Exhibit 4.1
SECOND AMENDMENT TO CREDIT AGREEMENT
SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as of
August 15, 1998, among MISTIC BRANDS, INC. ("Mistic"), a Delaware corporation,
SNAPPLE BEVERAGE CORP. ("Snapple"), a Delaware corporation, CABLE CAR BEVERAGE
CORPORATION ("Cable Car"), a Delaware corporation, TRIARC BEVERAGE HOLDINGS
CORP. (the "Parent"), a Delaware corporation (each of Mistic, Snapple, Cable Car
and the Parent, a "Borrower" and, collectively, the "Borrowers"), the financial
institutions listed on the signature pages hereto (collectively, the "Lenders"),
DLJ CAPITAL FUNDING, INC., as syndication agent (the "Syndication Agent") for
the Lenders, XXXXXX XXXXXXX SENIOR FUNDING, INC., as documentation agent (the
"Documentation Agent") for the Lenders, and THE BANK OF NEW YORK, as
administrative agent (the "Administrative Agent") for the Lenders.
W I T N E S S E T H:
WHEREAS, Mistic, Snapple, the Parent, the Lenders, the Syndication Agent,
the Administrative Agent, and the Documentation Agent are parties to an Amended
and Restated Credit Agreement, dated as of August 15, 1997, as amended by
Amendment No. 1 thereto (as so heretofore modified and in effect from time to
time, the "Existing Credit Agreement"); and
WHEREAS, the Borrowers have requested the Lenders to amend the Existing
Credit Agreement in certain respects, including by adding Cable Car as a
"Borrower" thereunder; and
WHEREAS, the Lenders have agreed, subject to the terms and conditions
hereinafter set forth, to amend the Existing Credit Agreement in certain
respects as provided below (the Existing Credit Agreement, as so amended by this
Amendment, being referred to as the "Credit Agreement");
NOW, THEREFORE, in consideration of the agreements herein contained, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
PART I
DEFINITIONS
SUBPART 1.1. Certain Definitions. Unless otherwise defined herein or the
context otherwise requires, terms used in this Amendment, including its preamble
and recitals, have the following meanings (such meanings to be equally
applicable to the singular and plural forms thereof):
"Credit Agreement" is defined in the third recital.
"Existing Credit Agreement" is defined in the first recital.
"Fountain Classics" means Fountain Classics, Inc., a Colorado corporation.
"Old San Francisco" means Old San Xxxxxxxxx Xxxxxxx, Inc., a Colorado cor-
poration.
"Second Amendment Effective Date" is defined in Subpart 3.1.
SUBPART 1.2. Other Definitions. Unless otherwise defined herein or the
context otherwise requires, terms used in this Amendment, including its preamble
and recitals, have the meanings ascribed thereto in the Existing Credit
Agreement.
PART II
AMENDMENTS TO
THE EXISTING CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the Second Amendment
Effective Date, and in reliance upon the representations and warranties made
herein, the Existing Credit Agreement is hereby amended in accordance with this
Part II. Except as expressly so amended, the Existing Credit Agreement shall
continue in full force and effect in accordance with its terms.
SUBPART 2.1. Amendments to Section 1.1. Section 1.1 of the Existing Credit
Agreement is hereby amended by inserting the following definitions in such
Section in the appropriate alphabetical sequence:
"Amendment No. 2" means the Second Amendment to the Credit
Agreement, dated as of August 15, 1998, among Mistic, Snapple, Cable
Car, the Parent, the Lenders signatory thereto, and the Agents.
"Cable Car" means Cable Car Beverage Corporation, a Delaware
corporation.
"Cable Car Business" means the business of producing,
marketing and distributing beverages (concentrate and/or finished
goods) and other similar or related products under the Xxxxxxx'x
trademark and other trademarks and trade names.
"Register" is defined in clause (b) of Section 2.7.
"Second Amendment Effective Date" is defined in Subpart 3.1 of
Amendment No. 2.
SUBPART 2.2. Amendment to Definition of Borrowers. The definitions of
"Borrower" and "Borrowers" in the Existing Credit Agreement are hereby amended
and restated to read in their entirety as follows:
"Borrower" and "Borrowers" means, individually and
collectively, as the context may require, Mistic, Snapple and the
Parent and, at any time on and after the Second Amendment Effective
Date, Cable Car.
SUBPART 2.3. Amendment to Definition of Change of Control. The definition
of "Change of Control" in the Existing Credit Agreement is hereby amended by
(a) adding the word "or"at the end of clause (g) thereof; and
(b) inserting a new clause (h) thereto to read in its entirety as follows:
(h) (i) prior to an Initial Public Offering of Cable Car, the
failure of Triarc and/or the Parent to own, directly or indirectly,
free and clear of all Liens or other encumbrances (other than as
permitted under the Loan Documents), 100% of the outstanding shares
of voting Capital Stock of Cable Car on a fully diluted basis, and
(ii) after an Initial Public Offering of Cable Car, the failure of
Triarc and/or the Parent to own, directly or indirectly, free and
clear of all Liens or other encumbrances (other than as permitted
under the Loan Documents), at least 51% of the outstanding shares of
voting Capital Stock of Cable Car on a fully diluted basis.
