EXHIBIT 4.2
SUPPLEMENT TO
LOAN AGREEMENT
THIS SUPPLEMENT TO LOAN AGREEMENTS (this "Supplement") is entered into as
of June 26, 1996 among FFCA ACQUISITION CORPORATION, a Delaware corporation
("FFCA"), whose address is 00000 Xxxxx Xxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx
00000, ARBY'S RESTAURANT HOLDING COMPANY, a Delaware corporation ("ARHC"),
whose address is 0000 Xxxxxxxxx Xxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx 00000, ARBY'S
RESTAURANT DEVELOPMENT CORPORATION, a Delaware corporation ("ARDC"), whose
address is 0000 Xxxxxxxxx Xxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx 00000 and TRIARC
COMPANIES, INC., a Delaware corporation ("Guarantor"), whose address is 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
PRELIMINARY STATEMENT:
FFCA and ARHC entered into that certain Loan Agreement dated as of
October 13, 1995 (the "ARHC Loan Agreement"), as amended, pursuant to which
FFCA has made loans to ARHC in connection with the financing of certain Arby's
Restaurants and/or Dual Concepts.
FFCA and ARDC entered into that certain Loan Agreement dated as of May
1, 1995, as amended and restated by that certain Amended and Restated Loan
Agreement between FFCA and ARDC dated as of October 13, 1995 (the "ARDC Loan
Agreement"), as amended, pursuant to which FFCA has made loans to ARDC in
connection with the financing of certain Arby's Restaurants and/or Dual
Concepts.
Capitalized terms not otherwise defined herein shall have the meanings
set forth in the ARHC Loan Agreement or ARDC Loan Agreement, as applicable, as
such defined terms may be amended or added to the ARHC Loan Agreement or the
ARDC Loan Agreement pursuant to this Supplement.
FFCA has notified ARHC, ARDC and Guarantor of FFCA's intent to enter
into a pooling and servicing agreement as of June 1, 1996 (the "Pooling and
Servicing Agreement") in connection with a Securitization of certain of the
Loans and corresponding Equipment Loans.
As a result of such Securitization, FFCA, ARHC and ARDC desire to amend
and supplement the ARHC Loan Agreement and the ARDC Loan Agreement to set
forth their agreement with respect to (i) ARHC's and ARDC's rights of
defeasance, (ii) the initial Testing Date for the Fixed Charge Coverage Ratio
with respect to a Site, (iii) the confidentiality of certain information to be
disclosed to Trustees and Certificateholders (both as defined below); and (iv)
the funding of the outstanding commitment of FFCA to ARHC and ARDC pursuant to
the ARHC Loan Agreement and the ARDC Loan Agreement, respectively.
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AGREEMENT:
In consideration of the mutual covenants and provisions of this
Supplement, the parties agree as follows:
1. Notwithstanding anything contained in the ARHC Loan Agreement or the
ARDC Loan Agreement to the contrary, neither ARHC nor ARDC shall be permitted
to defease any of the Notes and Equipment Notes, as permitted under Section
5.B of the ARHC Loan Agreement and Section 5.B of the ARDC Loan Agreement, as
applicable, prior to August 1, 1998.
2. Notwithstanding anything contained in the ARHC Loan Agreement, the
ARDC Loan Agreement or a Deed of Trust with respect to a Site to the contrary,
the initial Testing Date for the Fixed Charge Coverage Ratio with respect to a
Site shall not occur prior to August 1, 1998.
3. Notwithstanding anything contained in Section 17.Q of the ARHC Loan
Agreement or the ARDC Loan Agreement, Exhibit I to the ARHC Loan Agreement or
Exhibit K of the ARDC Loan Agreement, the trustee pursuant to the Pooling and
Servicing Agreement and all trustees pursuant to any pooling and servicing
agreement or similar agreements (collectively, the "Trustee") entered into in
connection with all other securitizations (collectively the "Securitization
Documents"), and the certificateholders or investors of certificates issued in
connection with the Pooling and Servicing Agreement and all other
Securitizations (collectively, the "Certificateholders"), shall not be
obligated to execute a Confidentiality Agreement provided that:
(i) the Trustee, on behalf of itself and the Certificateholders,
shall be bound pursuant to the Securitization Documents by
confidentiality provisions substantially in the form attached hereto as
Exhibit A (the "Securitization Provisions");
(ii) all reports delivered by a Trustee to Certificateholders must
contain a legend indicating that the contents of such reports are
confidential; and
(iii) all securities offering documents evidencing the
Securitizations (the "Securities Offering Documents") shall provide that
all Certificateholders, by accepting the certificates evidencing their
investment in the securities issued in connection with such
Securitizations, shall be bound by the Securitization Provisions.
Notwithstanding the foregoing, if a Certificateholder requests financial
information that it is entitled to receive under the Securities Offering
Documents with respect to ARDC, ARHC and/or Guarantor other than that
financial information which is contained in the reports to be delivered by the
Trustee to such Certificateholder pursuant to the Pooling and Servicing
Agreement, and such financial information would otherwise be deemed to be
Confidential
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Information (as defined in the Confidentiality Agreement), such
Certificateholder shall be required by the Trustee to execute a
confidentiality agreement containing the Securitization Provisions as a
condition precedent to receiving such requested financial information;
provided, however, if such Certificateholder is a chain restaurant company,
such Certificateholder shall not be entitled to receive such requested
financial information unless ARDC, ARHC, and/or Guarantor, as applicable,
depending on whether the information requested concerns such party, consent(s)
to the release of such information.
