pending appeal (if a judgment) or
unbonded (if a Lien) for a period of 10 days after the entry thereof,
or
(i) Pledge Agreement. Any provision of the Pledge Agreement
ceases to be valid and binding on or enforceable against the Borrower,
or the Pledge Agreement ceases to create a valid security interest in
the Collateral Notes or such security interest ceases for any reason to
be a perfected and first priority security interest, except if the Bank
fails to take any action exclusively in its control.
Section 6.2 Remedies. If any Event of Default occurs, the Bank may:
(a) declare the unpaid principal amount of the Loan, all
interest accrued and unpaid thereon, and all other amounts owing or
payable hereunder or under the Note and the Pledge Agreement to be
immediately due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby expressly waived by
the Borrower; and
(b) exercise all rights and remedies available to it
hereunder, under the Note and under the Pledge Agreement or applicable
law;
PROVIDED, HOWEVER, that upon the occurrence of any event specified in paragraph
(f) or (g) of Section 6.1 above (in the case of clause (i) of paragraph (g) upon
the expiration of the 90-day period mentioned therein), the obligation of the
Bank to extend credit to the Borrower shall automatically terminate without
notice to the Borrower and the unpaid principal amount of the Loan and all
interest and other amounts due under this Agreement shall automatically become
due and payable without further act of the Bank and without notice to the
Borrower; and provided, further, that the Bank will not accelerate the
Collateral Notes or draw under the Letters of Credit for the principal amount
owed under the Collateral Notes as a result solely of a Missed Interest Payment
unless a Reinstatement Event of Default then exists.
Section 6.3 Rights Not Exclusive. The rights provided in this
Agreement, the Note and the Pledge Agreement are cumulative and are not
exclusive of any other rights, powers, privileges or remedies provided by law or
in equity, or under any other instrument, document or agreement now existing or
hereafter arising.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Amendment and Waiver. This Agreement may be amended,
changed, waived, discharged or terminated only by an instrument in writing
signed by the parties hereto.
Section 7.2 Costs and Expenses. The Borrower shall:
(a) reimburse the Bank within five (5) Business Days after
demand for all costs and expenses incurred by the Bank, including,
without limitation, the fees and disbursements of counsel and
paralegals, in connection with the development, preparation, delivery,
administration and execution of, and any amendment, supplement, waiver
or modification to, this Agreement, the Note and the Pledge Agreement,
the review of the Collateral Notes and Letters of Credit and any
amendment thereof, the transfer of the Letters of Credit to the Bank as
beneficiary and the consummation of the transactions contemplated
hereby;
(b) reimburse the Bank within five (5) Business Days after
demand for all costs and expenses incurred by it, including, without
limitation, the fees and disbursements of counsel and paralegals, in
connection with the enforcement, attempted enforcement or preservation
of any rights or remedies (including in connection with any "workout,"
or restructuring regarding the Loan and any insolvency proceeding or
appellate proceeding) under this Agreement, the Note or the Pledge
Agreement or in respect of the Collateral Notes or the Letters of
Credit; and
(c) reimburse the Bank within five (5) Business Days after
demand for all costs and expenses incurred by the Bank in connection
with litigation involving the Collateral Notes or the Letters of
Credit, whether related to enforcement thereof or otherwise.
Section 7.3 Indemnification. The Borrower shall pay, defend, indemnify
and hold the Bank and its officers, directors, employees, counsel, agents and
attorneys-in-fact (each, an "Indemnified Person") harmless from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, costs, charges, expenses or disbursements of any kind or nature
arising out of a drawing by the Bank under a Letter of Credit after receiving a
Direction to Demand Payment, Accelerate or Draw (all of the foregoing,
collectively, the "Indemnified Liabilities"); PROVIDED that the Borrower shall
have no obligation hereunder to any Indemnified Person with respect to
Indemnified Liabilities arising from the gross negligence or willful misconduct
of such Indemnified Person. The obligations in this Section 7.3 shall survive
payment and cancellation of all other obligations hereunder. At the election of
any Indemnified Person, the Borrower shall defend such Indemnified Person using
legal counsel satisfactory to such Indemnified Person in such person's sole
discretion and at the sole cost and expense of the Borrower. All amounts owing
under this Section 7.3 shall be paid within 15 days after demand therefor.
Section 7.4 GOVERNING LAW AND SUBMISSION TO JURISDICTION. THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK. THE BORROWER AND THE BANK EACH HEREBY SUBMIT TO THE
EXCLUSIVE JURISDICTION OF (i) XXX XXXXXX XX XXX XXXXX XX XXX XXXX SITTING IN NEW
YORK CITY AND (ii) THE UNITED STATES COURTS SITTING IN NEW YORK CITY, IN ANY
ACTION OR PROCEEDING BROUGHT AGAINST HIM OR IT HEREUNDER UNDER THE NOTE OR UNDER
THE PLEDGE AGREEMENT. IN CONNECTION THEREWITH, THE BORROWER AND THE BANK EACH
WAIVES (A) ALL OBJECTIONS TO VENUE IN THE COURTS DESCRIBED IN CLAUSES (i) AND
(ii) OR THE PRECEDING SENTENCE AND (B) ANY ARGUMENT THAT SUCH A FORUM IS
INCONVENIENT. SERVICE OF SUMMONS OR OTHER LEGAL PROCESS MAY BE MADE BY MAILING A
COPY OF ANY SUMMONS OR OTHER LEGAL PROCESS IN ANY SUCH ACTION OR PROCEEDING TO
THE BORROWER OR THE BANK IN ANY SUCH ACTION OR PROCEEDING TO THE BORROWER OR THE
BANK (AS THE CASE MAY BE) BY CERTIFIED MAIL. THE MAILING, AS HEREIN PROVIDED, OF
SUCH SUMMONS OR OTHER LEGAL PROCESS IN ANY SUCH ACTION OR PROCEEDING SHALL BE
DEEMED PERSONAL SERVICE AND ACCEPTED BY THE BORROWER OR THE BANK (AS THE CASE
MAY BE) FOR ALL PURPOSES OF ANY SUCH ACTION OR PROCEEDING. FINAL JUDGMENT SHALL
BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE
JUDGMENT, AND A CERTIFIED OR EXEMPLIFIED COPY OF A FINAL JUDGMENT SHALL BE
CONCLUSIVE EVIDENCE OF THE FACT AND OF THE AMOUNT OF ANY INDEBTEDNESS OF THE
BORROWER OR THE BANK (AS THE CASE MAY BE) IN ANY SUCH ACTION OR PROCEEDING. THE
BORROWER AND THE BANK EACH AGREES TO BRING ANY ACTION ARISING OUT OF OR RELATING
TO THIS AGREEMENT, THE NOTES, OR ANY RELATED DOCUMENTS EXCLUSIVELY IN THE COURTS
OF THE STATE OF NEW YORK OR IN THE UNITED STATES FEDERAL COURTS SITTING IN NEW
YORK, NEW YORK.
Section 7.5 Set-Off. If an Event of Default exists, the Bank is
authorized to set-off and apply any and all deposits (general or special, time
or demand, provisional or final) at any time held by, and other indebtedness at
any time owing to, the Bank to or for the credit or the account of the Borrower
against any and all obligations owing to the Bank, now or hereafter existing,
whether or not the Bank has made demand under this Agreement, the Note or the
Pledge Agreement and although such obligations may be contingent or unmatured.
The Borrower hereby waives prior notice of such action. The Bank, however,
agrees promptly to notify the Borrower after any such set-off, provided,
however, that the failure to give such notice shall not affect the validity of
such setoff. The rights of the Bank under this Section 7.5 are in addition to
the other rights and remedies (including other rights of set-off) which the Bank
may have.
Section 7.6 Waiver. No failure or delay on the part of the Bank or the
Borrower in exercising any right, power or privilege under this Agreement and no
course of dealing between the Borrower or any other person and the Bank or any
other person shall operate as a waiver hereof or thereof.
Section 7.7 Successors and Assigns.
(a) This Agreement shall be binding upon and inure to the
benefit of each party hereto and its successors and assigns, except
that the Borrower shall not be entitled to assign or transfer all or
any of his rights, benefits or obligations hereunder, except for his
death or mental incapacity.
(b) The Bank may not assign or otherwise transfer any of its
rights or obligations under this Agreement except as provided in this
Section 7.7(b):
(i) Prior to approaching any Eligible Institution
for the purpose of assigning a portion of its interest herein or
selling a participation in its rights and obligations under this
Agreement, the Bank shall discuss with the Borrower the names of
such potential participants or assignees. The Bank shall not
assign or sell a participation in its rights and obligations
under this Agreement to any person unless the Borrower shall
have consented thereto (which consent shall not be unreasonably
withheld).
(ii) The Borrower shall be given prompt written
notice of any grant of any such participation or assignment,
which notice shall include (x) the name and jurisdiction of
organization of the participant and (y) the amount of such
participation or assignment.
(iii) The Bank agrees that:
(A) it will not assign an interest in, or
sell a participation in, the Loan in an amount less than
$15,000,000;
(B) it will at all times retain not less
than $15,000,000 of the Loan;
(C) it will provide in any assignment or
participation agreement with any assignee or participant that
such assignee or participant may not make a subparticipation or
assign any portion of its interest in the Loan if, after giving
effect to such participation or assignment, such participant or
assignee would hold less than $15,000,000 of the Loan;
(D) the Bank will not assign an interest or
sell a participation in the Loan to any assignee or participant
who would be entitled to receive additional compensation under
Section 2.10 at the time of such assignment or sale by the Bank,
nor to any assignee or participant who would find it unlawful or
impossible to make, maintain or fund its assigned interest or
participation in the Loan at a rate based on LIBOR as provided
in Section 2.11, at the time of such assignment or sale by the
Bank;
(E) with respect to any matter on which the
Bank and any assignee or participant is required to vote or is
solicited to consent pursuant to the terms of a participation
agreement or an assignment agreement, as the case may be,
between the Bank and such person, if the matter to be decided is
one that does not require the unanimous consent of all assignees
or participants, financial institutions holding 51% of the
outstanding Loan shall decide the issue, provided that such 51%
includes the Bank; and
(F) in any participation agreement or
assignment agreement with any participant or assignee, as the
case may be, the Bank will:
(x) require that any bank organized
outside the United States will deliver to the Bank with a copy
to the Borrower Internal Revenue Service Form 4224 or 1001, duly
completed and signed; and
(y) provide that each participant or
assignee, as the case may be, will agree to be bound by all the
terms of this Agreement as if it were a signatory hereto.
(iv) The Bank may, in connection with any proposed
participation or assignment, disclose to the proposed
participant or assignee any information relating to the Borrower
furnished to the Bank by or on behalf of the Borrower; PROVIDED,
that prior to any such disclosure, the proposed participant or
assignee shall agree in writing to preserve the confidentiality
of any confidential information relating to the Borrower
received by it from the Bank to the same extent as is required
of the Bank.
(v) The Bank shall act as agent in connection with
any transfer permitted hereunder and the administration of the
Loan and shall remain the holder of the Collateral Notes and act
as collateral agent of the Collateral Notes holding the same for
its benefit and the benefit of the permitted assignees and
participants hereunder. The Borrower shall not be required to
deal with any participant or assignee in connection with the
administration of the Loan, and each assignment agreement or
participation agreement shall provide that each such assignee or
participant shall deal solely with the Bank as agent and not
directly with the Borrower.
Section 7.8 Confidentiality. The Bank agrees to take normal and
reasonable precautions and exercise due care to maintain the confidentiality of
all information identified as "confidential" by the Borrower and provided to it
by the Borrower in connection with this Agreement, and it shall not use any such
information for any purpose or in any manner other than pursuant to the terms
contemplated by this Agreement; except to the extent such information (i) was or
becomes generally available to the public other than as a result of a disclosure
by the Bank, or (ii) was or becomes available on a non-confidential basis from a
source other than the Borrower, PROVIDED that such source is not bound by a
confidentiality agreement with the Borrower known to the Bank; PROVIDED FURTHER,
HOWEVER, that the Bank may disclose such information: (A) at the request or
pursuant to any requirement of any governmental authority to which the Bank is
subject or in connection with an examination of the Bank by any such authority;
(B) pursuant to subpoena or other court process; (C) when required to do so in
accordance with the provisions of any applicable requirement of law; (D) to the
Bank's independent auditors and other professional advisors, all of whom shall
have been advised of the confidential nature of such information; and (E) to
proposed assignees or participants in accordance with Subsection 7.7(b)(iv). It
is understood that the financial information to be delivered pursuant to Section
5.1 or any similar financial information delivered prior to the Closing Date
shall be deemed to have been identified as confidential by the Borrower.
Section 7.9 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, and it shall not be
necessary in making proof of this Agreement to produce or account for more than
one such counterpart.
Section 7.10 Severability. Any provision of this Agreement which is
illegal, invalid or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such illegality, invalidity or
unenforceability without invalidating the remaining provisions hereof or
affecting the legality, validity or enforceability of such provision in any
other jurisdiction. Section 7.11 Notices. Unless specifically indicated
otherwise herein, all notices, requests and other communications provided for
hereunder shall be in writing (including, without limitation, by facsimile
transmission) and shall be sent to the parties hereto at the address for notice
specified beneath their names on the signature pages hereof or to such other
address as may be designated by a party in a written notice to the other party.
Any notice or other communication hereunder shall be deemed given when
delivered to the addressee in writing or when given by telephone immediately
confirmed in writing by tested telex, facsimile (electronic answer back
received) or other telecommunication device.
Section 7.12 Document Stamp Taxes. The Borrower represents and warrants
to the Bank that this Agreement has been executed and delivered by the Borrower
to the Bank outside of the State of Florida, and that the Note and the Pledge
Agreement have been or shall be executed and delivered by the Borrower to the
Bank outside of the State of Florida. The Borrower agrees to indemnify, defend
and hold the Bank harmless against any Florida documentary stamp taxes that may
be assessed or asserted against this Agreement, the Note, the Pledge Agreement,
the Loan, or any such security therefor, or any renewal, modification or
amendment thereof, or any renewal, modification or amendment thereof from time
to time, and against any and all liability, costs, attorneys' fees, penalties,
interest or expenses relating to any such Florida documentary stamp taxes, as
and when the same may be assessed or asserted.
Section 7.13 WAIVER OF JURY TRIAL. THE BORROWER AND THE BANK HEREBY
WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR
DEFEND ANY RIGHTS (i) UNDER THIS AGREEMENT, THE NOTE OR THE PLEDGE AGREEMENT OR
(ii) ARISING FROM ANY RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT,
AND AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND
NOT BEFORE A JURY.
IN WITNESS WHEREOF, the parties hereto have caused the Agreement to be
executed and delivered as of the date first above
XXXXXX XXXXX
Address for Notices:
c/o Triarc Companies, Inc
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: [ REDACTED ]
Telecopier No.: [ REDACTED ]
with a copy to
Xxxx, Weiss, Rifkind, Xxxxxxx
& Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Telephone No.: [ REDACTED ]
Telecopier No.: [ REDACTED ]
Attention: Xxxxx X. Xxxxxx
NATIONSBANK OF FLORIDA, N.A.
By:
Title: Authorized Signatory
Address for Notices:
NationsBank of Florida, N.A.
Private Banking
000 Xxxxx Xxxx Xxx
Xxxx Xxxxx, Xxxxxxx 00000
Telephone No.: [ REDACTED ]
Telecopier No.: [ REDACTED ]
Attention: Xxxx Xxxxxxx
Addresses for Payment:
NationsBank of Florida, N.A.
Private Banking
000 Xxxxx Xxxx Xxx
Xxxx Xxxxx, Xxxxxxx 00000
Telephone No.: [ REDACTED ]
Telecopier No.: [ REDACTED ]
ABA #: [ REDACTED ]
Account No.: [ REDACTED ]
Re: Xxxxxx Xxxxx Loan
# [ REDACTED ], Note # [ REDACTED ]
AMENDMENT NO. 1 TO
TERM LOAN AGREEMENT
AMENDMENT NO. 1 dated January 18, 1996, to the TERM LOAN AGREEMENT
dated as of July 29, 1994 (the "LOAN AGREEMENT"), by and between XXXXXX XXXXX
(the "BORROWER") and NATIONSBANK OF FLORIDA, N.A. (the "BANK").
The Borrower and the Bank are parties to the Loan Agreement, pursuant
to which the Bank made a term loan to the Borrower in the original principal
amount of $102,000,000. The Borrower has requested that NationsBank, N.A., an
affiliate of the Bank (the "CAROLINA BANK"), provide a revolving credit facility
to the Borrower and Xxxxxxx Xxxxx. +In accordance with such request, the
Borrower and Xxxxxxx Xxxxx and the Carolina Bank are entering into a Credit
Agreement dated as of January 18, 1996 (such Agreement, as amended or otherwise
modified from time to time, being hereinafter referred to as the "CREDIT
AGREEMENT"), pursuant to which the Carolina Bank has agreed to make loans (the
"DEMAND LOANS"), to the Borrower and Xxxxxxx Xxxxx in an aggregate principal
amount at any one time outstanding not to exceed the amount of the Commitment
(as defined in the Credit Agreement). It is a condition precedent to the making
of any Demand Loan by the Carolina Bank that, among other things, the Loan
Agreement be amended to provide that any "Event of Default" under the Credit
Agreement shall constitute an Event of Default under the Loan Agreement and to
amend certain other provisions of the Loan Agreement as hereinafter set forth.
Accordingly, the Borrower and the Bank hereby agree as follows:
1. DEFINITIONS. All terms used herein which are defined in the Loan
Agreement and not otherwise defined herein are used herein as defined therein.
2. ADDITIONAL DEFINITIONS. Section 1.1 of the Credit Agreement is
hereby amended by adding the following definitions (in appropriate alphabetical
order):
""CAROLINAS AGENT" means NationsBank, N.A., acting as collateral
agent under the Triarc Pledge Agreement.
"COLLATERAL AGENT" means the Bank, acting as collateral agent
under the Pledge Agreement.
"DEMAND LOANS" means the loans made by NationsBank, N.A.
pursuant to the Triarc Credit Agreement.
"DEPOSITARY BANK" means NationsBank of Texas, N.A., as
depositary bank pursuant to the Pledge Agreement.
"DWG" means DWG Acquisition Group, L.P., a Delaware limited
partnership.
"PECHINEY" means Pechiney Corporation, a Delaware corporation.
"PECHINEY PROCEEDS" means any principal of or interest on a
Collateral Note, any drawing on a Letter of Credit or any other
proceeds received in respect of a Collateral Note or a Letter of
Credit.
"TRIARC CREDIT AGREEMENT" means the Credit Agreement dated as of
January 18, 1996, by and among Xxxxxx Xxxxx and Xxxxxxx Xxxxx and
NationsBank, N.A., as amended or otherwise modified from time to time.
"TRIARC PLEDGE AGREEMENT" means the Pledge and Security
Agreement made by DWG in favor of NationsBank, N.A., as collateral
agent for itself and for NationsBank of Florida, N.A., in respect of
certain shares of stock issued by Triarc Companies, Inc., as amended or
otherwise modified from time to time."
3. PAYMENT UNDER COLLATERAL NOTES AND LETTERS OF CREDIT. The last
two sentences of the first paragraph of Section 2.3 are hereby deleted in their
entirety, and the following hereby substituted therefor:
"The parties hereby confirm that pursuant to the Pledge Agreement, (i)
the Borrower shall receive all payments by Pechiney of interest on the
Collateral Notes, subject to the provisions of Section 6 of the Pledge
Agreement, Section 6.1(a) hereof and the other provisions of this
Section 2.3, (ii) the Depositary Bank shall receive all payments by
Pechiney of principal of the Collateral Notes, and (iii) the Collateral
Agent shall receive the proceeds of all drawings on the Letters of
Credit. Pechiney Proceeds in respect of interest shall be applied in
accordance with Sections 6 and 11(d) of the Pledge Agreement and
Sections 2.6 and 6.2 hereof. Pechiney Proceeds in respect of principal
shall be applied in accordance with Sections 2.6 (b) and (c) and 6.2
hereof, Sections 6 and 11(d) of the Pledge Agreement and Sections 2.5
and 6.2 of the Triarc Credit Agreement."
4. AMENDMENT TO MANDATORY PREPAYMENT. Section 2.6 of the Loan
Agreement is hereby amended by deleting it in its entirety and by substituting
therefor the following:
"Section 2.6MANDATORY PREPAYMENT. (a) If, as a result of acceleration,
voluntary prepayment, scheduled payment or otherwise in respect of the
Collateral Notes, Pechiney at any time or from time to time makes any
payment of principal of a Collateral Note (each a "PRINCIPAL PAYMENT"),
the Borrower shall immediately prepay the principal amount of the Note.
Such prepayment shall be equal to 85% of such Principal Payment, and,
provided that no Default (under either this Agreement or under the
Triarc Credit Agreement) or Event of Default has occurred and is
continuing (and the Borrower shall immediately provide to the Bank a
certificate confirming that no Default or Event of Default has occurred
and is continuing), promptly and in any event within three Business
Days an amount (the "EXCESS PORTION") equal to 15% of such Principal
Payment shall be paid to the Borrower. The Bank agrees to direct the
Depositary Bank and the Collateral Agent to pay the Excess Portion of
the Principal Payment to the Borrower in accordance with, but subject
to, the foregoing sentence. It is understood and agreed that if the
amount equal to 85% of the Principal Payment exceeds the outstanding
principal amount of the Note, an amount equal to such excess shall be
paid by the Borrower to NationsBank, N.A. for application against the
aggregate principal amount of the Demand Loans outstanding and other
obligations under the Triarc Credit Agreement.
(b) If any Default or Event of Default has occurred and is
continuing when any Pechiney Proceeds are received or otherwise being
held by the Depositary Bank, the Collateral Agent or the Bank, the
entire amount of such Pechiney Proceeds shall be paid to the Bank and
applied by the Bank as a payment of principal of the Note or applied by
the Bank as a payment of interest on the Note or other obligations of
the Borrower hereunder, as the Bank in its sole discretion shall
determine (it being understood that the Borrower shall have no right
whatsoever to receive any portion of such proceeds, except pursuant to
Section 15 of the Pledge Agreement). If the Pechiney Proceeds exceed
the principal of and interest on the Note and the other obligations of
the Borrower hereunder, the Borrower shall pay an amount equal to such
excess to NationsBank, N.A. for application against the aggregate
principal amount of Demand Loans and other obligations outstanding
under the Triarc Credit Agreement. It is also understood that upon the
payment of any Pechiney Proceeds in respect of the principal of the
Collateral Notes, NationsBank, N.A. may at any time thereafter decrease
the Original Advance Percentage (as defined in the Triarc Credit
Agreement) and the Margin Call Percentage (as defined in the Triarc
Credit Agreement)(in either case, to such percentage as the Bank may in
its sole and absolute discretion determine) by giving either Borrower
thereunder notice of such revised percentage. If such a decrease
results in a "Default" under the Triarc Credit Agreement, then (i) the
decrease will constitute a Default hereunder, (ii) so long as any such
"Default", or any other Default or Event of Default, shall occur and be
continuing, the Borrower shall no right to receive any portion of the
Pechiney Proceeds, (iii) if any "Event of Default" (as defined in the
Triarc Credit Agreement), or any other Event of Default shall occur and
be continuing, such Pechiney Proceeds may be applied to the payment of
the Borrower's obligations hereunder or to the obligations under the
Triarc Credit Agreement, and (iv) if such "Default" under the Triarc
Credit Agreement is cured or waived, and no other Default, Event of
Default or "Event of Default" (as defined in the Triarc Credit
Agreement) has occurred and is continuing, the Bank will upon request
promptly and in any event within three Business Days return to the
Borrower the Excess Portion of such Principal Payment, to the extent
not applied to the Borrower's obligations hereunder or under the Triarc
Credit Agreement in accordance with clause (iii) hereof (and the Bank
agrees to direct the Depositary Bank and the Collateral Agent to pay
the Excess Portion of the Principal Payment to the Borrower in
accordance with, but subject to, this clause (iv)).
(c) Each prepayment shall be accompanied by the payment of
accrued interest to the date of such prepayment on the amount prepaid,
and shall be subject to the provisions of Section 2.12 hereof."
5. AMENDMENT TO REPRESENTATION EVENT OF DEFAULT. Subsection (b) of
Section 6.1 of the Loan Agreement is hereby amended by deleting it in its
entirety and by substituting therefor the following:
"(b) REPRESENTATION OR WARRANTY. Any representation or warranty by the
Borrower made or deemed made herein or in the Pledge Agreement, or by
DWG made or deemed made in the Triarc Pledge Agreement, or which is
contained in any certificate, document or financial or other statement
furnished by the Borrower or DWG at any time under this Agreement, the
Pledge Agreement or the Triarc Pledge Agreement, proves to have been
incorrect or misleading in any material respect on or as of the date
made or deemed made; or"
6. AMENDMENT TO COVENANT EVENT OF DEFAULT. Subsection (c) of
Section 6.1 of the Loan Agreement is hereby amended by deleting it in its
entirety and by substituting therefor the following:
"(c) OTHER DEFAULT. (i) The Borrower fails to perform or observe
Section 5.1 or 5.2, or (ii) the Borrower fails to perform or observe
any other material term or covenant contained in this Agreement, and
not referred to in another subsection of this Section 6.1, and such
default continues unremedied for a period of 20 days, or (iii) the
Borrower fails to perform or observe any other term or covenant
contained in this Agreement or in the Pledge Agreement and not referred
to in clauses (i) or (ii) of this subsection (c) or in any other
subsection of this Section 6.1, and such default continues unremedied
for a period of 20 days after the Bank gives notice to the Borrower of
same, or (iv) DWG fails to perform or observe any term or covenant
contained in the Triarc Pledge Agreement and such default continues
unremedied for a period of 20 days after the Bank gives notice to DWG
of same; or"
7. ADDITIONAL EVENTS OF DEFAULT. Section 6.1 of the Loan Agreement
is hereby amended (a) by deleting the period at the end of subsection (i), and
by substituting "; or" in lieu thereof, and (b) by inserting immediately after
subsection (i) of Section 6.1 of the Loan Agreement the following:
"(j) TRIARC PLEDGE AGREEMENT. Any provision of the Triarc Pledge
Agreement ceases to be valid and binding on or enforceable against DWG,
the Triarc Pledge Agreement ceases to create a valid security interest
in the collateral purported to be covered thereby or such security
interest ceases for any reason to be a perfected and first priority
security interest, except if the Bank fails to take any action
exclusively within its control; or
(k) TRIARC CREDIT AGREEMENT. An "Event of Default" shall occur under
the Credit Agreement dated as of January 18, 1996, as amended or
otherwise modified from time to time, between Xxxxxx Xxxxx and Xxxxxxx
Xxxxx and NationsBank, N.A."
8. ADDITIONAL REMEDIES. Section 6.2 of the Loan Agreement is hereby
amended (a) by adding the word "and" at the end of subsection (b) thereof, and
(b) by inserting immediately after subsection (b) of Section 6.2 of the Loan
Agreement and before the proviso the following:
"(c) enforce, as Collateral Agent, and direct the Carolinas Agent to
enforce, all of the Liens and security interests pursuant to the Pledge
Agreement and the other Loan Documents (as defined in the Triarc Credit
Agreement);"
9. REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents
and warrants to the Bank as follows:
(a) The representations and warranties made by the Borrower
in Article IV of the Loan Agreement, the Pledge Agreement and in each
other related document, certificate and other writing delivered to the
Bank on or prior to the date hereof are true and correct on and as of
the date hereof as though made on and as of the date hereof (except to
the extent such representations and warranties expressly relate to an
earlier date). No Default or Event of Default has occurred and is
continuing, or would result from the execution and delivery of this
Amendment No. 1.
(b) The Borrower has the legal capacity to execute, deliver
and perform this Amendment, and to perform the Loan Agreement, as
amended hereby.
(c) The execution, delivery and performance by the Borrower
of, and the consummation of each transaction contemplated by, this
Amendment and the Loan Agreement, as amended hereby, (i) require no
governmental authority or other regulatory body approval or action by
or in respect of any governmental authority or other regulatory body
and (ii) do not (A) contravene, or constitute a default under, any
provision of any applicable law or regulation, or any agreement,
indenture, judgment, order, decree or other instrument binding upon the
Borrower or his properties, or (B) result in the creation or imposition
of any Lien on any asset of the Borrower.
(d) This Amendment has been duly executed and delivered by
the Borrower. Each of this Amendment and the Loan Agreement, as amended
hereby, constitutes the legal, valid and binding obligation of the
Borrower enforceable against the Borrower in accordance with its terms.
10. EXPENSES. The Borrower will pay on demand all fees, costs and
expenses of the Bank in connection with the preparation, execution and delivery
of this Amendment and all other agreements, instruments and other documents
related to the foregoing, including, without limitation, the reasonable fees,
client charges and other expenses of counsel to the Bank.
11. INDEMNIFICATION. It is understood and agreed that Section 7.3 of
the Loan Agreement shall benefit both the Bank and the Collateral Agent, and
every reference therein to "Bank" shall be deemed to include "the Collateral
Agent."
12. MISCELLANEOUS.
(a) CONTINUED EFFECTIVENESS OF THE LOAN AGREEMENT. Except as
otherwise expressly provided herein, the Loan Agreement and the other
related agreements, instruments and documents (the "LOAN DOCUMENTS")
are, and shall continue to be, in full force and effect and are hereby
ratified and confirmed in all respects except that on and after the
date hereof (i) all references in the Loan Agreement to "this
Agreement", "hereto", "hereof", "hereunder" or words of like import
referring to the Loan Agreement shall mean the Loan Agreement as
amended by this Amendment, and (ii) all references in the other Loan
Documents to which the Borrower is a party to the "Loan Agreement",
"thereto", "thereof", "thereunder" or words of like import referring to
the Loan Agreement shall mean the Loan Agreement as amended by this
Amendment. Except as expressly provided herein, the execution, delivery
and effectiveness of this Amendment shall not operate as a waiver of
any right, power or remedy of the Bank under the Loan Agreement or any
other Loan Document, nor constitute a waiver of any provision of the
Loan Agreement.
(b) COUNTERPARTS. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which shall be deemed to be an original, but all
of which taken together shall constitute one and the same agreement.
(c) HEADINGS. Section headings herein are included for
convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
(d) GOVERNING LAW. This Amendment shall be governed by, and
construed in accordance with, the law of the State of New York.
(e) EFFECTIVENESS. This Amendment shall become effective on
the date as of which the Bank shall have received this Amendment, duly
executed by the Borrower.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered as of the date first above written.
Xxxxxx Xxxxx
NATIONSBANK OF FLORIDA, N.A.
By:
Title: Vice President
REDACTED
INTERCREDITOR AGREEMENT
INTERCREDITOR AGREEMENT dated January 25, 1996, by and between
NATIONSBANK OF FLORIDA, N.A. (the "FLORIDA BANK"), NATIONSBANK OF FLORIDA, N.A.,
as agent for NationsBank, N.A. and NationsBank of Florida, N.A. (the "FLORIDA
AGENT"), NATIONSBANK, N.A. (the "CAROLINAS BANK"; together with the Florida
Bank, the "BANKS") and NATIONSBANK, N.A., as agent for NationsBank of Florida,
N.A. and NationsBank, N.A. (the "CAROLINAS AGENT"; together with the Florida
Agent, the "AGENTS").
W I T N E S S E T H:
WHEREAS, Xxxxxx Xxxxx and Xxxxxxx Xxxxx (collectively, the "BORROWERS")
and the Carolinas Bank are parties to the Credit Agreement dated as of January
18, 1996 (such Agreement, as amended or otherwise modified from time to time,
being hereinafter referred to as the "REVOLVING CREDIT AGREEMENT"), pursuant to
which the Carolinas Bank has agreed to make loans (the "DEMAND LOANS") to the
Borrowers in an aggregate principal amount at any one time outstanding not to
exceed the amount of the Commitment (as defined in the Credit Agreement), which
Demand Loans will be evidenced by a demand promissory note dated the date hereof
(as such demand promissory note may be modified or extended from time to time,
and any promissory note or notes issued in exchange or replacement therefor, the
"DEMAND NOTE"), made by the Borrowers to the order of the Carolinas Bank and in
the original principal amount of the Commitment;
WHEREAS, Xxxxxx Xxxxx and the Florida Bank are parties to the Term Loan
Agreement dated as of July 29, 1994 (such Agreement, as amended or otherwise
modified from time to time, being hereinafter referred to as the "TERM
AGREEMENT"; together with the Revolving Credit Agreement, the "CREDIT
AGREEMENTS"), pursuant to which the Florida Bank made a term loan (the "TERM
LOAN") to Xxxxxx Xxxxx in the original principal amount of $102,000,000, which
Term Loan is evidenced by a term promissory note dated June 29, 1994 (as such
term promissory note may be modified or extended from time to time, and any
promissory note or notes issued in exchange or replacement therefor, the "TERM
NOTE"), made by Xxxxxx Xxxxx to the order of the Florida Bank and in the
original principal amount of the Term Loan;
WHEREAS, it is a condition precedent to the making of any Demand Loan
pursuant to the Revolving Credit Agreement that (i) DWG Acquisition Group, L.P.,
a Delaware limited partnership, shall have executed and delivered to the
Carolinas Agent a pledge and security agreement (as amended or otherwise
modified from time to time, the "TRIARC PLEDGE AGREEMENT"), providing for the
assignment to the Carolinas Agent, for the benefit of the Carolinas Bank and the
Florida Bank, and the grant to the Carolinas Agent, for the benefit of the
Carolinas Bank and the Florida Bank, of a security interest in, certain of the
outstanding shares of capital stock issued by Triarc Companies, Inc., and (ii)
Xxxxxx Xxxxx shall have executed and delivered to the Florida Agent an Amended
and Restated Pledge Agreement dated July 29, 1994, as amended and restated on
the date hereof (as so amended, and as hereafter amended or otherwise modified
from time to time, the "PECHINEY PLEDGE AGREEMENT"; together with the Triarc
Pledge Agreement, the "PLEDGE AGREEMENTS"), made by Xxxxxx Xxxxx in favor of the
Florida Agent, providing for the pledge to the Florida Agent, for the benefit of
the Carolinas Bank and the Florida Bank, and the grant to the Florida Agent, for
the benefit of the Carolinas Bank and the Florida Bank, of a security interest
in, certain debt issued by Pechiney Corporation and the related letters of
credit;
WHEREAS, the Banks and the Agents wish to set forth their agreement as
to the exercise of certain of their respective rights and obligations with
respect to the Credit Agreements, the Pledge Agreements and the Collateral (as
hereinafter defined);
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms
shall have the respective meanings indicated below, such meanings to be
applicable equally to both the singular and plural forms of such terms:
"COLLATERAL" means the Triarc Collateral and the Pechiney
Collateral.
"FINANCING DOCUMENTS" means the Security Documents and the Loan
Documents.
"LOAN DOCUMENTS" means the Credit Agreements, the Notes and all
other instruments, agreements and documents executed and delivered pursuant to
any of the foregoing.
"NOTES" means the Demand Note and the Term Note.
"OBLIGATIONS" means (i) the obligations of the Borrowers and DWG
to pay, as and when due and payable (on demand, by mandatory prepayment, by
scheduled maturity or otherwise), all amounts from time to time owing by them in
respect of any Financing Document to which such person or entity is a party,
whether for principal, interest, fees or otherwise, and (ii) the obligations of
the Borrowers and DWG to perform or observe all of their other obligations from
time to time existing under any Financing Document to which such person or
entity is a party.
"PECHINEY COLLATERAL" means all of the property (tangible and
intangible) purported to be subject to the lien or security interest created by
the Pechiney Pledge Agreement.
"SECURITY DOCUMENTS" means the Triarc Pledge Agreement, the
Pechiney Pledge Agreement, and all other instruments, agreements or documents
executed and delivered pursuant to either Pledge Agreement.
"TRIARC COLLATERAL" means all of the property (tangible and
intangible) purported to be subject to the lien or security interest created by
the Triarc Pledge Agreement.
2. NOTIFICATION AND ACKNOWLEDGMENT OF SECURITY INTEREST, ETC.
Pursuant to Sections 8-313 and 9-305 of the New York Uniform Commercial Code:
(a) Each Bank hereby confirms, and notifies the Carolinas
Agent, that DWG has granted to the Carolinas Agent a lien on, and
security interest in, the Triarc Collateral, as collateral security for
all obligations now or hereafter existing under the Credit Agreements,
the Notes and the other Financing Documents. The Carolinas Agent hereby
(i) acknowledges that from and after the date hereof, it shall,
pursuant to Sections 8-313 and 9-305 of the New York Uniform Commercial
Code, hold all Collateral now or hereafter in its possession as Agent
under the Triarc Pledge Agreement for the benefit of each Bank, and
(ii) agrees, promptly upon the satisfaction in full of the Obligations
owing to the Carolinas Bank and the Carolinas Agent after the
termination of the Commitment, to deliver to the Florida Bank upon
request such of the proceeds of the Triarc Collateral as shall not have
been applied pursuant to the terms of the Triarc Pledge Agreement or
this Agreement to the payment of any Obligations of the Borrowers.