SUBPART 2.4. Amendment to Definition of Eligible Account. Clause (g) of
the definition of "Eligible Account" in the Existing Credit Agreement is hereby
amended and restated to read in its entirety as follows:
(g) with respect to such Account, no Account Debtor is (i) an
Affiliate of the Borrower or any of its Subsidiaries or (ii) the
subject of any of the types of actions described in clauses (a)
through (d) of Section 8.1.9;
SUBPART 2.5. Amendment to Definition of Excess Cash Flow. Subclause (ii)
of clause (b) of the definition of "Excess Cash Flow" in the Existing Credit
Agreement is hereby amended and restated to read in its entirety as follows:
(ii) (x) (A) scheduled payments and mandatory prepayments, to
the extent actually made, of the principal amount of the Term Loans
or (B) scheduled payments and optional and mandatory prepayments, to
the extent actually made, of the principal amount of any other term
Debt (including Capitalized Lease Liabilities), (y) mandatory
prepayments of the principal amount of the Revolving Loans and Swing
Line Loans pursuant to clauses (b) or (k) of Section 3.1.1 in
connection with a reduction of the Revolving Loan Commitment Amount,
in each case for such applicable period and (z) to the extent not
deducted in the computation of EBITDA, all cash payments in respect
of other Indebtedness (exclusive of optional prepayments of amounts
outstanding under the Revolving Loan Commitment);
SUBPART 2.6. Amendment to Definition of Initial Public Offering. The
definition of "Initial Public Offering" in the Existing Credit Agreement is
hereby amended and restated to read in its entirety as follows:
"Initial Public Offering" means a primary underwritten public
offering of the voting Capital Stock of the Parent, Mistic, Snapple
or Cable Car (as applicable), other than any public offering or sale
pursuant to a registration statement on Form S-8 or a comparable
form.
SUBPART 2.7. Amendment to Definition of Subsidiary. The definition of
"Subsidiary" in the Existing Credit Agreement is hereby amended and restated to
read in its entirety as follows:
"Subsidiary" means, with respect to any Person, any
corporation or limited liability company of which more than 50% of
the outstanding Capital Stock having ordinary voting power to elect
a majority of the board of directors (or its equivalent) of such
corporation or limited liability company (irrespective of whether at
the time Capital Stock of any other class or classes of such
corporation or limited liability company shall or might have voting
power upon the occurrence of any contingency) is at the time
directly or indirectly owned by such Person, by such Person and one
or more other Subsidiaries of such Person, or by one or more other
Subsidiaries of such Person. Notwithstanding the foregoing, (i) for
purposes of the affirmative covenants set forth in Section 7.1.1
(other than clauses (a), (b), and (h) thereof), (ii) for purposes of
calculating the financial covenants set forth in Section 7.2.4,
(iii) for purposes of the definitions of "Debt",
"EBITDA", "Excess Cash Flow", "Interest Expense", "Material Adverse
Effect", "Material Obligor", "Net Debt Proceeds", "Net Disposition
Proceeds", "Net Equity Proceeds", "Net Income", and "Net Worth", and
(iv) for purposes of clauses (c), (e) and (f) of Section 3.1.1,
Cable Car and its Subsidiaries shall be deemed to be "Subsidiaries"
of the Parent.
SUBPART 2.8. Amendment to Section 2.7. Section 2.7 of the Existing Credit
Agreement is hereby amended and restated to read in its entirety as follows:
SECTION 2.7. Register; Notes.
(a) Each Lender may maintain in accordance with its usual
practice an account or accounts evidencing the aggregate
Indebtedness of the Borrowers to such Lender resulting from each
Loan made by such Lender to the Borrowers, including the amounts of
principal and interest payable and paid to such Lender from time to
time hereunder. In the case of a Lender that does not request,
pursuant to clause (b)(ii) below, execution and delivery of a Note
or Notes evidencing the Loans made by such Lender to the Borrowers,
such account or accounts shall, to the extent not inconsistent with
the notations made by the Administrative Agent in the Register, be
conclusive and binding on the Borrowers absent demonstrable error;
provided, however, that the failure of any Lender to maintain such
account or accounts shall not limit or otherwise affect any
Obligations of any Borrower or any other Obligor.
(b)(i) Each Borrower hereby designates the Administrative
Agent to serve as its agent, solely for the purpose of this clause
(b), to maintain a register (the "Register") on which the
Administrative Agent will record each Lender's Commitments, the
Loans made by each Lender to the Borrowers and each repayment in
respect of the principal amount of the Loans of each Lender to the
Borrowers and together with which the Administrative Agent shall
retain a copy of each Lender Assignment Agreement delivered to the
Administrative Agent pursuant to Section 10.11.1. Failure to make
any recordation, or any error in such recordation, shall not affect
the Borrowers' joint and several obligations in respect of such
Loans. The entries in the Register shall be conclusive, in the
absence of demonstrable error, and the Borrowers, the Administrative
Agent and the Lenders shall treat each Person in whose name a Loan
(and, as provided in clause (ii), the Note evidencing such Loan, if
any) is registered as the owner thereof for all purposes of this
Agreement, notwithstanding notice or any provision herein to the
contrary. Any Commitment of any Lender and the Loans made pursuant
thereto may be assigned or otherwise transferred in whole or in part
only in accordance with Section 10.11 hereof and by registration of
such assignment or transfer in the Register. Any assignment or
transfer of any Commitment of any Lender or the Loans made pursuant
thereto shall be registered in the Register only upon delivery to
the Administrative Agent of a Lender Assignment Agreement duly
executed by the assignor thereof. No assignment or transfer of any
Commitment of any Lender or the Loans made pursuant thereto shall
be effective unless such assignment or transfer shall have been re-
corded in the Register by the Administrative Agent as provided in
this Section.
(ii) Each Borrower agrees that, upon the written request by
any Lender to the Administrative Agent, such Borrower will execute
and deliver to such Lender, as applicable, an applicable Revolving
Note, Term A Note, Term B Note, Term C Note and Swing Line Note
evidencing the Loans made by such Lender to the Borrowers. Each
Borrower hereby irrevocably authorizes each Lender to make (or cause
to be made) appropriate notations on the grid attached to such
Lender's Notes (or on any continuation of such grid), which
notations, if made, shall evidence, inter alia, the date of, the
outstanding principal amount of, and the interest rate and Interest
Period applicable to the Loans evidenced thereby. Such notations
shall, to the extent not inconsistent with the notations made by the
Administrative Agent in the Register, be conclusive and binding on
the Borrowers absent demonstrable error; provided, however, that the
failure of any Lender to make any such notations shall not limit or
otherwise affect any Obligations of the Borrowers or any other
Obligor. The Loans evidenced by any such Note and interest thereon
shall at all times (including after assignment pursuant to Section
10.11.1) be represented by one or more Notes payable to the order of
the payee named therein and its registered assigns. A Note and the
obligation evidenced thereby may be assigned or otherwise
transferred in whole or in part only in accordance with Section
10.11 hereof and by registration of such assignment or transfer of
such Note and the obligation evidenced thereby in the Register (and
each Note shall expressly so provide). Any assignment or transfer of
all or part of an obligation evidenced by a Note shall be registered
in the Register only upon surrender for registration of assignment
or transfer of the Note evidencing such obligation, accompanied by a
Lender Assignment Agreement duly executed by the assignor thereof,
and thereupon, if requested by the assignee, one or more new Notes
shall be issued by the Borrowers to the designated assignee and the
old Note or Notes shall be returned by the Administrative Agent to
the Parent (on behalf of the Borrowers) marked "exchanged". No
assignment of a Note and the obligation evidenced thereby shall be
effective unless it shall have been recorded in the Register by the
Administrative Agent as provided in this Section.