Upon written notice from ARHC or ARDC, as applicable, FFCA shall demand
that the Trustee and Certificateholders comply with the Securitization
Confidentiality Agreement. FFCA agrees and acknowledges that ARHC and ARDC are
intended third-party beneficiaries of each Securitization Confidentiality
Agreement and the terms and conditions of this Section 3.
4. Upon FFCA's assignment of the ARHC Loan Agreement and the ARDC Loan
Agreement to the Trustee pursuant to the Pooling and Servicing Agreement,
FFCA, ARHC, ARDC and Guarantor acknowledge and agree that the Trustee, as
assignee of FFCA, will have no further obligation to fund Loans and Equipment
Loans pursuant to the ARHC Loan Agreement or the ARDC Loan Agreement.
Notwithstanding the foregoing, the obligation of FFCA and Franchise Finance
Corporation of America ("REIT") to provide ARDC and ARHC with the unfunded
Loan and Equipment Loan commitments on the terms and conditions as set forth
in the ARDC Loan Agreement and the ARHC Loan Agreement, respectively, are not
limited. However, FFCA and REIT intend that their affiliate, FFCA Mortgage
Corporation ("FFCA Mortgage"), provide such funding and that all Loans and
Equipment Loans be made by FFCA Mortgage and only to ARHC. In connection with
such intention, but not as a condition precedent to any such funding, FFCA
Mortgage, REIT and ARHC agree that they shall enter into a new loan agreement
prior to October 1, 1996 (the "Substitute Loan Agreement"), the material terms
of which will be substantially similar to the outstanding commitment of FFCA
to ARHC and ARDC pursuant to the ARHC Loan Agreement and the ARDC Loan
Agreement (including, without limitation, the guaranty by Guarantor of ARHC's
Substitute Loan Agreement obligations. REIT is joining in the execution of
this Supplement to evidence its continuing obligations to ARDC and ARHC as set
forth above and to evidence its agreement to enter into the Substitute Loan
Agreement, and FFCA Mortgage is joining in the execution of this Supplement to
evidence its agreement to enter into the Substitute Loan Agreement.
5. The ARHC Loan Agreement, the ARDC Loan Agreement, the Deeds of Trust,
the Guaranties and all other documents contemplated thereby remain in full
force and effect as supplemented by this Supplement.
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IN WITNESS WHEREOF, ARHC, ARDC, FFCA and Triarc have entered into this
Supplement as of the date first above written.
FFCA ACQUISITION CORPORATION
a Delaware corporation
By /s/ XXXXXX X. XXXXX
Printed Name Xxxxxx X. Xxxxx
Its Senior Vice President
& General Counsel
ARBY'S RESTAURANT HOLDING COMPANY,
a Delaware corporation
By /s/ XXXXXXX X. XXXXXXX
Printed Name Xxxxxxx X. Xxxxxxx
Its Vice President
ARBY'S RESTAURANT DEVELOPMENT
CORPORATION, a Delaware corporation
By /s/ XXXXXXXX X. MAY
Printed Name Xxxxxxxx X. May
Its Vice President
TRIARC COMPANIES, INC., a Delaware
corporation
By /s/ XXXX X. XXXXXX
Printed Name Xxxx X. Xxxxxx
Its Sr. Vice President,
Corporate Finance
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Agreed to and acknowledged:
FFCA MORTGAGE CORPORATION,
a Delaware corporation
By /s/ XXXXXX X. XXXXX
Its Senior Vice President and General Counsel
Printed Name Xxxxxx X. Xxxxx
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STATE OF ARIZONA ]
] SS.
COUNTY OF MARICOPA ]
The foregoing instrument was acknowledged before me on June 27 , 1996 by
Xxxxxx X. Xxxxx, Senior Vice President and General Counsel, of FFCA
Acquisition Corporation, a Delaware corporation, on behalf of the corporation.
/s/ XXXX X. XXXXXXX
Notary Public
My Commission Expires:
December 9, 1996
STATE OF Florida ]
] SS.
COUNTY OF Broward ]
The foregoing instrument was acknowledged before me on June 26, 1996 by
Xxxxxxx X. Xxxxxxx, Vice President, of Arby's Restaurant Holding Company, a
Delaware corporation, on behalf of the corporation.
/s/ XXXX XXXXXXXX XXXXX
Notary Public
My Commission Expires:
August 14, 1999
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STATE OF Florida ]
] SS.
COUNTY OF Broward ]
The foregoing instrument was acknowledged before me on June 26, 1996 by
Xxxxxxxx X. May, Vice President, of Arby's Restaurant Development
Corporation,a Delaware corporation, on behalf of the corporation.
/s/ XXXX XXXXXXXX XXXXX
Notary Public
My Commission Expires:
August 14, 0000
XXXXX XX Xxx Xxxx ]
] SS.
COUNTY OF New York ]
The foregoing instrument was acknowledged before me on July 10, 1996 by
Xxxx X. Xxxxxx, of Triarc Companies, Inc., a Delaware corporation, on behalf
of the corporation.
/s/ XXXX X. XXXX
Notary Public
My Commission Expires:
February 2, 1997
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STATE OF ARIZONA ]
] SS.
COUNTY OF MARICOPA ]
The foregoing instrument was acknowledged before me on June 27, 1996 by
Xxxxxx X. Xxxxx, Senior Vice President and General Counsel, of FFCA Mortgage
Corporation, a Delaware corporation, on behalf of the corporation.
/s/ XXXX X. XXXXXXX
Notary Public
My Commission Expires:
December 9, 1996
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EXHIBIT A
FORM OF SECURITIZATION PROVISIONS
05/33854.5