(b) Each Bank hereby confirms, and notifies the Florida
Agent, that Xxxxxx Xxxxx has granted to the Florida Agent a lien on,
and security interest in, the Pechiney Collateral, as collateral
security for all obligations now or hereafter existing under the Credit
Agreements, the Notes and the other Financing Documents. The Florida
Agent hereby (i) acknowledges that from and after the date hereof, it
shall, pursuant to Sections 8-313 and 9-305 of the New York Uniform
Commercial Code, hold all Collateral now or hereafter in its possession
as Agent under the Pechiney Pledge Agreement for the benefit of each
Bank, and (ii) agrees, promptly upon the satisfaction in full of the
Obligations owing to the Florida Bank and the Florida Agent, to deliver
to the Carolinas Bank upon request such of the proceeds of the
Collateral as shall not have been applied pursuant to the terms of the
Pechiney Pledge Agreement or this Agreement to the payment of any
Obligations of Xxxxxx Xxxxx.
3. ENFORCEMENT.Each Agent agrees to make such demands and give such
notices under the Security Documents as a Bank may request, and to take such
action to enforce the terms and conditions of such Security Document and to
foreclose upon, collect and dispose of the Collateral or any portion thereof as
may be directed by such Bank; PROVIDED, HOWEVER, that (i) neither Agent shall be
required to take any action that is in its opinion contrary to law or to the
terms of this Agreement, any Credit Agreement or any other Financing Document,
or which would in its opinion subject it or any of its officers, employees or
directors to liability, and (ii) neither Agent shall be required to take any
action under this Agreement or any Security Document unless and until such Agent
shall be indemnified to its satisfaction by the requesting Bank against any and
all loss, cost, expense or liability in connection therewith.
4. APPLICATION OF PROCEEDS AND PAYMENTS. Anything in any Financing
Document to the contrary notwithstanding, all cash and other payments received
by an Agent pursuant to a Pledge Agreement shall be applied based on the mutual
agreement of the Banks and, after the payment in full of all Obligations and, in
the case of the Triarc Pledge Agreement, the termination of the Commitment, any
surplus proceeds and Collateral will be distributed pursuant to the terms and
conditions of the related Pledge Agreement.
5. THE AGENTS. Each Bank agrees with each Agent as follows:
(a) The Carolinas Bank is hereby appointed Agent hereunder
and under the Triarc Pledge Agreement, and the Florida Bank is hereby
appointed Agent hereunder and under the Pechiney Pledge Agreement. Each
of the Banks irrevocably authorizes the Agents to act as the agent of
such Bank for the purposes of enforcing the rights and remedies of the
Banks in respect of the Collateral and the Security Documents. Each
Agent agrees to act as such upon the express conditions contained in
this Section.
(b) Each Agent shall have and may exercise such powers
hereunder as are specifically delegated to such Agent by the terms
hereof and the applicable Security Document, together with such powers
as are reasonably incidental thereto. The Agents shall have no implied
duties to the Banks or any other person or entity, or any obligation to
take any action hereunder or under any other Financing Document, except
any action specifically provided by this Agreement and the Security
Documents to be taken by such Agent.
(c) The Banks agree to reimburse and indemnify each Agent
ratably in proportion to the Obligations owed under the Credit
Agreements (i) for any amounts not reimbursed by a Borrower for which
an Agent is entitled to reimbursement by a Borrower under any Financing
Document, (ii) for any other expenses incurred by an Agent on behalf of
the Banks, in connection with the preparation, execution, delivery,
administration and enforcement of this Agreement or any Security
Document, and (iii) for any liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind and nature whatsoever which may be imposed on, incurred by
or asserted against an Agent in any way relating to or arising out of a
Security Document, this Agreement or any other or the transactions
contemplated hereby or the enforcement of any of the terms hereof or of
any such other documents, PROVIDED that no Bank shall be liable for any
of the foregoing to the extent they arise from the gross negligence or
willful misconduct of either Agent.
(d) Either Agent may resign at any time by giving written
notice thereof to the Banks and the Borrowers. Upon any such
resignation, the Banks shall have the right to appoint, on behalf of
the Banks, a successor Agent. Such successor Agent shall be an
affiliate of a Bank or an Eligible Institution (as defined in each
Credit Agreement) that owns all or part of the Obligations. Upon the
acceptance of any appointment as an Agent hereunder by a successor
Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its
duties and obligations hereunder and under the applicable Security
Documents. After any retiring Agent's resignation hereunder as Agent,
the provisions of this Section shall continue in effect for its benefit
in respect of any actions taken or omitted to be taken by it while it
was acting as an Agent hereunder.
7. NO THIRD PARTY BENEFICIARY. This Agreement is intended to
establish the relative rights and obligations of the Banks and the Agents with
respect to the subject matter hereof and, except as otherwise expressly provided
in Section 8 hereof, shall not be deemed to create any rights or priorities in
any other individual or entity. 8.DISPOSITION OF COLLATERAL. (a) It is the
intention of the Carolinas Bank and the Borrowers that if the Carolinas Bank
wishes to sell or otherwise dispose of Collateral during the occurrence and
continuance of an Event of Default (as defined in the Revolving Credit
Agreement), the Carolinas Bank will sell or otherwise dispose of, or cause the
Carolinas Agent to sell or otherwise dispose of, the Triarc Collateral (the
"RELATED TRIARC COLLATERAL") allocable to the Borrowers (each a "DISPOSITION"),
prior to the sale or other disposition of, or prior to causing the Florida Agent
to sell or otherwise dispose of, the Pechiney Collateral.
(b) Notwithstanding anything in subsection 8(a) to the
contrary, the Carolinas Bank will have no obligation under subsection
8(a) whatsoever, and the Carolinas Bank may sell or otherwise dispose
of, or direct the sale or other disposition of, any of the Collateral
in such order as the Carolinas Bank may determine (in its sole and
absolute discretion) if the Carolinas Bank determines (which
determination shall be conclusive) that: (i) the prompt Disposition of
the Related Triarc Collateral may contravene any law, rule or
regulation of any Governmental Authority (as defined in the Revolving
Credit Agreement), including, without limitation, by reason of (A) the
bankruptcy, insolvency, reorganization or other event described in
Section 6.1(e) or (f) of the Revolving Credit Agreement (without regard
to whether the grace period referred to in Section 6.1(f) thereof has
elapsed) with respect to DWG Acquisition Group, L.P., (B) the
commencement of any legal action or proceeding that stays or enjoins,
or seeks to stay or enjoin, the Disposition of any of the Related
Triarc Collateral, or (C) a possible violation of the securities laws;
(ii) the Disposition of any of the Related Triarc Collateral (at such
time as the Carolinas Bank may elect) may subject it, the Carolinas
Agent, any affiliate, or any officer, employee or director of the
foregoing, to liability; (iii) the value of any of the Pechiney
Collateral threatens to decline rapidly in value; (iv) there is a
reasonable good-faith basis to conclude that delaying the sale or other
disposition of the Pechiney Collateral until after the Disposition of
the Related Triarc Collateral may adversely affect the ability of the
Carolinas Bank to receive payment in full of the principal of, and
interest on, the Demand Loans and all of the related Obligations; (v)
either Borrower, DWG Acquisition Group, L.P. or any affiliate has taken
any action, or has failed to take any action requested by the Carolinas
Bank, that the Carolinas Bank reasonably believes may prevent, delay,
impede or materially and adversely affect the ability of the Carolinas
Bank or the Carolinas Agent to sell or otherwise dispose of the Triarc
Collateral; or (vi) the Carolinas Bank or the Carolinas Agent is unable
to sell the Triarc Collateral within a 90-day period, during which the
Carolinas Bank or the Carolinas Agent exercises reasonable, good faith
efforts to so sell the Triarc Collateral.
(c) It is understood and agreed that nothing in this Section
8 shall affect any of the other rights, remedies, powers and privileges
of the Florida Agent and Florida Bank with respect to the Pechiney
Collateral (including, without limitation, (i) to collect the interest
on the Collateral Notes (as defined in each Term Agreement), under the
circumstances provided in the Term Agreement or the Pechiney Pledge
Agreement, (ii) to maintain its security interest in the Collateral
Account (as defined in the Pechiney Pledge Agreement), (iii) to draw on
the Letters of Credit (as defined in each Term Agreement), under the
circumstances provided in the Term Agreement or the Pechiney Pledge
Agreement, (iv) to sell or otherwise dispose of any of the Pechiney
Collateral upon the occurrence and continuance of an Event of Default
under the Term Agreement, and (v) to take any action and to execute
such other instrument as the Florida Agent may deem necessary or
advisable to accomplish the purposes of the Pechiney Pledge Agreement).
9. MISCELLANEOUS.
(a) No amendment, waiver or other modification of any
provision of this Agreement shall be effective unless it is in writing
and signed by each Bank and Agent. No waiver or approval by any Bank or
Agent under this Agreement shall, except as may be otherwise stated in
such waiver or approval, be applicable to subsequent transactions.
(b) No failure or delay on the part of any Bank or Agent in
exercising any power or right under this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any such
power or right preclude any other or further exercise thereof or the
exercise of any other power or right.
(c) All notices and other communications provided for
hereunder shall be in writing and shall be mailed, telecopied,
telegraphed or delivered to it at its address set forth on the
signature pages of this Agreement; or, as to each party, at such other
address as shall be designated by such party in a written notice to the
other parties complying as to delivery with the terms of this
subsection. All such notices and other communications shall be
effective (i) if mailed, three days after being deposited in the mails,
(ii) if telegraphed when delivered to the telegraph company, or (iii)
if telecopied, telexed or delivered, upon delivery.
(d) Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions of this Agreement or
affecting the validity or enforceability of such provision in any other
jurisdiction.
(e) Each Bank and Agent agrees to cooperate fully with each
other party hereto, to effect the intent and provisions of this
Agreement and, from time to time, to execute and deliver any and all
other agreements, documents or instruments, and to take such other
actions, as may be reasonably necessary or desirable to effectuate the
intent and provisions of this Agreement.
(f) The various headings of this Agreement are inserted for
convenience only and shall not affect the meaning or interpretation of
this Agreement or any provision hereof.
(g) This Agreement may be executed by the parties hereto in
several counterparts, and each such counterpart shall be deemed to be
an original and all of which shall constitute together but one and the
same agreement.
(h) This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto, their respective successors and
assigns.
(i) This Agreement shall be governed by, and construed in
accordance with, the law of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
NATIONSBANK, N.A., individually
and as agent
By: ____________________________
Name: __________________________
Title: _________________________
All notices and other communications to:
NationsBank, N.A., 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, with
copies to NationsBank, N.A., 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, Attention: Xx. Xxxx X. Xxxxxx, Senior Vice President, Telecopier No.
[ REDACTED ].
NATIONSBANK OF FLORIDA, N.A.,
individually and as agent
By: ____________________________
Name: __________________________
Title: _________________________
All notices and other communications to:
NationsBank of Florida, N.A., 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000, with copies to NationsBank of Florida, N.A., 000 Xxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: Xx. Xxxx X. Xxxxxx, Senior Vice
President, Telecopier No. [ REDACTED ].
CONSENT
The undersigned hereby consents and agrees to the terms of the
Intercreditor Agreement to which this Consent is attached.
Date: January 25, 1996
Xxxxxx Xxxxx
Xxxxxxx Xxxxx
DWG ACQUISITION GROUP, L.P.
By:___________________________
By:___________________________
THIRD
AMENDED AND RESTATED
CREDIT AGREEMENT
THIS THIRD AMENDED AND RESTATED CREDIT AGREEMENT (the
"AGREEMENT"), dated as of January 18, 1996, as amended and restated as of June
19, 1997, as amended and restated as of January 2, 1999, and as amended and
restated as of April 2, 2001, is entered into by and between XXXXXX XXXXX and
XXXXXXX XXXXX, each an individual residing in the State of New York (the
"BORROWERS"), and BANK OF AMERICA, N.A., formerly known as NATIONSBANK, N.A.
(the "BANK"), a national banking association.
RECITALS
WHEREAS, the Borrowers and the Bank are parties to an Amended
and Restated Credit Agreement, dated as of January 18, 1996, as amended and
restated as of June 19, 1997, as amended and restated as of January 2, 1999 (the
"EXISTING CREDIT AGREEMENT"), pursuant to which the Bank has agreed (i) to make
demand loans (the "REVOLVING A LOANS") to the Borrowers in the aggregate
principal amount not to exceed $42,500,000 at any time outstanding; (ii) to make
revolving loans (the "REVOLVING B Loans") in the aggregate principal amount not
to exceed $27,500,000 at any time outstanding, and (iii) to make line of credit
loans (the "LINE LOANS") in the aggregate principal amount not to exceed
$7,000,000 at any time outstanding;
WHEREAS, the Borrowers have requested that the Bank amend and
restate the Existing Credit Agreement to provide, among other things, (i) an
extension of the Termination Date (as defined in the Existing Credit Agreement,
as amended) to January 2, 2003;
WHEREAS, the Bank is willing to extend the Termination Date to
January 2, 2003, subject to (i) the decrease of the Revolving A Commitment from
$42,500,000 to $37,500,000, (ii) the decrease of the Revolving B Commitment from
$27,500,000 to $12,500,000, and (iii) the termination of the Line Loan
Commitment and the repayment of all outstanding Line Loans;
WHEREAS, the parties hereto now desire to amend and restate the
Existing Credit Agreement as set forth below, it being the agreement of the
parties that any loans to the Borrowers by the Bank outstanding under the
Existing Credit Agreement shall continue and remain outstanding loans to the
Borrowers by the Bank under this Agreement and not be repaid on the Effective
Date;
NOW, THEREFORE, in consideration of the premises and the
agreements herein and in order to induce the Bank to make and maintain the
Loans, the Borrowers and the Bank hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.1 CERTAIN DEFINED TERMS. As used in this
Agreement, the following terms shall have the respective meanings indicated
below, such meanings to be applicable equally to both the singular and plural
forms of such terms:
"ACCOUNTS" means (i) account number 0000000 maintained by
Xxxxxxx Xxxxx with the Bank and pledged to the Bank pursuant to the CP Accounts
Assignment, and (ii) account number 23571 maintained by PF with PaineWebber
Incorporated and pledged to the Bank pursuant to the PF Accounts Assignment.
"ACCOUNTS ASSIGNMENTS" means, collectively, the CP Accounts
Assignment and the PF Accounts Assignment.
"ACCOUNTS VALUE" means the aggregate Market Value of the
investments held in the Accounts in which the Bank has a perfected, first
priority security interest.
"ADJUSTED LIBOR" means, with respect to any Interest Period, (i)
the rate of interest per annum (rounded upward, if necessary, to the next higher
1/16th of one percent) determined by the Bank, in accordance with its customary
general practice from time to time, to be the rate equal to the London Interbank
Offered Rate (expressed as a percentage) for Dollar deposits as would be quoted
by the Bank for 11:00 a.m. London time, or as soon thereafter as practicable, on
the second Business Day immediately preceding the first day of such Interest
Period, for a term comparable to such Interest Period, (ii) as adjusted from
time to time in the Bank's sole discretion for then applicable reserve
requirements, deposit insurance assessment rates and other regulatory costs.
"ADJUSTED REVOLVING B COLLATERAL VALUE" means the sum of (i) the
Revolving B Margin Call Percentage of the Accounts Value, and (ii) the Revolving
B Margin Call Percentage of the Partnership Interest Value.
"ADJUSTED TRIARC COLLATERAL VALUE" means the Revolving A Margin
Call Percentage of the Triarc Collateral Value.
"APPLICABLE MARGIN" means, with respect to the Revolving A
Loans, 2.00%, and with respect to the Revolving B Loans, 1.50%.
"AVAILABLE REVOLVING B COMMITMENT" means, as at any date of
determination thereof, the amount by which (i) the Revolving B Commitment as in
effect on such date exceeds (ii) the sum of the aggregate amount of all
Revolving B Loans and L/C Outstandings on such date.
"BANK" means the Bank (as defined in the recitals hereto),
including, without limitation, the institution that merged with the Bank
formerly called NationsBank, N.A. (South), which was formerly called NationsBank
of Florida, N.A.
-2-
"BASE RATE" means, for any day, a rate per annum equal to the
higher of (i) the Prime Rate for such day, or (ii) the sum of one half of one
percent (1/2%) plus the Federal Funds Rate for such day.
"BOARD" means the Board of Governors of the Federal Reserve
System of the United States.
"BUSINESS DAY" means any day other than a Saturday, Sunday or
other day on which commercial banks in New York City, New York, or in Charlotte,
North Carolina, are authorized or required by law to close and, if the
applicable Business Day relates to any Interest Period for which interest on a
Loan is determined by reference to the Adjusted LIBOR rate, also includes a day
on which commercial banks are open for international business in London.
"CP ACCOUNTS ASSIGNMENT" means the Pledge Agreement by Xxxxxxx
Xxxxx in favor of the Collateral Agent, dated June 19, 1997, in respect of the
Account maintained by Xxxxxxx Xxxxx and certain related collateral to secure the
Obligations, as the same may be amended or otherwise modified from time to time.
"CP SECURITY AGREEMENT" means the Assignment and Security
Agreement, dated June 19, 1997, as amended and restated as of April 2, 2001, by
Xxxxxxx Xxxxx in favor of the Collateral Agent, in respect of certain
Partnership Interests and certain related collateral to secure the Obligations,
as the same may be amended or otherwise modified from time to time.
"COLLATERAL" means all of the property (tangible and intangible)
purported to be subject to the lien or security interest purported to be created
by any mortgage, deed of trust, security agreement, pledge agreement, assignment
or other security document heretofore or hereafter executed by any Person as
security for all or any part of the Obligations.
"COLLATERAL AGENT" means the Bank, acting as collateral agent,
as agent for itself and its permitted successors and assigns.
"COMMITMENT" means any of the Revolving A Commitment and the
Revolving B Commitment.
"DEFAULT" means a condition or event which, after notice or
lapse of time or both, would constitute an Event of Default (including, without
limitation, the obligation to prepay the Loans or provide additional collateral
pursuant to Section 2.1(d)(i) or (ii), or 2.2(d)(i) or (ii), without regard to
whether any notice has been given or any grace period has elapsed).
"DEFAULT RATE" has the meaning specified in Section 2.4.
"DELISTING EVENT " has the meaning specified in Section
2.1(d)(iii).
"DOLLARS" and the sign "$" each mean lawful money of the United
States of America.
"DWG" means DWG Acquisition Group, L.P., a Delaware limited
partnership.
-3-
"DWG PARTNERSHIP AGREEMENT" means the Agreement of Limited
Partnership of DWG, dated as of September 25, 1992, as amended by Amendment No.
1 dated as of November 15, 1992, Amendment No. 2 dated as of March 1, 1993,
Amendment No. 3 dated as of April 14, 1993, Amendment No. 4 dated as of January
1, 1995, Amendment No. 5 dated as of January 1, 1996, by and among Xxxxxx Xxxxx
and Xxxxx X. May, as general partners, and Xxxxxx Xxxxx and Xxxxx X. May, as
limited partners, of DWG.
"EFFECTIVE DATE" means the date on which all of the conditions
precedent set forth in Article III have been satisfied or waived.
"ELIGIBLE INSTITUTION" means (i) a commercial bank organized
under the laws of the United States, or any state thereof, and having a combined
capital and surplus of at least $100,000,000, or (ii) a commercial bank
organized under the laws of any other country which is a member of the
Organization for Economic Cooperation and Development or a political subdivision
of any such country, and having a combined capital and surplus of at least
$100,000,000, PROVIDED that such bank is acting through a branch or agency
located in the United States or an offshore branch outside the United States at
which such bank books loans bearing interest based on LIBOR and, in the case of
a bank described in either clause (i) or clause (ii), such bank is able to
deliver Internal Revenue Service Form W-8BEN or W-8ECI, or successor form, to
the Bank with a copy to the Borrowers as of the day such bank becomes an
assignee or participant.
"EVENT OF DEFAULT" has the meaning specified in Section 6.1.
"EXISTING CREDIT AGREEMENT" has the meaning set forth in the
recitals hereof.
"FEDERAL FUNDS RATE" means, for any day, the rate per annum
(rounded upward to the nearest 1/100th of 1%) equal to the weighted average of
the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Business Day next succeeding such
day, PROVIDED that (i) if such day is not a Business Day, the Federal Funds Rate
for such day shall be such rate on such transactions on the next preceding
Business Day, and (ii) if no such rate is so published on such next succeeding
Business Day, the Federal Funds Rate for such day shall be the average rate
quoted to the Bank on such day on such transactions as determined by the Bank.
"GENERAL PARTNERS" means the general partners of each
Partnership.
"GOVERNMENTAL AUTHORITY" means any nation or government, any
federal, state, city, town, municipality, county, local or other political
subdivision thereof or thereto and any department, commission, board, bureau,
instrumentality, agency or other entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government
and includes, without limitation, the SEC.
"GUARANTEED BORROWER" means Xxxxxx Xxxxxx, an individual with an
address at c/o Point Atlantic II, 21050 Xxxxxxxxx 00xx Xxxxxx Xx 0000 Xxxxxxxx,
Xxxxxxx 00000.
-4-
"GUARANTEED LOAN" means the loan by the Bank to the Guaranteed
Borrower in the principal amount of $175,000.
"GUARANTY" means a Guaranty made by Xxxxxx Xxxxx in favor of the
Bank with respect to two-thirds of the unpaid principal amount of the Guaranteed
Loan (together with the other related obligations referred to therein), as such
Guaranty may be amended or otherwise modified from time to time.
"HEDGING AGREEMENT" means any agreement between either Borrower
and the Bank or any affiliate of the Bank now existing or hereafter entered
into, with respect to any interest rate, foreign currency, commodity or equity
swap, collar, cap, floor or forward rate agreement, or other agreement or
arrangement designed to protect against fluctuations in interest rates or
currency, commodity or equity values (including, without limitation, any option
with respect to any of the foregoing and any combination of the foregoing
agreements or arrangements), and any confirmation executed in connection with
any such agreement or arrangement, all as amended or otherwise modified from
time to time.
"INDEBTEDNESS" means, with respect to any Person, (i) all
indebtedness or other obligations of such Person for borrowed money or for the
deferred purchase price of property or services, (ii) all obligations of such
Person under direct or indirect guaranties in respect of, and contingent or
other obligations of such Person to purchase or otherwise acquire or otherwise
assure a creditor against loss in respect of, indebtedness or other obligations
of any other Person for borrowed money or for the deferred purchase price of
property or services, (iii) all indebtedness or other obligations of any other
Person for borrowed money or for the deferred purchase price of property or
services secured by (or for which the holder of such indebtedness has an
existing right, contingent or otherwise, to be secured by) any lien, security
interest or other charge or encumbrance upon or in property owned by such
Person, (iv) all obligations of such Person to make reimbursement or payment in
respect of letters of credit and bankers' acceptances, and (v) the net
liabilities of such Person under all interest rate swap, interest rate collar,
interest rate cap, interest rate floor, forward rate agreements, commodity swaps
or other agreements or arrangements designed to protect against fluctuations in
interest rates or currency, commodity or equity values, each calculated on a
basis reasonably satisfactory to the Bank and in accordance with accepted
practice.
"INTEREST PERIOD" means each one (1)-month period during which
interest on each Loan shall be calculated by reference to Adjusted LIBOR,
determined as of the second Business Day before the commencement of that
Interest Period; PROVIDED, HOWEVER, that:
(i) each Interest Period shall commence on the first
day of a month and end on the first day in the immediately following
calendar month thereafter;
(ii) each subsequent Interest Period for a Loan shall
commence on the last day of the immediately preceding Interest Period
and end on the first day in the immediately following calendar month
thereafter; and
(iii) any Interest Period which would otherwise extend
beyond the Termination Date shall end on the Termination Date.
-5-
"INVESTMENTS" means all cash, notes, bonds, securities,
certificates, instruments and other property now or hereafter deposited or held
in the Account.
"L/C APPLICATION" means a letter of application on the Bank's
then customary form for the type of letter of credit issued.
"L/C LIABILITIES" means the aggregate amounts then owing to the
Bank to reimburse it for all amounts drawn under Letters of Credit.
"L/C OUTSTANDINGS" means, as at any date of determination
thereof, the sum of (a) the aggregate Stated Amount of all Letters of Credit
outstanding on such date PLUS (b) the aggregate amount of all unpaid L/C
Liabilities on such date, PLUS (c) the principal outstanding on such date of the
Guaranteed Loan covered by the Guaranty, PLUS (d) the aggregate Termination
Compensation that would be payable to the Bank and any of its Affiliates if each
Hedging Agreement and all related transactions were terminated on such date.
"LETTER OF CREDIT" means a letter of credit issued by the Bank
for the account of a Borrower.
"LIEN" means any lien, mortgage, pledge, security interest,
charge or similar encumbrance of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof and any
agreement to give any security interest).
"LINE LOANS" has the meaning assigned to such term in the
recitals hereof.
"LIQUID ASSETS" means any of the following: (a) any equity
security which, as of any date, (i) is traded on the New York Stock Exchange,
the American Stock Exchange or the NASDAQ Stock Market/National Market System,
(ii) has a minimum share price of at least $10 per share on such date and (iii)
any Borrower would be able to sell, based on the average daily trading value of
such equity security during the four week period immediately preceding such
date, over a period equal to five Business Days; (b) any publicly traded debt
security of a corporation organized under the laws of the United States or any
state thereof (including the District of Columbia) that is readily marketable;
(c) (i) any money market funds registered under the Investment Company Act of
1940, as amended, (A) which has total assets of at least $1,000,000,000, or (B)
whose net asset values are reported on a daily basis in THE WALL STREET JOURNAL
and (ii) any other money market funds that are deemed to be acceptable to the
Bank in its sole judgment; (d) any municipal bond issued by any state, city or
local agency or authority of the United States which is rated at least BBB by
Standard & Poor's Rating Service, a division of XxXxxx-Xxxx, Inc., and Baa by
Xxxxx'x Investors Service, Inc., and which has a remaining maturity not in
excess of five years; (e) any United States Treasury bills; (f) any United
States Treasury notes or United States Treasury bonds which have a remaining
maturity not in excess of five years; and (g) any cash, in each case net of any
margin or other similar Indebtedness.
"LOAN" means any Revolving A Loan or Revolving B Loan.
"LOAN DOCUMENTS" means this Agreement, the Notes, the Letters
of Credit, the L/C Applications, the Triarc Pledge Agreement, the CP Security
-6-
Agreement, the NP Security Agreement, the CP Accounts Assignment, the PF
Accounts Assignment, the PF Control Agreement, the Guaranty, the Hedging
Agreements, and all other instruments, agreements and other documents executed
and delivered pursuant hereto or thereto.
"LOAN PARTIES" means the Borrowers, PF and DWG.
"MARKET VALUE" means:
(a) If stock, the market value shall be determined by
multiplying (i) the per share price of such stock at the most recent
close of trading on a trading exchange for such stock, times (ii) the
number of shares of such stock held by the Bank as Collateral. In the
event that stock held as Collateral is not traded on an exchange, the
Collateral Value of such stock shall be the average quoted value of
such stock from two reputable brokerage firms selected by the Bank. If
no such quote is available, the value will be determined by the Bank in
its sole discretion.
(b) If a mutual fund, the market value shall be determined
by multiplying (i) the most recent per share net asset value of such
mutual fund obtained from THE WALL STREET Journal, times (ii) the
number of shares of such mutual fund held by the Bank as Collateral. In
the event that such net asset value is not available in THE WALL STREET
JOURNAL, the market value shall be the average value quoted to the Bank
by two reputable brokerage firms selected by the Bank.
(c) If corporate bonds, the market value shall be determined
from the most recent closing price for such bonds obtained from THE
WALL STREET JOURNAL. If such closing price is not available in THE WALL
STREET JOURNAL, the market value shall be the average value quoted to
the Bank by two reputable brokerage firms selected by the Bank.
(d) If government or agency obligations or bonds, the market
value shall be determined from the most recent closing bid price for
such bonds obtained from THE WALL STREET JOURNAL. If such closing bid
price is not available in THE WALL STREET JOURNAL, the market value
shall be the average value quoted to the Bank by two reputable
brokerage firms selected by the Bank.
In all other cases, securities shall be assigned such value as the Bank shall
determine in its sole and absolute discretion.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on any
of (a) the business, properties or prospects of any Loan Party , (b) the ability
of any Loan Party to perform any of the obligations of such Loan Party under
this Agreement or any of the other Loan Documents, (c) the legality, validity or
enforceability of this Agreement or any of the other Loan Documents, (d) the
rights and remedies of the Bank under this Agreement or any of the other Loan
Documents, or (e) the creation, perfection or priority of security in or lien on
any of the Collateral, securing the payment of any of the Obligations.
"NOTES" means, collectively, the Revolving A Note and the
Revolving B Note.
-7-
"NOTICE OF BORROWING" means a request for a Loan, substantially
in the form of Exhibit C hereto.
"NP SECURITY AGREEMENT" means the Assignment and Security
Agreement, dated April 2, 2001, by Xxxxxx Xxxxx in favor of the Collateral
Agent, in respect of certain Partnership Interests and certain related
collateral to secure the Obligations, as the same may be amended or otherwise
modified from time to time.
"OBLIGATIONS" means (i) the obligation of the Borrowers to pay,
as and when due and payable (on demand, by mandatory prepayment, by scheduled
maturity or otherwise), all amounts from time to time owing by them in respect
of any Loan Document, whether for principal, reimbursement obligations,
interest, fees or otherwise, and (ii) the obligations of the Borrowers to
perform or observe all of their other obligations from time to time existing
under any Loan Document. It is hereby understood that in the event a Hedging
Agreement is entered into between the Borrowers and the Bank or any Affiliate of
the Bank, any amount now or hereafter due and payable under such Hedging
Agreement (including without limitation any Termination Compensation) shall
constitute an Obligation under this Agreement and will be secured by the same
Collateral that secures the Loans.
"PARTNERSHIP" means the limited partnerships listed on Schedule
I hereto (as such schedule may be amended from time to time) in which a Borrower
has a limited partnership interest.
"PARTNERSHIP AGREEMENTS" means DWG Partnership Agreement and PF
Partnership Agreement.
"PARTNERSHIP CONSENTS" means the agreements, acknowledgments and
consents executed and delivered by each Partnership and the General Partners
thereof, in form and substance satisfactory to the Bank, pursuant to which such
Partnership and the General Partners thereof consent to, among other things, the
granting of a security interest in such Borrower's partnership interest in the
Partnership in favor of the Bank and the right of the Bank to withdraw such
Borrower's capital under certain circumstances.
"PARTNERSHIP INTEREST" means each Borrower's rights in and to a
Partnership, including such Borrower's rights under the Agreement of Limited
Partnership of such Partnership.
"PARTNERSHIP INTEREST VALUE" means the balance of the capital
accounts of the Borrowers as set forth in the most recent quarterly report
provided to the Borrowers and the Bank by such Partnership, net of accrued
incentive fee allocations, estimated reserves for liabilities (for example, as
provided under Section 10.02 of the Agreement of Limited Partnership of Everest
Capital Fund, L.P.) and any and all other costs of withdrawing the entire amount
of the capital accounts (as determined by the general partner of the applicable
Partnership); PROVIDED, HOWEVER, that if the Bank has not received a quarterly
report from a Partnership within 60 days of the most recent fiscal quarter of
such Partnership, the Partnership Interest Value of such Partnership shall be
determined by the Bank in its sole and absolute discretion.
-8-
"PARTNERSHIP SECURITY AGREEMENTS" means the CP Security
Agreement and the NP Security Agreement, collectively.
"PERMITTED LIEN" means:
(i) Liens created by or otherwise existing under or
in connection with this Agreement or the other Loan Documents in favor
of the Bank;
(ii) Liens for taxes, assessments, charges or other
governmental levies not yet due;
(iii) carriers', warehousemen's, mechanics',
materialmen's, repairmen's or other like Liens arising in the ordinary
course of business which are not overdue or which are being contested
in good faith by appropriate proceedings;
(iv) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation and deposits securing liability to insurance carriers under
insurance or self-insurance arrangements, in each case arising in the
ordinary course;
(v) deposits to secure the performance of bids,
trade contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business; and
(vi) Liens in connection with attachments or
judgments (including judgment or appeal bonds), PROVIDED that the
judgments secured shall, within 10 days after the entry thereof, have
been discharged or execution thereof stayed pending appeal, or shall
have been discharged within 10 days after the expiration of any such
stay.
"PERSON" means an individual, corporation, partnership, limited
liability company, business trust, association, joint-stock company, trust,
unincorporated organization, joint venture or Governmental Authority or other
regulatory body.
"PF" means Xxxxx Family Limited Partnership, a Delaware limited
partnership.
"PF ACCOUNTS ASSIGNMENT" means the Pledge Agreement by PF in
favor of the Collateral Agent, dated April 2, 2001, in respect of the Account
maintained by PF and certain related collateral to secure the Obligations, as
the same may be amended or otherwise modified from time to time.
"PF CONTROL AGREEMENT" means the Account Control Agreement dated
April 2, 2001, by and among PF, the Bank and PaineWebber Incorporated, as
amended or otherwise modified from time to time.
"PF PARTNERSHIP AGREEMENT" means the Agreement of Limited
Partnership of PF, dated as of __________, ___, 1995, by and among the
-9-
Borrowers, as general partners, and Xxxxxx Xxxxx and Xxxxxxx Xxxxx, as custodian
for each of Xxxxxx Xxxxx, Xxxxxxx Xxxxx, Xxxxxxx Xxxxx, Xxxxxxxx Xxxxx, Xxxxxx
Xxxxx and Xxxxxx Xxxxx, as limited partners, of PF.
"PLEDGED SHARES" shall have the meaning assigned thereto in the
Triarc Pledge Agreement.
"PRIME RATE" means the annual rate of interest announced from
time to time as the Bank's "prime" lending rate (which the Borrowers acknowledge
does not necessarily represent the best or most favored rate offered by the Bank
to its best or any particular customers). Whenever applicable to a Loan, the
floating interest rate shall be adjusted automatically as and when the Bank's
Prime Rate shall change on any business day(s).
"REGULATION D" means Regulation D of the Board, as in effect
from time to time, or any regulation of the Board that replaces Regulation D.
"REGULATIONS T, U OR X" means Regulations T, U or X of the Board
as in effect from time to time, or any regulation of the Board that replaces
Regulation T, U or X
"REVOLVING A ADVANCE PERCENTAGE" means 60%, subject to decrease
in accordance with Section 2.1(d)(iii) hereof.
"REVOLVING A COMMITMENT" means the commitment of the Bank to
make Revolving A Loans to the Borrowers pursuant to Section 2.1(a) hereof in an
aggregate principal amount not to exceed $37,500,000 at any time outstanding, as
such amount may be reduced or terminated in accordance with the terms and
conditions of this Agreement.
"REVOLVING A LOANS" has the meaning assigned to such term in the
recitals hereof.
"REVOLVING A MARGIN CALL PERCENTAGE" means 65%, subject to
decrease in accordance with Section 2.1(d)(iii) hereof.
"REVOLVING A NOTE" means a demand promissory note of the
Borrowers, substantially in the form of Exhibit A hereto, evidencing the
Indebtedness resulting from the making of the Revolving A Loans and delivered to
the Bank pursuant to Article III hereof, as such demand promissory note may be
modified or extended from time to time, and any promissory note or notes issued
in exchange or replacement therefor.
"REVOLVING B ADVANCE PERCENTAGE" means, with respect to the
Partnership Interest, 50%, and with respect to the Accounts, 70%.
"REVOLVING B ADVANCE VALUE" means the sum of (i) the Revolving B
Advance Percentage of the Partnership Interest Value, and (ii) the Revolving B
Advance Percentage of the Accounts Value.
"REVOLVING B COLLATERAL" means the Accounts and the Partnership
Interests, and any and all other Collateral covered by the Accounts Assignments
or the Partnership Security Agreements.
-10-
"REVOLVING B COMMITMENT" means the commitment of the Bank to
make Revolving B Loans to the Borrowers pursuant to Section 2.2(a) hereof in an
aggregate principal amount not to exceed $12,500,000 at any time outstanding, as
such amount may be reduced or terminated in accordance with the terms and
conditions of this Agreement.