SUBPART 2.9. Amendments to Section 3.1.1.
(a) Subclause (i)(C) of clause (a) of Section 3.1.1 of the Existing Credit
Agreement is hereby amended and restated to read in its entirety as follows:
(C) all such voluntary prepayments of LIBO Rate Loans shall
require prior written notice to the Administrative Agent by 11:00
a.m. (New York time) (i) in the case of Term Loans at least four
Business Days prior to such prepayment or (ii) in the case of
Revolving Loans at least three Business Days prior to such
prepayment; and
(b) Subclause (i)(D) of clause (a) of Section 3.1.1 of the Existing Credit
Agreement is hereby amended and restated to read in its entirety as follows:
(D) all such voluntary prepayments of Base Rate Loans shall
require (i) in the case of Term Loans at least two but no more than
five Business Days' prior written notice to the Administrative Agent
or (ii) in the case of Revolving Loans at least one but no more than
five Business Days' prior written notice to the Administrative
Agent; and
(c) Clause (d) of Section 3.1.1 of the Existing Credit Agreement is hereby
amended and restated to read in its entirety as follows:
(d) shall, no later than five Business Days following the
delivery of the annual audited financial reports required pursuant
to clause (b) of Section 7.1.1 (beginning with the financial reports
delivered in respect of the 1997 Fiscal Year), deliver to the
Administrative Agent a calculation of the Excess Cash Flow for the
prior Fiscal Year and, no later than five Business Days following
the delivery of such calculation, make a mandatory prepayment of the
Term Loans in an amount equal to (i) 75% of Excess Cash Flow (if
any) for such Fiscal Year (or in the case of the 1997 Fiscal Year,
the portion of such Fiscal Year following the Closing Date) less
(ii) the aggregate amount of all voluntary prepayments of the
principal amount of the Term Loans actually made in such Fiscal Year
pursuant to clause (a) of Section 3.1.1, to be applied as set forth
in Section 3.1.2;
SUBPART 2.10. Amendment to Section 3.1.2. Clause (b) of Section 3.1.2 of
the Existing Credit Agreement is hereby amended and restated to read in its
entirety as follows:
(b) Each voluntary prepayment of Term Loans and each
prepayment of Term Loans made pursuant to clauses (c), (d), (e), (f)
and (g) of Section 3.1.1 shall be applied pro rata to a mandatory
prepayment of the outstanding principal amount of all Term A Loans,
Term B Loans and Term C Loans (with the amount of such prepayment of
the Term A Loans, Term B Loans and the Term C Loans being applied to
the remaining Term A Loans, Term B Loan or Term C Loan amortization
payments required pursuant to clauses (h), (i) and (j) of Section
3.1.1, in each case pro rata in accordance with the amount of each
such remaining Term Loan amortization payment), until all such Term
A Loans, Term B Loans and Term C Loans have been paid in full;
provided, however, that (i) any Lender that has Term B Loans or Term
C Loans outstanding may, by delivering a notice to the
Administrative Agent by 11:00 a.m. (New York time), at least three
Business Days prior to the date that such prepayment is to be made
in the case of Term B Loans or Term C Loans that are LIBO Rate Loans
or at least one Business Day prior to the date that such prepayment
is to be made in the case of Term B Loans or Term C Loans that are
Base Rate Loans, elect not to have its pro rata share of such Term
Loans prepaid, and upon any such election the Administrative Agent
shall apply the amount that otherwise would have prepaid such
Lender's Term Loans to the prepayment of Term A Loans, until paid
in full, and then to the prepayment of outstanding Revolving
Loans and (ii) no such prepayment of outstanding Revolving Loans
pursuant to clause (i) of this proviso shall result in a reduction
of the Revolving Loan Commitment Amount. The Administrative Agent
shall, no later than two Business Days prior to the prepayment of a
Term B Loan or Term C Loan that is a LIBO Rate Loan or one Business
Days prior to the prepayment of a Term B Loan or Term C Loan that is
a Base Rate Loan, send a notice to each Lender detailing the amounts
each Lender is to receive on the date of such prepayment and to
which Loans such amounts shall apply.
SUBPART 2.11. Amendments to Section 7.1.1. (a) Clause (a) of Section
7.1.1 of the Existing Credit Agreement is hereby amended and restated to read in
its entirety as follows:
(a) as soon as available and in any event within 55 days after
the end of each of the first three Fiscal Quarters of each Fiscal
Year of the Parent, (x) combined balance sheets of the Parent and
its Subsidiaries (including Mistic and Snapple) and of Cable Car and
its Subsidiaries as of the end of such Fiscal Quarter, and (y)
combined statements of earnings and cash flows of the Parent and its
Subsidiaries (including Mistic and Snapple) and of Cable Car and its
Subsidiaries for such Fiscal Quarter and for the period commencing
at the end of the previous Fiscal Year and ending with the end of
such Fiscal Quarter, certified in each case by the chief financial
or chief accounting Authorized Officer of the Parent;
(b) Clause (b) of Section 7.1.1 of the Existing Credit Agreement is hereby
amended and restated to read in its entirety as follows:
(b) as soon as available and in any event within 110 days
after the end of each Fiscal Year of the Parent, a copy of the
combined annual audit report for such Fiscal Year for the Parent and
its Subsidiaries and Cable Car and its Subsidiaries, including
therein combined balance sheets of the Parent and its Subsidiaries
and of Cable Car and its Subsidiaries as of the end of such Fiscal
Year and combined statements of earnings and cash flow of the Parent
and its Subsidiaries and of Cable Car and its Subsidiaries for such
Fiscal Year, in each case certified (without any Impermissible
Qualification) in a manner acceptable to the Agents and the Required
Lenders by Deloitte & Touche LLP or other independent public
accountants reasonably acceptable to the Agents and the Required
Lenders, together with a report from such accountants containing a
computation of, and showing compliance with, each of the financial
ratios and restrictions contained in Section 7.2.4 and to the effect
that, in making the examination necessary for the signing of such
annual report by such accountants, they have not become aware of any
Default that has occurred and is continuing, or, if they have become
aware of such Default, describing such Default and the steps, if
any, being taken to cure it;
(c) Clause (h) of Section 7.1.1 of the Existing Credit Agreement is hereby
amended and restated to read in its entirety as follows:
(h) promptly when available and in any event within 60 days
following the last day of each Fiscal Year of the Parent, financial
projections for the Parent and its Subsidiaries and for Cable Car
and its Subsidiaries, on a combined basis (including an operating
budget), for the current Fiscal Year, prepared in reasonable detail
by the chief accounting, financial or operating officer of the
Parent;
SUBPART 2.12. Amendment to Section 7.2.1. Section 7.2.1 of the Existing
Credit Agreement is hereby amended and restated to read in its entirety as
follows:
SECTION 7.2.1 Business Activities. The Borrowers will not, and
will not permit any of their Subsidiaries to, engage in any business
activity, except for (i) the Mistic Business, the Snapple Business
and/or the Cable Car Business, and such activities as may be
incidental or related thereto and (ii) the ownership of (and
activities incidental to the ownership of) the Capital Stock of
Mistic, Snapple and Cable Car or any other Person engaged directly
or indirectly through its Subsidiaries in the business of producing,
marketing and/or distributing beverages or other similar or related
products.
SUBPART 2.13. Amendment to Section 7.2.2. Clause (i) of Section 7.2.2 of
the Existing Credit Agreement is hereby amended and restated to read in its
entirety as follows:
(i) (x) Indebtedness of any Borrower to any wholly-owned U.S.
Subsidiary, (y) Indebtedness of any Borrower to any other Borrower
or (z) Indebtedness of any wholly-owned U.S. Subsidiary of any
Borrower to any Borrower or any other wholly-owned U.S. Subsidiary
of any Borrower;
SUBPART 2.14. Amendment to Section 7.2.4. Clause (a) of Section 7.2.4 of
the Existing Credit Agreement is hereby amended and restated to read in its
entirety as follows:
(a) Minimum Net Worth The Borrowers will not permit Net Worth
at any time to be less than an aggregate amount equal to $85,000,000
plus an amount equal to 50% of cumulative Net Income from the
Closing Date to the date of determination; provided, that for
purposes of computing Net Worth, Net Income of Cable Car shall only
be included for the period from the Second Amendment Effective Date
to the date of determination.
SUBPART 2.15. Amendment to Section 7.2.6. Clause (d) of Section 7.2.6 of
the Existing Credit Agreement is hereby amended and restated to read in its
entirety as follows:
(d) notwithstanding clause (a) above, (A) the Parent shall be
permitted to make payments to purchase, redeem, acquire or otherwise
retire for value shares of the Preferred Stock issued in connection
with the Equity Issuance with Net Debt Proceeds of the Permitted
Senior Subordinated Debt in an aggregate amount not to exceed
$25,000,000 and (B) on or after the Second Amendment Effective
Date, (x) Snapple shall be permitted to make a one-time dividend
payment to the Parent in an amount not to exceed $21,257,000 and
(y) the Parent shall be permitted to make a one-time dividend pay-
ment to Triarc in an amount not to exceed $21,257,000, so long as,
in the case of both (A) and (B), (i) no Default shall have oc-
curred and be continuing on the date such payment is made or would
result from the making of such payment, (ii) after giving effect
to such payment the Borrowers would be in pro forma compliance
with the covenants set forth in Section 7.2.4 for the most recent
full Fiscal Quarter immediately preceding the date of such pay-
ment (provided, that compliance with such covenants shall be cal-
culated on a pro forma basis as if Cable Car had been deemed to be
a Subsidiary of the Parent on the first day of the period for
which such calculation is made), and (iii) an Authorized Officer of
each Borrower shall have delivered a certificate to the Agents in
form and substance satisfactory to the Agents (including a calcula-
tion of the compliance with the covenants set forth in
Section 7.2.4) certifying as to accuracy of clauses (d)(i) and
(d)(ii) above;
SUBPART 2.16. Amendment to Section 7.2.8. Clause (a) of Section 7.2.8 of
the Existing Credit Agreement is hereby amended and restated to read in its
entirety as follows:
(a) (i) any such Subsidiary may liquidate or dissolve
voluntarily into, and may merge with and into, the Parent, Mistic,
Snapple, Cable Car or any wholly-owned U.S. Subsidiary of any
Borrower, (ii) the assets or stock of any such Subsidiary may be
purchased or otherwise acquired by the Parent, Mistic, Snapple,
Cable Car or any other wholly-owned U.S. Subsidiary of any Borrower,
(iii) Cable Car may liquidate or dissolve voluntarily into, and may
merge with and into, the Parent, Mistic, Snapple or any wholly-owned
U.S. Subsidiary of any other Borrower or (iv) the assets or stock of
Cable Car may be purchased or otherwise acquired (including without
limitation by way of a capital contribution) by the Parent, Mistic,