"REVOLVING B LOANS" has the meaning assigned to such term in the
recitals hereto.
"REVOLVING B MARGIN CALL PERCENTAGE" means, with respect to the
Partnership Interest, 55%, and with respect to the Accounts, 75%.
"REVOLVING B NOTE" means a promissory note of the Borrowers,
substantially in the form of Exhibit B hereto, evidencing the Indebtedness
resulting from the making of the Revolving B Loans and delivered to the Bank
pursuant to Article III hereof, as such promissory note may be modified or
extended from time to time, and any promissory note or notes issued in exchange
or replacement therefor.
"RULE 144" means Rule 144 promulgated by the Securities and
Exchange Commission under the Securities Act of 1933.
"SEC" means the Securities and Exchange Commission or any
replacement national securities exchange.
"STATED AMOUNT" means the maximum aggregate amount of all
drawings which may be made, at the time of determination or thereafter, under a
Letter of Credit.
"TERMINATION COMPENSATION" means all amounts from time to time
owing by a Borrower in respect of any Hedging Agreement as calculated pursuant
to the terms thereof, including, without limitation, all termination
compensations and all other losses, costs, expenses, penalties, liabilities and
other amounts payable by a Borrower in respect of a Hedging Agreement, all
interest (including, without limitation, all interest and other amounts that
accrue or otherwise become payable after the commencement of any case,
proceeding or other action relating to bankruptcy, insolvency or reorganization
of a Borrower whether or not the payment of such interest or other amount is
unenforceable or is not allowable due to the existence of such case, proceeding
or other action), and all of the fees, commissions, costs, expenses,
indemnifications and all other amounts due or to become due under a Hedging
Agreement, in each case that would be payable in connection with the termination
of such Hedging Agreement in accordance with such Hedging Agreement.
"TERMINATION DATE" means January 2, 2003 or, with respect to any
Commitment, such earlier date on which such Commitment shall be terminated
pursuant to this Agreement.
"TRIARC" means Triarc Companies, Inc., a Delaware corporation.
"TRIARC COLLATERAL" means all of the property (tangible and
intangible) purported to be subject to the lien or security interest purported
to be created by the Triarc Pledge Agreement.
"TRIARC COLLATERAL VALUE" means, with respect to any Collateral
consisting of shares of issued and outstanding common stock of Triarc, the
amount determined by multiplying (i) the Market Value of such shares in which
-11-
the Bank has a perfected, first priority security interest, times (ii) the
portion of such shares allocable to Xxxxxx Xxxxx, which initially is two-thirds.
"TRIARC PLEDGE AGREEMENT" means the Pledge and Security
Agreement, dated January 25, 1996, made by DWG in favor of the Collateral Agent,
in respect of certain shares of stock issued by Triarc and certain related
collateral to secure the Obligations, as the same may be amended or otherwise
modified from time to time.
Section 1.2 COMPUTATION OF TIME PERIODS. In this Agreement
in the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each means "to but excluding".
Section 1.3 ACCOUNTING AND OTHER TERMS. Unless otherwise
expressly stated herein, all accounting terms used in this Agreement which are
not otherwise defined herein shall be construed in accordance with sound
accounting principles applied on a basis consistent with those used in the
preparation of the financial statements referred to in Section 4.10(a) hereof.
All terms used in this Agreement which are defined in Article 8 or Article 9 of
the Uniform Commercial Code in effect in the State of New York on the date
hereof and which are not otherwise defined herein shall have the same meanings
herein as set forth therein. Any gender specific term is applicable to both
genders, as the context may require, whenever used herein.
ARTICLE II
THE LOANS
Section 2.1 REVOLVING A LOANS
(a) MAKING THE REVOLVING A LOANS. The Bank has made
"Revolving A Loans" (as defined in the Existing Credit Agreement) to the
Borrowers under the Existing Credit Agreement, which remain outstanding on the
Effective Date (immediately prior to the effectiveness of this Agreement). Upon
the effectiveness of this Agreement, each "Revolving A Loan" (as defined in the
Existing Credit Agreement) shall automatically be deemed to be a "Revolving A
Loan" to the Borrowers by the Bank under this Agreement. In addition, the Bank
agrees, on the terms and conditions hereinafter set forth, to make Revolving A
Loans to the Borrowers from the Effective Date to the Termination Date in an
aggregate principal amount at any one time outstanding not to exceed the amount
of the Revolving A Commitment. The Bank shall have no obligation to make a
Revolving A Loan if the sum of the aggregate principal amount of the outstanding
Revolving A Loans plus the principal amount of such requested Revolving A Loan
would exceed the amount equal to the Revolving A Advance Percentage of the
Triarc Collateral Value. Each Revolving A Loan shall be in an amount equal to
$100,000 or an integral multiple thereof, and shall be made on at least one
Business Day's prior written notice. Each Notice of Borrowing with respect to a
Revolving A Loan shall be irrevocable, shall be signed by either Borrower (it
being understood that only the signature of one Borrower shall be required) and
shall be in writing, substantially in the form of Exhibit C hereto, specifying,
INTER ALIA, the proposed amount of such Revolving A Loan and the Business Day
for such Revolving A Loan. On the Business Day specified and upon fulfillment of
-12-
the applicable terms and conditions set forth in Article III hereof, the Bank
will make the proceeds of such Revolving A Loan available to the Borrowers by
crediting Account Number 000-000-0000 maintained with the Bank, at its office in
Charlotte, North Carolina, not later than 2:00 P.M. (Charlotte time) on such
date. Within the limits of the Revolving A Commitment, the Borrowers may borrow,
prepay and reborrow pursuant to this Section 2.1(a) until the Termination Date.
(b) REPAYMENT AND INTEREST. The Borrowers will repay the
unpaid principal amount of and accrued interest on the Revolving A Loans UPON
DEMAND by the Bank. In the absence of a prior demand (but without limiting the
Bank's right to make a demand at any time in its sole and absolute discretion)
the principal amount of and accrued interest on the Revolving A Loans shall in
any event be due and payable on the Termination Date. The outstanding principal
balance of each Revolving A Loan will bear interest at a rate per annum equal at
all times during each Interest Period to the sum of the Adjusted LIBOR for such
Interest Period plus the Applicable Margin, from the date of the making of such
Loan until such Loan is paid in full. In the absence of prior demand, interest
on each Revolving A Loan shall be paid in arrears on the first day of each month
and on each date on which such Revolving A Loan becomes due and payable (whether
at stated maturity, by acceleration, upon demand or otherwise).
(c) OPTIONAL PREPAYMENT. Any Borrower may prepay any
Revolving A Loan in whole at any time or in part from time to time, without
penalty or premium, each such prepayment to be accompanied by the payment of
accrued interest to the date of such prepayment on the amount prepaid, PROVIDED
that (i) each partial prepayment shall be in a principal amount equal to
$100,000 or an integral multiple thereof, (ii) a Borrower shall give the Bank
irrevocable written notice at least one Business Day prior to the date of the
prepayment of a Revolving A Loan, (iii) after giving effect to any partial
prepayment of a Revolving A Loan the principal amount thereof remaining
outstanding shall not be less than $100,000 or an integral multiple thereof, and
(iv) each prepayment shall be accompanied by the payment of accrued interest to
the date of such prepayment on the amount prepaid and shall be subject to the
provisions of Section 2.10. Each notice of prepayment shall be irrevocable and
shall specify the date and the amount of the prepayment and identify the
Revolving A Loans to be prepaid. Any amount of principal of a Revolving A Loan
prepaid may be reborrowed in accordance with Section 2.1(a).
(d) MANDATORY PREPAYMENT. (a) (i) So long as any Revolving A
Loan is outstanding or the Bank shall have any Revolving A Commitment hereunder,
the Borrowers will, unless the Bank shall otherwise consent in writing, maintain
as collateral security for the Revolving A Loans, accrued interest thereon and
the other related Obligations, Triarc Collateral with an Adjusted Triarc
Collateral Value in excess of the unpaid principal balance of the Revolving A
Loans and accrued interest thereon. If at any time the Bank determines that the
aggregate principal amount of the outstanding Revolving A Loans equals or
exceeds an amount equal to the Revolving A Margin Call Percentage of the Triarc
Collateral Value, the Borrowers will, upon five (5) days' written notice from
the Bank, either (A) prepay the Revolving A Loans by an amount sufficient such
that, after such prepayment, the aggregate principal amount of the outstanding
Revolving A Loans does not exceed the amount equal to the Revolving A Advance
Percentage of the Triarc Collateral Value or (B) provide for a grant to the
Collateral Agent, as collateral security for the Revolving A Loans, accrued
-13-
interest thereon and the other related Obligations, a perfected, first priority
security interest in, and lien on, additional collateral that is in such amounts
and having such market values, liquidity, volatility, marketability and other
characteristics as the Bank may in its sole discretion determine to be
acceptable and sufficient to cause, after the grant of such additional security
interest, the aggregate principal amount of the outstanding Revolving A Loans
and accrued interest thereon not to exceed the amount equal to the sum of (I)
the Revolving A Advance Percentage of the then current Triarc Collateral Value,
plus (II) the loan value assigned by the Bank (in its sole discretion) to any
other Collateral provided to the Collateral Agent pursuant to clause (B) above
(and in connection with such grant, the Borrowers will execute and deliver such
agreements, instruments, legal opinions and other documents as the Bank may
reasonably request). Without limiting the generality of the foregoing, it is
hereby understood and agreed that the Bank shall have no obligation whatsoever
to accept additional shares of Triarc stock as collateral, whether to satisfy
any obligation of the Borrowers that may arise under this Section 2.1(d) or
otherwise.
(ii) If on any date (A) the sum of the aggregate
principal amount of outstanding Revolving A Loans exceeds (B) the
amount of the Revolving A Commitment, the Borrowers shall immediately
prepay the Revolving A Loans in an amount equal to such excess.
(iii) If the shares of the Triarc Class A Common Stock
shall cease to be listed on the New York Stock Exchange or the American
Stock Exchange or included for trading on the NASDAQ Stock
Market/National Market System (a "Delisting Event"), the Bank may at
any time upon obtaining knowledge of the occurrence (or future
occurrence) of such event decrease the Revolving A Advance Percentage
and the Revolving A Margin Call Percentage (in either case, to such
percentage as the Bank may in its sole and absolute discretion
determine). The decrease of the Revolving A Advance Percentage shall be
effective on the later to occur of (i) one Business Day after the Bank
gives either Borrower notice of such decrease, or (ii) any Delisting
Event, and the decrease in the Revolving A Margin Call Percentage shall
be effective on the later to occur of (i) 20 Business Days after the
Bank gives either Borrower notice of such decrease or (ii) any
Delisting Event.
(iv) Each prepayment shall be accompanied by the
payment of accrued interest to the date of such prepayment on the
amount prepaid and shall be subject to the provisions of Section 2.10.
(e) OPTIONAL COMMITMENT REDUCTION. Either Borrower may, upon
at least two Business Days' notice to the Bank, terminate the Revolving A
Commitment at any time or reduce the amount of the Revolving A Commitment from
time to time during the period from the date hereof to and including the
Termination Date, PROVIDED that each such reduction shall be in an amount equal
to $100,000 or an integral multiple thereof, and the amount of the Revolving A
Commitment after any reduction shall be greater than or equal to the aggregate
principal amount of all Revolving A Loans then outstanding.
Section 2.2 REVOLVING B LOANS
(a) MAKING THE REVOLVING B LOANS. The Bank has made
"Revolving B Loans" (as defined in the Existing Credit Agreement) to the
Borrowers under the Existing Credit Agreement, which remain outstanding on the
-14-
Effective Date (immediately prior to the effectiveness of this Agreement). Upon
the effectiveness of this Agreement, each "Revolving B Loan" (as defined in the
Existing Credit Agreement) shall automatically be deemed to be a "Revolving B
Loan" to the Borrowers by the Bank under this Agreement. In addition, the Bank
agrees, on the terms and conditions hereinafter set forth, to make Revolving B
Loans to the Borrowers from the Effective Date to the Termination Date in an
aggregate principal amount at any one time outstanding not to exceed the amount
of the Revolving B Commitment (less the aggregate amount of any L/C
Outstandings). The Bank shall have no obligation to make a Revolving B Loan if
either (i) the sum of the aggregate principal amount of the outstanding
Revolving B Loans plus the principal amount of such requested Revolving B Loan
would exceed the Available Revolving B Commitment, or (ii) the sum of (A) the
aggregate principal amount of the outstanding Revolving B Loans, (B) the
principal amount of the requested Revolving B Loan, and (C) the L/C Outstandings
would exceed the amount equal to the Revolving B Advance Value. Each Revolving B
Loan shall be in an amount equal to $100,000 or an integral multiple of $100,000
in excess thereof, and shall be made on at least one Business Day's prior
written notice. Each Notice of Borrowing with respect to a Revolving B Loan
shall be irrevocable, shall be signed by either Borrower (it being understood
that only the signature of one Borrower shall be required) and shall be in
writing, substantially in the form of Exhibit D hereto, specifying, INTER ALIA,
the proposed amount of such Revolving B Loan and the Business Day for such
Revolving B Loan. On the Business Day specified and upon fulfillment of the
applicable terms and conditions set forth in Article III hereof, the Bank will
make the proceeds of such Revolving B Loan available to the Borrowers by
crediting Account Number 000-000-0000 maintained with the Bank, at its office in
Charlotte, North Carolina, not later than 2:00 P.M. (Charlotte time) on such
date. Within the limits of the Revolving B Commitment, the Borrowers may borrow,
prepay and reborrow pursuant to this Section 2.2(a) until the Termination Date.
It is understood and agreed that from time to time the Bank may issue Letters of
Credit for the account of a Borrower pursuant to L/C Applications, and that such
Letters of Credit and any unpaid drawings shall reduce any amount available to
be borrowed under the Revolving B Commitment.
(b) REPAYMENT AND INTEREST. The Borrowers will repay the
unpaid principal amount of and accrued interest on the Revolving B Loans on the
Termination Date. The outstanding principal balance of each Revolving B Loan
will bear interest at a rate per annum equal at all times during each Interest
Period to the sum of the Adjusted LIBOR for such Interest Period plus the
Applicable Margin, from the date of the making of such Loan until such Loan is
paid in full. Interest on each Revolving B Loan shall be paid in arrears on the
first day of each month and on each date on which such Revolving B Loan becomes
due and payable (whether at stated maturity, by acceleration, upon demand or
otherwise).
(c) OPTIONAL PREPAYMENT. Any Borrower may prepay any
Revolving B Loan in whole at any time or in part from time to time, without
penalty or premium, each such prepayment to be accompanied by the payment of
accrued interest to the date of such prepayment on the amount prepaid, PROVIDED
that (i) each partial prepayment shall be in a principal amount equal to
$100,000 or an integral multiple thereof, (ii) a Borrower shall give the Bank
irrevocable written notice at least one Business Day prior to the date of the
prepayment of a Revolving B Loan, (iii) after giving effect to any partial
prepayment of a Revolving B Loan the principal amount thereof remaining
-15-
outstanding shall not be less than $100,000, and (iv) each prepayment shall be
accompanied by the payment of accrued interest to the date of such prepayment on
the amount prepaid and shall be subject to the provisions of Section 2.10. Each
notice of prepayment shall be irrevocable and shall specify the date and the
amount of the prepayment and identify the Revolving B Loans to be prepaid. Any
amount of principal of a Revolving B Loan prepaid may be reborrowed in
accordance with Section 2.2(a).
(d) MANDATORY PREPAYMENT. (i) So long as any Revolving B
Loan, any Letter of Credit is outstanding, any L/C Outstandings exist or the
Bank shall have any Revolving B Commitment hereunder, the Borrowers will, unless
the Bank shall otherwise consent in writing, maintain as collateral security for
the Revolving B Loans and L/C Outstandings, accrued interest thereon and the
other related Obligations in respect thereof Revolving B Collateral with an
Adjusted Revolving B Collateral Value in excess of the sum of the unpaid
principal balance of the Revolving B Loans, the L/C Outstandings and accrued
interest and unpaid commitment fee thereon. If at any time the Bank determines
that the aggregate principal amount of the outstanding Revolving B Loans, the
L/C Outstandings and accrued interest and unpaid commitment fee thereon equals
or exceeds an amount equal to the Adjusted Revolving B Collateral Value, the
Borrowers will, upon five (5) days' written notice from the Bank, either (A)
prepay the Revolving B Loans by an amount sufficient such that, after such
prepayment, the aggregate principal amount of the outstanding Revolving B Loans,
the L/C Outstandings and accrued interest and unpaid commitment fee thereon does
not exceed the amount equal to the Revolving B Advance Value, or (B) provide for
a grant to the Collateral Agent, as collateral security for the Revolving B
Loans, the L/C Outstandings and accrued interest and unpaid commitment fee
thereon and the other related Obligations in respect thereof, a perfected, first
priority security interest in, and lien on, additional collateral that is in
such amounts and having such market values, liquidity, volatility, marketability
and other characteristics as the Bank may in its sole discretion determine to be
acceptable and sufficient to cause, after the grant of such additional security
interest, the aggregate principal amount of the outstanding Revolving B Loans,
the L/C Outstandings and accrued interest and unpaid commitment fee thereon not
to exceed the amount equal to the sum of (I) the Revolving B Advance Value, plus
(II) the loan value assigned by the Bank (in its sole discretion) to any other
Collateral provided to the Bank pursuant to clause (B) above (and in connection
with such grant, the Borrowers will execute and deliver such agreements,
instruments, legal opinions and other documents as the Bank may reasonably
request). Without limiting the generality of the foregoing, it is hereby
understood and agreed that the Bank shall have no obligation whatsoever to
accept additional interests in any Partnership as additional collateral to
satisfy any obligation of the Borrowers that may arise under this Section
2.2(d).
(ii) If on any date (A) the sum of the aggregate
principal amount of outstanding Revolving B Loans plus the L/C
Outstandings exceeds (B) the amount of the Revolving B Commitment, the
Borrowers shall immediately prepay the Revolving B Loans in an amount
equal to such excess (or, to the extent no Revolving B Loan is
outstanding, provide cash collateral for L/C Outstandings (in
accordance with Section 2.13 hereof)).
(iii) Each prepayment shall be accompanied by the
payment of accrued interest to the date of such prepayment on the
amount prepaid and shall be subject to the provisions of Section 2.10.
-16-
(e) OPTIONAL COMMITMENT REDUCTION. Either Borrower may, upon
at least two Business Days' notice to the Bank, terminate the Revolving B
Commitment at any time or reduce the amount of the Revolving B Commitment from
time to time during the period from the date hereof to and including the
Termination Date, PROVIDED that each such reduction shall be in an amount equal
to $100,000 or an integral multiple thereof, and the amount of the Revolving B
Commitment after any reduction shall be greater than or equal to the sum of the
aggregate principal amount of all Revolving B Loans then outstanding plus the
L/C Outstandings.
Section 2.3 ADDITIONAL MANDATORY PREPAYMENT. If at any time
the Bank, in its sole discretion, determines that any of the transactions
contemplated by this Agreement or any of the other Loan Documents violate any
provision of Regulations T, U or X, the Borrowers will, upon five (5) day's
written notice from the Bank, either (A) prepay the Loans by an amount
sufficient such that, after such prepayment, the transactions contemplated by
the Loan Documents will not violate any provision of Regulations T, U or X (as
determined by the Bank in its sole discretion), or (B) provide for a grant to
the Bank, as collateral security for the Loans and all other Obligations, a
perfected, first priority security interest in, and lien on, additional
collateral that is in such amounts and having such market values, liquidity,
volatility, marketability and other characteristics as the Bank may in its
sole discretion determine to be acceptable and sufficient to cause, after the
grant of such additional security interest, the transactions contemplated by
the Loan Documents not to violate any provision of Regulations T, U or X (and
in connection with such grant, the Borrowers will execute and deliver such
agreements, instruments, legal opinions and other documents as the Bank may
reasonably request).
Section 2.4 DEFAULT INTEREST. Notwithstanding anything
herein to the contrary, after the occurrence and during the continuance of an
Event of Default, each Loan shall bear interest at a rate per annum equal to
the sum of (i) the Base Rate in effect from time to time, plus (ii) 3% (the
"DEFAULT RATE"), payable on demand.
Section 2.5 EVIDENCE OF CREDIT EXTENSIONS. (a) On the
Effective Date, the Borrowers are executing and delivering to the Bank the
Revolving A Note and the Revolving B Note, each dated the Effective Date, in
substantially the form attached hereto as Exhibit A and Exhibit B,
respectively, made by the Borrowers to the order of the Bank and in the
original principal amount of $37,500,000 and $12,500,000, respectively. The
Revolving A Loans shall be evidenced by the Revolving A Note, and the
Revolving B Loans shall be evidenced by the Revolving B Note. On the Effective
Date, the Revolving A Note (as defined in the Existing Credit Agreement) shall
be amended, superseded and replaced by the Revolving A Note and the Revolving
B Note (as defined in the Existing Credit Agreement) shall be amended,
superseded and replaced by the Revolving B Note. It is the intention of the
parties hereto that this Amendment shall not in any way constitute (i) an
extinguishment of the indebtedness of the Borrowers under the Revolving A Note
and Revolving B Note (each, as defined in the Existing Credit Agreement), (ii)
a release of the Borrowers from such obligations, or (iii) a novation of the
Revolving A Note or Revolving B Note (each, as defined in the Existing Credit
Agreement). Promptly after delivery of the Revolving A Note and Revolving B
Note, duly executed by the Borrowers to the Bank, the Revolving A Note,
-17-
Revolving B Note and the Line Note (each, as defined in the Existing Credit
Agreement), shall each be marked "cancelled" and replaced by the Revolving A
Note and Revolving B Note, respectively.
(b) The Bank shall record advances and principal payments of
each Loan on the grid attached to the applicable Note or, at its option, in its
records. The Bank's record of any Loan shall be conclusive absent demonstrable
error. Notwithstanding the foregoing, the failure to make or an error in making
a notation with respect to any Loan or any payment shall not limit or otherwise
affect the Obligations of the Borrowers hereunder or under any Note.
Section 2.6 PAYMENT. Payment of principal, interest and any
other sums due under this Agreement and under each Note shall be made without
set-off or counterclaim in dollars and in immediately available funds on the
day such payment is due not later than 12:00 Noon New York time. All sums
received after such time shall be deemed received on the next Business Day and
principal payments or sums (other than interest) due hereunder shall bear
interest for an additional day. All payments shall be made to the Bank, if by
wire transfer, to Bank of America, N.A., 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, XX
00000, ABA #000-000-000, Credit Account: Cost Center 00066, Re: Loan Payment
for Xxxxxx Xxxxx, with a Loan Number to be specified by the Bank, Special
Instructions: Contact Xxxxxx Xxxxx (000-000-0000) upon receipt; if by mail, to
Bank of America, N.A., X.X. Xxx 00000, Xxxxxxxxx, XX 00000-0000; or to such
other address as the Bank may advise either Borrower in writing.
Section 2.7 COMPUTATIONS OF INTEREST; BUSINESS DAY.
(a) All computations of interest under this Agreement and
each Note shall be made on the basis of a year of three hundred sixty (360) and
actual days elapsed. Interest shall accrue on each Loan outstanding from and
including the date such Loan is made by the Bank to but excluding the date on
which such Loan is repaid.
(b) Payment of all amounts due hereunder shall be made on a
Business Day. Any payment due on a day that is not a Business Day shall be made
on the next Business Day unless the next Business Day would fall in the next
calendar month, in which case such payment shall be made on the Business Day
immediately preceding the due date.
Section 2.8 INCREASED COSTS, ETC.
(a) If, after the date of this Agreement, due to either (i)
the introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other Governmental Authority (whether or not having the force of law),
there shall be any (x) change in the basis of taxation of payments to the Bank
of the principal of or interest on any Loan (excluding changes in the rate of
tax payable on the Bank's overall income and bank franchise taxes) or (y)
imposition or change in any reserve or similar requirement, and the result of
any of the foregoing is an increase in the cost to the Bank of agreeing to make
or making, funding or maintaining the Loans (which, with respect to any Loan
which is then accruing interest at a rate based on Adjusted LIBOR, is not
otherwise included in its determination of Adjusted LIBOR), then the Borrowers
shall from time to time, upon demand by the Bank, pay to the Bank an additional
amount sufficient to compensate the Bank for such increased cost. A certificate
-18-
as to the amount of such increased cost, submitted to either Borrower by the
Bank shall be conclusive and binding for all purposes, absent demonstrable
error.
(b) If the Bank determines that compliance with any law or
regulation or any guideline or request from any central bank or other
Governmental Authority (whether or not having the force of law) affects or would
affect the amount of capital required or expected to be maintained by the Bank
or any corporation controlling the Bank and that the amount of such capital is
increased by or based upon the existence of any of the Loans or any of the
Commitments, then the Borrowers shall, upon demand by the Bank, pay to the Bank
an additional amount sufficient to compensate the Bank or such corporation in
the light of such circumstances, to the extent that the Bank reasonably
determines such increase in capital to be allocable to the existence of any of
the Loans or any of the Commitments. A certificate as to such amounts submitted
to the Borrowers by the Bank shall be conclusive and binding for all purposes,
absent demonstrable error.
(c) Prior to making any demand for compensation under this
Section 2.8, (i) the Bank will use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to file any certificate
or document requested by a Borrower or to change the jurisdiction of its lending
office if the making of such a filing or change would avoid the need for, or
reduce the amount of, any such additional amounts that may thereafter accrue and
would not, in the judgment of the Bank, be otherwise disadvantageous to the
Bank, and (ii) the Bank will permit the Borrowers to prepay all or any part of
the affected Loans, together with interest to the date of payment and payment of
funding losses pursuant to Section 2.10, PROVIDED that nothing herein shall
relieve the Borrowers from their obligations to compensate the Bank for
increased costs or reduced return incurred prior to the taking of the actions
contemplated by clauses (i) and (ii) above.
Section 2.9 ILLEGALITY. If, after the date of this
Agreement, the adoption of any applicable law, rule or regulation, or any
change in an existing law, rule or regulation, or any change in the
interpretation or administration thereof by any Governmental Authority charged
with the interpretation or administration thereof, or compliance by the Bank
with any request or directive (whether or not having the force of law) of any
such Governmental Authority, makes it unlawful or impossible for the Bank to
make, maintain or fund any Loan at an interest rate based on Adjusted LIBOR,
the Bank shall forthwith give notice thereof to the Borrowers, whereupon the
obligation of the Bank to make Loans at a rate based on Adjusted LIBOR shall
be suspended until the Bank notifies the Borrowers that the circumstances
giving rise to such suspension no longer exist. The Bank will use reasonable
efforts (consistent with its internal policy and legal and regulatory
restrictions) to file any certificate or document requested by a Borrower or
to change the jurisdiction of its lending office if the making of such a
filing or change would avoid the need for, or reduce the amount of, any such
additional amounts that may thereafter accrue and would not, in the judgment
of the Bank, be otherwise disadvantageous to the Bank. If the Bank makes a
reasoned determination that it may not lawfully continue to maintain and fund
any Loan to maturity at a rate based on Adjusted LIBOR, and so specifies in
such notice, then effective on the date specified in such notice each affected
Loan shall bear interest at the Base Rate in effect from time to time, payable
monthly in arrears (in the absence of prior demand).
-19-
Section 2.10 FUNDING LOSSES. The Borrowers agree to
reimburse the Bank and to hold the Bank harmless from any loss or expense
which the Bank may sustain or incur as a consequence of:
(a) the failure of the Borrowers to make any payment or
required prepayment of principal of any Loan (including payments made after any
acceleration thereof);
(b) the failure of the Borrowers to make any prepayment
permitted hereunder after giving notice thereof;
(c) the repayment of a Loan on a day which is not the last
day of an Interest Period (whether due to acceleration, demand, mandatory or
optional prepayment, or otherwise); or
(d) the failure for any reason (other than a wrongful
default by the Bank) of a Borrower to borrow any Loan after notice has been
given to the Bank in accordance with Section 2.1(a) or 2.2(a) hereof (whether or
not such notice is withdrawn);
including any such loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain a Loan hereunder at a rate
based on Adjusted LIBOR or from fees payable to terminate the deposits from
which such funds were obtained. Solely for purposes of calculating amounts
payable by the Borrowers to the Bank under this section, each Loan bearing
interest at a rate based on Adjusted LIBOR (and each related reserve, special
deposit or similar requirement) shall be conclusively deemed to have been
funded by a matching deposit in Dollars in the interbank eurodollar market for
a comparable amount and for the respective Interest Period, whether or not
such Loan was in fact so funded.
Section 2.11 UNAVAILABILITY. If the Bank determines that for
any reason adequate and reasonable means do not exist for ascertaining
Adjusted LIBOR for any Interest Period, the Bank will forthwith give notice of
such determination to a Borrower. Commencing at the end of each Interest
Period then in effect, the respective Loan shall bear interest at the Base
Rate (rather than at a rate based on Adjusted LIBOR) until the Bank revokes
such notice in writing.
Section 2.12 SPECIAL PREPAYMENT. The provisions of Sections
2.8, 2.9 and 2.10 shall also apply to any assignee permitted pursuant to
Section 7.7 and shall apply to any unassigned portion of the Loans retained by
the Bank (regardless of whether the Bank may have sold a participation
interest in such retained portion to a participant permitted pursuant to
Section 7.7). If demand for payment is made pursuant to Section 2.8 or 2.10 or
if notice of illegality is given pursuant to Section 2.9, whether by any such
permitted assignee or by the Bank on behalf of any such permitted participant,
then the Borrowers may prepay in full (but not in part) such assignee's or
participant's interest in the Loans on the last day of the Interest Period
during which such demand for additional amounts was made or during which such
notice of illegality was given. Any principal amount, interest or increased
costs received by any such assignee or participant pursuant to this Section
2.12 shall not be required to be shared with the Bank and any other assignees
or participants.
-20-
Section 2.13 CASH COLLATERAL FOR LETTERS OF CREDIT. If a
Borrower is required pursuant to the terms of this Agreement or any other Loan
Document to provide cash collateral in respect of the Letters of Credit
(including, without limitation, pursuant to Section 2.2(d)(ii) or Section
6.2(e) hereof), the Borrowers shall deposit in an account with the Bank an
amount in cash equal to the L/C Outstandings (or such lesser amount as shall
be required hereunder or thereunder). Any such deposit shall be held by the
Bank as collateral for the payment and performance of the Obligations. The
Bank shall have exclusive dominion and control, including the exclusive right
of withdrawal, over any such account. Other than any interest earned on the
investment of such deposits in investments customarily provided by the Bank in
respect of such deposits, which investments shall be selected by the Bank in
its sole but reasonable discretion (unless an Event of Default shall have
occurred and be continuing, in which case the Bank shall have the option, in
its sole discretion, to decline to invest such deposits), such deposits shall
not bear interest. Interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall automatically be
applied by the Bank to reimburse the Bank for payments made under Letters of
Credit and, if the maturity of the Loans has been accelerated, may be applied
(at the Bank's discretion) to satisfy the Obligations secured thereby. If a
Borrower is required to provide an amount of cash collateral hereunder as a
result of an Event of Default, such amount (to the extent not applied as
aforesaid) shall be returned to a Borrower promptly after all Events of
Default have been cured or waived.
ARTICLE III
CONDITIONS PRECEDENT
Section 3.1 CONDITIONS TO INITIAL LOAN. This Agreement shall
become effective on the date that the Bank shall have received the following,
each in form and substance satisfactory to the Bank and its counsel and,
unless indicated otherwise, dated the Effective Date:
(a) AGREEMENT. A copy of this Agreement, duly executed by
the Borrowers.
(b) REVOLVING A NOTE. The Revolving A Note, duly executed by
the Borrowers.
(c) REVOLVING B NOTE. The Revolving B Note, duly executed by
the Borrowers.
(d) THE PF ACCOUNTS ASSIGNMENT. The PF Accounts Assignment,
duly executed by PF.
(e) FORM U-1. Federal Reserve Forms U-1 provided for in
Regulation U issued by the Board, the statements made in which shall be such,
in the opinion of the Bank, as to permit the transactions contemplated hereby
in accordance with such Regulation.
(f) PARTNERSHIP AGREEMENTS. A copy of the DWG Partnership
Agreement and the PF Partnership Agreement, duly certified by a partner of DWG
and a partner of PF, respectively.
-21-
(g) FINANCIAL STATEMENTS. A copy of the balance sheet of DWG
as at December 31, 2000, duly certified by a partner of DWG.
(h) PF FINANCING STATEMENTS. Acknowledgment copies of
appropriate financing statements on Form UCC-1, duly executed by PF and duly
filed in such office or offices as may be necessary or, in the opinion of the
Bank, desirable to perfect the security interests purported to be created by
the PF Accounts Assignment.
(i) LIEN REPORTS. Certified copies of requests for copies or
information on Form UCC-11, listing all effective financing statements which
name either Borrower, PF or DWG as debtor and which are filed in the offices
required by the Bank, together with copies of such financing statements, none
of which, except as otherwise agreed to in writing by the Bank, shall cover
any of the Collateral.
(j) OPINION OF COUNSEL TO BORROWERS. An opinion, dated the
Effective Date, of the law firm of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx,
counsel to the Borrowers, PF and DWG, in the form of Exhibit F hereto.
(k) ACKNOWLEDGMENT AND CONSENT. An Acknowledgment and
Consent by DWG, duly executed by DWG.
(l) ACKNOWLEDGMENT AND CONSENT. An Acknowledgment and
Consent by PF, duly executed by PF.
(m) PARTNERSHIP DOCUMENTS. Partnership Consents with respect
to each Partnership, together with a copy of each such Person's organizational
document.
(n) NP SECURITY AGREEMENT The NP Security Agreement, duly
executed by Xxxxxx Xxxxx.
(o) CP SECURITY AGREEMENT The CP Security Agreement, duly
executed by Xxxxxxx Xxxxx.
Section 3.2 CONDITIONS TO ALL LOANS. The obligation of the
Bank to make any Loan is subject to the conditions precedent that:
(a) The following statements shall be true, and the
acceptance of the proceeds of such Loan by a Borrower shall be deemed to be a
representation and warranty of each Borrower on the date of such Loan that, (i)
the representations and warranties contained in Article IV of this Agreement and
in each other Loan Document and certificate or other writing delivered to the
Bank pursuant hereto on or prior to the date for such Loan are true and correct
on and as of such date as though made on and as of such date; (ii) no Event of
Default or Default has occurred and is continuing or would result from the
making of such Loan to be made on such date; and (iii) no material adverse
change in the financial condition, properties or prospects of any Loan Party
shall have occurred and be continuing on the date of each request for a Loan;
and
-22-
(b) The Bank shall have received a Notice of Borrowing in
accordance with Section 2.1(a) or 2.2(a) hereof, as applicable, with respect to
any Revolving A Loan or Revolving B Loan.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants to the Bank that:
Section 4.1 GOOD TITLE TO DWG INTEREST. Xxxxxx Xxxxx and
Xxxxx X. May are the sole general partners and the sole limited partners of
DWG, which interests are owned free and clear of any Lien.
Section 4.2 NO INSOLVENCY PROCEEDINGS. The Borrowers have no
knowledge of any insolvency proceeding of any type instituted with respect to
PF, DWG or Triarc.
Section 4.3 NO DEFAULT. No Default or Event of Default has
occurred and is continuing.
Section 4.4 ENFORCEABLE OBLIGATIONS. The Borrowers have the
legal capacity and right to execute, deliver and perform this Agreement, each
Note and the other Loan Documents. This Agreement, each Note and the other
Loan Documents constitute legal, valid and binding obligations of the
Borrowers, enforceable against each Borrower that is a party thereto in
accordance with their respective terms.
Section 4.5 NO LEGAL BAR. The execution, delivery and
performance of this Agreement, each Note and the other Loan Documents, and the
borrowings hereunder, will not violate any law or regulation (including,
without limitation, Regulations T, U or X) or any contractual obligation of
either Borrower and will not result in the creation or imposition of a Lien on
any property of a Borrower, other than security interests created by the Loan
Documents.
Section 4.6 NO LITIGATION. Except as disclosed on Schedule
4.6, there is no litigation or proceeding of or before any arbitrator or
Governmental Authority pending or threatened against any Loan Party (as to
which either Borrower has received notice in writing) (a) with respect to this
Agreement, any Loan, the use of the proceeds thereof or the Triarc Collateral,
or (b) which could reasonably be expected to have a Material Adverse Effect.