Snapple or any other wholly-owned U.S. Subsidiary of any other
Borrower; and
SUBPART 2.17. Amendment to Section 7.2.11. Section 7.2.11 of the Existing
Credit Agreement is hereby amended and restated to read in its entirety as
follows:
SECTION 7.2.11 Transactions with Affiliates. The Borrowers will not, and
will not permit any of their Subsidiaries to, enter into, or cause, suffer or
permit to exist any arrangement or contract with any of its other Affiliates
(other than any Obligor) unless such arrangement or contract is fair and
equitable to such Borrower or such Subsidiary and is an arrangement or contract
of the kind which would be entered into by a prudent Person in the position of
such Borrower or such Subsidiary with a Person which is not one of its
Affiliates; provided, however, that
(a) within 180 days of the end of each Fiscal Year, the
Borrowers shall be permitted to pay management fees to Triarc for
management services rendered during such Fiscal Year then ended;
provided, that, with respect to any such Fiscal Year, management
fees paid pursuant to this clause (a) shall not exceed the lesser of
(i) $6,000,000 and (ii) the sum of (x) $3,000,000 plus (y) the
Excess Amount;
(b) the Borrowers and their Subsidiaries shall be permitted to
enter into and to make payments pursuant to the Tax Sharing
Agreement as and to the extent permitted under Section 7.2.6; and
(c) the Borrowers shall be permitted to enter into one or more
agreements with Royal Crown Company, Inc. pursuant to which one or
more Borrowers shall provide management services to, and receive
payments from, Royal Crown Company, Inc.;
so long as, in the case of clause (a), (x) no Default shall have
occurred and be continuing on the date any such payment is made or
would result from the making of any such payment, (y) after giving
effect to any such payment the Borrowers would be in pro forma
compliance with the covenants set forth in Section 7.2.4 for the
most recent full Fiscal Quarter immediately preceding the date of
such payment, and (z) an Authorized Officer of the Parent shall have
delivered a certificate to the Agents in form and substance
satisfactory to the Agents (including a calculation of the
compliance with the covenants set forth in Section 7.2.4) certifying
as to accuracy of clauses (x) and (y) above.
SUBPART 2.18. Amendment to Section 10.11.1. Section 10.11.1 of the
Existing Credit Agreement is hereby amended and restated to read in its entirety
as follows:
SECTION 10.11.1 Assignments. Any Lender,
(a) with the prior written consents of the Parent, the Agents
and (in the case of any assignment of participations in Letters of
Credit or Revolving Loan Commitments) each Issuer (which consents
shall not be unreasonably delayed or withheld and which consents of
the Agents and each Issuer shall not be required in the case of
assignments made by or to DLJ, Xxxxxx Xxxxxxx, the Administrative
Agent or any of their Affiliates and which consent of the Parent
shall not be required if an Event of Default under Section 8.1.1 or
Section 8.1.9 shall have occurred and be continuing) may at any time
assign and delegate to one or more commercial banks or other
financial institutions, and
(b) with notice to the Parent, the Agents and (in the case of
any assignment of participations in Letters of Credit or Revolving
Loan Commitments) each Issuer, but without the consent of the Parent
or the Agents, may assign and delegate to any of its Affiliates or
to any other Lender or to any Person whose investment manager or
investment advisor is the investment manager or investment advisor
of such Lender
(each Person described in either of the foregoing clauses as being the
Person to whom such assignment and delegation is to be made, being hereinafter
referred to as an "Assignee Lender"), all or any fraction of such Lender's total
Loans, participations in Letters of Credit and Letter of Credit Outstandings
with respect thereto and Commitments (which assignment and delegation shall be,
as among Revolving Loan Commitments, Revolving Loans and participations in
Letters of Credit, of a constant, and not a varying, percentage), in a minimum
aggregate amount of (i) $1,000,000 (if such assignment and delegation is to a
then existing Lender) and (ii) $2,000,000 (if such assignment and delegation is
to a Person not then a Lender) or the then remaining amount of a Lender's Loans
and Commitments; provided, however, that any such Assignee Lender will comply,
if applicable, with the provisions contained in Section 4.6 and further,
provided, however, that, the Borrowers, each other Obligor and the Agents shall
be entitled to continue to deal solely and directly with such Lender in
connection with the interests so assigned and delegated to an Assignee Lender
until
(c) written notice of such assignment and delegation, together
with payment instructions, addresses and related information with
respect to such Assignee Lender, shall have been given to the Parent
and the Agents by such Lender and such Assignee Lender,
(d) such Assignee Lender shall have executed and delivered to
the Parent and the Agents a Lender Assignment Agreement, accepted by
the Agents (if required),
(e) the processing fees described below shall have been paid,
and
(f) the Administrative Agent shall have registered such
assignment and delegation in the Register pursuant to clause (b) of
Section 2.7.
From and after the date that the Agents accept such Lender Assignment
Agreement and such assignment and delegation is registered in the Register
pursuant to clause (b) of Section 2.7, (x) the Assignee Lender thereunder shall
be deemed automatically to have become a party hereto and to the extent that
rights and obligations hereunder have been assigned and delegated to such
Assignee Lender in connection with such Lender Assignment Agreement, shall have
the rights and obligations of a Lender hereunder and under the other Loan
Documents, and (y) the assignor Lender, to the extent that rights and
obligations hereunder have been assigned and delegated by it in connection with
such Lender Assignment Agreement, shall be released from its obligations
hereunder and under the other Loan Documents. Any assignor Lender that shall
have previously requested and received any Note or Notes to which such
assignment applies shall, upon acceptance by the Administrative Agent of the
applicable Lender Assignment Agreement, xxxx such predecessor Note or Notes
"exchanged" and deliver them to the Parent (against, if the assignor Lender has
retained Loans or Commitments and has requested replacement Notes pursuant to
clause (b)(ii) of Section 2.7, its receipt of replacement Notes in the principal
amount of the Loans and Commitments retained by it). The Borrowers shall execute
and deliver to the Administrative Agent (for delivery to the relevant Assignee
Lender) new Notes evidencing such Assignee Lender's assigned Loans and
Commitments and, if the assignor Lender has retained Loans and Commitments
hereunder, replacement Notes in the principal amount of the Loans and
Commitments retained by the assignor Lender hereunder (such Notes to be in
exchange for, but not in payment of, those Notes then held by such assignor
Lender). Each such Note shall be dated the date of the predecessor Notes.
Accrued interest on that part of the predecessor Notes evidenced by the new
Notes, and accrued fees, shall be paid as provided in the Lender Assignment
Agreement. Accrued interest on that part of the predecessor Notes evidenced by
the replacement Notes shall be paid to the assignor Lender. Accrued interest and
accrued fees shall be paid at the same time or times provided in the predecessor
Notes and in this Agreement. Such assignor Lender or such Assignee Lender must
also pay a processing fee to the Administrative Agent upon delivery of any
Lender Assignment Agreement in the amount of $3,500. Any attempted assignment
and delegation not made in accordance with this Section 10.11.1 shall be null
and void. Nothing contained in this Section 10.11.1 shall prevent or prohibit
any Lender from pledging its rights (but not its obligations to make Loans)
under this Agreement and/or its Loans and/or its Notes hereunder (i) to a
Federal Reserve Bank in support of borrowings made by such Lender from such
Federal Reserve Bank or (ii) in the case of a Lender that is an investment fund,
to the trustee under the indenture to which such fund is a party in support of
its obligations to such trustee; provided, that any such assignment to a trustee
shall be subject to the provisions of clause (a) of this Section 10.11.1. In the
event that S&P, Xxxxx'x or Xxxxxxxx'x BankWatch (or InsuranceWatch Ratings
Service, in the case of Lenders that are insurance companies (or Best's
Insurance Watch Ratings Service)) shall, after the date that any Lender with a
Commitment to make Revolving Loans or participate in Letters of Credit becomes a
Lender, downgrade the long-term certificate of deposit rating or long-term
senior unsecured debt rating of such Lender, and the resulting rating shall be
below BBB-, Baa3 or C (or BB, in the case of Lender that is an insurance company
(or B, in the case of an insurance company not rated by InsuranceWatch Ratings
Service)), then the Issuer shall have the right, but not the obligation, upon
notice to such Lender and the Administrative Agent, to replace such Lender with
an Assignee Lender in accordance with and subject to the restrictions contained
in this Section, and such Lender hereby agrees to transfer and assign without
recourse (in accordance with and subject to the restrictions contained in this
Section) all its interests, rights and obligations in respect of its Revolving
Loan Commitment under this Agreement to such Assignee Lender; provided, however,
that (i) no such assignment shall conflict with any law, rule and regulation or
order of any governmental authority and (ii) such Assignee Lender shall pay to
such Lender in immediately available funds on the date of such assignment the
principal of and interest and fees (if any) accrued to the date of payment on
the Loans made, and Letters of Credit participated in, by such Lender hereunder
and all other amounts accrued for such Lender's account or owed to it hereunder.
SUBPART 2.19. Amendments to Exhibits and Disclosure Schedule. (a) The
Existing Credit Agreement is hereby amended (i) to substitute Exhibit A-1 (Form
of Revolving Note) hereto for Exhibit A-1 thereto, Exhibit A-2 (Form of Swing
Line Note) hereto for Exhibit A-2 thereto, Exhibit B-1 (Form of Term A Note)
hereto for Exhibit B-1 thereto, Exhibit B-2 (Form of Term B Note) hereto for
Exhibit B-2 thereto, Exhibit B-3 (Form of Term C Note) hereto for Exhibit B-3
thereto, Exhibit E (Form of Borrowing Base Certificate) hereto for Exhibit E
thereto, and Exhibit H (Form of Compliance Certificate) hereto for Exhibit H
thereto and (ii) to amend Item 6.8 ("Existing Subsidiaries") and Item
7.2.2(c) ("Ongoing Indebtedness") of the Disclosure Schedule.
(b) Not in limitation, but in furtherance, of the amendment to the
definitions of "Borrower" and "Borrowers" set forth herein, each Borrowing
Request, Issuance Request, Continuation/Conversion Notice and Lender Assignment
Agreement shall also require execution thereof by Cable Car, together with other
conforming changes thereto.
PART III
CONDITIONS TO EFFECTIVENESS
SUBPART 3.1. Effective Date. This Amendment (and the amendments and
modifications contained herein) shall become effective, and shall thereafter be
referred to as "Amendment No. 2", on the date (the "Second Amendment Effective
Date") when all of the conditions set forth in this Subpart 3.1 have been
satisfied.
SUBPART 3.1.1. Execution of Counterparts. The Syndication Agent
shall have received counterparts of this Amendment, duly executed and delivered
on behalf of each of the Borrowers, the Agents and each of the Required Lenders.
SUBPART 3.1.2. Execution of Replacement Notes. The Administrative
Agent shall have received (a) for the account of each Lender (other than the
Swing Line Lender) who has requested in writing the issuance of replacement
Notes, such Lender's replacement Notes, dated as of August 15, 1997, duly
executed and delivered on behalf of each of the Borrowers, in each case in a
principal amount equal to such Lender's outstanding Loans and Commitments, and
(b) if requested in writing by the Swing Line Lender, for the account of the
Swing Line Lender, such Lender's replacement Swing Line Note, dated as of August
15, 1997, duly executed and delivered on behalf of each of the Borrowers, in a
principal amount equal to $10,000,000. The Administrative Agent shall have
received from each such Lender, upon delivery of such replacement Notes, such
Lender's predecessor Notes, and all such predecessor Notes shall have been
marked "exchanged" and delivered to the Parent, on behalf of the Borrowers.