Section 4.7 TAXES. (a) The Borrowers have filed or caused to
be filed all tax returns which are required to be filed and have paid all
taxes shown to be due and payable on such returns or on any assessments made
against them or any of their property by any Governmental Authority except to
the extent any such taxes are being contested in good faith and any exceptions
thereto are set forth on Schedule 4.7. No tax Lien has been filed with respect
to any material tax liability against either Borrower, and, to the Borrowers'
knowledge, no tax assessment is pending against either Borrower, except as set
forth on Schedule 4.7.
-23-
(b) The Borrowers have furnished to the Bank true and
correct copies of the federal and state tax returns of PF for calendar year
1999.
Section 4.8 PARTNERSHIP AGREEMENTS. The Borrowers have
delivered to the Bank a true and correct copy of the Partnership Agreements,
as in effect on the date hereof.
Section 4.9 APPROVALS. No authorization or approval or other
action by, and no notice to or filing with, any Governmental Authority or
other regulatory body, and no consent of any other Person, is required for the
due execution, delivery and performance by either Borrower of any Loan
Document to which such Person is a party.
Section 4.10 FINANCIAL CONDITION. (a) The personal financial
statements (including the notes relating thereto) of the Borrowers dated
December 31, 2000, copies of which have been previously delivered to the Bank,
fairly present the financial condition of the Borrowers as at the date
thereof, and since such date there has been no material adverse change in the
financial condition, properties or prospects of either Borrower.
(b) The balance sheet of DWG as at December 31, 2000, copies
of which have been previously delivered to the Bank, fairly presents the
financial condition of DWG as at such date, all in accordance with sound
accounting principles consistently applied, and since December 31, 2000 there
has been no material adverse change in the financial condition, properties or
prospects of DWG (it being understood that any decrease in the per share price
of common stock of Triarc shall not constitute a material adverse change for
purposes of this paragraph).
Section 4.11 REGULATION U. Such Borrower is not and will not
be engaged in the business of extending credit for the purpose of purchasing
or carrying margin stock (within the meaning of Regulation U issued by the
Board), and no proceeds of any Loan will be used for the purpose, whether
immediate, incidental or ultimate, of purchasing or carrying margin stock, or
to refinance any loan or other Indebtedness the proceeds of which were used to
purchase or carry, any margin stock or to extend credit to others for the
purpose of purchasing or carrying any margin stock.
Section 4.12 PURPOSE OF LOANS. The proceeds of each Loan
will be used only for specific investment purposes, but in no event shall such
proceeds be used for any investment purpose inconsistent with Section 4.11
hereof.
Section 4.13 FULL DISCLOSURE. No Loan Document or schedule
or exhibit thereto, and no certificate, report, statement or other document or
information furnished to the Bank in connection herewith or with the
consummation of the transactions contemplated hereby, contains any material
misstatement of fact or omits to state a material fact or any fact necessary
to make the statements contained herein or therein not misleading in light of
the circumstances under which they were made. There is no fact known to any
Borrower (other than public information as to matters of a general economic
nature) that materially adversely affects the financial condition of a
Borrower, PF or DWG or the value of any of the Collateral that has not been
disclosed to the Bank in writing prior to the Effective Date.
-24-
ARTICLE V
COVENANTS
So long as any Obligation is outstanding, the Guaranty, any
Letter of Credit or any Hedging Agreement is outstanding or the Bank shall
have any Commitment hereunder, the Borrowers will, unless the Bank shall
otherwise consent in writing:
Section 5.1 FINANCIAL STATEMENTS. Deliver to the Bank in
form and detail satisfactory to the Bank:
(a) as soon as available, but not later than sixty (60) days
after the end of each calendar quarter and for that portion of the calendar
year ending with such quarter, a statement of assets and liabilities
(including, without limitation, contingent liabilities) of the Borrowers as of
the close of such quarter, certified by the Borrowers to the best of their
knowledge as being true and complete in all material respects;
(b) together with each statement of assets and liabilities,
(i) a letter showing which assets each Borrower owns
individually, which assets are owned by the other Borrower individually
and which assets are owned jointly by the Borrowers. Such assets shall
be valued on a basis consistent with that used in the preparation of
the December 31, 2000 statement of assets and liabilities, except as
explained in any notes to the quarterly statement which such letter
accompanies; and
(ii) an update on the status of the audit by the
Internal Revenue Service of the Borrower's federal tax returns (which
update may be included in the footnotes to such statement of assets and
liabilities; the level of disclosure for such updates will be
sufficient if the same as for previous updates included in such
footnotes);
(c) as soon as available and in any event not more than 90
days after the end of each calendar year, (i) a statement of personal cash
flow of the Borrowers for the year then ended and projected cash flow of the
Borrowers for the following year, certified by the Borrowers to the best of
their knowledge as being true and complete in all material respects, and (ii)
a balance sheet of DWG, showing the financial condition of DWG as of the close
of such year and prepared in accordance with sound accounting principles
consistently applied, all certified by its partners as fairly presenting in
all material respects the financial condition of DWG;
(d) promptly after the filing thereof but in any event not
later than October 30 of each year, copies of all Federal and state tax
returns required to be filed by PF for the preceding calendar year; and
(e) promptly upon request, such other information concerning
the operations, condition (financial or otherwise), business, assets or
prospects of any Loan Party as the Bank from time to time may reasonably
request.
Section 5.2 NOTICES. Promptly notify the Bank of:
-25-
(a) the occurrence of any Default or Event of Default;
(b) (i) any breach or non-performance of, or any default
under, any contractual obligation of any Loan Party which could have a
Material Adverse Effect; and (ii) any action, suit, litigation or proceeding
which may exist at any time which could reasonably be expected to have a
Material Adverse Effect;
(c) the commencement of, or any material development in, any
litigation or proceeding affecting any Loan Party (i) which could reasonably
be expected to have a Material Adverse Effect, (ii) in which the relief sought
is an injunction or other stay of the performance of this Agreement, any Note
or any other Loan Document or (iii) any litigation involving any of the
Collateral; and
(d) any Material Adverse Effect subsequent to the date of
the most recent statement of assets and liabilities of the Borrowers delivered
to the Bank pursuant to Section 5.1.
Each notice pursuant to this section shall be accompanied by a written
statement signed by the Borrowers, setting forth details of the occurrence
referred to therein, and stating what action the Borrowers propose to take
with respect thereto and at what time. Each notice under Section 5.2(a) shall
describe with particularity the provisions of this Agreement, the particular
Note or other Loan Document that have been breached.
Section 5.3 PAYMENT OF OBLIGATIONS. Pay all taxes,
assessments, governmental charges and other obligations when due, except as
may be contested in good faith or those as to which a bona fide dispute may
exist.
Section 5.4 FURTHER ASSURANCES. Execute and deliver to the
Bank such further instruments and do such other further acts as the Bank may
reasonably request to carry out more effectively the purposes of this
Agreement, the other Loan Documents and any agreements and instruments
referred to herein.
Section 5.5 DWG. Not permit DWG to (i) conduct, transact or
otherwise engage in, or commit to conduct, transact or otherwise engage in,
any transaction, business or operation other than the ownership of the Pledged
Shares, (ii) incur, create, assume or suffer to exist any Indebtedness or
other liabilities or obligations, except obligations owing by it under the
Loan Documents to which it is a party, (iii) create or suffer to exist any
Lien upon or with respect to any of its properties, whether now owned or
hereafter acquired, or assign any right to receive income , except for any
Lien in favor of the Bank or the Collateral Agent, (iv) liquidate, dissolve,
merge or consolidate with, or sell, assign, lease or otherwise dispose of
(whether in one transaction or in a series of transaction), any of its assets
(whether now owned or hereafter acquired) to any Person, (v) own, lease,
manage or otherwise operate any properties or assets other than the ownership
of the Pledged Shares, or (vi) make any payment other than in accordance with
the provisions of the Loan Documents.
Section 5.6 PF. Not permit PF to (i) conduct, transact or
otherwise engage in, or commit to conduct, transact or otherwise engage in,
-26-
any transaction, business or operation other than the ownership of property to
be held as investment, or (ii) liquidate, dissolve, merge or consolidate with
any Person.
Section 5.7 CHANGE IN STATE OF RESIDENCE. Not change the
state of such Person's principal place of residence (which is currently New
York) without (a) notifying the Bank in writing prior to such change, (b)
designating in writing an agent for service of process in the State of New
York and notifying the Bank of same, (c) delivering to the Bank the written
acceptance of such agent and (d) executing such UCC financing statements as
the Bank may reasonably request in connection with the continued perfection of
the Bank's security interest in any of the Collateral pursuant to any Loan
Document.
Section 5.8 PARTNERSHIP AGREEMENTS. Not amend, modify,
alter, terminate or waive any provision of the Partnership Agreements.
Section 5.9 NET WORTH. Maintain at all times a minimum Net
Worth of $150 million. As used herein, "Net Worth" means the total assets of
the Borrowers minus the total liabilities of the Borrowers, all determined in
accordance with sound accounting principles.
Section 5.10 RULE 144 COVENANTS.
(a) Not sell any securities of the same class or convertible
into the same class of securities as the Triarc Collateral, whether or not
such securities are pledged hereunder, from the date hereof until the
Obligations have been paid in full, and in the event of any such sale
consented to by the Bank will furnish the Bank with a copy of any Form 144
filed in respect of such sale. The Borrowers will cause any Person with whom
it shall be deemed one "person" for purposes of Rule 144(a)(2) to refrain from
selling any securities of the same class or convertible into the same class of
securities as the Triarc Collateral, whether or not such securities are
pledged hereunder, from the date hereof until the Obligations have been paid
in full, all Letters of Credit cancelled, the Guaranty and any Hedging
Agreement terminated and all of the Commitment terminated, and in the event of
any such sale consented to by the Bank will furnish the Bank with a copy of
any Form 144 filed in respect of such sale.
(b) Following the occurrence and during the continuance of
an Event of Default, cooperate fully with the Bank with respect to any sale by
the Bank of any of the Triarc Collateral, including full and complete
compliance with all requirements of Rule 144, and will give to the Bank all
information and will do all things necessary, including the execution of all
documents, forms, instruments and other items, to comply with Rule 144 for the
complete and unrestricted sale and/or transfer of the Rule 144 Securities.
Section 5.11 NOTICE OF DELISTING EVENT . A Borrower shall
notify the Bank in writing of the occurrence of any Delisting Event not later
than 20 Business Days prior to such occurrence.
-27-
ARTICLE VI
EVENTS OF DEFAULT
Section 6.1 EVENT OF DEFAULT. Any of the following shall
constitute an "EVENT OF DEFAULT":
(a) NONPAYMENT. Either (i) the Borrowers shall fail to pay
any principal of a Loan or any Note when due (whether by scheduled maturity,
mandatory prepayment, acceleration, demand or otherwise), or (ii) the
Borrowers shall fail to pay any interest on a Loan or any Note or any other
amount payable hereunder and such failure shall continue for 3 Business Days,
or (iii) a Borrower shall fail to pay any amount pursuant to the Guaranty or
any L/C Application when due and such failure shall continue for 3 Business
Days; or
(b) REPRESENTATION OR WARRANTY. Any representation or
warranty by any Loan Party made or deemed made herein, in any other Loan
Document or in any certificate, document or financial or other statement
furnished by a Loan Party pursuant to a Loan Document shall have been
incorrect or misleading in any material respect on or as of the date made or
deemed made; or
(c) OTHER DEFAULT. (i) A Borrower shall fail to perform or
observe any term or covenant in Section 2.1(d), 2.2(d), 2.4 or 2.13 hereof
after any applicable notice and cure period expressly set forth therein, or
(ii) a Borrower shall fail to perform or observe any term or covenant in
Section 5.1 or 5.2 hereof after any applicable notice and cure period
expressly set forth therein (if any), or (iii) any Loan Party shall fail to
perform or observe any other material term or covenant contained in this
Agreement or any other Loan Document, and not referred to in another
subsection of this Section 6.1, and such default continues unremedied for a
period of 20 days or (iv) a Loan Party shall fail to perform or observe any
other term or covenant contained in this Agreement or any other Loan Document,
and not referred to in clauses (i), (ii) or (iii) of this subsection (c) or in
any other subsection of this Section 6.1, and such default continues
unremedied for a period of 20 days after the Bank gives notice to either
Borrower of same; or
(d) CROSS-DEFAULT. Any Loan Party (i) shall fail to make any
required payment when due in respect of any Indebtedness having a principal or
face amount of $10,000,000 or more when due (whether at scheduled maturity or
required prepayment or by acceleration, demand, or otherwise); or (ii) shall
fail to perform or observe any other condition or covenant, or any other event
shall occur or condition exist, under any agreement or instrument relating to
any such Indebtedness, and such failure continues after the applicable grace
or notice period, if any, specified in the document relating thereto, if the
effect of such failure, event or condition is to cause, or to permit the
holder or holders of such indebtedness or beneficiary or beneficiaries of such
Indebtedness (or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause such Indebtedness to be declared to be
due and payable prior to its stated maturity, or such contingent obligation to
become payable or cash collateral in respect thereof to be demanded; or
(e) VOLUNTARY PROCEEDINGS. Any Loan Party (i) becomes
insolvent, or generally fails to pay, or admits in writing the inability to
-28-
pay such Loan Party's debts as they become due, subject to applicable grace
periods, if any, whether at stated maturity or otherwise; (ii) commences a
proceeding under the bankruptcy laws of any state or of the United States with
respect to such Loan Party; or (iii) takes any action to effectuate or
authorize any of the foregoing; or
(f) INVOLUNTARY PROCEEDINGS. (i) Any involuntary bankruptcy
proceeding is commenced or filed against any Loan Party or any writ, judgment,
warrant of attachment, execution or similar process, is issued or levied
against a substantial part of any Loan Party's properties, and any such
proceeding or petition is not dismissed, or such writ, judgment, warrant of
attachment, execution or similar process is not released, vacated or fully
bonded within 90 days after commencement, filing or levy; (ii) any Loan Party
admits the material allegations of a petition against such Loan Party in any
insolvency proceeding, or an order for relief (or similar order under non-U.S.
law) is ordered in any insolvency proceeding; or (iii) any Loan Party
acquiesces in the appointment of a receiver, trustee, custodian, conservator,
liquidator, mortgagee in possession (or agent therefor), or other similar
person for a substantial portion of such Loan Party's property or business; or
(g) MONETARY JUDGMENTS; LIENS. One or more final
(non-interlocutory) judgments, orders or decrees is entered against any Loan
Party or a Lien is filed against property of any Loan Party (other than as
contemplated hereby) involving in the aggregate liability (not fully covered
by independent third-party insurance) as to any single or related series of
transactions, incidents or conditions, of $10,000,000 or more, and the same
remains unvacated and unstayed pending appeal (if a judgment) or unbonded (if
a Lien) for a period of 10 days after the entry thereof; or
(h) IMPAIRMENT OF SECURITY. Any provision of the Triarc
Pledge Agreement, the CP Security Agreement, the NP Security Agreement, the CP
Accounts Assignment, the PF Accounts Assignment or any other security
document, after delivery thereof pursuant hereto, shall for any reason cease
to be valid and binding on or enforceable against any Loan Party that is a
party thereto, or such Loan Document ceases to create a valid security
interest in the collateral purported to be covered thereby or such security
interest ceases for any reason to be a perfected and first priority security
interest; or
(i) PUBLIC INFORMATION. For so long as the shares of the
Triarc Class A Common Stock shall be listed on the New York Stock Exchange or
the American Stock Exchange or included for trading on the NASDAQ Stock
Market/National Market System, Triarc shall at any time cease to satisfy
either of the conditions set forth in paragraph (c) of Rule 144 (unless at
such time pursuant to paragraph (k) of Rule 144 the Bank can sell all of the
Triarc Class A Common Stock pledged to the Bank); or
(j) DWG CONTROL. Xxxxxx Xxxxx shall cease to own directly,
beneficially and of record, not less than 66-2/3% of the partnership interests
in DWG, or Xxxxxx Xxxxx and Xxxxx X. May shall cease collectively to own
directly, beneficially and of record, 100% of the partnership interests in
DWG;
(k) DEATH OR INCAPACITY. Xxxxxx Xxxxx shall die or shall
cease to have legal capacity;
-29-
(l) HEDGING AGREEMENT. (i) Any "Event of Default" shall
occur (if the Bank is not the defaulting party), or (ii) any "Termination
Event" shall occur and a Borrower shall fail to make any payment of
Termination Compensation as and when due and payable, under a Hedging
Agreement; or
(m) PF CONTROL. Xxxxxx Xxxxx or Xxxxxxx Xxxxx shall cease to
be a general partner of PF.
Section 6.2 REMEDIES. If any Event of Default occurs, the
Bank may:
(a) declare the aggregate principal amount of the
outstanding Loans, all interest accrued and unpaid thereon, and all other
Obligations to be immediately due and payable, whereupon such Loans, all
interest accrued and unpaid thereon, and all other Obligations shall become
and be forthwith due and payable without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by the
Borrowers;
(b) exercise all rights and remedies available to it
hereunder, under any Note, any other Loan Document or applicable law;
(c) declare all or any of the Commitments to be terminated,
whereupon such Commitment(s) shall forthwith terminate;
(d) enforce, as Collateral Agent, all of the Liens and
security interests created pursuant to the Loan Documents;
(e) either (x) require that each Borrower pay to the Bank an
amount equal to the aggregate Stated Amount of all outstanding Letters of
Credit, plus the amount covered by the Guaranty, plus the aggregate amount of
Termination Compensation that would be payable at such time under all Hedging
Agreements, which amount shall be held by the Bank in a cash collateral
account to be established and maintained with the Bank in accordance with
Section 2.13 hereof, is hereby pledged and assigned to the Bank as security
for the Obligations and may be applied by the Bank from time to time to pay
any of the Obligations, or (y) make payment of all or part of the Stated
Amount of any Letter of Credit to an account at the Bank designated by the
Bank for the purpose of future payments to be made to the beneficiary of any
Letter of Credit, in which event such payment shall be treated in all respects
as a drawing under such Letter of Credit in full compliance therewith
(notwithstanding that the beneficiary shall have failed to present all or any
of the documents or satisfied all or any of the requirements for a drawing
thereunder) and shall result in an L/C Obligation; and
(f) enforce, as Collateral Agent, all of the Liens and
security interests pursuant to the Loan Documents;
PROVIDED, HOWEVER, that (i) upon the occurrence of any event specified in
paragraph (c)(i), (f) or (g) of Section 6.1 above (in the case of clause (i)
of paragraph (f), after the 90-day period expressly set forth therein), each
Commitment shall automatically terminate and the aggregate principal amount of
the outstanding Loans, all interest accrued and unpaid thereon, and all other
Obligations, including all obligations of a Borrower in respect of any Letter
-30-
of Credit and the Guaranty and the Termination Compensation then payable under
the Hedging Agreements, although contingent and unmatured, shall in each case
automatically become immediately due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly
waived by the Borrowers, and (ii) in the case of any event specified in
paragraph (c)(i) of Section 6.1 above (after the five-day period expressly set
forth in Section 2.1(d)(i) or 2.2(d)(i) hereof, as the case may be), and
notwithstanding any notice provisions in any other Loan Document, the
Collateral Agent may sell all or any part of the Triarc Collateral and the
Bank may apply the proceeds of such Collateral to the payment of the
Obligations.
Section 6.3 [Reserved]
Section 6.4 RIGHTS NOT EXCLUSIVE. The rights provided in
this Agreement, the Notes and the other Loan Documents are cumulative and are
not exclusive of any other rights, powers, privileges or remedies provided by
law or in equity, or under any other instrument, document or agreement now
existing or hereafter arising.
ARTICLE VII
MISCELLANEOUS
Section 7.1 AMENDMENT AND WAIVER. No modification, consent,
amendment or waiver of any provision of this Agreement, nor consent to any
departure by either Borrower therefrom, shall be effective unless the same
shall be in writing and signed by a Vice President or higher level officer of
the Bank, and then shall be effective only in the specific instance and for
the purpose for which given.
Section 7.2 COSTS AND EXPENSES. The Borrowers shall:
(a) reimburse the Bank within five (5) Business Days after
demand for all costs and expenses incurred by the Bank, including, without
limitation, the reasonable fees and disbursements of counsel and paralegals,
in connection with the development, preparation, delivery, administration and
execution of, and any amendment, supplement, waiver or modification to, this
Agreement, any Note or any of the other Loan Documents, the review of the
Collateral and the consummation of the transactions contemplated hereby;
(b) reimburse the Bank within five (5) Business Days after
demand for all costs and expenses incurred by it, including, without
limitation, the fees and disbursements of counsel and paralegals, in
connection with the enforcement, attempted enforcement, or preservation of any
rights or remedies (including in connection with any "workout" or
restructuring regarding any of the Loans and any insolvency proceeding or
appellate proceeding) under this Agreement, any Note or any other Loan
Document or in respect of any of the Collateral; and
(c) reimburse the Bank within five (5) Business Days after
demand for all costs and expenses incurred by the Bank in connection with
litigation involving the Triarc Collateral, the Revolving B Collateral or any
of the other Collateral, whether related to enforcement thereof or otherwise.
-31-
Section 7.3 JOINT AND SEVERAL OBLIGATIONS. All of the
Obligations of the Borrowers hereunder and under each Note and the other Loan
Documents are joint and several. The Bank may, in its sole and absolute
discretion, enforce the provisions hereof against either of the Borrowers and
shall not be required to proceed against both Borrowers jointly or seek
payment from the Borrowers ratably. In addition, the Bank may, in its sole and
absolute discretion, select the Collateral of any one or more of the Loan
Parties for sale or application to the Obligations, without regard to the
ownership of such Collateral, and shall not be required to make such selection
ratably from the Collateral owned by the Loan Parties. It is understood and
agreed that Xxxxxx Xxxxx and Xxxxx X. May have agreed between themselves that
Xxxxxx Xxxxx shall have a two-thirds interest, and Xxxxx X. May shall have a
one-third interest, in DWG and its assets, and the Bank hereby agrees that in
the event the Bank shall sell or otherwise dispose of any of the Triarc
Collateral, the Bank shall apply two-thirds of the proceeds of such Triarc
Collateral to the Obligations (or hold two-thirds of the Triarc Collateral for
the benefit of Xxxxxx Xxxxx).
Section 7.4 DEMAND OBLIGATION. Nothing in this Agreement or
in any other Loan Document is intended to be an amendment or modification of,
or limitation or restriction upon, any provision of the Revolving A Note
(including, without limitation, the Borrower's obligation under the Revolving
A Note to pay principal and interest ON DEMAND), and the provisions of the
Revolving A Note shall be controlling and fully effective regardless of
anything herein to the contrary. The Borrowers hereby acknowledge that the
Bank may at any time, in its sole and absolute discretion, demand payment of
the Revolving A Note, even if the Borrowers have fully complied with all of
the terms and conditions of this Agreement and the other Loan Documents. THE
REVOLVING A NOTE AND THE BORROWERS' OBLIGATIONS IN RESPECT THEREOF ARE PAYABLE
UPON DEMAND BY THE BANK (IN ITS SOLE AND ABSOLUTE DISCRETION).
Section 7.5 SET-OFF. If an Event of Default exists, the Bank
is authorized to set-off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held by, and other
indebtedness at any time owing to, the Bank to or for the credit or the
account of any Borrower against any and all Obligations owing to the Bank, now
or hereafter existing, whether or not the Bank has made demand under this
Agreement, any Note or any other Loan Document and although such Obligations
may be contingent or unmatured. The Borrowers hereby waive prior notice of
such action. The Bank, however, agrees promptly to notify the Borrowers after
any such set-off; PROVIDED, HOWEVER, that the failure to give such notice
shall not affect the validity of such set-off. The rights of the Bank under
this Section 7.5 are in addition to the other rights and remedies (including
other rights of set-off) which the Bank may have.
Section 7.6 WAIVER. No failure or delay on the part of the
Bank or the Borrowers in exercising any right, power or privilege under this
Agreement and no course of dealing between the Borrowers or any other person
and the Bank or any other person shall operate as a waiver hereof or thereof.
Section 7.7 SUCCESSORS AND ASSIGNS.
(a) This Agreement shall be binding upon and inure to the
benefit of each party hereto and its successors and assigns, except that the
-32-
Borrowers shall not be entitled to assign or transfer all or any of their
rights, benefits or obligations hereunder, except for their death or mental
incapacity.
(b) The Bank may not assign or otherwise transfer any of its
rights or obligations under this Agreement except as provided in this Section
7.7(b):
(i) Prior to approaching any Eligible Institution
for the purpose of assigning a portion of its interest herein or
selling a participation in its rights and obligations under this
Agreement, the Bank shall discuss with a Borrower the names of such
potential participants or assignees. The Bank shall not assign or sell
a participation in its rights and obligations under this Agreement to
any person unless a Borrower shall have consented thereto (which
consent shall not be unreasonably withheld).
(ii) The Borrowers shall be given prompt written
notice of any grant of any such participation or assignment, which
notice shall include (x) the name and jurisdiction of organization of
the participant and (y) the amount of such participation or assignment.
(iii) The Bank agrees that:
(A) it will not assign an interest in, or
sell a participation in, any Commitment and the outstanding
Loans thereunder in an amount less than 15% of such Commitment;
(B) it will at all times retain not less
than 15% of each Commitment and the outstanding Loans
thereunder;
(C) it will provide in any assignment or
participation agreement with any assignee or participant that
such assignee or participant may not make a subparticipation or
assign any portion of its interest in any Commitment and the
outstanding Loans thereunder if, after giving effect to such
participation or assignment, such participant or assignee would
hold less than 15% of such Commitment and the outstanding Loans
thereunder;
(D) the Bank will not assign an interest or
sell a participation in any Commitment or Loan thereunder to any
assignee or participant who would be entitled to receive
additional compensation under Section 2.8 at the time of such
assignment or sale by the Bank, nor to any assignee or
participant who would find it unlawful or impossible to make,
maintain or fund its assigned interest or participation in such
Loan at a rate based on Adjusted LIBOR as provided in Section
2.9, at the time of such assignment or sale by the Bank;
(E) with respect to any matter on which the
Bank and any assignee or participant is required to vote or is
solicited to consent pursuant to the terms of a participation
agreement or an assignment agreement, as the case may be,
between the Bank and such person, if the matter to be decided is
one that does not require the unanimous consent of all assignees
-33-
or participants, financial institutions holding 51% of the
outstanding Loans under the related Commitments shall decide the
issue, provided that such 51% includes the Bank; and
(F) in any participation agreement or
assignment agreement with any participant or assignee, as the
case may be, the Bank will:
(x) require that any bank organized
outside the United States will deliver to the Bank with
a copy to either Borrower Internal Revenue Service Form
4224 or 1001, duly completed and signed; and
(y) provide that each participant or
assignee, as the case may be, will agree to be bound by
all the terms of this Agreement as if it were a
signatory hereto.
(iv) The Bank may, in connection with any proposed
participation or assignment, disclose to the proposed participant or
assignee any information relating to the Borrowers furnished to the
Bank by or on behalf of the Borrowers; PROVIDED, that prior to any such
disclosure, the proposed participant or assignee shall agree in writing
to preserve the confidentiality of any confidential information
relating to the Borrowers received by it from the Bank to the same
extent as is required of the Bank.
(v) The Bank shall act as agent in connection with
any transfer permitted hereunder and the administration of the Loans,
and shall remain the holder of the Triarc Collateral and the Revolving
B Collateral and act as collateral agent of the Triarc Collateral and
the Revolving B Collateral holding the same for its benefit and the
benefit of the permitted assignees and participants hereunder. The
Borrowers shall not be required to deal with any participant or
assignee in connection with the administration of the Loans, and each
assignment agreement or participation agreement shall provide that each
such assignee or participant shall deal solely with the Bank as agent
and not directly with the Borrowers.
Section 7.8 CONFIDENTIALITY. The Bank agrees to take normal
and reasonable precautions and exercise due care to maintain the
confidentiality of all information identified as "confidential" by the
Borrowers and provided to it by the Borrowers in connection with this
Agreement, and it shall not use any such information for any purpose or in any
manner other than pursuant to the terms contemplated by this Agreement, except
to the extent such information (i) was or becomes generally available to the
public other than as a result of a disclosure by the Bank, or (ii) was or
becomes available on a non-confidential basis from a source other than the
Borrowers, provided that such source is not bound by a confidentiality
agreement with the Borrowers known to the Bank; PROVIDED FURTHER, HOWEVER,
that the Bank may disclose such information: (A) at the request or pursuant to
any requirement of any Governmental Authority to which the Bank is subject or
in connection with an examination of the Bank by any such authority; (B)
pursuant to subpoena or other court process; (C) when required to do so in
accordance with the provisions of any applicable requirement of law; (D) to
the Bank's independent auditors and other professional advisors, all of whom
shall have been advised of the confidential nature of such information; and
(E) to proposed assignees or participants in accordance with Section
-34-
7.7(b)(iv). It is understood that the financial information to be delivered
pursuant to Section 5.1 or any similar financial information delivered prior
to the Effective Date shall be deemed to have been identified as confidential
by the Borrowers.
Section 7.9 COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed an original, and it shall not be
necessary in making proof of this Agreement to produce or account for more
than one such counterpart.
Section 7.10 SEVERABILITY. Any provision of this Agreement
which is illegal, invalid or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such illegality, invalidity
or unenforceability without invalidating the remaining provisions hereof or
affecting the legality, validity or enforceability of such provision in any
other jurisdiction.
Section 7.11 NOTICES. Unless otherwise expressly provided
herein, all notices and other communications provided for hereunder shall be
in writing and shall be mailed, telegraphed, telecopied or delivered, if to
the Borrowers, to c/o Triarc Companies, Inc., 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Telephone No. (000) 000-0000, Telecopy No.: (212)
451-3216, with a copy to Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, 0000 Xxxxxx
xx xxx Xxxxxxxx, Xxx Xxxx Xxx Xxxx 00000. Attention: Xxxxx Xxxxxx, Esq.,
Telecopier No.: (000) 000-0000, Telephone No.: (000) 000-0000; if to the Bank,
to it at its address at Bank of America, N.A., 000 Xxxxx Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, with copies to Bank of America, N.A., 000
Xxxxx Xxxxxx, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: Xx. Xxxx
X. Xxxxxx, Senior Vice President, Telecopier No. (000) 000-0000, Telephone No.
(000) 000-0000, and Xxxxxxx Xxxx & Xxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxxxxx X. Xxxxxxxx, Esq., Telecopier No. (212)
000-0000, Telephone No. (000) 000-0000; or, as to each party, at such other
address as shall be designated by such party in a written notice to the other
party complying as to delivery with the terms of this Section 7.11. Any notice
to the Bank by any Borrower or Borrowers shall be binding on all of the
Borrowers. The Bank may, and is hereby authorized, in its sole discretion, to
act in accordance with the terms hereof upon receipt of any notice, including,
without limitation, a Notice of Borrowing, by any Borrower or Borrowers as
though such notice had been signed by both of the Borrowers, and all of the
rights and remedies of the Bank, and Obligations of the Borrowers, shall be in
full force and effect notwithstanding that any Borrower did not execute or
consent to such Notice of Borrowing or other notice. All such notices and
other communications shall be effective (i) if mailed, when deposited in the
mails, (ii) if telegraphed, when delivered to the telegraph company, (iii) if
telecopied, upon receipt, or (iv) if delivered, upon delivery, except that
notices to the Bank pursuant to Article II hereof shall not be effective until
received by the Bank.
Section 7.12 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
Section 7.13 ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN
OR AMONG THE PARTIES HERETO INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR ANY RELATED INSTRUMENTS, AGREEMENTS OR
DOCUMENTS, INCLUDING ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED TORT,
-35-
SHALL BE DETERMINED BY BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL
ARBITRATION ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF
PRACTICE AND PROCEDURE FOR THE ARBITRATION OF COMMERCIAL DISPUTES OF
J.A.M.S./ENDISPUTE OR ANY SUCCESSOR THEREOF ("J.A.M.S."), AND THE "SPECIAL
RULES" SET FORTH BELOW. IN THE EVENT OF ANY INCONSISTENCY, THE SPECIAL RULES
SHALL CONTROL. JUDGMENT UPON ANY ARBITRATION AWARD MAY BE ENTERED IN ANY COURT
HAVING JURISDICTION. ANY PARTY TO THIS AGREEMENT MAY BRING AN ACTION,
INCLUDING A SUMMARY OR EXPEDITED PROCEEDING, TO COMPEL ARBITRATION OF ANY
CONTROVERSY OR CLAIM TO WHICH THIS AGREEMENT APPLIES IN ANY COURT HAVING
JURISDICTION OVER SUCH ACTION.
(I) SPECIAL RULES. THE ARBITRATION SHALL BE
CONDUCTED IN THE COUNTY OF ANY BORROWER'S DOMICILE AT THE TIME OF THE
EXECUTION OF THIS AGREEMENT AND ADMINISTERED BY J.A.M.S. WHO WILL
APPOINT AN ARBITRATOR; IF J.A.M.S. IS UNABLE OR LEGALLY PRECLUDED FROM
ADMINISTERING THE ARBITRATION, THEN THE AMERICAN ARBITRATION
ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL BE COMMENCED
WITHIN 90 DAYS OF THE DEMAND FOR ARBITRATION; FURTHER, THE ARBITRATOR
SHALL ONLY, UPON A SHOWING OF CAUSE, BE PERMITTED TO EXTEND THE
COMMENCEMENT OF SUCH HEARING FOR UP TO AN ADDITIONAL 60 DAYS.
(II) RESERVATION OF RIGHTS. NOTHING IN THIS
ARBITRATION PROVISION SHALL BE DEEMED TO (I) LIMIT THE APPLICABILITY OF
ANY OTHERWISE APPLICABLE STATUTES OF LIMITATION OR REPOSE AND ANY
WAIVERS CONTAINED IN THIS INSTRUMENT, AGREEMENT, OR DOCUMENT; OR (II)
BE A WAIVER BY THE BANK OF THE PROTECTION AFFORDED TO IT BY 12 U.S.C.
SEC. 91 OR ANY SUBSTANTIALLY EQUIVALENT STATE LAW; OR (III) LIMIT THE
RIGHT OF THE BANK HERETO (A) TO EXERCISE SELF HELP REMEDIES SUCH AS
(BUT NOT LIMITED TO) SETOFF, OR (B) TO FORECLOSE AGAINST ANY REAL OR
PERSONAL PROPERTY COLLATERAL, OR (C) TO OBTAIN FROM A COURT PROVISIONAL
OR ANCILLARY REMEDIES SUCH AS (BUT NOT LIMITED TO) INJUNCTIVE RELIEF,
WRIT OF POSSESSION OR THE APPOINTMENT OF A RECEIVER. THE BANK MAY
EXERCISE SUCH SELF HELP RIGHTS, FORECLOSE UPON SUCH PROPERTY, OR OBTAIN
SUCH PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR AFTER THE
PENDENCY OF ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS
AGREEMENT. NEITHER THIS EXERCISE OF SELF HELP REMEDIES NOR THE
INSTITUTION OR MAINTENANCE OF AN ACTION FOR FORECLOSURE OR PROVISIONAL
OR ANCILLARY REMEDIES SHALL CONSTITUTE A WAIVER OF THE RIGHT OF ANY
PARTY, INCLUDING THE CLAIMANT IN ANY SUCH ACTION, TO ARBITRATE THE
MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH REMEDIES.
-36-
Section 7.14 ENTIRE AGREEMENT. THIS WRITTEN AGREEMENT AND
THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
THE PARTIES.
Section 7.15 DELISTING EVENT . Subject to the rights of the
Bank to decrease the Revolving A Advance Percentage and the Revolving A Margin
Call Percentage under section 2.1(d)(iii) hereof, the occurrence of a
Delisting Event shall not in and of itself constitute an Event of Default.
-37-
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered as of the date first above written.
/s/ Xxxxxx Xxxxx
---------------------------------
Xxxxxx Xxxxx
/s/ Xxxxxxx Xxxxx
---------------------------------
Xxxxxxx Xxxxx
BANK OF AMERICA, N.A.
By: /s/ Xxxxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title Senior Vice President
-38-
AMENDMENT NO. 1 TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
AMENDMENT NO. 1 (the "AMENDMENT"), dated as of November 20, 2001, to
the THIRD AMENDED AND RESTATED CREDIT AGREEMENT, dated as of April 2, 2001 (as
previously amended, the "CREDIT AGREEMENT"), by and between XXXXXX XXXXX and
XXXXXXX XXXXX (the "BORROWERS"), and BANK OF AMERICA, N.A., formerly known as
NationsBank, N.A. (the "BANK").