SUBPART 3.1.3. Execution of Other Loan Documents, Etc. The
Administrative Agent shall have received counterparts of (a) the Second Amended
and Restated Triarc Pledge Agreement, duly executed by Triarc and the
Administrative Agent, (b) supplements to the Guaranty, duly executed by Cable
Car, Fountain Classics and Old San Francisco and the Administrative Agent, (c) a
supplement to the Borrower Security Agreement, duly executed by Cable Car and
the Administrative Agent, (d) a supplement to the Borrower Pledge Agreement,
duly executed by Cable Car and the Administrative Agent, and (e) a supplement to
the Subsidiary Security Agreement, duly executed by Old San Francisco and Foun-
tain Classics and the Administrative Agent, together with (i) certificates repre
-senting all of the issued and outstanding shares of Capital Stock of Cable Car
owned by Triarc and of Old San Francisco and Fountain Classics owned by Cable
Car, along with undated stock powers for such certificates, executed in blank,
(ii) executed copies of proper Uniform Commercial Code termination statements,
if any, necessary to release all Liens (other than Liens permitted to exist
under the Loan Documents) and other rights of any Person in any collateral
described in the Borrower Security Agreement and the Subsidiary Security Agree-
ment previously granted by any Person, (iii) acknowledgment copies of properly
filed Uniform Commercial Code financing statements naming Cable Car as
debtor and the Administrative Agent as the secured party, filed under
the UCC in all jurisdictions necessary or, in the opinion of the Agents,
desirable to perfect the security interest of the Administrative Agent pur-
suant to the Borrower Security Agreement, and (iv) acknowledgment copies of
properly filed Uniform Commercial Code financing statements naming Old San
Francisco and Fountain Classics, as applicable, as debtors and the Administra-
tive Agent as the secured party, filed under the UCC in all jurisdictions neces-
sary or, in the opinion of the Agents, desirable to perfect the security in-
terest of the Administrative Agent pursuant to the Subsidiary Security
Agreement.
SUBPART 3.1.4. Legal Details, etc. All documents executed or
submitted pursuant hereto shall be satisfactory in form and substance to the
Agents and their counsel. The Agents and their counsel shall have received all
information and such counterpart originals or such certified or other copies or
such materials, as the Agents or their counsel may reasonably request, and all
legal matters incident to the transactions contemplated by this Amendment shall
be satisfactory to the Agents and their counsel.
PART IV
REPRESENTATIONS AND WARRANTIES, ETC.
SUBPART 4.1. Representations and Warranties; No Default. (a) In order to
induce the Required Lenders to enter into this Amendment, the Borrowers (other
than Cable Car, solely with respect to Section 6.8 of the Existing Credit
Agreement) hereby jointly and severally (i) confirm, reaffirm and restate that
the representations and warranties set forth in Article VI of the Existing
Credit Agreement and in each other Loan Document (in each case as amended
hereby) are true and correct in all material respects as of the date hereof and
as of the Second Amendment Effective Date (unless such representations and
warranties are stated to relate to an earlier date, in which case such
representations and warranties shall have been true and correct in all material
respects as of such earlier date) and (ii) represent and warrant that, both
immediately before and after giving effect to the amendments and waivers set
forth herein, no Default or Event of Default has occurred and is continuing.
(b) The execution, delivery and performance by each Borrower of this
Amendment, the Notes and each other Loan Document executed or to be executed by
it are within each such Borrower's corporate powers, have been duly authorized
by all necessary corporate action, and do not (i) contravene such Borrower's
Organic Documents, (ii) contravene any material contractual restriction,
law or governmental regulation or court decree or order binding on or affecting
such Borrower, or (iii) result in, or require the creation or imposition of,
any Lien (other than Liens permitted under the Loan Documents) on any of such
Borrower's properties.
(c) This Amendment, the Notes and each other Loan Document executed by
each Borrower in connection herewith constitute the legal, valid and binding
obligations of such Borrower enforceable in accordance with their respective
terms, in each case subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing.
(d) Cable Car further represents and warrants that, both immediately
before and after giving effect to the amendments set forth herein, (i) Cable Car
has no outstanding Indebtedness other than as set forth in Item 7.2.2(c) of the
Disclosure Schedule attached hereto, (ii) Cable Car has no Subsidiaries other
than Old San Francisco and Fountain Classics, as set forth on Item 6.8 of the
Disclosure Schedule attached hereto, (iii) Cable Car and its Subsidiaries own no
real property having a value in excess of $1,000,000 and (iv) Cable Car and its
Subsidiaries have no lease of real property on which such Person holds personal
property having a value in excess (or anticipated during the relevant leasehold
term to exceed) $1,000,000.
PART V
WAIVER
SUBPART 5.1. Effective on (and subject to the occurrence of) the Second
Amendment Effective Date, the undersigned Lenders hereby agree that the Net
Disposition Proceeds of the sale by Snapple of its interest in the Capital Stock
of Select (in an amount not to exceed $21,257,000) shall not be required to be
applied to the prepayment of Loans or to be reinvested by Snapple as provided
under clause (c) of Section 3.1.1 of the Existing Credit Agreement and that such
Net Disposition Proceeds may be used to pay the dividend as provided in Subpart
2.15 hereof.
The foregoing waiver shall be limited precisely as written and in no event
shall be deemed to constitute a waiver of any term, provision or condition of
the Credit Agreement or any other Loan Document or prejudice any right or remedy
that the Administrative Agent may now have or may have in the future under or in
connection with the Credit Agreement, any other Loan Document or any other
instrument or agreement referred to therein.
PART VI
MISCELLANEOUS
SUBPART 6.1. Cross-References. References in this Amendment to any Part or
Subpart are, unless otherwise specified, to such Part or Subpart of this
Amendment. References in this Amendment to any Article or Section are, unless
otherwise specified, to such Article or Section of the Credit Agreement.
SUBPART 6.2. Loan Document Pursuant to Credit Agreement. This Amendment is
a Loan Document executed pursuant to the Credit Agreement and shall (unless
otherwise expressly indicated therein) be construed, administered and applied in
accordance with the terms and provisions of the Credit Agreement, including
Article X thereof.
SUBPART 6.3. Counterparts, etc. This Amendment may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
Agreement.
SUBPART 6.4. Governing Law. THIS AMENDMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.