WHEREAS, the Borrowers and the Bank have entered into the Third
Amended and Restated Credit Agreement, pursuant to which the Bank agreed to
make loans (each a "LOAN" and collectively the "LOANS") to the Borrowers in an
aggregate principal amount at any time outstanding not to exceed the amounts
of the Commitments referred to therein;
WHEREAS, it was a condition precedent to the making of the Loans by
the Bank that, among other things, the Borrowers shall have pledged to the
Collateral Agent for the benefit of the Lenders, and granted to the Collateral
Agent for the benefit of the Lenders a security interest in, all of the
Borrowers' rights in the Partnerships set forth on Schedule I to the Credit
Agreement;
WHEREAS, the Borrowers have requested that the Collateral Agent (i)
release its lien on, and security interest in, the partnership interest of
Xxxxxxx Xxxxx in Everest Capital Fund, L.P. and Everest Capital Frontier, L.P.
(collectively, the "RELEASED COLLATERAL") and (ii) consent to the investment
of the proceeds of such Partnerships in Everest Capital Senior Debt, L.P. (the
"NEW PARTNERSHIP"), subject to the pledge to the Collateral Agent for the
benefit of the Lenders of, and the grant by Xxxxxxx Xxxxx (the "GRANTOR") of a
perfected, first priority security interest in favor of the Collateral Agent
for the benefit of the Lenders in, the Grantor's interest in the New
Partnership; and
WHEREAS, the Collateral Agent is willing to release its security
interest in the Released Collateral, subject to, among other things, the
execution and delivery by the Borrowers of an amendment to the Credit
Agreement;
NOW, THEREFORE, the Borrowers and the Bank hereby agree as follows:
1. DEFINITIONS. All terms used herein which are defined in the
Credit Agreement and not otherwise defined herein are used herein as defined
therein.
2. AMENDMENT TO CREDIT AGREEMENT. Schedule I to the Credit
Agreement is hereby amended by replacing Schedule I to the Credit Agreement
with Schedule I hereto, which shall be Schedule I to the Credit Agreement for
all purposes thereof.
3. REPRESENTATIONS AND WARRANTIES. Each Borrower hereby
represents and warrants to the Bank as follows:
(a) CAPACITY. Such Borrower has the legal capacity to
execute, deliver and perform this Amendment, and to perform the Credit
Agreement, as amended, and each other Loan Document to which such Borrower is
a party.
(b) NO VIOLATION. The execution, delivery and
performance by such Borrower of this Amendment, and the performance of the
Credit Agreement, as amended hereby, and each other Loan Document to which
such Borrower is a party (i) do not and will not violate any law or any
contractual restriction binding on or otherwise affecting such Borrower or any
of the properties of such Borrower, except for any violation that could not
reasonably be expected to have a Material Adverse Effect, and (ii) do not and
will not result in the creation or imposition of any Lien upon any of the
property (now owned or hereafter acquired) of such Borrower, except Liens
created in favor of the Bank.
(c) APPROVALS. No authorization or approval or other
action by, and no notice to or filing with, any Governmental Authority or
other regulatory body, and no consent of any other Person, is required for the
due execution, delivery and performance by such Borrower of this Amendment, or
the performance of the Credit Agreement, as amended, or any other Loan
Document to which such Borrower is a party.
(d) ENFORCEABILITY OF LOAN DOCUMENTS. Each of this
Amendment and the Credit Agreement, as amended hereby, and each other Loan
Document to which such Borrower is a party constitutes, and each Loan Document
to which such Borrower will be a party, when delivered hereunder, will
constitute, a legal, valid and binding obligation of such Borrower,
enforceable against such Borrower in accordance with its respective terms.
(e) LITIGATION. There is no material pending or, to
such Borrower's knowledge, threatened action, suit or proceeding affecting
such Borrower before any court or other Governmental Authority or any
arbitrator, which is reasonably likely to have a Material Adverse Effect.
(f) BRING-DOWN. (i) The representations and warranties
by such Borrower contained in Section 4 of this Amendment and in Article IV of
the Credit Agreement, and of each Loan Party in each other Loan Document and
certificate or other writing delivered to the Bank pursuant hereto or thereto
on or prior to the date hereof are true and correct in all material respects
on and as of such date as though made on and as of such date, except to the
extent that any such representation and warranty expressly relates solely to
an earlier date (in which case such representation and warranty shall be true
and correct on and as of such earlier date); (ii) no Event of Default or
Default has occurred and is continuing or would result from the effectiveness
of this Amendment; and (iii) since the date of the Credit Agreement, no
material adverse change in the operations, condition (financial or otherwise),
business, assets, income or prospects of such Borrower has occurred and is
continuing.
4. CONDITIONS. This Amendment shall become effective on the
date (the "EFFECTIVE DATE") as of which each of the following conditions
precedent shall have been satisfied in a manner satisfactory to the Bank:
-2-
(a) The Bank shall have received the following, each in
form and substance satisfactory to the Bank:
(i) this Amendment, duly executed by the
Borrowers;
(ii) the Acknowledgment and Consent,
substantially in the form attached hereto as Exhibit I, duly executed by DWG
and PF;
(iii) Amendment No.1 to the CP Security Agreement;
(iv) the Consent and Recognition of the General
Partner of Everest Capital Senior Debt, L.P., duly executed by an authorized
agent of Everest Capital Senior Debt, L.P. and a general partner thereof,
together with a copy of the New Partnership's organizational document;
(v) the undated Assignment of Partnership
Interest made by Xxxxxxx Xxxxx in respect of her limited partnership interest
in the New Partnership;
(vi) a copy of appropriate financing statements
on Form UCC-1, duly filed in such office or offices as may be necessary or, in
the opinion of the Bank, desirable to perfect the security interests purported
to be created by Amendment No.1 to the CP Security Agreement; and
(vii) certified copies of requests for copies or
information on Form UCC-11, listing all effective financing statements which
name Xxxxxxx Xxxxx as debtor and which are filed in the offices required by
the Bank, together with copies of such financing statements, none of which,
except as otherwise agreed to in writing by the Bank, shall cover any of the
Collateral.
(b) (i) The representations and warranties contained in
Section 3 hereof, in Article IV of the Credit Agreement and in each other Loan
Document and certificate or other writing delivered to the Bank pursuant
hereto on or prior to the Effective Date are true and correct on and as of the
Effective Date as though made on and as of the Effective Date, except to the
extent that any such representation and warranty expressly relates solely to
an earlier date (in which case such representation and warranty shall be true
and correct on and as of such earlier date); (ii) no Event of Default or
Default has occurred and is continuing or would result from this Amendment;
and (iii) since the date of the Credit Agreement, no material adverse change
in the financial condition, properties or prospects of any Loan Party has
occurred and is continuing on the Effective Date.
5. ACKNOWLEDGMENT, WAIVER AND CONSENT. (a) Pursuant to the
request of the Borrowers and in accordance with Section 7.1 of the Credit
Agreement and Section 12(a) of the CP Security Agreement, the Bank hereby
consents to, and waives any noncompliance with Section 5(e) of the CP Security
Agreement by reason of the redemption by Xxxxxxx Xxxxx of the partnership
interests in Everest Capital Fund L.P. and Everest Capital Frontier, L.P.
-3-
(b) The waiver set forth in this Section 5 shall be
effective only for the specific purpose and in the specific instance described
above, and shall not otherwise modify any of the obligations of any Loan Party
under the Loan Documents.
6. MISCELLANEOUS.
(a) CONTINUED EFFECTIVENESS OF CREDIT AGREEMENT.
Except as otherwise expressly provided herein, the Credit Agreement is, and
shall continue to be, in full force and effect and is hereby ratified and
confirmed in all respects, except that on and after the date hereof (i) all
references in the Credit Agreement to "this Agreement", "hereto", "hereof",
"hereunder" or words of like import referring to the Credit Agreement shall
mean the Credit Agreement as amended by this Amendment, and (ii) all
references in the other Loan Documents to the "Credit Agreement", "thereto",
"thereof", "thereunder" or words of like import referring to the Credit
Agreement shall mean the Credit Agreement as amended by this Amendment.
(b) COUNTERPARTS. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which shall be deemed to be an original, but all of
which taken together shall constitute one and the same agreement.
(c) HEADINGS. Section headings herein are included for
convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
(d) GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(e) COSTS AND EXPENSES. The Borrowers agree to pay on
demand all reasonable fees, costs and expenses of the Bank (including, without
limitation, the reasonable fees and other client charges of Xxxxxxx Xxxx &
Xxxxx LLP) in connection with the Credit Agreement, this Amendment and the
related agreements, instruments and other documents.
(f) AMENDMENT AS LOAN DOCUMENT. The Borrowers hereby
acknowledge and agree that this Amendment constitutes a "Loan Document."
Accordingly, it shall be an Event of Default under the Credit Agreement if (i)
any representation or warranty made by the Borrowers under or in connection
with this Amendment shall have been untrue, false or misleading in any
material respect when made, or (ii) the Borrowers shall fail to perform or
observe any term, covenant or agreement contained in this Amendment.
(g) WAIVER OF JURY TRIAL. THE BORROWERS AND THE BANK
EACH HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS AMENDMENT OR THE ACTIONS OF THE BANK IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
-4-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed and delivered as of the date first above written.
/s/ Xxxxxx Xxxxx
--------------------------------
XXXXXX XXXXX
/s/ Xxxxxxx Xxxxx
--------------------------------
XXXXXXX XXXXX
BANK OF AMERICA, N.A.
By: /s/ Xxxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title Senior Vice President
-5-
AMENDMENT NO. 2 TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
AMENDMENT NO. 2 (the "AMENDMENT"), dated as of December 31, 2002, to
the THIRD AMENDED AND RESTATED CREDIT AGREEMENT, dated as of April 2, 2001 (as
previously amended, the "CREDIT AGREEMENT"), by and between XXXXXX XXXXX and
XXXXXXX XXXXX (the "BORROWERS"), and BANK OF AMERICA, N.A., formerly known as
NationsBank, N.A. (the "BANK").
The Borrower and the Bank have entered into the Third Amended and
Restated Credit Agreement, pursuant to which the Bank has agreed to make
certain loans during the period from the Effective Date (as defined in the
Credit Agreement) to the Termination Date (currently, January 2, 2003), which
loans must be repaid on the Termination Date. The Borrowers have requested
that the Bank extend the Termination Date, from January 2, 2003 to April 2,
2003. The Bank is willing to extend the Termination Date to April 2, 2003,
subject to the terms and conditions set forth herein.
NOW, THEREFORE, the Borrowers and the Bank hereby agree as follows:
1. DEFINITIONS. All terms used herein which are defined in the
Credit Agreement and not otherwise defined herein are used herein as defined
therein.
2. AMENDMENTS TO CREDIT AGREEMENT. The Credit Agreement is
hereby amended as follows:
(a) Section 1.01 of the Credit Agreement is hereby
amended by deleting the definition of Termination Date in its entirety, and by
substituting the following:
""TERMINATION DATE" means April 2, 2003 or, with respect to
any Commitment, such earlier date on which such Commitment
shall be terminated pursuant to this Agreement."
(b) Section 1.01 of the Credit Agreement is hereby
amended by adding the following defined term in the appropriate alphabetical
order therein:
""MAY CREDIT AGREEMENT" means the Third Amended and
Restated Credit Agreement dated as of April 2, 2000, as
amended by Amendment No. 1 dated as of November 20, 2001, as
amended by Amendment No. 2 dated as of September 30, 2002,
as amended by Amendment No. 3 dated as of December 31, 2002
and as may further be amended or otherwise modified from
time to time, between Xxxxx X. May and Xxxx May and Bank of
America, N.A."
(c) Section 7.3 of the Credit Agreement is hereby
amended to read as follows:
"Section 7.3 JOINT AND SEVERAL OBLIGATIONS. All of
the Obligations of the Borrowers hereunder and under each
Note and the other Loan Documents are joint and several. The
Bank may, in its sole and absolute discretion, enforce the
provisions hereof against either of the Borrowers and shall
not be required to proceed against both Borrowers jointly or
seek payment from the Borrowers ratably. In addition, the
Bank may, in its sole and absolute discretion, select the
Collateral of any one or more of the Loan Parties for sale
or application to the Obligations, without regard to the
ownership of such Collateral, and shall not be required to
make such selection ratably from the Collateral owned by the
Loan Parties. It is understood and agreed that at the date
hereof Xxxxxx Xxxxx and Xxxxx X. May have agreed between
themselves that Xxxxxx Xxxxx owns two-thirds of the Triarc
shares owned by DWG (the "XXXXX INTEREST"), and Xxxxx X. May
owns one-third of the Triarc shares owned by DWG (the "MAY
INTEREST"). The Bank hereby agrees that if as a result of
the occurrence and continuance of an Event of Default (as
defined in the May Credit Agreement), the Bank exercises its
rights and remedies under the May Credit Agreement, the
Bank's recourse and rights with respect to the Triarc
Collateral arising from such an Event of Default shall be
limited solely to the May Interest; it being understood and
agreed that no such Event of Default will give the Bank the
right to sell, transfer, dispose of, foreclose on, or take
any other action with respect to, the Xxxxx Interest.
3. REPRESENTATIONS AND WARRANTIES. Each Borrower hereby
represents and warrants to the Bank as follows:
(a) CAPACITY. Such Borrower has the legal capacity to
execute, deliver and perform this Amendment, and to perform the Credit
Agreement, as amended, and each other Loan Document to which such Borrower is
a party.
(b) NO VIOLATION. The execution, delivery and
performance by such Borrower of this Amendment, and the performance of the
Credit Agreement, as amended hereby, and each other Loan Document to which
such Borrower is a party (i) do not and will not violate any law or any
contractual restriction binding on or otherwise affecting such Borrower or any
of the properties of such Borrower, except for any violation that could not
reasonably be expected to have a Material Adverse Effect, and (ii) do not and
will not result in the creation or imposition of any Lien upon any of the
property (now owned or hereafter acquired) of such Borrower, except Liens
created in favor of the Bank.
(c) APPROVALS. No authorization or approval or other
action by, and no notice to or filing with, any Governmental Authority or
other regulatory body, and no consent of any other Person, is required for the
due execution, delivery and performance by such Borrower of this Amendment, or
the performance of the Credit Agreement, as amended, or any other Loan
Document to which such Borrower is a party.
(d) ENFORCEABILITY OF LOAN DOCUMENTS. Each of this
Amendment, the New Notes referred to below and the Credit Agreement, as
amended hereby, and each other Loan Document to which such Borrower is a party
constitutes, and each Loan Document to which such Borrower will be a party,
when delivered hereunder, will constitute, a legal, valid and binding
obligation of such Borrower, enforceable against such Borrower in accordance
with its respective terms.
-2-
(e) LITIGATION. There is no material pending or, to
such Borrower's knowledge, threatened action, suit or proceeding affecting
such Borrower before any court or other Governmental Authority or any
arbitrator, which is reasonably likely to have a Material Adverse Effect.
(f) BRING-DOWN. (i) The representations and warranties
by such Borrower contained in this Section 4 of this Amendment and in Article
IV of the Credit Agreement, and of each Loan Party in each other Loan Document
and certificate or other writing delivered to the Bank pursuant hereto or
thereto on or prior to the date hereof are true and correct in all material
respects on and as of such date as though made on and as of such date, except
to the extent that any such representation and warranty expressly relates
solely to an earlier date (in which case such representation and warranty
shall be true and correct on and as of such earlier date); (ii) no Event of
Default or Default has occurred and is continuing or would result from the
effectiveness of this Amendment; and (iii) since the date of the Credit
Agreement, no material adverse change in the operations, condition (financial
or otherwise), business, assets, income or prospects of such Borrower has
occurred and is continuing, except as previously disclosed in writing to the
Bank and consented to by the Bank.
4. CONDITIONS. This Amendment shall become effective on the
date (the "AMENDMENT EFFECTIVE DATE") as of which each of the following
conditions precedent shall have been satisfied in a manner satisfactory to the
Bank:
(a) The Bank shall have received (i) this Amendment,
duly executed by the Borrowers, (ii) the Acknowledgment and Consent,
substantially in the form attached hereto as Exhibit I, duly executed by DWG,
(iii) the Amended and Restated Revolving A Note, duly executed by the
Borrowers, substantially in the form attached hereto as Exhibit II and (iv)
the Amended and Restated Revolving B Note, duly executed by the Borrowers,
substantially in the form attached hereto as Exhibit III.
(b) The (i) the representations and warranties
contained in Section 4 hereof, in Article IV of the Credit Agreement and in
each other Loan Document and certificate or other writing delivered to the
Bank pursuant hereto on or prior to the Amendment Effective Date are true and
correct on and as of the Amendment Effective Date as though made on and as of
the Amendment Effective Date, except to the extent that any such
representation and warranty expressly relates solely to an earlier date (in
which case such representation and warranty shall be true and correct on and
as of such earlier date); (ii) no Event of Default or Default has occurred and
is continuing or would result from this Amendment; and (iii) since the date of
the Credit Agreement, no material adverse change in the financial condition,
properties or prospects of any Loan Party has occurred and is continuing on
the Amendment Effective Date.
(c) Miscellaneous.
(d) REPLACEMENT OF OLD NOTES. (i) Simultaneously with
the execution and delivery of this Amendment, the Borrowers are executing and
delivering to the Bank (A) the Amended and Restated Revolving A Note dated
December 31, 2002 (the "NEW A NOTE "), made by the Borrowers to the order of
the Bank and in the original principal amount of $37,500,000 and (B) the
Amended and Restated Revolving B Note dated December 31, 2002 (the "NEW B
-3-
NOTE" and, together with the New A Note, collectively, the "NEW NOTES"), made
by the Borrowers to the order of the Bank and in the original principal amount
of $12,500,000. On and after the Amendment Effective Date, the existing
Revolving A Note and the existing Revolving B Note (each as defined in the
Credit Agreement) (collectively, the "OLD NOTES") shall be amended, superseded
and replaced by the New Notes. It is the intention of the Borrowers and the
Bank that this Amendment and the substitution of the New Notes for the Old
Notes shall not in any way constitute (x) an extinguishment of the
indebtedness of the Borrowers under the Old Notes, (y) a release of the
Borrowers from such obligations, or (z) a novation of the Old Notes.
(ii) Promptly after the Amendment Effective
Date, the Bank will xxxx the Old Notes "Canceled and Replaced."
(e) CONTINUED EFFECTIVENESS OF CREDIT AGREEMENT. Except
as otherwise expressly provided herein, the Credit Agreement is, and shall
continue to be, in full force and effect and is hereby ratified and confirmed
in all respects, except that on and after the date hereof (i) all references
in the Credit Agreement to "this Agreement", "hereto", "hereof", "hereunder"
or words of like import referring to the Credit Agreement shall mean the
Credit Agreement as amended by this Amendment, (ii) all references in the
other Loan Documents to the "Credit Agreement", "thereto", "thereof",
"thereunder" or words of like import referring to the Credit Agreement shall
mean the Credit Agreement as amended by this Amendment and (iii) all
references in the Credit Agreement and in any other Loan Document to "the
Revolving A Note" or "the Revolving B Note", "thereto", "thereof",
"thereunder" or words of like import referring to any Old Note shall be deemed
to be references to the applicable New Note, as such promissory note may be
modified or extended from time to time, and any note issued in exchange or
replacement therefor. All references in any Loan Document to "Obligations"
shall be deemed to include any indebtedness (including, without limitation,
principal and interest) under the New Notes.
(f) COUNTERPARTS. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which shall be deemed to be an original, but all of
which taken together shall constitute one and the same agreement.
(g) HEADINGS. Section headings herein are included for
convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
(h) GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(i) COSTS AND EXPENSES. The Borrowers agree to pay on
demand all reasonable fees, costs and expenses of the Bank (including, without
limitation, the reasonable fees and other client charges of Xxxxxxx Xxxx &
Xxxxx LLP) in connection with the Credit Agreement, this Amendment and the
related agreements, instruments and other documents.
(j) AMENDMENT AS LOAN DOCUMENT. The Borrowers hereby
acknowledge and agree that each of this Amendment and the New Notes
constitutes a "Loan Document."
-4-
Accordingly, it shall be an Event of Default under the Credit Agreement if (i)
any representation or warranty made by the Borrowers under or in connection
with this Amendment or the New Notes shall have been untrue, false or
misleading in any material respect when made, or (ii) the Borrowers shall fail
to perform or observe any term, covenant or agreement contained in this
Amendment.
(k) WAIVER OF JURY TRIAL. THE BORROWERS AND THE BANK
EACH HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS AMENDMENT OR THE ACTIONS OF THE BANK IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
-5-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed and delivered as of the date first above written.
/s/ Xxxxxx Xxxxx
--------------------------------
XXXXXX XXXXX
/s/ Xxxxxxx Xxxxx
--------------------------------
XXXXXXX XXXXX
BANK OF AMERICA, N.A.
By: /s/ Xxxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title Senior Vice President
-6-
AMENDMENT NO. 3 TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
AMENDMENT NO. 3 (the "AMENDMENT"), dated as of April 2, 2003, to the
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, dated as of April 2, 2001 (as
previously amended, the "CREDIT AGREEMENT"), by and between XXXXXX XXXXX and
XXXXXXX XXXXX (the "BORROWERS"), and BANK OF AMERICA, N.A., formerly known as
NationsBank, N.A. (the "BANK").
WHEREAS, the Borrowers and the Bank are parties to the Credit
Agreement, pursuant to which the Bank has agreed to make (i) Revolving A Loans
to the Borrowers in the aggregate principal amount not to exceed $37,500,000
at any time outstanding and (ii) Revolving B Loans in the aggregate principal
amount not to exceed $12,500,000 at any time outstanding;
WHEREAS, the Borrowers have requested that, among other things, the
Bank (i) extend the Termination Date, from April 2, 2003 to May 5, 2005 and
(ii) release its lien on, and security interest in, the partnership interest
of Xxxxxxx Xxxxx in Everest Capital Senior Debt, L.P.; and
WHEREAS, the Borrowers and the Bank are willing to modify the Credit
Agreement and other Loan Documents to effect such changes, subject to the
other terms and conditions set forth herein.
NOW, THEREFORE, the Borrowers and the Bank hereby agree as follows:
1. DEFINITIONS. All terms used herein which are defined in the
Credit Agreement and not otherwise defined herein are used herein as defined
therein.
2. AMENDMENTS TO CREDIT AGREEMENT. The Credit Agreement is
hereby amended as follows:
(a) Section 1.1 of the Credit Agreement is hereby
amended as follows:
(i) The definition of the term "Accounts" is
hereby amended to read as follows:
"'ACCOUNTS' means (i) account number 0000000
maintained by Xxxxxxx Xxxxx with the Bank and pledged to the
Bank pursuant to the CP Accounts Assignment, and (ii)
account number and 45-20-025-0320192 maintained by PF with
the Bank and pledged to the Bank pursuant to the PF Accounts
Assignment."
(ii) The definition of the term "CP Security
Agreement" is hereby deleted in its entirety.
(iii) The definition of the term "DWG
Partnership Agreement" is hereby amended to read as follows:
"'DWG PARTNERSHIP AGREEMENT' means the Amended and
Restated Agreement of Limited Partnership of DWG, dated
November 11, 2002."
(iv) The definition of the term "Guaranteed
Borrower" is hereby deleted in its entirety.
(v) The definition of the term "Guaranteed
Loan" is hereby deleted in its entirety.
(vi) The definition of the term "Guaranty" is
hereby deleted in its entirety.
(vii) The definition of the term "L/C
Outstandings" is hereby amended to read as follows:
"'L/C OUTSTANDINGS' means, as at any date of
determination thereof, the sum of (a) the aggregate Stated
Amount of all Letters of Credit outstanding on such date
PLUS (b) the aggregate amount of all unpaid L/C Liabilities
on such date, plus (c) the aggregate Termination
Compensation that would be payable to the Bank and any of
its Affiliates if each Hedging Agreement and all related
transactions were terminated on such date."
(viii) The definition of the term "Line Loans" is
hereby deleted in its entirety.
(ix) The definition of the term "Liquid Assets"
is hereby deleted in its entirety.
(x) The definition of the term "Loan
Documents" is hereby amended to read as follows:
"'LOAN DOCUMENTS' means this Agreement, the Notes,
the Letters of Credit, the L/C Applications, the Triarc
Pledge Agreement, the NP Security Agreement, the CP Accounts
Assignment, the PF Account Assignment, PF Control Agreement,
the NP Pledge Agreement, the Hedging Agreements, and all
other instruments, agreements and other documents executed
and delivered pursuant hereto or thereto."
(xi) The definition of the term "Partnership"
is hereby amended to read as follows:
"'PARTNERSHIP' means the limited partnerships and
limited liability companies listed on Schedule I hereto (as
such Schedule I may be amended from time to time), in which
a Borrower has a limited partnership interest or membership
interest."
2
(xii) The definition of the term "Partnership
Security Agreements" is hereby deleted in its entirety.
(xiii) The definition of the term "Pledged
Shares" is hereby amended to read as follows:
"'PLEDGED SHARES' means, collectively, the shares
of common stock issued by Triarc and pledged by (i) DWG to
the Bank pursuant to the Triarc Pledge Agreement and (ii)
Xxxxxx Xxxxx pursuant to the NP Pledge Agreement."
(xiv) Section 1.1 of the Credit Agreement is
hereby amended by adding the following defined term in the appropriate
alphabetical order therein:
"'NP PLEDGE AGREEMENT' means any Pledge and
Security Agreement (as same may be amended or otherwise
modified from time to time), with respect to shares of stock
of Triarc securing the Obligations."
(xv) The definition of the term "Revolving B
Collateral" is hereby amended to read as follows:
"'REVOLVING B COLLATERAL' means the Accounts and
Partnership Interests and all other Collateral covered by
the Accounts Assignments or the NP Security Agreement."
(xvi) The definition of the term "Termination
Date" is hereby amended to read as follows:
"'TERMINATION DATE' means May 5, 2005 or, with
respect to any Commitment, such earlier date on which such
Commitment shall be terminated pursuant to this Agreement."
(xvii) The definition of the term "Triarc
Collateral" is hereby amended to read as follows:
"'TRIARC COLLATERAL' means all of the property
(tangible and intangible) purported to be subject to the
lien or security interest purported to be created by the
Triarc Pledge Agreement and the NP Pledge Agreement."
(xviii) The definition of the term "Triarc
Collateral Value" is hereby amended to read as follows:
"'TRIARC COLLATERAL VALUE' means the sum of (i)
100% of the Market Value of the Pledged Shares pledged by
Xxxxxx Xxxxx pursuant to the NP Pledge Agreement and (ii)
66.667% of the
3
Market Value of the Pledged Shares pledged by DWG pursuant
to the Triarc Pledge Agreement."
(xix) Section 1.1 of the Credit Agreement is
hereby amended by adding the following defined term in the appropriate
alphabetical order therein:
"TRIARC SHARES' means any shares of capital stock
issued by Triarc."
(b) The first paragraph of Article V is hereby amended
by deleting the words "the Guaranty," appearing immediately after the words
"any Obligation is outstanding,".
(c) Section 5.1 is hereby amended by (i) deleting the
word "and" at the end of Section 5.1(d) thereof, (ii) redesignating Section
5.1(e) thereof as new Section 5.1(h) thereof, and (iii) adding the following
new Sections 5.1(e), 5.1(f) and 5.1(g) therein to read as follows:
"(d) within 30 days after they become available, an
audited consolidated statement of financial condition of
each Partnership as at the end of each fiscal year of such
Partnership and the related statement of operations,
prepared in accordance with GAAP;
(e) Federal tax returns of the Borrowers within 15
days of the filing date thereof, but in no event later than
October 30 of each calendar year, certified as a true and
correct copy thereof by the Borrowers;
(f) within 30 days after a Borrower's receipt
thereof, a valuation statement, a summary of the investments
owned by each Partnership, a statement of the capital
account of the Borrowers in such Partnership and a copy of
all other reports, financial statements, notices and other
information furnished by such Partnership to the Borrowers;
and"
(d) Each of subsections 5.5(i) and 5.5(v) of the Credit
Agreement is hereby amended by deleting the word "the" appearing in each such
subsection before the words "Pledged Shares" and substituting therefor the
word "its".
(e) Section 5.10(a) of the Credit Agreement is hereby
amended to read as follows:
"(a) Not sell, transfer or otherwise
dispose of any securities of the same class or convertible
into the same class of securities as the Triarc Collateral,
whether or not such securities are pledged hereunder, from
the date hereof until the Obligations have been paid in
full. Notwithstanding the foregoing, a Borrower may (i)
transfer (each transfer referred to in clauses (A), (B) and
(C) below, hereinafter referred
4
to as a "PERMITTED TRANSFER") any Triarc Shares that do not
constitute Collateral to (A) a member of a Borrower's
immediate family, (B) any charitable institution, or (C) an
estate planning vehicle of a Borrower (each transferee
described in clauses (A), (B) and (C) above, hereinafter
referred to as a "PERMITTED TRANSFEREE"), or (ii) sell any
Triarc Shares that do not constitute Collateral, so long as,
in the case of any sale or transfer specified in either
clause (i) or (ii) above, (I) no Event of Default has
occurred and is continuing or will result therefrom and (II)
either such Permitted Transfer is a Permitted Charitable
Contribution, or for purposes of determining compliance with
the volume limitation of Rule 144, (1) the sales or other
transfers of the Pledged Shares by the Bank will not be
aggregated with such Permitted Transfers and (2) the
Borrowers will not permit a Permitted Transferee (other than
with respect to a Permitted Charitable Contribution) to
subsequently sell or transfer such Triarc Shares if such
sale or transfer by such Permitted Transferee will be
aggregated with any sales or other transfers of the Pledged
Shares by the Bank. If a Borrower engages in a Permitted
Transfer or otherwise sells or transfers Triarc Shares with
the Bank's written consent, such Borrower will furnish the
Bank with a copy of any Form 144 filed in respect of such
sale or other transfer. The Borrowers will use their best
efforts to cause any Person (other than a Permitted
Transferee) with whom it shall be deemed one "person" for
purposes of Rule 144(a)(2) to refrain from selling any
securities of the same class or convertible into the same
class of securities as the Triarc Collateral, whether or not
such securities are pledged hereunder, from the date hereof
until the Obligations have been paid in full, all Letters of
Credit cancelled, any Hedging Agreement terminated and all
of the Commitments terminated. As used herein, "PERMITTED
CHARITABLE CONTRIBUTION" means any transfer by a Borrower of
any Triarc Shares that do not constitute Collateral to any
charitable institution, PROVIDED that (y) in any calendar
quarter, the aggregate number of such Triarc Shares
transferred by Xxxxxx Xxxxx to charitable institutions shall
not exceed 36,750, unless the aggregate number of Triarc
Shares transferred by Xxxxx X. May to charitable
institutions in such calendar quarter is less than 18,250,
in which event Xxxxxx Xxxxx can so transfer to charitable
institutions in such calendar quarter an additional number
of such Triarc Shares equal to (1) 18,250 minus (2) the
aggregate number of Triarc Shares actually transferred by
Xxxxx X. May to charitable institutions in such calendar
quarter (it being understood and agreed that in no event
during any calendar quarter shall Xxxxxx Xxxxx transfer to
charitable institutions a number of Triarc Shares which,
when aggregated with the number of Triarc Shares transferred
by Xxxxx X. May in such calendar quarter, exceed 55,000), or
(z) the Bank gives its prior written consent to such
transfer, which consent shall not be unreasonably withheld."
(f) The Credit Agreement is hereby amended by adding
the following new Section 5.11 therein to read as follows:
5
"Section 5.12 LIENS. Not create, incur, assume or
suffer to exist any Lien (other than the Liens created in
favor of the Collateral Agent under any Loan Document) upon
or with respect to any of the Triarc Shares owned by a
Borrower, whether or not such Triarc Shares are pledged to
the Collateral Agent under any Loan Document, whether now
owned or hereafter acquired."
(g) Section 6.1(a)(iii) of the Credit Agreement is
hereby amended by deleting the words "the Guaranty or" appearing immediately
after the words "any amount pursuant to".
(h) Section 6.1(h) of the Credit Agreement is hereby
amended to read as follows:
"(h) IMPAIRMENT OF SECURITY. Any provision of the
Triarc Pledge Agreement, the NP Security Agreement, the
Accounts Assignments or any other security document, after
delivery thereof pursuant hereto, shall for any reason cease
to be valid and binding on or enforceable against any Loan
Party that is a party thereto, or such Loan Document ceases
to create a valid security interest in the collateral
purported to be covered thereby or such security interest
ceases for any reason to be a perfected and first priority
security interest; or"
(i) Section 6.2(e) of the Credit Agreement is hereby
amended by deleting the words ", plus the amount covered by the Guaranty"
appearing immediately after the words "all outstanding Letters of Credit".
(j) The proviso to Section 6.2 of the Credit Agreement
is hereby amended by deleting the words "and the Guaranty" appearing
immediately after the words "in respect of any Letter of Credit".
(k) Section 7.3 is hereby amended by (i) (A)
redesignating Section 7.3 thereof as new Section 7.3(a), (ii) adding to the
last sentence of Section 7.3(a) of the Credit Agreement the words "pledged by
DWG" immediately after the words "Triarc Collateral", and (iii) adding the
following new Section 7.3(b) therein to read as follows:
"(b) Notwithstanding anything to the contrary
contained in Section 5.5, Section 5.8 or Section 6.1(j)
hereof or in the Triarc Pledge Agreement, the Borrowers may
liquidate or dissolve DWG, so long as (i) concurrently with
such liquidation or dissolution, the Xxxxx Interest shall
have been transferred (subject to the perfected first
priority Lien and security interest of the Bank, securing
the Obligations) to Xxxxxx Xxxxx, (ii) Xxxxx X. May or
Xxxxxx Xxxxx shall have given the Bank at least 30 days'
prior written notice of such liquidation or dissolution,
(iii) immediately after such liquidation or dissolution, the
Bank shall have a perfected, first priority Lien on, and
security interest in the Triarc Shares
6
comprising the Xxxxx Interest, as security for the
Obligations, (iv) immediately before and after giving effect
to such liquidation or dissolution, no Default or Event of
Default shall exist, and (iv) the Bank shall have received
on or before the effective date of such liquidation or
dissolution the following, each in form and substance
satisfactory to the Bank: (A) the NP Pledge Agreement
(substantially similar to the Pledge and Security Agreement
dated as of April 2, 2003, made by Xxxxx X. May in favor of
the Collateral Agent) providing for the pledge of the Triarc
Shares comprising the Xxxxx Interest, duly executed by
Xxxxxx Xxxxx, (B) the original stock certificates, if any,
representing 100% of the Triarc Shares comprising the Xxxxx
Interest, (C) four undated stock powers endorsed in blank,
with signatures medallion guaranteed, for each stock
certificate referred to in clause (B) above, (D) evidence
that a financing statement on the Collateral described in
the NP Pledge Agreement has been duly filed in such office
or offices as may be necessary or, in the opinion of the
Bank, desirable to perfect the security interests purported
to be created by the NP Pledge Agreement, (E) an opinion of
counsel to Xxxxxx Xxxxx, to the effect that (I) the holding
period, for purposes of Rule 144(d) and (k), with respect to
the Triarc Shares received by Xxxxxx Xxxxx in such
liquidation commenced when DWG acquired such Triarc Shares,
(II) no law or regulation (other than applicable securities
laws relating to the offer and sale of securities generally)
restricts or limits the sale by Xxxxxx Xxxxx of the Triarc
Shares constituting the Xxxxx Interest, and (III) the
execution and delivery of the NP Pledge Agreement by Xxxxxx
Xxxxx and the performance by Xxxxxx Xxxxx of the obligations
contemplated thereby, do not result in a breach of or
default under the certificate of incorporation or by-laws of
Triarc, (F) a certificate by Xxxxxx Xxxxx to the effect that
he is not a party to any agreement, instrument or other
document that restricts or otherwise limits the sale or
other transfer of the Triarc Shares, and (G) an issuer's
letter from Triarc (substantially in the form of the
issuer's letter issued by Triarc with respect to the Triarc
Shares pledged by DWG), with respect to the pledge of Triarc
Shares received by Xxxxxx Xxxxx. The Borrowers agree to pay
all reasonable legal fees, costs and expenses incurred by
the Bank in connection with the foregoing. Upon the
liquidation or dissolution of DWG and the satisfaction of
the conditions set forth above, Section 5.5, Section 5.8 and
Section 6.1(j) hereof and the Triarc Pledge Agreement shall
be of no further force or effect, except for any provision
that by its express terms is intended to survive the
termination of the Triarc Pledge Agreement, and all
references thereto in the Credit Agreement shall be deleted
as of such date."
7
(l) Schedule I to the Credit Agreement is hereby
amended by replacing Schedule I to the Credit Agreement with Schedule I
hereto, which shall be Schedule I to the Credit Agreement for all purposes
thereof.
3. COMMITMENT FEE. On the Amendment Effective Date, the
Borrowers shall pay to the Bank a non-refundable commitment fee (the
"COMMITMENT FEE") equal to 1/4 of 1% of each of the Revolving A Commitment and
the Revolving B Commitment.
4. REPRESENTATIONS AND WARRANTIES. Each Borrower hereby
represents and warrants to the Bank as follows:
(a) CAPACITY. Such Borrower has the legal capacity to
execute, deliver and perform this Amendment, and to perform the Credit
Agreement, as amended, and each other Loan Document to which such Borrower is
a party.
(b) NO VIOLATION. The execution, delivery and
performance by such Borrower of this Amendment, and the performance of the
Credit Agreement, as amended hereby, and each other Loan Document to which
such Borrower is a party (i) do not and will not violate any law or any
contractual restriction binding on or otherwise affecting such Borrower or any
of the properties of such Borrower, except for any violation that could not
reasonably be expected to have a Material Adverse Effect, and (ii) do not and
will not result in the creation or imposition of any Lien upon any of the
property (now owned or hereafter acquired) of such Borrower, except Liens
created in favor of the Collateral Agent.
(c) APPROVALS. No authorization or approval or other
action by, and no notice to or filing with, any Governmental Authority or
other regulatory body, and no consent of any other Person, is required for the
due execution, delivery and performance by such Borrower of this Amendment, or
the performance of the Credit Agreement, as amended, or any other Loan
Document to which such Borrower is a party.
(d) ENFORCEABILITY OF LOAN DOCUMENTS. Each of this
Amendment, the New Notes (as hereinafter defined) and the Credit Agreement, as
amended hereby, and each other Loan Document to which such Borrower is a party
constitutes, and each Loan Document to which such Borrower will be a party,
when delivered hereunder, will constitute, a legal, valid and binding
obligation of such Borrower, enforceable against such Borrower in accordance
with its respective terms.
(e) LITIGATION. There is no material pending or, to
such Borrower's knowledge, threatened action, suit or proceeding affecting
such Borrower before any court or other Governmental Authority or any
arbitrator, which is reasonably likely to have a Material Adverse Effect.
(f) BRING-DOWN. (i) The representations and warranties
by such Borrower contained in this Section 4 of this Amendment and in Article
IV of the Credit Agreement, and of each Loan Party in each other Loan Document
and certificate or other writing delivered to the Bank pursuant hereto or
thereto on or prior to the date hereof are true and correct in all material
respects on and as of such date as though made on and as of such date, except
to the extent that
8
any such representation and warranty expressly relates solely to an earlier
date (in which case such representation and warranty shall be true and correct
on and as of such earlier date); (ii) no Event of Default or Default has
occurred and is continuing or would result from the effectiveness of this
Amendment; and (iii) since the date of the Credit Agreement, no material
adverse change in the operations, condition (financial or otherwise),
business, assets, income or prospects of such Borrower has occurred and is
continuing, except as previously disclosed in writing to the Bank and
consented to by the Bank.
5. CONDITIONS. This Amendment shall become effective on the
date (the "AMENDMENT EFFECTIVE DATE") as of which each of the following
conditions precedent shall have been satisfied in a manner satisfactory to the
Bank:
(a) The Bank shall have received the following
documents each in form and substance reasonably satisfactory to the Bank:
(i) this Amendment, duly executed by the
Borrowers;
(ii) the Acknowledgment and Consent,
substantially in the form attached hereto as Exhibit I, duly executed by DWG
and PF;
(iii) the Second Amended and Restated Revolving
A Note, dated the Amendment Effective Date, in substantially the form attached
hereto as Exhibit II, made by the Borrowers to the order of the Bank and in
the original principal amount of $37,500,000 (the "REVOLVING A NOTE");
(iv) the Second Amended and Restated Revolving
B Note, dated the Amendment Effective Date, in substantially the form attached
hereto as Exhibit III and made by the Borrowers to the order of the Bank and
in the original principal amount of $12,500,000 (the "REVOLVING B NOTE");
(v) UCC Financing Statement Amendment,
amending Schedule A to UCC-1 Financing Statement.
(vi) an opinion, dated the Amendment Effective
Date, of the law firm of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, counsel
to the Borrowers, in form and substance reasonably satisfactory to the Bank
and its counsel; and
(vii) such other agreements, instruments,
opinions and other documents as the Bank may reasonably request.
(b) The Bank shall have received all fees and other
amounts due and payable to the Bank, including, without limitation, the
Commitment Fee referred to in Section 3 hereof and all legal fees, costs and
expenses of the Bank in connection with the Credit Agreement, this Amendment
and the other related agreements and documents
(c) (i) The representations and warranties contained in
Section 4 hereof, in Article IV of the Credit Agreement and in each other Loan
Document and certificate or other writing delivered to the Bank pursuant
hereto on or prior to the Amendment Effective Date are
9
true and correct on and as of the Amendment Effective Date as though made on
and as of the Amendment Effective Date, except to the extent that any such
representation and warranty expressly relates solely to an earlier date (in
which case such representation and warranty shall be true and correct on and
as of such earlier date); (ii) no Event of Default or Default has occurred and
is continuing or would result from this Amendment; and (iii) since the date of
the Credit Agreement, no material adverse change in the financial condition,
properties or prospects of any Loan Party has occurred and is continuing on
the Amendment Effective Date, except as previously disclosed in writing to the
Bank and consented to in writing by the Bank.
6. REPLACEMENT OF OLD NOTE. Simultaneously with the execution
and delivery of this Amendment, the Borrowers are executing and delivering to
the Bank the Revolving A Note and the Revolving B Note (collectively, the "NEW
NOTES"). On and after the Amendment Effective Date, the existing Revolving A
Note and Revolving B Note, each dated December 31, 2002, made by the Borrowers
to the order of the Bank and in the original principal amount of $37,500,000
and $12,500,000, respectively (the "OLD NOTES"), shall be amended, superseded
and replaced by the New Notes. It is the intention of the parties hereto that
this Amendment and the substitution of the New Notes for the Old Notes shall
not in any way constitute (i) an extinguishment of the indebtedness of the
Borrowers under the Old Notes, (ii) a release of the Borrowers from such
obligations, or (iii) a novation of the Old Notes. Promptly after delivery of
the New Notes, duly executed by the Borrowers to the Bank, the Old Notes,
shall each be marked "cancelled" and replaced by the New Notes.
7. CONTINUED EFFECTIVENESS OF CREDIT AGREEMENT. (a) All
references in the Credit Agreement and in any other Credit Document to "the
Revolving A Note", "the Revolving B Note", "thereto", "thereof", "thereunder"
or words of like import referring to an Old Note shall be deemed to be
references to the relevant New Note, as such promissory note may be modified
or extended from time to time, and any note issued in exchange or replacement
therefor. All references in any Credit Document to "Obligations" shall be
deemed to include any indebtedness (including, without limitation, principal
and interest) under the New Notes.
(b) Except as otherwise expressly provided herein, the
Credit Agreement is, and shall continue to be, in full force and effect and is
hereby ratified and confirmed in all respects, except that on and after the
date hereof (i) all references in the Credit Agreement to "this Agreement",
"hereto", "hereof", "hereunder" or words of like import referring to the
Credit Agreement shall mean the Credit Agreement as amended by this Amendment
and (ii) all references in the other Loan Documents to the "Credit Agreement",
"thereto", "thereof", "thereunder" or words of like import referring to the
Credit Agreement shall mean the Credit Agreement as amended by this Amendment
8. MISCELLANEOUS.
(a) COUNTERPARTS. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which shall be deemed to be an original, but all of
which taken together shall constitute one and the same agreement.
10
(b) HEADINGS. Section headings herein are included for
convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
(c) GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(d) COSTS AND EXPENSES. The Borrowers agree to pay
promptly all reasonable fees, costs and expenses of the Bank (including,
without limitation, the reasonable fees and other client charges of Xxxxxxx
Xxxx & Xxxxx LLP) in connection with the Credit Agreement, this Amendment and
the related agreements, instruments and other documents.
(e) AMENDMENT AS LOAN DOCUMENT. The Borrowers hereby
acknowledge and agree that each of this Amendment and the New Notes
constitutes a "Loan Document." Accordingly, it shall be an Event of Default
under the Credit Agreement if (i) any representation or warranty made by the
Borrowers under or in connection with this Amendment or the New Notes shall
have been untrue, false or misleading in any material respect when made, or
(ii) the Borrowers shall fail to perform or observe any term, covenant or
agreement contained in this Amendment.
(f) WAIVER OF JURY TRIAL. THE BORROWERS AND THE BANK
EACH HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS AMENDMENT OR THE ACTIONS OF THE BANK IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
11
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed and delivered as of the date first above written.
/s/ Xxxxxx Xxxxx
--------------------------------
XXXXXX XXXXX
/s/ Xxxxxxx Xxxxx
--------------------------------
XXXXXXX XXXXX
BANK OF AMERICA, N.A.
By: /s/ Xxxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title Senior Vice President
AMENDMENT NO. 4 TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
AMENDMENT NO. 4 (the "AMENDMENT"), dated as of July 23, 2004, to the
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, dated as of April 2, 2001 (as
previously amended, the "CREDIT AGREEMENT"), by and between XXXXXX XXXXX and
XXXXXXX XXXXX (the "BORROWERS"), and BANK OF AMERICA, N.A., formerly known as
NationsBank, N.A. (the "BANK").
WHEREAS, the Borrowers and the Bank have entered into the Third
Amended and Restated Credit Agreement, pursuant to which the Bank agreed to
make loans and other financial accommodations (each a "LOAN" and collectively
the "LOANS") to the Borrowers in an aggregate principal amount at any time
outstanding not to exceed the amounts of the Commitments referred to therein;
WHEREAS, it was a condition precedent to the making of the Loans to
the Borrowers pursuant to the Credit Agreement that DWG Acquisition Group,
L.P., a Delaware limited partnership of which Xxxxx X. May and Xxxxxx Xxxxx
(collectively, the "GENERAL PARTNERS") are the sole general partners ("DWG"),
execute and deliver to the Collateral Agent the Triarc Pledge Agreement,
pursuant to which DWG pledged to the Collateral Agent, and granted to the
Collateral Agent a security interest in, the outstanding shares (the "TRIARC
SHARES") of capital stock issued by Triarc Companies, Inc. (the "ISSUER") from
time to time owned by DWG;
WHEREAS, Xxxxxx Xxxxx and Xxxxx X. May have agreed between themselves
that Xxxxxx Xxxxx owns approximately two-thirds of the Triarc Shares (the
"XXXXX INTEREST") and Xxxxx X. May owns approximately one-third of the Triarc
Shares (the "MAY INTEREST"); and
WHEREAS, (a) the Borrowers have (i) notified the Collateral Agent
that pursuant to Section 7.3 of the Credit Agreement, the General Partners
intend to liquidate DWG and transfer the Triarc Shares comprising the Xxxxx
Interest to Xxxxxx Xxxxx and the Triarc Shares comprising the May Interest to
Xxxxx X. May and (ii) requested that the Collateral Agent amend certain terms
and provisions of the Credit Agreement relating to the liquidation of DWG; and
(b) the Collateral Agent is willing to release its security interest in such
Triarc Shares so long as (i) concurrently with the liquidation of DWG, the
Xxxxx Interest shall have been transferred (subject to the perfected, first
priority Lien and security interest of the Collateral Agent, securing the
Obligations) to Xxxxxx Xxxxx, (ii) immediately after such liquidation, the
Collateral Agent shall have a perfected, first priority Lien on, and security
interest in, the Triarc Shares comprising the Xxxxx Interest (the "XXXXX
SHARES"), as security for the Obligations, and (iii) the Borrowers shall have
executed and delivered this Amendment to the Credit Agreement;
NOW, THEREFORE, the Borrowers and the Bank hereby agree as follows:
1. DEFINITIONS. All terms used herein which are defined in the
Credit Agreement and not otherwise defined herein are used herein as defined
therein.
1
2. AMENDMENTS TO CREDIT AGREEMENT. The Credit Agreement is,
effective as of the Amendment No. 4 Effective Date and subject to the
satisfaction (or due waiver) of the conditions set forth in Section 4 hereof,
hereby amended as follows:
(a) Section 1.1 of the Credit Agreement is hereby
amended as follows:
(i) The following definition for "AMENDMENT
NO. 4" is hereby inserted in Section 1.1 of the Credit Agreement in the
appropriate place to preserve the alphabetical order of the definitions in
such section:
"'AMENDMENT NO. 4' means Amendment No. 4 to Third
Amendment and Restated Credit Agreement, dated as of July
23, 2004, by and among the Borrowers and the Bank."
(ii) The following definition for "AMENDMENT
NO. 4 EFFECTIVE DATE" is hereby inserted in Section 1.1 of the Credit
Agreement in the appropriate place to preserve the alphabetical order of the
definitions in such section:
"'AMENDMENT NO. 4 EFFECTIVE DATE' means July 23,
2004."
(iii) The definition of the term "Loan
Documents" is hereby amended in its entirety to read as follows:
"' LOAN DOCUMENTS' means this Agreement, the Notes,
the Letters of Credit, the L/C Applications, the NP Security
Agreement, the CP Accounts Assignment, the PF Account
Assignment, PF Control Agreement, the NP Pledge Agreement,
the Hedging Agreements, and all other instruments,
agreements and other documents executed and delivered
pursuant hereto or thereto."
(iv) The definition of "LOAN PARTIES" is hereby
amended in its entirety to read as follows:
"'LOAN PARTIES' means (a) the Borrowers and (b)
each other Person that, at any time after the Closing Date,
becomes a party to this Credit Agreement or any other Loan
Document."
(v) The definition of "PARTNERSHIP AGREEMENT"
is hereby amended in its entirety to read as follows:
"'PARTNERSHIP AGREEMENT' means, with respect to any
Partnership, the operating agreement or partnership
agreement (or the equivalent governing documents) of such
Partnership."
(vi) The definition of the term "PLEDGED
SHARES" is hereby amended in its entirety to read as follows:
"'PLEDGED SHARES' means, collectively, the shares
of common stock issued by Triarc and pledged by Xxxxxx Xxxxx
to the Collateral Agent pursuant to the NP Pledge
Agreement."
(vii) The definition of the term "TRIARC
COLLATERAL" is hereby amended to read as follows:
"'TRIARC COLLATERAL' means all of the property
(tangible and intangible) purported to be subject to the
lien or security interest purported to be created by the NP
Pledge Agreement."
(viii) The definition of the term "TRIARC
COLLATERAL VALUE" is hereby amended to read as follows:
"'TRIARC COLLATERAL VALUE' means the sum of 100% of
the Market Value of the Pledged Shares pledged by Xxxxxx
Xxxxx pursuant to the NP Pledge Agreement."
(b) Section 4.1 of the Credit Agreement is hereby
deleted in its entirety and the following is hereby inserted in substitution
therefor: "[Intentionally Omitted]".
(c) Section 4.2 of the Credit Agreement is hereby
amended by deleting therefrom the text ", DWG".
(d) Section 4.8 of the Credit Agreement is hereby
amended in its entirety to read as follows:
"Section 4.8 PF PARTNERSHIP AGREEMENT. The
Borrowers have delivered to the Bank a true and correct copy
of the PF Partnership Agreement, as in effect on the date
hereof."
(e) Section 4.10(b) of the Credit Agreement is hereby
deleted in its entirety.
(f) Section 4.13 of the Credit Agreement is hereby
amended by deleting the words "a Borrower, PF or DWG" in the last sentence
thereof and inserting therein in lieu thereof the words "a Borrower or PF".
(g) Section 5.1(c) of the Credit Agreement is hereby
amended in its entirety to read as follows:
"(c) as soon as available and in any event not more
than 90 days after the end of each calendar year, a
statement of personal cash flow of the Borrowers for the
year then ended and projected cash flow of the Borrowers for
the following year, certified by the Borrowers to the best
of their knowledge as being true and complete in all
material respects; and"
(h) Section 5.5 of the Credit Agreement is hereby
deleted in its entirety and the following is hereby inserted in substitution
therefor: "[Intentionally Omitted]".
(i) Section 5.8 of the Credit Agreement is hereby
amended in its entirety to read as follows:
"Section 5.8 PF PARTNERSHIP AGREEMENTS. Not amend,
modify, alter, terminate or waive any provision of the PF
Partnership Agreement.
(j) Section 6.1(h) of the Credit Agreement is hereby
amended to read as follows:
"(h) IMPAIRMENT OF SECURITY. Any provision of the
NP Security Agreement, the Accounts Assignments, the NP
Pledge Agreement or any other security document, after
delivery thereof pursuant hereto, shall for any reason cease
to be valid and binding on or enforceable against any Loan
Party that is a party thereto, or such Loan Document ceases
to create a valid security interest in the collateral
purported to be covered thereby or such security interest
ceases for any reason to be a perfected and first priority
security interest; or"
(k) Section 6.1 of the Credit Agreement is hereby
amended by (a) deleting clause (j) thereof and (b) redesignating clause (k)
thereof as clause (j).
(l) Section 7.3(a) is hereby amended by deleting the
last sentence in Section 7.3(a) in its entirety.
3. REPRESENTATIONS AND WARRANTIES. Each Borrower hereby
represents and warrants to the Bank as follows:
(a) CAPACITY. Such Borrower has the legal capacity to
execute, deliver and perform this Amendment, and to perform the Credit
Agreement, as amended, and each other Loan Document to which such Borrower is
a party.
(b) NO VIOLATION. The execution, delivery and
performance by such Borrower of this Amendment, and the performance of the
Credit Agreement, as amended hereby, and each other Loan Document to which
such Borrower is a party (i) do not and will not violate any law or any
contractual restriction binding on or otherwise affecting such Borrower or any
of the properties of such Borrower, except for any violation that could not
reasonably be expected to have a Material Adverse Effect, and (ii) do not and
will not result in the creation or imposition of any Lien upon any of the
property (now owned or hereafter acquired) of such Borrower, except Liens
created in favor of the Collateral Agent.
(c) APPROVALS. No authorization or approval or other
action by, and no notice to or filing with, any Governmental Authority or
other regulatory body, and no consent of any other Person, is required for the
due execution, delivery and performance by such
Borrower of this Amendment, or the performance of the Credit Agreement, as
amended, or any other Loan Document to which such Borrower is a party.
(d) ENFORCEABILITY OF LOAN DOCUMENTS. Each of this
Amendment and the Credit Agreement, as amended hereby, and each other Loan
Document to which such Borrower is a party constitutes, and each Loan Document
to which such Borrower will be a party, when delivered hereunder, will
constitute, a legal, valid and binding obligation of such Borrower,
enforceable against such Borrower in accordance with its respective terms.
(e) LITIGATION. There is no material pending or, to
such Borrower's knowledge, threatened action, suit or proceeding affecting
such Borrower before any court or other Governmental Authority or any
arbitrator, which is reasonably likely to have a Material Adverse Effect.
(f) BRING-DOWN. (i) The representations and warranties
by such Borrower contained in this Section 3 of this Amendment and in Article
IV of the Credit Agreement, as amended hereby, and of each Loan Party in each
other Loan Document and certificate or other writing delivered to the Bank
pursuant hereto or thereto on or prior to the date hereof are true and correct
in all material respects on and as of such date as though made on and as of
such date, except to the extent that any such representation and warranty
expressly relates solely to an earlier date (in which case such representation
and warranty shall be true and correct on and as of such earlier date); (ii)
no Event of Default or Default has occurred and is continuing or would result
from the effectiveness of this Amendment; and (iii) since the date of the
Credit Agreement, no material adverse change in the operations, condition
(financial or otherwise), business, assets, income or prospects of such
Borrower has occurred and is continuing, except as previously disclosed in
writing to the Bank and consented to in writing by the Bank.
(g) RESIDENCE. The principal residence of each Borrower
is 000 Xxxxx Xxxx Xxxx, Xxxxx Xxxxx, XX 00000.
4. CONDITIONS. This Amendment shall become effective on the
date (the "AMENDMENT NO. 4 EFFECTIVE DATE") as of which each of the following
conditions precedent shall have been satisfied in a manner satisfactory to the
Bank:
(a) The Bank shall have received the following
documents, each in form and substance satisfactory to the Bank:
(i) this Amendment, duly executed by the
Borrowers;
(ii) NP Pledge Agreement made by Xxxxxx Xxxxx
in favor of the Bank, together with (A) the original stock certificates
representing 100% of the Xxxxx Shares owned by Xxxxxx Xxxxx and (B) four
undated stock powers executed in blank (each with signature medallion
guaranteed) for each stock certificate pledged by Xxxxxx Xxxxx and other
proper instruments of transfer;
(iii) evidence that a financing statement,
naming Xxxxxx Xxxxx as debtor and the Bank as secured party, describing the
Collateral described in the NP Pledge Agreement, has been duly filed in such
office or offices as may be necessary or, in the opinion of
the Bank, desirable to perfect the security interests purported to be created
by the NP Pledge Agreement;
(iv) certified copies of requests for copies or
information on Form UCC-11, listing all effective financing statements which
name either Borrower as debtor and which are filed in the offices required by
the Bank, together with copies of such financing statements, none of which,
except as otherwise agreed to in writing by the Bank, shall cover any of the
Collateral;
(v) the Issuer's Letter, duly executed by
Triarc, with respect to the Xxxxx Shares pledged by Xxxxxx Xxxxx;
(vi) a certificate by Xxxxxx Xxxxx certifying
that (A) DWG has been liquidated or dissolved, (B) the issued and outstanding
Triarc Shares allocable to the Xxxxx Interest have been transferred (subject
to the perfected, first priority Lien and security interest of the Bank
securing the Obligations) to Xxxxxx, (C) immediately after such transfer, the
Bank has a perfected, first priority Lien on, and security interest in, the
Triarc Shares comprising the Xxxxx Interest, as security for the Obligations,
(D) immediately before and after giving effect to such liquidation or
dissolution, no Default or Event of Default exists and (E) he is not a party
to or otherwise subject to any agreement, instrument or other document that
restricts or otherwise limits the sale or other transfer of the Triarc Shares;
(vii) Federal Reserve Forms U-1 provided for in
Regulation U issued by the Board, the statements made in which shall be such,
in the opinion of the Bank, as to permit the transactions contemplated hereby
in accordance with such Regulation;
(viii) Form 144, duly executed by the Borrowers;
(ix) an opinion, dated the Amendment No. 4
Effective Date, of the law firm of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
LLP, counsel to the Borrowers, in form and substance reasonably satisfactory
to the Bank and its counsel; and
(x) such other agreements, instruments,
opinions and other documents as the Bank may reasonably request.
(b) (i) The representations and warranties by each
Borrower contained in this Section 3 of this Amendment and in Article IV of
the Credit Agreement, as amended hereby, and of each Loan Party in each other
Loan Document and certificate or other writing delivered to the Bank pursuant
hereto or thereto on or prior to the date hereof are true and correct in all
material respects on and as of such date as though made on and as of such
date, except to the extent that any such representation and warranty expressly
relates solely to an earlier date (in which case such representation and
warranty shall be true and correct on and as of such earlier date); (ii) no
Event of Default or Default has occurred and is continuing or would result
from the effectiveness of this Amendment; and (iii) since the date of the
Credit Agreement, no material adverse change in the operations, condition
(financial or otherwise), business, assets, income or prospects of such
Borrower has occurred and is continuing, except as previously disclosed in
writing to the Bank and consented to in writing by the Bank.
5. MISCELLANEOUS.
(a) CONTINUED EFFECTIVENESS OF CREDIT AGREEMENT. Except
as otherwise expressly provided herein, the Credit Agreement is, and shall
continue to be, in full force and effect and is hereby ratified and confirmed
in all respects, except that on and after the date hereof (i) all references
in the Credit Agreement to "this Agreement", "hereto", "hereof", "hereunder"
or words of like import referring to the Credit Agreement shall mean the
Credit Agreement as amended by this Amendment, and (ii) all references in the
other Loan Documents to the "Credit Agreement", "thereto", "thereof",
"thereunder" or words of like import referring to the Credit Agreement shall
mean the Credit Agreement as amended by this Amendment.
(b) COUNTERPARTS. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which shall be deemed to be an original, but all of
which taken together shall constitute one and the same agreement.
(c) HEADINGS. Section headings herein are included for
convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
(d) GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(e) COSTS AND EXPENSES. The Borrowers agree to pay on
demand all reasonable fees, costs and expenses of the Bank (including, without
limitation, the reasonable fees and other client charges of Xxxxxxx Xxxx &
Xxxxx LLP) in connection with the Credit Agreement, this Amendment and the
related agreements, instruments and other documents.
(f) AMENDMENT AS LOAN DOCUMENT. The Borrowers hereby
acknowledge and agree that this Amendment constitutes a "Loan Document."
Accordingly, it shall be an Event of Default under the Credit Agreement if (i)
any representation or warranty made by the Borrowers under or in connection
with this Amendment shall have been untrue, false or misleading in any
material respect when made, or (ii) the Borrowers shall fail to perform or
observe any term, covenant or agreement contained in this Amendment.
(g) WAIVER OF JURY TRIAL. THE BORROWERS AND THE BANK
EACH HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS AMENDMENT OR THE ACTIONS OF THE BANK IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed and delivered as of the date first above written.
/s/ Xxxxxx Xxxxx
--------------------------------
XXXXXX XXXXX
/s/ Xxxxxxx Xxxxx
--------------------------------
XXXXXXX XXXXX
BANK OF AMERICA, N.A.
By: /s/ Xxxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title Senior Vice President
OMNIBUS AMENDMENT
WAIVER AND RELEASE
CREDIT AGREEMENT
OMNIBUS AMENDMENT, WAIVER AND RELEASE, dated May 5, 2005 (the
"AMENDMENT"), to the AMENDED DOCUMENTS (as defined below), by and among XXXXXX
XXXXX and XXXXXXX XXXXX (the "BORROWERS") and BANK OF AMERICA, N.A., a
national banking association (the "LENDER").
WHEREAS, the Borrowers and the Lender are parties to (i) the Third
Amended and Restated Credit Agreement, dated as of April 2, 2001 (as
previously amended, the "CREDIT AGREEMENT"), among the Borrowers and the
Lender, pursuant to which the Lender has agreed to make, during the period
from the Effective Date (as defined in the Credit Agreement) to the
Termination Date (currently, May 5, 2005), (A) Revolving A Loans to the
Borrowers in the aggregate principal amount not to exceed $37,500,000 at any
time outstanding and (B) Revolving B Loans in the aggregate principal amount
not to exceed $12,500,000 at any time outstanding and (ii) the Pledge and
Security Agreement dated as of July 23, 2004 (the "PLEDGE AGREEMENT"; together
with the Credit Agreement, collectively, the "AMENDED DOCUMENTS"), made by
Xxxxxx Xxxxx (the "Pledgor") in favor of the Lender, pursuant to which the
Pledgor granted to the Lender a perfected, first priority security interest
in, and a Lien on, the Pledgor's equity interest in, among other things, the
Pledged Shares (as defined in the Credit Agreement), as security for the
Obligations (as defined in the Credit Agreement);
WHEREAS, it was a condition precedent to the making of the Loans by
the Lender that, among other things, Xxxxx Family Limited Partnership
("PLEDGOR"), a Delaware limited partnership and a Loan Party under the Credit
Agreement, shall have pledged to the Collateral Agent for the benefit of the
Lender, and granted to the Collateral Agent for the benefit of the Lender a
security interest in, all of the Pledgor's right, title and interest in
account number 45-20-025-0000000 (the "PF ACCOUNT") maintained by the Pledgor
with the Lender and the securities held in the PF Account (the "RELEASED
SECURITIES"), all as set forth in the Pledge Agreement, dated as of April 2,
2001 (the "PF PLEDGE AGREEMENT"), made by the Pledgor to the Lender;
WHEREAS, the Borrowers have requested that, among other things, the
Lender (i) extend the Termination Date, from May 5, 2005 to August 5, 2005,
(ii) increase the maximum principal amount available under the Revolving A
Commitment from $37,500,000 to $43,000,000, (iii) reduce the maximum principal
amount available under the Revolving B Commitment from $12,500,000 to
$7,000,000, (iv) release its lien on, and security interest in, (A) the number
of Class B Pledged Shares necessary to permit Xxxxxx Xxxxx to make a
charitable contribution worth approximately $2,000,000 (the "RELEASED
SHARES"), but not to exceed 160,000 Class B Pledged Shares, to the Xxxxxx and
Xxxxxxx Xxxxx Family Foundation (the "FOUNDATION"), pursuant to Section
5.10(a) of the Credit Agreement (it being understood and agreed that the
portion of the 160,000 Class B Shares not used to make such charitable
contribution shall continue
to constitute Collateral for the Obligations), and (B) the PF Account and the
Released Securities and (v) terminate the PF Pledge Agreement;
WHEREAS, the Lender is willing to so amend the Amended Documents,
release its Lien on and security interest in the PF Account and the Released
Securities and terminate the PF Pledge Agreement, subject to and the terms and
conditions of this Amendment;
NOW, THEREFORE, in consideration of the premises and the agreements
herein and in order to induce the Lender to maintain the Loans, the Borrowers
hereby agree with the Lender as follows:
1. DEFINITIONS. All terms used herein which are defined in the
Credit Agreement and not otherwise defined herein are used herein as defined
therein.
2. AMENDMENTS TO CREDIT AGREEMENT. The Credit Agreement is,
effective as of the Amendment Effective Date and subject to the satisfaction
(or due waiver) of the conditions set forth in Section 5 hereof, hereby
amended as follows:
(a) Section 1.1 of the Credit Agreement is hereby
amended as follows:
(i) The definition of the term "Accounts" is
hereby amended and restated to read as follows:
""ACCOUNTS" means (i) account number
0252601 maintained by Xxxxxxx Xxxxx with the Bank
and pledged to the Bank pursuant to the CP Accounts
Assignment, and (ii) such other accounts as may be
pledged by the Borrowers to the Banks from time to
time."
(ii) The definition of the term "Accounts
Assignments" is hereby deleted in its entirety.
(iii) The definition of the term "Loan
Documents" is hereby amended and restated to read as follows:
""LOAN DOCUMENTS" means this Agreement,
the Notes, the Letters of Credit, the L/C
Applications, the NP Security Agreement, the CP
Accounts Assignment, the NP Pledge Agreement, the
Hedging Agreements, and all other instruments,
agreements and other documents executed and
delivered pursuant hereto or thereto."
(iv) The definition of "PF Control Agreement"
is hereby deleted in its entirety.
(v) The definition of the term "Revolving B
Collateral" is hereby amended and restated to read as follows:
""REVOLVING B COLLATERAL" means the
Accounts and Partnership Interests and all other
Collateral covered by the CP Accounts Assignment
and the NP Security Agreement.
(vi) The definition of "Termination Date" is
hereby amended and restated to read as follows:
""TERMINATION DATE" means August 5, 2005
or, with respect to any Commitment, such earlier
date on which such Commitment shall be terminated
pursuant to this Agreement."
(vii) The definition of the term "Revolving A
Commitment" is hereby amended by deleting the reference to "$37,500,000"
therein, and by substituting therefor "$43,000,000".
(viii) The definition of the term "Revolving B
Commitment" is hereby amended by deleting the reference to "$12,500,000"
therein, and by substituting therefor "$7,000,000".
(b) Section 4.2 of the Credit Agreement is hereby
amended by deleting therefrom the phrase "PF or".
(c) Section 4.7(b) of the Credit Agreement is hereby
deleted in its entirety and Section 4.7(a) is hereby redesignated as Section
4.7.
(d) Section 4.13 of the Credit Agreement is hereby
amended by deleting the phrase "a Borrower or PF" in the last sentence thereof
and inserting therein in lieu thereof the phrase "a Borrower".
(e) Section 5.1 of the Credit Agreement is hereby
amended by (A) deleting clause (d) thereof in its entirety, (B) redesignating
clauses (e), (f) and (g) thereof as new clauses (d), (e) and (f) respectively
and (C) inserting the word "and" immediately after clause (f) thereof.
(f) Section 5.6 of the Credit Agreement is hereby
deleted in its entirety and the following is hereby inserted in substitution
therefor: "[Intentionally Omitted]".
(g) Section 5.8 of the Credit Agreement is hereby
deleted in its entirety and the following is hereby inserted in substitution
therefor: "[Intentionally Omitted]".
(h) Section 6.1(h) of the Credit Agreement is hereby
amended and restated to read as follows:
"(h) IMPAIRMENT OF SECURITY. Any provision
of the NP Security Agreement, the CP Accounts
Assignment, the NP Pledge Agreement or any other
security document, after delivery thereof pursuant
hereto, shall for any reason cease to be valid and
binding on or enforceable against any Loan Party
that is a party thereto, or such Loan Document
ceases to create a valid security interest in the
collateral purported to be covered thereby or such
security interest ceases for any reason to be a
perfected and first priority security interest; or"
(i) Section 6.1 of the Credit Agreement is hereby
amended by (A) deleting clause (l) thereof in its entirety and (B) deleting
the text "; or" at the end of clause (k) thereof and inserting a period in
lieu thereof.
(j) SCHEDULES. Schedule I to the Pledge Agreement is
hereby amended and restated by replacing Schedule I to the Pledge Agreement
with ANNEX A hereto, which shall be Schedule I to the Pledge Agreement for all
purposes therein.
3. WAIVER AND CONSENT. (a) Pursuant to the request by the
Borrowers, the Lender and the Collateral Agent hereby consent to, and waive
any Default or Event of Default that would otherwise arise under Section
6.1(c) of the Credit Agreement as a result of, any noncompliance with Section
5.10(a) of the Credit Agreement or Section 6(g) of the Pledge Agreement by
reason of (i) the release by the Collateral Agent of any lien on or security
interest in the Released Shares and (ii) the charitable contribution of the
Released Shares (with a fair market value of approximately $2,000,000) by the
Pledgor to the Foundation in connection with a Charitable Contribution, which
for purposes of Section 5.10 of the Credit Agreement shall be deemed a
"Permitted Charitable Contribution", PROVIDED that (A) the Borrowers shall
give the Lender written notice promptly after such Permitted Charitable
Contribution is consummated and promptly after the Foundation sells or
otherwise transfers any of the Released Shares, (B) the Borrowers shall not
effect any other transfer of Triarc Shares to any charitable institution
during any calendar quarter when the Permitted Charitable Contribution of the
Released Shares is consummated, and (C) the number of Triarc Shares that may
be transferred during any calendar quarter to a charitable institution in
accordance with Section 5.10 shall be further reduced by the number of Triarc
Shares sold or otherwise transferred by the Foundation.
(b) The consents and waivers set forth in subsection
(a) above shall cease to be effective and shall have no force or effect to the
extent the Released Shares have not been used by the Pledgor to make a
Charitable Contribution pursuant to, and in the manner permitted by, Section
5.10(a) of the Credit Agreement on or prior to May 31, 2005.
(c) The waivers and consents in this Section 3 shall be
effective only in the specific instances and for the specific purposes set
forth herein and do not allow for any other or further departure from the
terms and conditions of the Credit Agreement or any other Loan Document, which
terms and conditions shall remain in full force and effect. The Collateral
Agent hereby expressly reserves all of its rights and remedies under the
Credit Agreement and the other Loan Documents against the Loan Parties.
4. TERMINATION AND RELEASE. Subject to the conditions set forth
in this Amendment, the Collateral Agent hereby agrees as follows:
(a) effective as of the date hereof, the Collateral
Agent releases all liens on and security interests in the PF Account and all
Released Securities, and the PF Pledge Agreement shall be terminated, PROVIDED
that (i) such release is without representation, warranty or recourse of any
kind, (ii) nothing herein shall affect in any respect the lien of the
Collateral Agent on and the security interest of the Collateral Agent in the
Pledged Collateral other than the PF Account and Released Securities and (iii)
the Borrowers are otherwise in compliance with the requirements set forth in
Section 2.2(d) of the Credit Agreement;
(b) effective as of the date specified in the letter
from the Lender to the American Stock Transfer and Trust Company with respect
to stock certificate number TCB 2850, representing 346,000 shares of Class B
common stock of Triarc, the Collateral Agent releases any lien on and security
interest in the Released Shares, PROVIDED that (i) such release is without
representation, warranty or recourse of any kind, (ii) nothing herein shall
affect in any respect the lien of the Collateral Agent on and the security
interest of the Collateral Agent in the Pledged Collateral other than the
Released Shares, (iii) the Released Shares shall have an approximate market
value of $2,000,000 and in no event shall the Released Shares exceed 160,000
of Class B Triarc Shares, and (iv) the Borrowers are otherwise in compliance
with the requirements set forth in Section 5.10(a) of the Credit Agreement
relating to the sale or other transfer of securities owned by the Borrowers;
and
(c) subject to the terms and conditions in this
Amendment, the Collateral Agent will, at the request of the Pledgor, execute
such additional instruments and other writings, and take such other actions,
as the Pledgor may reasonably request to effect or evidence, to the extent set
forth herein, the termination of the lien and security interest of the
Collateral Agent in the Released Shares, the PF Account and Released
Securities, but at the sole cost and expense of the Borrowers and without
representation, warranty or recourse of any kind to the Collateral Agent or
the Lender.