SUBPART 6.5. Successors and Assigns. This Amendment shall be binding
upon and inure to the benefit of the parties hereto and their respective succes-
sors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers hereunto duly authorized as of the day and
year first above written.
MISTIC BRANDS, INC.
By: XXXX X. XXXXX
Title: Senior Vice President
SNAPPLE BEVERAGE CORP.
By: XXXX X. XXXXX
Title: Senior Vice President
TRIARC BEVERAGE HOLDINGS CORP.
By: XXXX X. XXXXX
Title: Senior Vice President
CABLE CAR BEVERAGE
CORPORATION
By: XXXX X. XXXXX
Title: Senior Vice President
DLJ CAPITAL FUNDING, INC.,
as the Syndication Agent and as a Lender
By: XXXXXX X. XXXXXXXX
Title: Managing Director
XXXXXX XXXXXXX SENIOR
FUNDING, INC., as the Documentation
Agent and as a Lender
By: XXXXXXX X. XXXXXXXXXX
Title: Principal
THE BANK OF NEW YORK, as the
Administrative Agent and as a Lender
By: XXXXX X. XXXXX
Title: Vice President
THE LENDERS:
-----------
ARCHIMEDES FUNDING LLC
By: ING Capital Advisors, Inc., as
Collateral Manager
By: XXXX X. XXXXXX
Title: Senior Vice President
BANKERS TRUST COMPANY
By: XXXXX XXXXXX
Title: Vice President
BANK OF TOKYO MITSUBISHI TRUST
CO.
By:
-------------------------
Title:
OSPREY INVESTMENTS PORTFOLIO
By: Citibank, N.A., as Manager
By: XXXX X. XXXXXXXXXXX
Title: Vice President
GCB INVESTMENT PORTFOLIO
By: Citibank, N.A.
By: XXXXXX XXXXXXX
Title: Vice President
CORESTATES BANK N.A.
By: XXXX XXXXXX
Title: Vice President
KZH ING-1 CORPORATION
By: XXXX X. XXXXXX
Title: Senior Vice President
KZH ING-2 CORPORATION
By: XXXX X. XXXXXX
Title: Senior Vice President
KZH III LLC
By:
-------------------------
Title:
KZH SOLEIL LLC
By:
-------------------------
Title:
KZH CRESCENT LLC
By:
-------------------------
Title:
XXXXXXX XXXXX PRIME RATE
PORTFOLIO
By: Xxxxxxx Xxxxx Asset Management, L.P.,
as Investment Advisor
By:
-------------------------
Title:
XXXXXXX XXXXX SENIOR FLOATING
RATE FUND, INC.
By:
-------------------------
Title:
XXXXXXX XXXXX XXXXXX XXXXXX &
XXXXX INCORPORATED
By:
-------------------------
Title:
ML CBO IV (CAYMAN) LTD.
By: Highland Capital Management, L.P. ,
as Collateral Manager
By: XXXX X. XXXXX
Title: Executive Vice President
THE MITSUI TRUST AND BANKING
COMPANY LIMITED
By: X. XXXXX
Title: Vice President
NORTHERN LIFE INSURANCE
COMPANY
By: ING Capital Advisors, Inc., as
Investment Advisor
By: XXXX X. XXXXXX
Title: Senior Vice President
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By:
-------------------------
Title:
XXXXXX XXXXXXX XXXX XXXXXX
PRIME INCOME TRUST
By: XXXXXX XXXXXXXX
Title: Vice President
SANWA BUSINESS CREDIT
CORPORATION
By: XXXXXXXX X. XXXXXX
Title: Vice President
THE ING CAPITAL SENIOR SECURED
HIGH INCOME FUND, L.P.
By: ING Capital Advisors, Inc., as
Investment Advisor
By: XXXX X. XXXXXX
Title: Senior Vice President
THE SUMITOMO BANK LIMITED
By:
-------------------------
Title:
TCW LEVERAGED INCOME TRUST,
L.P.
By: TCW Advisers (Bermuda) Ltd., as
General Partner
By:
-------------------------
Title:
By: TCW Investment Management
Company, as Investment Adviser
By:
-------------------------
Title:
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By: J. XXXXXXX XXXXXX
Title: Senior Vice President
THE LONG-TERM CREDIT BANK OF
JAPAN, LIMITED, NEW YORK BRANCH
By: JUN EBIHARA
Title: Senior Vice President and
Deputy General Manager
MITSUBISHI TRUST AND BANKING
CORPORATION
By: XXXXXXXX X. XXXXXXX
Title: Senior Vice President
THE ROYAL BANK OF SCOTLAND PLC
By: XXXXX X. XXXXXXXX
Title: Senior Vice President & Manager
XXX XXXXXX AMERICAN CAPITAL
PRIME RATE INCOME TRUST
By: XXXXXXX X. XXXXXXX
Title: Senior Vice President
and Director
XXX XXXXXX CLO I, LIMITED
By: Xxx Xxxxxx American Capital
Management, Inc., as Collateral Manager
By: XXXXXXX X. XXXXXXX
Title: Senior Vice President
and Director
XXX XXXXXX CLO II, LIMITED
By: Xxx Xxxxxx American Capital
Management, Inc., as Collateral Manager
By: XXXXXXX X. XXXXXXX
Title: Senior Vice President
and Director
XXX XXXXXX AMERICAN CAPITAL
SENIOR INCOME TRUST
By: XXXXXXX X. XXXXXXX
Title: Senior Vice President
and Director
SUMMARY OF OMITTED SCHEDULE AND EXHIBITS
SCHEDULE
-- Items 6.8 and 7.2.2(c) of Disclosure Schedule
EXHIBITS
A-1 -- Form of Revolving Note
A-2 -- Form of Swing Line Note
B-1 -- Form of Term A Note
B-2 -- Form of Term B Note
B-3 -- Form of Term C Note
E -- Form of Borrowing Base Certificate
H -- Form of Compliance Certificate
The Registrant hereby agrees to furnish supplementally a copy of any
omitted schedule or exhibit to the Securities and Exchange Commission upon its
request.