5. COMMITMENT FEE. On the Amendment Effective Date, the
Borrowers shall pay to the Lender a non-refundable commitment fee (the
"COMMITMENT FEE") equal to $55,312.50, which shall be deemed fully earned when
paid.
6. REPRESENTATIONS AND WARRANTIES. Each Borrower hereby
represents and warrants to the Lender as follows:
(a) CAPACITY. Such Borrower has the legal capacity to
execute, deliver and perform this Amendment, and to perform the Amended
Documents, as amended, the New Notes and each other Loan Document to which
such Borrower is a party.
(b) NO VIOLATION. The execution, delivery and
performance by such Borrower of this Amendment, and the performance of the
Amended Documents, as amended hereby, the New Notes and each other Loan
Document to which such Borrower is a party (i) do
not and will not violate any law or any contractual restriction binding on or
otherwise affecting such Borrower or any of the properties of such Borrower,
except for any violation that could not reasonably be expected to have a
Material Adverse Effect, and (ii) do not and will not result in the creation
or imposition of any Lien upon any of the property (now owned or hereafter
acquired) of such Borrower, except Liens created in favor of the Collateral
Agent.
(c) APPROVALS. No authorization or approval or other
action by, and no notice to or filing with, any Governmental Authority or
other regulatory body, and no consent of any other Person, is required for the
due execution, delivery and performance by such Borrower of this Amendment, or
the performance of the Amended Documents, as amended, the New Notes or any
other Loan Document to which such Borrower is a party.
(d) ENFORCEABILITY OF LOAN DOCUMENTS. Each of this
Amendment and the Amended Documents, as amended hereby, the New Notes and each
other Loan Document to which such Borrower is a party constitutes, and each
Loan Document to which such Borrower will be a party, when delivered
hereunder, will constitute, a legal, valid and binding obligation of such
Borrower, enforceable against such Borrower in accordance with its respective
terms.
(e) LITIGATION. There is no material pending or, to
such Borrower's knowledge, threatened action, suit or proceeding affecting
such Borrower before any court or other Governmental Authority or any
arbitrator, which is reasonably likely to have a Material Adverse Effect.
(f) BRING-DOWN. (i) The representations and warranties
by such Borrower contained in this Section 6 of this Amendment and in Article
IV of the Credit Agreement, as amended hereby, and of each Loan Party in each
other Loan Document and certificate or other writing delivered to the Lender
pursuant hereto or thereto on or prior to the date hereof are true and correct
in all material respects on and as of such date as though made on and as of
such date, except to the extent that any such representation and warranty
expressly relates solely to an earlier date (in which case such representation
and warranty shall be true and correct on and as of such earlier date); (ii)
no Event of Default or Default has occurred and is continuing or would result
from the effectiveness of this Amendment; and (iii) since the date of the
Credit Agreement, no material adverse change in the operations, condition
(financial or otherwise), business, assets, income or prospects of such
Borrower has occurred and is continuing, except as previously disclosed in
writing to the Lender and consented to in writing by the Lender.
(g) RESIDENCE. The principal residence of each Borrower
is 000 Xxxxx Xxxx Xxxx, Xxxxx Xxxxx, XX 00000.
7. CONDITIONS. This Amendment shall become effective on the
date (the "AMENDMENT EFFECTIVE DATE") as of which each of the following
conditions precedent shall have been satisfied in a manner satisfactory to the
Lender:
(a) The Lender shall have received the following
documents, each in form and substance satisfactory to the Lender:
(i) this Amendment, duly executed by the
Borrowers;
(ii) the Third Amended and Restated Revolving A
Note, dated the Amendment Effective Date, in substantially the form attached
hereto as Annex B, made by the Borrowers to the order of the Lender and in the
original principal amount of $43,000,000 (the "REVOLVING A NOTE");
(iii) the Third Amended and Restated Revolving B
Note, dated the Amendment Effective Date, in substantially the form attached
hereto as Annex C and made by the Borrowers to the order of the Lender and in
the original principal amount of $7,000,000 (the "REVOLVING B NOTE"; together
with the Revolving A Note, collectively, the "NEW NOTES"); and
(iv) such other agreements, instruments,
opinions and other documents as the Lender may reasonably request.
(b) The Lender shall have received a prepayment of the
Revolving B Loans required such that, after giving effect to this Amendment
and such prepayment, the aggregate principal amount of the Revolving B Loans,
the L/C Outstandings and accrued interest and unpaid commitment fee thereon
does not exceed the amount equal to the Revolving B Advance Value.
(c) The Lender shall have received all fees and other
amounts due and payable to the Lender, including, without limitation, the
Commitment Fee referred to in Section 5 hereof and all legal fees, costs and
expenses of the Lender in connection with the Credit Agreement, this Amendment
and the other related agreements and documents.
(d) (i) The representations and warranties by each
Borrower contained in this Section 6 of this Amendment and in Article IV of
the Credit Agreement, as amended hereby, and of each Loan Party in each other
Loan Document and certificate or other writing delivered to the Lender
pursuant hereto or thereto on or prior to the date hereof are true and correct
in all material respects on and as of such date as though made on and as of
such date, except to the extent that any such representation and warranty
expressly relates solely to an earlier date (in which case such representation
and warranty shall be true and correct on and as of such earlier date); (ii)
no Event of Default or Default has occurred and is continuing or would result
from the effectiveness of this Amendment; and (iii) since the date of the
Credit Agreement, no material adverse change in the operations, condition
(financial or otherwise), business, assets, income or prospects of such
Borrower has occurred and is continuing, except as previously disclosed in
writing to the Lender and consented to in writing by the Lender.
8. REPLACEMENT OF OLD NOTE; CONTINUED EFFECTIVENESS OF AMENDED
DOCUMENTS. (a) Simultaneously with the execution and delivery of this
Amendment, the Borrowers are executing and delivering to the Lender the New
Notes. On and after the Amendment Effective Date, the existing Revolving A
Note and Revolving B Note, each dated April 2, 2003, made by the Borrowers to
the order of the Lender and in the original principal amount of $37,500,000
and $12,500,000, respectively (the "OLD NOTES"), shall be amended, superseded
and replaced by the New Notes. It is the intention of the parties hereto that
this Amendment and the substitution of the New Notes for the Old Notes shall
not in any way constitute (i) an extinguishment of the indebtedness of the
Borrowers under the Old Notes, (ii) a
release of the Borrowers from such obligations, or (iii) a novation of the Old
Notes. Promptly after delivery of the New Notes, duly executed by the
Borrowers to the Lender, the Old Notes, shall each be marked "cancelled" and
replaced by the New Notes, provided, that the Borrowers shall pay any unpaid
interest on the Old Notes accrued through the date of the New Notes on or
before June 1, 2005.
(b) All references in the Credit Agreement and in any
other Loan Document to "the Revolving A Note", "the Revolving B Note",
"thereto", "thereof", "thereunder" or words of like import referring to an Old
Note shall be deemed to be references to the relevant New Note, as such
promissory note may be modified or extended from time to time, and any note
issued in exchange or replacement therefor. All references in any Loan
Document to "Obligations" shall be deemed to include any indebtedness
(including, without limitation, principal and interest) under the New Notes.
(c) Except as otherwise expressly provided herein, the
Amended Documents and the other Loan Documents are, and shall continue to be,
in full force and effect and are hereby ratified and confirmed in all
respects, except that on and after the date hereof (i) all references in the
Amended Documents to "this Agreement", "hereto", "hereof", "hereunder" or
words of like import referring to the Amended Documents shall mean the Amended
Documents as amended by this Amendment, and (ii) all references in the other
Loan Documents to which the Borrower is a party to the "Credit Agreement",
"thereto", "thereof", "thereunder" or words of like import referring to the
Credit Agreement shall mean the Credit Agreement, as amended by this
Amendment. Except as expressly provided herein, the execution, delivery and
effectiveness of this Amendment shall not operate as a waiver of any right,
power or remedy of the Lender under the Amended Documents, under any other
Loan Document or under any other document, nor constitute a waiver of any
provision of the Amended Documents.
9. MISCELLANEOUS.
(a) COUNTERPARTS. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which shall be deemed to be an original, but all of
which taken together shall constitute one and the same agreement.
(b) HEADINGS. Section headings herein are included for
convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
(c) GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(d) COSTS AND EXPENSES. The Borrowers agree to pay on
demand all reasonable fees, costs and expenses of the Lender (including,
without limitation, the reasonable fees and other client charges of Xxxxxxx
Xxxx & Xxxxx LLP) in connection with the Credit Agreement, this Amendment and
the related agreements, instruments and other documents.
(e) AMENDMENT AS LOAN DOCUMENT. The Borrowers hereby
acknowledge and agree that this Amendment constitutes a "Loan Document."
Accordingly, it shall be an Event of Default under the Credit Agreement if (i)
any representation or warranty made by the Borrowers under or in connection
with this Amendment shall have been untrue, false or misleading in any
material respect when made, or (ii) the Borrowers shall fail to perform or
observe any term, covenant or agreement contained in this Amendment.
(f) WAIVER OF JURY TRIAL. THE BORROWERS AND THE LENDER
EACH HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS AMENDMENT OR THE ACTIONS OF THE LENDER IN
THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed and delivered as of the date first above written.
/s/ Xxxxxx Xxxxx
--------------------------------
XXXXXX XXXXX
/s/ Xxxxxxx Xxxxx
--------------------------------
XXXXXXX XXXXX
BANK OF AMERICA, N.A.
By: /s/ Xxxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title Senior Vice President
AMENDMENT NO. 6 TO THIRD AMENDED
AND RESTATED CREDIT AGREEMENT
AMENDMENT NO. 6, dated as of August 5, 2005 (the "AMENDMENT"), to the
Credit Agreement (as defined below), by and among XXXXXX XXXXX and XXXXXXX
XXXXX (the "BORROWERS") and BANK OF AMERICA, N.A., a national banking
association (the "LENDER").
WHEREAS, the Borrowers and the Lender are parties to the Third
Amended and Restated Credit Agreement, dated as of April 2, 2001 (as
previously amended, the "CREDIT AGREEMENT"), among the Borrowers and the
Lender, pursuant to which the Lender has agreed to make, during the period
from the Effective Date (as defined in the Credit Agreement) to the
Termination Date (currently, August 5, 2005), (A) Revolving A Loans to the
Borrowers in the aggregate principal amount not to exceed $43,000,000 at any
time outstanding and (B) Revolving B Loans in the aggregate principal amount
not to exceed $7,000,000 at any time outstanding;
WHEREAS, the Borrowers have requested that, among other things, the
Lender (i) extend the Termination Date, from August 5, 2005 to August 5, 2007,
(ii) increase the maximum number of Triarc Shares that may be transferred to
charitable institutions pursuant to Section 5.10(a) of the Credit Agreement,
(iv) release its lien on, and security interest in account number 0000000 (the
"CP ACCOUNT") and (v) terminate the CP Accounts Assignment;
WHEREAS, the Lender is willing to so amend the Amended Documents,
release its Lien on and security interest in CP Account and terminate the CP
Accounts Assignment, subject to and the terms and conditions of this
Amendment;
NOW, THEREFORE, in consideration of the premises and the agreements
herein and in order to induce the Lender to maintain the Loans, the Borrowers
hereby agree with the Lender as follows:
1. DEFINITIONS. All terms used herein which are defined in the
Credit Agreement and not otherwise defined herein are used herein as defined
therein.
2. AMENDMENTS TO CREDIT AGREEMENT. The Credit Agreement is,
effective as of the Amendment Effective Date and subject to the satisfaction
(or due waiver) of the conditions set forth in Section 5 hereof, hereby
amended as follows:
(a) Section 1.1 of the Credit Agreement is hereby
amended as follows:
(i) The definition of the term "Accounts" is
hereby amended and restated to read as follows:
""ACCOUNTS" means any accounts pledged by
the Borrowers to the Banks from time to time."
(ii) The definition of the term "CP Accounts
Assignment" is hereby deleted in its entirety.
(iii) The definition of the term "Investments"
is hereby deleted in its entirety.
(iv) The definition of the term "Loan
Documents" is hereby amended and restated to read as follows:
""LOAN DOCUMENTS" means this Agreement,
the Notes, the Letters of Credit, the L/C
Applications, the NP Security Agreement, the NP
Pledge Agreement, the Hedging Agreements, and all
other instruments, agreements and other documents
executed and delivered pursuant hereto or thereto."
(v) The definition of "Partnership Interest"
is hereby amended and restated in its entirety to read as follows:
""PARTNERSHIP INTERESTS" means each
Borrower's rights in and to each Partnership,
including such Borrower's rights under the
Partnership Agreement of each Partnership, in which
such Borrower has an interest."
(vi) The definition of the term "Revolving B
Collateral" is hereby amended and restated to read as follows:
""REVOLVING B COLLATERAL" means the
Accounts and Partnership Interests and all other
Collateral covered by the NP Security Agreement.
(vii) The definition of "Termination Date" is
hereby amended and restated to read as follows:
""TERMINATION DATE" means August 5, 2007
or, with respect to any Commitment, such earlier
date on which such Commitment shall be terminated
pursuant to this Agreement."
(b) Section 5.1(a) of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
"(a) (i) within 120 days after the end of
each calendar year annual financial statements of the
Borrowers, in form and substance reasonably
satisfactory to the Bank, and including, without
limitation, statement of cash flow for the year then
ended and projected cash flow of the Borrowers for
the following year, a list of all assets and
liabilities, a summary of the Borrowers' sources and
uses of cash during such year, a summary of all
debt service of the Borrowers during such year, and
a summary of all material contractual contingent
liabilities of the Borrowers as of such date (which
financial statements shall in any event identify
all joint or co- owners of any assets), all
certified by the Borrowers or their authorized
agent (A) as fairly presenting in all material
respects the financial condition of the Borrowers
as at said date, and (B) having been prepared in
accordance with sound accounting principles applied
on a basis consistent with the March 31, 2005
financial statements delivered to the Bank;"
(ii) simultaneously with the delivery of the
financial statements required by paragraph (i))
above, a certificate of the Borrowers, stating that
they have reviewed the provisions of this Agreement
and the other Loan Documents and that they have no
knowledge of the existence during such period of any
Default, or, if a Default existed, describing the
nature and period of existence thereof and the action
the Borrowers propose to take with respect thereto;"
(c) Subsection 5.1(b)(i) of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:
"(i) a letter showing which assets
each Borrower owns individually, which assets are
owned by the other Borrower individually and which
assets are owned jointly by the Borrowers. Such
assets shall be valued on a basis consistent with
that used in the preparation of the March 31, 2005
statement of assets and liabilities; and"
(d) Section 5.10(a) of the Credit Agreement is hereby
amended by deleting the last sentence thereof in its entirety and substituting
in lieu thereof the following new sentence:
"As used herein, "PERMITTED CHARITABLE CONTRIBUTION"
means any transfer by a Borrower of any Triarc Shares
that do not constitute Collateral to any charitable
institution, PROVIDED that (y) in any calendar
quarter, the aggregate number of such Triarc Shares
transferred by Xxxxxx Xxxxx to charitable
institutions shall not exceed 90,000, unless the
aggregate number of Triarc Shares transferred by
Xxxxx X. May to charitable institutions in such
calendar quarter is less than 45,000, in which event
Xxxxxx Xxxxx can so transfer to charitable
institutions in such calendar quarter an additional
number of such Triarc Shares equal to (1) 45,000
minus (2) the aggregate number of Triarc Shares
actually transferred by Xxxxx X. May to charitable
institutions in such calendar quarter (it being
understood and agreed that in no event during any
calendar quarter shall Xxxxxx Xxxxx transfer to
charitable institutions a number of Triarc Shares
which, when aggregated with the number of Triarc
Shares transferred by
Xxxxx X. May in such calendar quarter, exceed
135,000), or (z) the Bank gives its prior written
consent to such transfer, which consent shall not
be unreasonably withheld."
(e) Section 6.1(h) of the Credit Agreement is hereby
amended and restated to read as follows:
"(h) IMPAIRMENT OF SECURITY. Any provision
of the NP Security Agreement, the NP Pledge
Agreement or any other security document, after
delivery thereof pursuant hereto, shall for any
reason cease to be valid and binding on or
enforceable against any Loan Party that is a party
thereto, or such Loan Document ceases to create a
valid security interest in the collateral purported
to be covered thereby or such security interest
ceases for any reason to be a perfected and first
priority security interest; or"
(f) Section 6.2 of the Credit Agreement is hereby
amended by adding the following new sentence at the end of such Section:
"In addition, if any Event of Default occurs, the
Bank shall have the rights, powers and remedies
available under any other Loan Documents,
instruments and agreements required by or executed
in connection with this Agreement, as well as all
rights and remedies available at law or in equity."
3. TERMINATION AND RELEASE. Subject to the conditions set forth
in this Amendment, the Collateral Agent hereby agrees as follows:
(a) effective as of the date hereof, the Collateral
Agent releases all liens on and security interests in the CP Account and the
CP Accounts Assignment shall be terminated, PROVIDED that (i) such release is
without representation, warranty or recourse of any kind, (ii) nothing herein
shall affect in any respect the lien of the Collateral Agent on and the
security interest of the Collateral Agent in the Pledged Collateral other than
the CP Account and (iii) the Borrowers are otherwise in compliance with the
requirements set forth in Section 2.2(d) of the Credit Agreement; and
(b) subject to the terms and conditions in this
Amendment, the Collateral Agent will, at the request of the Borrowers, execute
such additional instruments and other writings, and take such other actions,
as the Borrowers may reasonably request to effect or evidence, to the extent
set forth herein, the termination of the lien and security interest of the
Collateral Agent in the CP Account, but at the sole cost and expense of the
Borrowers and without representation, warranty or recourse of any kind to the
Collateral Agent or the Lender.
4. COMMITMENT FEES. The Borrowers shall pay to the Bank a
non-refundable annual commitment fee equal to 1/4% of each of the Revolving A
Commitment and the Revolving B
Commitment (each such commitment fee, a "COMMITMENT FEE"), each of which such
annual Commitment Fee shall be (A) deemed fully earned on the Amendment
Effective Date and the first anniversary thereof, as applicable, and (B)
payable in four equal quarterly installments, commencing on each of September
30, 2005 and September 30, 2006, as applicable, and on December 30, March 30
and June 30 occurring thereafter.
5. REPRESENTATIONS AND WARRANTIES. Each Borrower hereby
represents and warrants to the Lender as follows:
(a) CAPACITY. Such Borrower has the legal capacity to
execute, deliver and perform this Amendment, and to perform the Credit
Agreement, as amended, and each other Loan Document to which such Borrower is
a party.
(b) NO VIOLATION. The execution, delivery and
performance by such Borrower of this Amendment, and the performance of the
Credit Agreement, as amended hereby, and each other Loan Document to which
such Borrower is a party (i) do not and will not violate any law or any
contractual restriction binding on or otherwise affecting such Borrower or any
of the properties of such Borrower, except for any violation that could not
reasonably be expected to have a Material Adverse Effect, and (ii) do not and
will not result in the creation or imposition of any Lien upon any of the
property (now owned or hereafter acquired) of such Borrower, except Liens
created in favor of the Collateral Agent.
(c) APPROVALS. No authorization or approval or other
action by, and no notice to or filing with, any Governmental Authority or
other regulatory body, and no consent of any other Person, is required for the
due execution, delivery and performance by such Borrower of this Amendment, or
the performance of the Credit Agreement, as amended, or any other Loan
Document to which such Borrower is a party.
(d) ENFORCEABILITY OF LOAN DOCUMENTS. Each of this
Amendment and the Credit Agreement, as amended hereby, and each other Loan
Document to which such Borrower is a party constitutes, and each Loan Document
to which such Borrower will be a party, when delivered hereunder, will
constitute, a legal, valid and binding obligation of such Borrower,
enforceable against such Borrower in accordance with its respective terms.
(e) LITIGATION. There is no material pending or, to
such Borrower's knowledge, threatened action, suit or proceeding affecting
such Borrower before any court or other Governmental Authority or any
arbitrator, which is reasonably likely to have a Material Adverse Effect.
(f) BRING-DOWN. (i) The representations and warranties
by such Borrower contained in this Section 6 of this Amendment and in Article
IV of the Credit Agreement, as amended hereby, and of each Loan Party in each
other Loan Document and certificate or other writing delivered to the Lender
pursuant hereto or thereto on or prior to the date hereof are true and correct
in all material respects on and as of such date as though made on and as of
such date, except to the extent that any such representation and warranty
expressly relates solely to an earlier date (in which case such representation
and warranty shall be true and correct on and as of such earlier date); (ii)
no Event of Default or Default has occurred and is
continuing or would result from the effectiveness of this Amendment; and (iii)
since the date of the Credit Agreement, no material adverse change in the
operations, condition (financial or otherwise), business, assets, income or
prospects of such Borrower has occurred and is continuing, except as
previously disclosed in writing to the Lender and consented to in writing by
the Lender.
(g) RESIDENCE. The principal residence of each Borrower
is 000 Xxxxx Xxxx Xxxx, Xxxxx Xxxxx, XX 00000.
6. CONDITIONS. This Amendment shall become effective on the
date (the "AMENDMENT EFFECTIVE DATE") as of which each of the following
conditions precedent shall have been satisfied in a manner satisfactory to the
Lender:
(a) The Lender shall have received the following
documents, each in form and substance satisfactory to the Lender:
(i) this Amendment, duly executed by the
Borrowers; and
(ii) such other agreements, instruments,
opinions and other documents as the Lender may reasonably request.
(b) The Lender shall have received all fees and other
amounts due and payable to the Lender, including, without limitation, the
Commitment Fee referred to in Section 5 hereof and all legal fees, costs and
expenses of the Lender in connection with the Credit Agreement, this Amendment
and the other related agreements and documents.
(c) (i) The representations and warranties by each
Borrower contained in this Section 6 of this Amendment and in Article IV of
the Credit Agreement, as amended hereby, and of each Loan Party in each other
Loan Document and certificate or other writing delivered to the Lender
pursuant hereto or thereto on or prior to the date hereof are true and correct
in all material respects on and as of such date as though made on and as of
such date, except to the extent that any such representation and warranty
expressly relates solely to an earlier date (in which case such representation
and warranty shall be true and correct on and as of such earlier date); (ii)
no Event of Default or Default has occurred and is continuing or would result
from the effectiveness of this Amendment; and (iii) since the date of the
Credit Agreement, no material adverse change in the operations, condition
(financial or otherwise), business, assets, income or prospects of such
Borrower has occurred and is continuing, except as previously disclosed in
writing to the Lender and consented to in writing by the Lender.
7. CONTINUED EFFECTIVENESS OF CREDIT AGREEMENT. Except as
otherwise expressly provided herein, the Credit Agreement and the other Loan
Documents are, and shall continue to be, in full force and effect and are
hereby ratified and confirmed in all respects, except that on and after the
date hereof (i) all references in the Credit Agreement to "this Agreement",
"hereto", "hereof", "hereunder" or words of like import referring to the
Credit Agreement shall mean the Credit Agreement as amended by this Amendment,
and (ii) all references in the other Loan Documents to which a Borrower is a
party to the "Credit Agreement", "thereto", "thereof", "thereunder" or words
of like import referring to the Credit Agreement shall mean the Credit
Agreement, as amended by this Amendment. Except as
expressly provided herein, the execution, delivery and effectiveness of this
Amendment shall not operate as a waiver of any right, power or remedy of the
Lender under the Credit Agreement, under any other Loan Document or under any
other document, nor constitute a waiver of any provision of the Credit
Agreement.
8. MISCELLANEOUS.
(a) COUNTERPARTS. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which shall be deemed to be an original, but all of
which taken together shall constitute one and the same agreement.
(b) HEADINGS. Section headings herein are included for
convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
(c) GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(d) COSTS AND EXPENSES. The Borrowers agree to pay on
demand all reasonable fees, costs and expenses of the Lender (including,
without limitation, the reasonable fees and other client charges of Xxxxxxx
Xxxx & Xxxxx LLP) in connection with the Credit Agreement, this Amendment and
the related agreements, instruments and other documents.
(e) AMENDMENT AS LOAN DOCUMENT. The Borrowers hereby
acknowledge and agree that this Amendment constitutes a "Loan Document."
Accordingly, it shall be an Event of Default under the Credit Agreement if (i)
any representation or warranty made by the Borrowers under or in connection
with this Amendment shall have been untrue, false or misleading in any
material respect when made, or (ii) the Borrowers shall fail to perform or
observe any term, covenant or agreement contained in this Amendment.
(f) WAIVER OF JURY TRIAL. THE BORROWERS AND THE LENDER
EACH HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS AMENDMENT OR THE ACTIONS OF THE LENDER IN
THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed and delivered as of the date first above written.
/s/ Xxxxxx Xxxxx
--------------------------------
XXXXXX XXXXX
/s/ Xxxxxxx Xxxxx
--------------------------------
XXXXXXX XXXXX
BANK OF AMERICA, N.A.
By: /s/ Xxxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title Senior Vice President
AMENDMENT NO. 7 TO THIRD AMENDED
AND RESTATED CREDIT AGREEMENT
AMENDMENT NO. 7, dated as of November 2, 2005 (the "AMENDMENT"), to
the Credit Agreement (as defined below), by and among XXXXXX XXXXX and XXXXXXX
XXXXX (the "BORROWERS") and BANK OF AMERICA, N.A., a national banking
association (the "LENDER").
WHEREAS, the Borrowers and the Lender are parties to the Third
Amended and Restated Credit Agreement, dated as of April 2, 2001 (as
previously amended, the "CREDIT AGREEMENT"), among the Borrowers and the
Lender, pursuant to which the Lender has agreed to make, during the period
from the Effective Date (as defined in the Credit Agreement) to the
Termination Date, (a) Revolving A Loans to the Borrowers in the aggregate
principal amount not to exceed $43,000,000 at any time outstanding and (b)
Revolving B Loans in the aggregate principal amount not to exceed $7,000,000
at any time outstanding;
WHEREAS, the Borrowers and the Lender are entering into a new Credit
Agreement, dated as of the date hereof (the "2005 CREDIT AGREEMENT"), with the
Lender, pursuant to which the Lender has agreed to make advanceable term loans
to the Borrowers in the aggregate principal amount not to exceed $25,000,000;
and
WHEREAS, the Lender is willing to make such advanceable term loans,
subject to (a) the amendment of the Credit Agreement to provide that any Event
of Default under the 2005 Credit Agreement shall constitute an Event of
Default hereunder, (b) any collateral securing the obligations of the
Borrowers under the Credit Agreement and other Loan Documents referred to
therein will also secure the obligations of the Borrowers under the 2005
Credit Agreement and the "Loan Documents" referred to therein, and (c) the
other terms and conditions set forth herein;
NOW, THEREFORE, the Borrowers and the Lender hereby agree as follows:
1. DEFINITIONS. Any capitalized term used herein and not
defined shall have the meaning assigned to it in the Credit Agreement.
2. AMENDMENTS TO CREDIT AGREEMENT. The Credit Agreement is
hereby amended as follows:
(a) Section 1.1 of the Credit Agreement is hereby
amended by adding the following definitions in appropriate alphabetical order,
to read as follows:
"'2005 CREDIT AGREEMENT" means the Credit Agreement, dated
as of November 2, 2005, as amended, supplemented or otherwise
modified from time to time, between the Lender and the Borrowers."
"'2005 LOAN DOCUMENTS" means the "Loan Documents" as such
term is defined in the 2005 Credit Agreement."
"2005 OBLIGATIONS" has the meaning given to the term
"Obligations" in the 2005 Credit Agreement.
"'2005 SECURITY DOCUMENTS" means the Trian Fund Management
Letter Agreement, the Trian Letter Agreement, the Trian Parallel Fund
Letter Agreement, the Trian Partners GP Letter Agreement, the NP
Trian Security Agreement, the Ocean View Trian Security Agreement,
the PF Trian Security Agreement, the Xxxxx Trust Trian Security
Agreement, and all other instruments, agreements and other documents
executed and delivered pursuant thereto or the 2005 Credit
Agreement."
(b) Section 1.1 of the Credit Agreement is hereby
amended as follows:
(i) The definition of the "Collateral" is
hereby amended and restated in its entirety to read as follows:
""COLLATERAL" means all of the property (tangible and
intangible) purported to be subject to the lien or security interest
purported to be created by any mortgage, deed of trust, security
agreement, pledge agreement, assignment or other security document
previously, heretofore or hereafter executed by any Person as
security for all or any part of the Obligations, including, without
limitation, the collateral securing the obligations under the 2005
Security Documents."
(ii) The definition of "Loan Documents" is
hereby amended and restated in its entirety to read as follows:
""LOAN DOCUMENTS" means this Agreement, the Notes, the 2005
Credit Agreement, the other 2005 Loan Documents, the Letters of
Credit, the L/C Applications, the NP Security Agreement, the NP
Pledge Agreement, the Hedging Agreements and all other instruments,
agreements and other documents executed and delivered pursuant hereto
or thereto."
(c) Article I of the Credit Agreement is hereby amended
by inserting a new Section 1.4, to read in its entirety as set forth below:
"Section 1.4 TERMS IN 2005 CREDIT AGREEMENT. Except as
otherwise expressly provided herein, each term set forth below shall
have the meaning assigned to it in the 2005 Credit Agreement: "Trian
Fund Management Letter Agreement", "Trian Partners GP Letter
Agreement", "Trian Letter Agreement", Trian Parallel Fund Letter
Agreement", "NP Trian Security Agreement", "Ocean View Trian Security
Agreement", "PF Trian Security Agreement" and "Xxxxx Trust Trian
Security Agreement". Notwithstanding the foregoing, if the
obligations under the 2005
Credit Agreement have been paid in full and the 2005 Credit Agreement
shall terminate, each term set forth above shall have the meaning
assigned to it immediately prior to the repayment of the obligations
under the 2005 Credit Agreement."
(d) Section 5.10(a) of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
"(a) Not sell, transfer or otherwise
dispose of any securities of the same class or
convertible into the same class of securities as
the Triarc Collateral, whether or not such
securities are pledged hereunder, from the date
hereof until the Obligations have been paid in
full. The foregoing restrictions shall not apply
after (x) the payment in full of all Obligations
related to the Revolving A Commitment, (y) the
termination of the Revolving A Commitment and (z)
the satisfaction of all conditions for the release
of Excess Triarc Shares (as defined in the 2005
Credit Agreement) under SECTION 7.16 of the 2005
Credit Agreement. Notwithstanding the first
sentence of this SECTION 5.10, a Borrower may (i)
transfer (each transfer referred to in clauses (A),
(B) and (C) below, hereinafter referred to as a
"PERMITTED TRANSFER") any Triarc Shares that do not
constitute Collateral to (A) a member of a
Borrower's immediate family, (B) any charitable
institution, or (C) an estate planning vehicle of a
Borrower (each transferee described in clauses (A),
(B) and (C) above, hereinafter referred to as a
"PERMITTED TRANSFEREE"), or (ii) sell any Triarc
Shares that do not constitute Collateral, so long
as, in the case of any sale or transfer specified
in either clause (i) or (ii) above, (I) no Event of
Default has occurred and is continuing or will
result therefrom and (II) either such Permitted
Transfer is a Permitted Charitable Contribution, or
for purposes of determining compliance with the
volume limitation of Rule 144, (1) the sales or
other transfers of the Pledged Shares by the Bank
will not be aggregated with such Permitted
Transfers and (2) the Borrowers will not permit a
Permitted Transferee (other than with respect to a
Permitted Charitable Contribution) to subsequently
sell or transfer such Triarc Shares if such sale or
transfer by such Permitted Transferee will be
aggregated with any sales or other transfers of the
Pledged Shares by the Bank. If a Borrower engages
in a Permitted Transfer or otherwise sells or
transfers Triarc Shares with the Bank's written
consent, such Borrower will furnish the Bank with a
copy of any Form 144 filed in respect of such sale
or other transfer. The Borrowers will use their
best efforts to cause any Person (other than a
Permitted Transferee) with whom it shall be deemed
one "person" for purposes of Rule 144(a)(2) to
refrain from selling any securities of the same
class or convertible into the same class of
securities as the Triarc Collateral, whether or not
such securities
are pledged hereunder, from the date hereof until
the Obligations have been paid in full, all Letters
of Credit cancelled, any Hedging Agreement
terminated and all of the Commitments terminated.
As used herein, "PERMITTED CHARITABLE CONTRIBUTION"
means any transfer by a Borrower of any Triarc
Shares that do not constitute Collateral to any
charitable institution, PROVIDED that (y) in any
calendar quarter, the aggregate number of such
Triarc Shares transferred by Xxxxxx Xxxxx to
charitable institutions shall not exceed 90,000,
unless the aggregate number of Triarc Shares
transferred by Xxxxx X. May to charitable
institutions in such calendar quarter is less than
45,000, in which event Xxxxxx Xxxxx can so transfer
to charitable institutions in such calendar quarter
an additional number of such Triarc Shares equal to
(1) 45,000 minus (2) the aggregate number of Triarc
Shares actually transferred by Xxxxx X. May to
charitable institutions in such calendar quarter
(it being understood and agreed that in no event
during any calendar quarter shall Xxxxxx Xxxxx
transfer to charitable institutions a number of
Triarc Shares which, when aggregated with the
number of Triarc Shares transferred by Xxxxx X. May
in such calendar quarter, exceed 135,000), or (z)
the Bank gives its prior written consent to such
transfer, which consent shall not be unreasonably
withheld."
(e) Section 5.12 of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
"Section 5.12. LIENS. Not create, incur,
assume or suffer to exist any Lien (other than the
Liens created in favor of the Collateral Agent
under any Loan Document) upon or with respect to
any of the Triarc Shares (of any class or series
and regardless of whether restricted) owned by a
Borrower (including any options, warrants or other
rights convertible into or exchangeable for Triarc
Shares), whether or not such Triarc Shares (or
related rights) are pledged to the Collateral Agent
under any Loan Document, whether now owned or
hereafter acquired. The foregoing restrictions
shall not apply after (x) the payment in full of
all Obligations related to the Revolving A
Commitment, (y) the termination of the Revolving A
Commitment and (z) all conditions for the release
of Excess Triarc Shares (as defined in the 2005
Credit Agreement) under SECTION 7.16 the 2005
Credit Agreement have been met."
(f) Section 6.1(h) of the Credit Agreement is hereby
amended and restated to read as follows:
"(h) IMPAIRMENT OF SECURITY. Any provision
of any Loan Document, after delivery thereof
pursuant hereto or the 2005
Credit Agreement, shall for any reason cease to be
valid and binding on or enforceable against any
Loan Party that is a party thereto, or such Loan
Document ceases to create a valid security interest
in the collateral purported to be covered thereby
or such security interest ceases for any reason to
be a perfected and first priority security
interest; or"
(g) Section 6.1(j) of the Credit Agreement is hereby
amended by adding "or" at the end thereof, after the semi-colon.
(h) Section 6.1(k) of the Credit Agreement is hereby
amended by deleting the period at the end thereof and by substituting therefor
the following: "; or".
(i) Section 6.1 of the Credit Agreement is hereby
amended by adding a new subsection (l), to read in its entirety as follows:
"(l) 2005 CREDIT AGREEMENT. Any "Event of Default"
(as defined in the 2005 Credit Agreement) shall occur."
(j) Section 6.2 of the Credit Agreement is hereby
amended by adding the following new sentence at the end of such Section:
"In addition, if any Event of Default occurs, the Bank shall
have the rights, powers and remedies available under any
other Loan Documents, instruments and agreements required by
or executed in connection with this Agreement or the 2005
Credit Agreement, as well as all rights and remedies
available at law or in equity."
3. REPRESENTATIONS AND WARRANTIES. Each Borrower hereby
represents and warrants to the Lender as follows:
(a) CAPACITY. Such Borrower has the legal capacity to
execute, deliver and perform this Amendment, and to perform the Credit
Agreement, as amended, and each other Loan Document to which such Borrower is
a party.
(b) NO VIOLATION. The execution, delivery and
performance by such Borrower of this Amendment, and the performance of the
Credit Agreement, as amended hereby, and each other Loan Document to which
such Borrower is a party (i) do not and will not violate any law or any
contractual restriction binding on or otherwise affecting such Borrower or any
of the properties of such Borrower, except for any violation that could not
reasonably be expected to have a Material Adverse Effect, and (ii) do not and
will not result in the creation or imposition of any Lien upon any of the
property (now owned or hereafter acquired) of such Borrower, except Liens
created in favor of the Collateral Agent.
(c) APPROVALS. No authorization or approval or other
action by, and no notice to or filing with, any Governmental Authority or
other regulatory body, and no consent of any other Person, is required for the
due execution, delivery and performance by such
Borrower of this Amendment, or the performance of the Credit Agreement, as
amended, or any other Loan Document to which such Borrower is a party.
(d) ENFORCEABILITY OF LOAN DOCUMENTS. Each of this
Amendment and the Credit Agreement, as amended hereby, and each other Loan
Document to which such Borrower is a party constitutes, and each Loan Document
to which such Borrower will be a party, when delivered hereunder, will
constitute, a legal, valid and binding obligation of such Borrower,
enforceable against such Borrower in accordance with its respective terms.
(e) LITIGATION. There is no material pending or, to
such Borrower's knowledge, threatened action, suit or proceeding affecting
such Borrower before any court or other Governmental Authority or any
arbitrator, which is reasonably likely to have a Material Adverse Effect.
(f) BRING-DOWN. (i) The representations and warranties
by such Borrower contained in this Section 3 of this Amendment and in Article
IV of the Credit Agreement, as amended hereby, and of each Loan Party in each
other Loan Document and certificate or other writing delivered to the Lender
pursuant hereto or thereto on or prior to the date hereof are true and correct
in all material respects on and as of such date as though made on and as of
such date, except to the extent that any such representation and warranty
expressly relates solely to an earlier date (in which case such representation
and warranty shall be true and correct on and as of such earlier date); (ii)
no Event of Default or Default has occurred and is continuing or would result
from the effectiveness of this Amendment; and (iii) since the date of the
Credit Agreement, no material adverse change in the operations, condition
(financial or otherwise), business, assets, income or prospects of such
Borrower has occurred and is continuing, except as previously disclosed in
writing to the Lender and consented to in writing by the Lender.
(g) RESIDENCE. The principal residence of each Borrower
is 000 Xxxxx Xxxx Xxxx, Xxxxx Xxxxx, XX 00000.
4. CONDITIONS. This Amendment shall become effective on the
date (the "AMENDMENT EFFECTIVE DATE") as of which each of the following
conditions precedent shall have been satisfied in a manner satisfactory to the
Lender:
(a) The Lender shall have received the following
documents, each in form and substance satisfactory to the Lender:
(i) this Amendment, duly executed by the
Borrowers;
(ii) an opinion, dated the Amendment Effective
Date, of the law firm of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, counsel
to the Borrowers, in form and substance reasonably satisfactory to the Bank
and its counsel; and
(iii) such other agreements, instruments,
opinions and other documents as the Lender may reasonably request.
(b) The conditions precedent in Section 3.1 of the 2005
Credit Agreement shall have been satisfied or waived by the Lender and the
Lender shall have made the initial "Loan" (as defined in the 2005 Credit
Agreement) to the Borrowers.
(c) The Lender shall have received all fees and other
amounts due and payable to the Lender, including, without limitation, all
legal fees, costs and expenses of the Lender in connection with the Credit
Agreement, this Amendment and the other related agreements and documents.
(d) (i) The representations and warranties by each
Borrower contained in Section 3 of this Amendment and in Article IV of the
Credit Agreement, as amended hereby, and of each Loan Party in each other Loan
Document and certificate or other writing delivered to the Lender pursuant
hereto or thereto on or prior to the date hereof are true and correct in all
material respects on and as of such date as though made on and as of such
date, except to the extent that any such representation and warranty expressly
relates solely to an earlier date (in which case such representation and
warranty shall be true and correct on and as of such earlier date); (ii) no
Event of Default or Default has occurred and is continuing or would result
from the effectiveness of this Amendment; and (iii) since the date of the
Credit Agreement, no material adverse change in the operations, condition
(financial or otherwise), business, assets, income or prospects of such
Borrower has occurred and is continuing, except as previously disclosed in
writing to the Lender and consented to in writing by the Lender.
5. CONTINUED EFFECTIVENESS OF CREDIT AGREEMENT. Except as
otherwise expressly provided herein, the Credit Agreement and the other Loan
Documents are, and shall continue to be, in full force and effect and are
hereby ratified and confirmed in all respects, except that on and after the
date hereof (i) all references in the Credit Agreement to "this Agreement",
"hereto", "hereof", "hereunder" or words of like import referring to the
Credit Agreement shall mean the Credit Agreement as amended by this Amendment,
and (ii) all references in the other Loan Documents to which a Borrower is a
party to the "Credit Agreement", "thereto", "thereof", "thereunder" or words
of like import referring to the Credit Agreement shall mean the Credit
Agreement, as amended by this Amendment. Except as expressly provided herein,
the execution, delivery and effectiveness of this Amendment shall not operate
as a waiver of any right, power or remedy of the Lender under the Credit
Agreement, under any other Loan Document or under any other document, nor
constitute a waiver of any provision of the Credit Agreement.
6. MISCELLANEOUS.
(a) COUNTERPARTS. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which shall be deemed to be an original, but all of
which taken together shall constitute one and the same agreement.
(b) HEADINGS. Section headings herein are included for
convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
(c) GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(d) COSTS AND EXPENSES. The Borrowers agree to pay on
demand all reasonable fees, costs and expenses of the Lender (including,
without limitation, the reasonable fees and other client charges of Xxxxxxx
Xxxx & Xxxxx LLP) in connection with the Credit Agreement, this Amendment and
the related agreements, instruments and other documents.
(e) FURTHER ASSURANCES. It is understood and agreed
that the parties hereto intend that the Collateral will secure, among other
things, all Obligations (as defined in the Credit Agreement) and all
"Obligations" (as defined in the 2005 Credit Agreement). The Borrowers agree
from time to time, upon the Lender's request, promptly to execute and deliver
to the Lender such other agreements and documents as may be reasonably
necessary to effect the intent of the parties hereto (including, without
limitation, to "cross collateralize" collateral securing the Obligations so as
to secure the "Obligations").
(f) AMENDMENT AS LOAN DOCUMENT. The Borrowers hereby
acknowledge and agree that this Amendment constitutes a "Loan Document."
Accordingly, it shall be an Event of Default under the Credit Agreement if (i)
any representation or warranty made by the Borrowers under or in connection
with this Amendment shall have been untrue, false or misleading in any
material respect when made, or (ii) the Borrowers shall fail to perform or
observe any term, covenant or agreement contained in this Amendment.
(g) WAIVER OF JURY TRIAL. THE BORROWERS AND THE LENDER
EACH HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS AMENDMENT OR THE ACTIONS OF THE LENDER IN
THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed and delivered as of the date first above written.
/s/ Xxxxxx Xxxxx
--------------------------------
XXXXXX XXXXX
/s/ Xxxxxxx Xxxxx
--------------------------------
XXXXXXX XXXXX
BANK OF AMERICA, N.A.
By: /s/ Xxxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title Senior Vice President
OMNIBUS AMENDMENT NO. 8 TO
CREDIT AGREEMENT
OMNIBUS AMENDMENT NO. 8, dated January 31, 2006 (the "AMENDMENT"), to
the AMENDED DOCUMENTS (as defined below), by and among XXXXXX XXXXX and
XXXXXXX XXXXX (the "BORROWERS") and BANK OF AMERICA, N.A., a national banking
association (the "BANK").
WHEREAS, the Borrowers and the Bank are parties to the Third Amended
and Restated Credit Agreement, dated as of April 2, 2001 (as previously
amended, the "CREDIT AGREEMENT"), among the Borrowers and the Bank, pursuant
to which the Bank has agreed to make, during the period from the Effective
Date (as defined in the Credit Agreement) to the Termination Date (as defined
in the Credit Agreement), (a) Revolving A Loans to the Borrowers in the
aggregate principal amount not to exceed $43,000,000 at any time outstanding
and (b) Revolving B Loans in the aggregate principal amount not to exceed
$7,000,000 at any time outstanding;
WHEREAS, it was a condition precedent to the making of any Loan (as
defined in the Credit Agreement) that Xxxxxx Xxxxx execute and deliver the
Pledge and Security Agreement dated as of July 23, 2004 (the "PLEDGE
AGREEMENT"; together with the Credit Agreement, collectively, the "AMENDED
DOCUMENTS"), made by Xxxxxx Xxxxx (the "PLEDGOR") in favor of the Bank,
pursuant to which the Pledgor granted to the Bank a perfected, first priority
security interest in, and a Lien on, the Pledgor's equity interest in, among
other things, the Pledged Shares (as defined in the Credit Agreement), as
security for the Obligations (as defined in the Credit Agreement);
WHEREAS, the Borrowers have requested that the Bank amend certain
provisions of the Amended Documents to provide for, among other things, (a) an
increase in the maximum principal amount available under the Revolving A
Commitment from $43,000,000 to $65,000,000, (b) the termination of the
Revolving B Commitment, (c) the release of the Bank's Lien on, and security
interest in, the Pledgor's interest in the Partnership Interest (as defined in
the Credit Agreement) pledged to the Bank pursuant to the NP Security
Agreement (as defined in the Credit Agreement) (the "RELEASED COLLATERAL") and
(d) the grant by the Pledgor in favor of the Bank of a perfected, first
priority security interest in, and a Lien on, (i) all of the Triarc Shares (as
defined in the Credit Agreement) owned by the Pledgor not previously been
pledged to the Bank, including, without limitation, certain Triarc Shares held
by the Pledgor in a securities account maintained by Banc of America
Investment Services, Inc., all as more fully described on Schedule I attached
hereto, as such Schedule I may be amended or supplemented from time to time,
(ii) the Securities Accounts referred to below and (iii) certain related
collateral (the Collateral described in clauses (i), (ii) and (iii),
hereinafter referred to as the "ADDITIONAL COLLATERAL"), all in accordance
with and subject to the terms and conditions set forth herein; and
WHEREAS, the Bank is willing to amend the Amended Documents to
provide for such increase, subject to, among other things, the grant by the
Pledgor in favor of the Bank of a perfected, first priority security interest
in, and a Lien on, the Additional Collateral, the payment of commitment fees
in the aggregate amount of $82,500 and the other terms and conditions set
forth herein;
NOW, THEREFORE, in consideration of the premises and the agreements
herein and in order to induce the Bank to maintain the Loans, the Borrowers
hereby agree with the Bank as follows:
1. DEFINITIONS. All terms used herein which are defined in the
Credit Agreement and not otherwise defined herein are used herein as defined
therein.
2. AMENDMENTS TO CREDIT AGREEMENT. The Credit Agreement is,
effective as of the Amendment Effective Date and subject to the satisfaction
(or due waiver) of the conditions set forth in Section 6 hereof, hereby
amended as follows:
(a) Section 1.1 of the Credit Agreement is hereby
amended as follows:
(i) Section 1.1 of the Credit Agreement is
hereby amended by inserting the following definitions in their
appropriate alphabetical order:
""BA CONTROL AGREEMENT" means the Collateral Account
Notification and Acknowledgment Agreement dated the date hereof,
among Xxxxxx Xxxxx, the Bank and the Securities Intermediary, in
respect of the Securities Account referred to therein, as amended or
otherwise modified from time to time."
""LIQUID ASSETS" means any of the following (excluding
assets of any retirement plan): (a) any equity security which, as of
any date, (i) is traded on the New York Stock Exchange, the American
Stock Exchange or the NASDAQ Stock Market/National Market System,
(ii) has a minimum share price of at least $10 per share on such date
and (iii) any Borrower would be able to sell, based on the average
daily trading value of such equity security during the four week
period immediately preceding such date, over a period equal to five
Business Days; (b) any publicly traded debt security of a corporation
organized under the laws of the United States or any state thereof
(including the District of Columbia) that is readily marketable; (c)
(i) any money market fund registered under the Investment Company Act
of 1940, as amended, (A) which has total assets of at least
$1,000,000,000, or (B) whose net asset values are reported on a daily
basis in THE WALL STREET JOURNAL and (ii) any other money market
funds that are deemed to be acceptable to the Bank in its sole
judgment; (d) any municipal bond issued by any state, city or local
agency or authority of the United States which is rated at least BBB
by Standard & Poor's Rating Service, a division of XxXxxx-Xxxx, Inc.,
and Baa by Xxxxx'x Investors Service, Inc., and which has a remaining
maturity not in excess of five years; (e) any United States Treasury
bills; (f) any United States Treasury notes or United States Treasury
bonds which have a remaining maturity not in excess of five years;
and (g) any cash, in each case of clauses (a) though (g) above, free
and clear of any Liens; PROVIDED, HOWEVER, that in no event shall any
of the Triarc Shares be included in the
2
calculation of Liquid Assets regardless whether or not such Triarc
Shares have been pledged to the Bank."
""OMNIBUS AMENDMENT NO. 8" means the Third Omnibus
Amendment, dated as of January 31, 2006, by and between the Borrower
and the Bank."
""OMNIBUS AMENDMENT NO. 8 EFFECTIVE DATE" means the later of
(i) January 31, 2006 and (ii) the date on which all of the conditions
precedent set forth in Section 6 of the Omnibus Amendment No. 8 have
been satisfied or waived in writing."
""SECURITIES ACCOUNT" means (a) Account Number P62-021016
maintained by Xxxxxx Xxxxx with Banc of America Investment Services,
Inc. and (b) any successor or replacement accounts."
""SECURITIES INTERMEDIARY" means Banc of America Investment
Services, Inc."
(b) Section 1.1 of the Credit Agreement is hereby
amended by amending and restating each of the following definitions set forth
therein to read as follows:
""LOAN DOCUMENTS" means this Agreement, the Notes, the 2005
Credit Agreement, the other 2005 Loan Documents, the Letters of
Credit, the L/C Applications, the NP Security Agreement, the NP
Pledge Agreement, the BA Control Agreement, the Hedging Agreements
and all other instruments, agreements and other documents executed
and delivered pursuant hereto or thereto."
"PLEDGED SHARES" means, collectively, the shares of common
stock issued by Triarc and pledged by Xxxxxx Xxxxx to the Collateral
Agent pursuant to the NP Pledge Agreement, including, without
limitation, any Triarc Shares held in the Securities Account.
"TERMINATION DATE" means (i) with respect to the Revolving B
Commitment, the Omnibus Amendment No. 8 Effective Date and (ii) with
respect to the Revolving A Commitment, August 5, 2007 or, with
respect to any Commitment, such earlier date on which such Commitment
shall be terminated pursuant to this Agreement.
(c) The definition of the term "Revolving A Commitment"
is hereby amended by deleting the reference to "$43,000,000" therein, and by
substituting therefor "$65,000,000".
(d) Section 5.1 of the Credit Agreement is hereby
amended by (i) deleting the word "and" at the end of clause (f) therein, (ii)
redesignating clause (g) therein as clause (h) and (iii) adding the following
new clause (g) to read as follows:
3
"(g) as soon as available and in any event not more
than 60 days after the end of each calendar quarter,
brokers' statements, bank statements, data and calculations
and such other information concerning the financial
condition of either Borrower as the Bank from time to time
may reasonably request, demonstrating in reasonable detail
compliance with the provisions of Section 5.9 and 5.15; and"
(e) The Credit Agreement is hereby amended by adding
the following new Section 5.13, to read as follows:
"Section 5.13 INDEBTEDNESS. Not create, incur or suffer to
exist any Indebtedness, other than:
(a) Indebtedness created hereunder, under the
under the Notes or otherwise in favor of the Bank;
(b) Indebtedness permitted by Section 5.14;
and
(c) Indebtedness existing on the date hereof,
as set forth in Schedule 5.13 hereto, and the extension of
maturity, refinancing or modification of the terms thereof;
PROVIDED, HOWEVER, that (i) such extension, refinancing or
modification is pursuant to terms that are not less
favorable to the Borrowers and the Bank than the terms of
the Indebtedness being extended, refinanced or modified and
(ii) after giving effect to such extension, refinancing or
modification, the amount of such Indebtedness is not greater
than the amount of Indebtedness outstanding immediately
prior to such extension, refinancing or modification; and
(d) other unsecured Indebtedness in an
aggregate principal amount not to exceed $1,000,000 at any
time outstanding."
(f) The Credit Agreement is hereby amended by adding
the following new Section 5.14, to read as follows:
"Section 5.14 GUARANTIES, ETC. Not assume, guarantee,
endorse or otherwise become directly or contingently liable
(including, without limitation, liable by way of agreement,
contingent or otherwise, to purchase, to provide funds for payment,
to supply funds to or otherwise invest in the debtor or otherwise to
assure the creditor against loss), in connection with any
Indebtedness or liability of any other Person, other than:
(a) guaranties by endorsement of negotiable
instruments for deposit or collection in the ordinary
course;
(b) guaranties existing on the date hereof, as
set forth in Schedule 5.13 hereto, and the extension of
maturity, refinancing or modification of the terms thereof;
PROVIDED, HOWEVER, that (i) such extension, refinancing or
modification is pursuant to terms that are not less
4
favorable to the Borrowers and the Bank than the terms of
the Indebtedness being extended, refinanced or modified and
(ii) after giving effect to such extension, refinancing or
modification, the amount of such Indebtedness is not greater
than the amount of Indebtedness outstanding immediately
prior to such extension, refinancing or modification; and
(c) other unsecured guaranties covering
Indebtedness in an aggregate principal amount not to exceed
$500,000 at any time outstanding."
(g) The Credit Agreement is hereby amended by adding
the following new Section 5.15, to read as follows:
"Section 5.15 LIQUID ASSETS. Not permit the aggregate fair
market value of Liquid Assets of the Borrowers to be at any time less
than $12,000,000."
3. AMENDMENTS TO PLEDGE AGREEMENT.
(a) Section 2 of the Pledge Agreement is hereby amended
by (i) redesignating clauses (a), (b) and (c) thereof as clauses (b), (c) and
(d) respectively, and (ii) adding the following new clause (a) therein to read
as follows:
"(a) account number P62-021016 maintained by the Pledgor
with Banc of America Investment Services, Inc. ("BAIS" and/or the
"SECURITIES INTERMEDIARY"), including, without limitation, all cash
and cash equivalents, investment property, financial assets, security
entitlements, capital stock, partnership interests, limited liability
company interests and other equity interests, stock options,
commodity contracts, notes, debentures, bonds, promissory notes or
other evidences of indebtedness and all other securities and other
assets now or hereafter deposited in or credited to such accounts
(together with any successor or replacement accounts, all of the
foregoing accounts are hereinafter referred to individually as a
"SECURITIES ACCOUNT" and collectively, the "SECURITIES ACCOUNTS");
(b) SCHEDULES. Schedule I to the Pledge Agreement is
hereby amended and restated by replacing Schedule I to the Pledge Agreement
with ANNEX A hereto, which shall be Schedule I to the Pledge Agreement for all
purposes therein.
4. COMMITMENT FEE. In consideration for the execution and
delivery of this Amendment, the Borrowers agree to pay to the Bank a
non-refundable commitment fee (the "COMMITMENT FEE") equal to $82,500, which
Commitment Fee is in addition to any fees payable to the Bank pursuant to the
Credit Agreement or any amendment thereof. The Commitment Fee shall be deemed
fully earned on the Amendment Effective Date. The Commitment Fee shall be
payable in two installments, consisting of (a) the first installment of
Commitment Fee, payable on the Amendment Effective Date, equal to $41,250 and
(b) the second installment of Commitment Fee, payable on the earlier to occur
of August 5, 2006 or the date the Obligations
5
are paid in full, equal to $41,250. The parties hereto hereby agree that the
reference to the "Revolving A Commitment" set forth in Section 4 of Amendment
No. 6 to Third Amendment and Restated Credit Agreement, dated as of August 5,
2005 ("AMENDMENT NO. 6"), shall be deemed a reference to "$43,000,000". The
Bank hereby waives the remaining commitment fee installments with respect to
the Revolving B Commitment that, pursuant to Section 4 of Amendment No. 6, are
payable on or before March 30, 2006 and September 30, 2006.
5. REPRESENTATIONS AND WARRANTIES. Each Borrower hereby
represents and warrants to the Bank as follows:
(a) CAPACITY. Such Borrower has the legal capacity to
execute, deliver and perform this Amendment, and to perform the Amended
Documents, as amended, the New Note (as defined in Section 6) and each other
Loan Document to which such Borrower is a party.
(b) NO VIOLATION. The execution, delivery and
performance by such Borrower of this Amendment and the New Note, and the
performance of the Amended Documents, as amended hereby, the New Note and each
other Loan Document to which such Borrower is a party (i) do not and will not
violate any law or any contractual restriction (including, without limitation,
any constituent document of Triarc or any rule, directive or policy of Triarc)
binding on or otherwise affecting such Borrower or any of the properties of
such Borrower, and (ii) do not and will not result in the creation or
imposition of any Lien upon any of the property (now owned or hereafter
acquired) of such Borrower, except Liens created in favor of the Collateral
Agent. The exercise by the Bank of any of its rights and remedies under this
Amendment or under the Amended Documents, as amended hereby (including,
without limitation, the sale or other disposition of the Pledged Shares by the
Bank), will not violate any law or any contractual obligation (including,
without limitation, any constituent document of Triarc or any rule, directive
or policy of Triarc) binding on or affecting such Borrower or Triarc.
(c) APPROVALS. No authorization or approval or other
action by, and no notice to or filing with, any Governmental Authority or
other regulatory body, and no consent of any other Person (including, without
limitation, Triarc), is required for (i) the due execution, delivery and
performance by such Borrower of this Amendment or the New Note, (ii) the
performance of the Amended Documents, as amended, the New Note or any other
Loan Document to which such Borrower is a party, (iii) the creation of a
perfected, first priority security interest in any of the Additional
Collateral, or (iv) the exercise by the Bank of any of its rights and remedies
with respect to any of the Additional Collateral.
(d) ENFORCEABILITY OF LOAN DOCUMENTS. Each of this
Amendment and the Amended Documents, as amended hereby, the New Note and each
other Loan Document to which such Borrower is a party constitutes, and each
Loan Document to which such Borrower will be a party, when delivered
hereunder, will constitute, a legal, valid and binding obligation of such
Borrower, enforceable against such Borrower in accordance with its respective
terms.
(e) LITIGATION. There is no material pending or, to
such Borrower's knowledge, threatened action, suit or (i) proceeding affecting
such Borrower before any court or other Governmental Authority or any
arbitrator, which is reasonably likely to have a Material
6
Adverse Effect, or (ii) affecting the Additional Collateral or any other
Collateral pending or threatened in writing before any court or other
Governmental Authority or arbitrator.
(f) PLEDGE AGREEMENT. The Pledge Agreement, as amended
hereby, creates a valid security interest in favor of the Bank in, among other
things, the Additional Collateral and the other Pledged Collateral, as
security for the Obligations. Pursuant to the BA Control Agreement the Bank
has control of the Pledged Shares (other than any certificated Pledged Shares)
and the other Additional Collateral, and such control pursuant to the BA
Control Agreement by the Bank of such Pledged Shares and of all other
certificates, instruments and cash constituting Additional Collateral from
time to time results in the perfection of such security interest. Such
security interest is, or in the case of Additional Collateral or any other
Pledged Collateral in which the Pledgor obtains rights after the date hereof,
will be, a perfected, first priority security interest. All action necessary
or desirable to perfect and protect such security interest has been duly
taken.
(g) REGULATION U. None of the proceeds of any Loan will
be used for the purpose, whether immediate, incidental or ultimate, of buying
or carrying margin stock (within the meaning of Regulation U issued by the
Board of Governors of the Federal Reserve System).
(h) RULE 144.
(i) The Pledged Shares are fully paid and
nonassessable and have been duly authorized and validly issued. All other
shares of stock constituting Pledged Collateral will be duly authorized and
validly issued, fully paid and nonassessable. The Pledgor has legally and
beneficially owned the Pledged Shares described on Exhibit B hereto since the
dates set forth opposite the applicable certificate evidencing such Pledged
Shares as set forth on Exhibit B hereto. The information set forth in Exhibit
B hereto is true and correct;
(ii) the Pledged Shares are or may be deemed
restricted or control securities (as indicated on Exhibit B) for purposes of
Rule 144 of the General Rules and Regulations under the Securities Act of 1933
("RULE 144") promulgated by the Securities and Exchange Commission. The
Pledgor understands that in order for the Bank to make any Loan to the
Borrowers which is collateralized by the Rule 144 Securities, the Bank must be
able to sell the Rule 144 Securities pursuant to Rule 144 (other than with
respect to any waiting or holding period imposed by Rule 144 as of the date
hereof), which requires that certain conditions must be met;
(iii) the Pledgor has held the Pledged Shares
and borne the full economic risk thereof since or prior to the date(s)
indicated on Exhibit B;
(iv) the Pledgor is familiar with the
provisions of Section 16 of the Securities Exchange Act of 1934 and the rules
promulgated thereunder and has made his own determination if the provisions
thereof are applicable to the Pledgor, and, if applicable, understands the
possible consequences if the Bank sells the Pledged Shares at a time when such
sale would deem the Pledgor to have received "short-swing" profits, which
consequences could include the payment of all such profits to the issuer of
the Rule 144 Securities by the Pledgor;
7
(v) the Pledgor agrees that the Pledged Shares
may be sold as provided for in the Pledge Agreement and, except as provided in
the Pledge Agreement, expressly waives any rights of notice of sale,
advertisement procedures, or related provisions granted under applicable law,
including the New York Lien Law;
(vi) the Pledgor has furnished and shall
furnish the Bank with a true, correct and complete copy of each registration
rights agreement and other agreement, if any, in respect of or otherwise
affecting any of the Pledged Shares in existence on the date hereof or that
may hereafter be entered into;
(vii) the Pledgor is and will be at all times
the legal and beneficial owner of the Additional Collateral in existence, free
and clear of any Lien, security interest, option or other charge or
encumbrance except for the security interest created by the Pledge Agreement.
There is no financing statement naming the Pledgor as debtor (or similar
documents or instrument of registration under the law of any jurisdiction) now
on file or registered in any public office covering any interest of the
Pledgor in the Additional Collateral, except in favor of the Bank; and
(viii) upon the occurrence and during the
continuance of an Event of Default, the Bank may publicly sell, transfer or
otherwise dispose of the Additional Collateral pursuant to Rule 144(k) without
regard to the requirements of paragraphs (c), (e), (f) or (h) of Rule 144 so
long as the Bank is not an affiliate of Triarc at the date of such sale,
transfer or other disposition or at any time within the three months prior
thereto.
(i) [REGISTERED PLEDGED SHARES. Sales by the Pledgor in
transactions (the "COVERED TRANSACTIONS") described in the section of the
[Prospectus] captioned "Plan of Distribution" of up to an aggregate of
___________ shares of Triarc Shares (evidenced by Certificate Nos. _________)
owned by the Pledgor are registered under the [Registration Statement].
Assuming the continued effectiveness of the Registration Statement and such
delivery of the Prospectus as may be required by the Securities Act of 1933,
as amended, sales by the Bank, in its capacity as a "pledgee" under the Pledge
Agreement, of the Pledged Shares in Covered Transactions would be registered
under the Registration Statement and would not require any amendment to the
Registration Statement or supplement of the Prospectus.]
(j) RESIDENCE. The principal residence of each Borrower
is 000 Xxxxx Xxxx Xxxx, Xxxxx Xxxxx, XX 00000.
(k) SECURITIES INTERMEDIARY. The Pledgor has directed
the Securities Intermediary, and the Securities Intermediary has agreed, that
it will comply with entitlement orders originated by the Bank without further
consent by the Pledgor pursuant to the BA Control Agreement.
(l) BRING-DOWN. (i) The representations and warranties
by such Borrower contained in this Section 6 of this Amendment and in Article
IV of the Credit Agreement, as amended hereby, and of each Loan Party in each
other Loan Document and certificate or other writing delivered to the Bank
pursuant hereto or thereto on or prior to the date hereof are true and correct
in all material respects on and as of such date as though made on and
8
as of such date, except to the extent that any such representation and
warranty expressly relates solely to an earlier date (in which case such
representation and warranty shall be true and correct on and as of such
earlier date); (ii) no Event of Default or Default has occurred and is
continuing or would result from the effectiveness of this Amendment; and (iii)
since the date of the Credit Agreement, no material adverse change in the
operations, condition (financial or otherwise), business, assets, income or
prospects of such Borrower has occurred and is continuing, except as
previously disclosed in writing to the Bank and consented to in writing by the
Bank.
6. CONDITIONS. This Amendment shall become effective on the
date (the "AMENDMENT EFFECTIVE DATE") as of which each of the following
conditions precedent shall have been satisfied in a manner satisfactory to the
Bank:
(a) The Bank shall have received the following
documents, each in form and substance satisfactory to the Bank:
(i) this Amendment, duly executed by the
Borrowers;
(ii) the Fourth Amended and Restated Revolving
A Note, dated the Amendment Effective Date, in substantially the form attached
hereto as ANNEX B, made by the Borrowers to the order of the Bank and in the
original principal amount of $65,000,000 (the "NEW NOTE"); and
(iii) Federal Reserve Form U-1 provided for in
Regulation U issued by the Board of Governors of the Federal Reserve System,
the statements made in which shall be such, in the opinion of the Bank, as to
permit the transactions contemplated hereby in accordance with such
Regulation;
(iv) UCC Financing Statement Amendment,
amending Schedule A to UCC-1 Financing Statement to reflect the pledge by the
Pledgor of the Additional Collateral;
(v) certified copies of requests for copies or
information on Form UCC-11 or other recent UCC search results, listing all
effective financing statements which name a Borrower as debtor, together with
search results with respect to judgment and tax liens searches and copies of
such financing statements and any other lien, none of which, except as
otherwise agreed to in writing by the Bank, shall cover any of the Collateral;
(vi) the original stock certificates
representing 100% of the Pledged Shares that are not subject to the BA Control
Agreement and 15 undated stock powers executed in blank and other proper
instruments of transfer for the stock certificates pledged by the Pledgor to
the Bank;
(vii) an issuer's letter from Triarc with
respect to the pledge of the Pledged Shares by the Pledgor;
(viii) an irrevocable letter, duly executed by
the Pledgor, authorizing the payment of all dividends payable on the Pledged
Shares directly to the Bank without further consent from the Pledgor;
9
(ix) a certified copy of each Registration
Rights Agreement, if any, together with any consent from Triarc that the Bank
may reasonably require in order to enjoy the benefits of any Registration
Rights Agreement in respect of the Pledged Shares;
(x) a restricted securities statement, duly
executed by the Pledgor;
(xi) an opinion, dated the Amendment Effective
Date, of the law firm of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, counsel
to the Borrowers, in form and substance reasonably satisfactory to the Bank
and its counsel;
(xii) the BA Control Agreement, duly executed by
the Securities Intermediary, the Bank and the Pledgor; and
(xiii) such other agreements, instruments,
opinions and other documents as the Bank may reasonably request.
(b) The Bank shall have received all fees and other
amounts due and payable to the Bank, including, without limitation, the
Commitment Fee referred to in Section 4 hereof and all legal fees, costs and
expenses of the Bank in connection with the Credit Agreement, this Amendment
and the other related agreements and documents.
(c) (i) The representations and warranties by each
Borrower contained in this Section 5 of this Amendment and in Article IV of
the Credit Agreement, as amended hereby, and of each Loan Party in each other
Loan Document and certificate or other writing delivered to the Bank pursuant
hereto or thereto on or prior to the date hereof are true and correct in all
material respects on and as of such date as though made on and as of such
date, except to the extent that any such representation and warranty expressly
relates solely to an earlier date (in which case such representation and
warranty shall be true and correct on and as of such earlier date); (ii) no
Event of Default or Default has occurred and is continuing or would result
from the effectiveness of this Amendment; and (iii) since the date of the
Credit Agreement, no material adverse change in the operations, condition
(financial or otherwise), business, assets, income or prospects of such
Borrower has occurred and is continuing, except as previously disclosed in
writing to the Bank and consented to in writing by the Bank.
7. POST CLOSING DELIVERIES. The Bank shall have received,
within 14 Business Days of the Amendment Effective Date, [25] undated stock
powers executed in blank and other proper instruments of transfer for the
stock certificates pledged by the Pledgor to the Bank.
8. REPLACEMENT OF OLD NOTE; CONTINUED EFFECTIVENESS OF AMENDED
DOCUMENTS. (a) Simultaneously with the execution and delivery of this
Amendment, the Borrowers are executing and delivering to the Bank the New
Note. On and after the Amendment Effective Date, the existing Revolving A
Note, dated May 5, 2005, made by the Borrowers to the order of the Bank and in
the original principal amount of $43,000,000 (the "OLD NOTE"), shall be
amended, superseded and replaced by the New Note. It is the intention of the
parties hereto that this Amendment and the substitution of the New Note for
the Old Note shall not in any way constitute (i) an extinguishment of the
indebtedness of the Borrowers under the Old Note, (ii) a
10
release of the Borrowers from such obligations, or (iii) a novation of the Old
Note. Promptly after delivery of the New Note, duly executed by the Borrowers
to the Bank, the Old Note, shall each be marked "cancelled" and replaced by
the New Note, provided, that the Borrowers shall pay any unpaid interest on
the Old Note accrued through the date of the New Note on or before January 31,
20006.
(b) All references in the Credit Agreement and in any
other Loan Document to "the Revolving A Note", "thereto", "thereof",
"thereunder" or words of like import referring to the Old Note shall be deemed
to be references to the New Note, as such promissory note may be modified or
extended from time to time, and any note issued in exchange or replacement
therefor. All references in any Loan Document to "Obligations" shall be deemed
to include any indebtedness (including, without limitation, principal and
interest) under the New Note.
(c) Except as otherwise expressly provided herein, the
Amended Documents and the other Loan Documents are, and shall continue to be,
in full force and effect and are hereby ratified and confirmed in all
respects, except that on and after the date hereof (i) all references in the
Amended Documents to "this Agreement", "hereto", "hereof", "hereunder" or
words of like import referring to the Amended Documents shall mean the Amended
Documents as amended by this Amendment, and (ii) all references in the other
Loan Documents to the "Credit Agreement", "thereto", "thereof", "thereunder"
or words of like import referring to the Credit Agreement shall mean the
Credit Agreement, as amended by this Amendment. Except as expressly provided
herein, the execution, delivery and effectiveness of this Amendment shall not
operate as a waiver of any right, power or remedy of the Bank under the
Amended Documents, under any other Loan Document or under any other document,
nor constitute a waiver of any provision of the Amended Documents.
9. RELEASE AND TERMINATION. Without recourse and representation
or warranty of any kind, the Bank hereby releases its security interest in,
and its Lien on, the Released Collateral. The Bank will (A) at the request of
the Borrowers execute appropriate UCC-3 Statements of Release and (B) at the
request of the Borrowers execute such additional instruments and other
writings, and take such other action, as the Borrowers may reasonably request
(in each case, at the cost and expense of the Borrowers) to effect or evidence
the release of the Bank's security interest in the Released Collateral and all
proceeds thereof.
10. MISCELLANEOUS.
(a) COUNTERPARTS. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which shall be deemed to be an original, but all of
which taken together shall constitute one and the same agreement.
(b) HEADINGS. Section headings herein are included for
convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
11
(c) GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(d) COSTS AND EXPENSES. The Borrowers agree to pay on
demand all reasonable fees, costs and expenses of the Bank (including, without
limitation, the reasonable fees and other client charges of Xxxxxxx Xxxx &
Xxxxx LLP) in connection with the Credit Agreement, this Amendment and the
related agreements, instruments and other documents.
(e) AMENDMENT AS LOAN DOCUMENT. The Borrowers hereby
acknowledge and agree that this Amendment constitutes a "Loan Document."
Accordingly, it shall be an Event of Default under the Credit Agreement if (i)
any representation or warranty made by the Borrowers under or in connection
with this Amendment shall have been untrue, false or misleading in any
material respect when made, or (ii) the Borrowers shall fail to perform or
observe any term, covenant or agreement contained in this Amendment.
(f) WAIVER OF JURY TRIAL. THE BORROWERS AND THE BANK
EACH HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS AMENDMENT OR THE ACTIONS OF THE BANK IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
12
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed and delivered as of the date first above written.
/s/ Xxxxxx Xxxxx
--------------------------------
XXXXXX XXXXX
/s/ Xxxxxxx Xxxxx
--------------------------------
XXXXXXX XXXXX
BANK OF AMERICA, N.A.
By: /s/ Xxxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title Senior Vice President