Exhibit 4.1 FIRST AMENDMENT TO CREDIT AGREEMENT FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as of March 23, 1998, among MISTIC BRANDS, INC. ("Mistic", a Delaware corporation, SNAPPLE BEVERAGE CORP. ("Snapple"), a Delaware...
Exhibit 4.1
FIRST AMENDMENT TO CREDIT AGREEMENT
FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as of
March 23, 1998, among MISTIC BRANDS, INC. ("Mistic", a Delaware corporation,
SNAPPLE BEVERAGE CORP. ("Snapple"), a Delaware corporation, TRIARC BEVERAGE
HOLDINGS CORP. (the "Parent"), a Delaware corporation (each of Mistic, Snapple
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, the Borrowers, 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 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; 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
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 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. 1" means the First Amendment to the
Credit Agreement, dated as of March 23, 1998, among the
Borrowers, the Lenders signatory thereto, and the
Agents.
"First Amendment Effective Date" is defined in
Subpart 3.1 of Amendment No. 1.
SUBPART 2.2. Amendment to Definition of Excess Cash Flow. Paragraph (v)
of the definition of Excess Cash Flow in the Existing Credit Agreement is hereby
amended and restated to read in its entirety as follows:
(v) for each Fiscal Year (or portion thereof) of
the Parent commencing with the Fiscal Year ending January
3, 1999, the amount of the net increase (or minus in the
case of a net decrease) of Current Assets over Current
Liabilities of the Parent and its Subsidiaries (including
Mistic and Snapple) for such applicable period;
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. 1", on the date (the "First 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 the Borrower, the Agents and each of the Required Lenders.
PART IV
REPRESENTATIONS AND WARRANTIES, ETC.
SUBPART 4.1. Representations and Warranties; No Default. In order to
induce the Required Lenders to enter into this Amendment, the Borrowers hereby
jointly and severally (a) 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 are true and correct in all material respects as of the
date hereof (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 (b)
represent and warrant that, after giving effect to the Amendment set forth
herein, no Default or Event of Default has occurred and is continuing.
PART V
MISCELLANEOUS
SUBPART 5.1. 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 5.2. 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 5.3. 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 5.4. Governing Law. THIS AMENDMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
SUBPART 5.5. Successors and Assigns. This Amendment shall
be binding upon and inure to the benefit of the parties hereto
and their respective successors 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: XXXXXX X. XXXXXXX
-----------------------
Title: President
SNAPPLE BEVERAGE CORP.
By: XXXXXX X. XXXXXXX
-----------------------
Title: President
TRIARC BEVERAGE HOLDINGS CORP.
By: XXXXXX X. XXXXXXX
-----------------------
Title: President
DLJ CAPITAL FUNDING, INC.,
as the Syndication Agent and
as a Lender
By: XXXXXX XXXXXXX
------------------------
Title: Managing Director
XXXXXX XXXXXXX SENIOR FUNDING,
INC., as the Documentation
Agent and as a Lender
By: XXXXXXX XXXX
------------------------
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: XXXXXXX X. XXXXXX
------------------------
Title: Vice President &
Portfolio Manager
BANKERS TRUST COMPANY
By:
Title:
BANK OF TOKYO MITSUBISHI
TRUST CO.
By:
Title:
CORESTATES BANK N.A.
By: XXXX XXXXXX
------------------------
Title: Vice President
CANADIAN IMPERIAL BANK OF
COMMERCE
By:
Title:
CITIBANK, N.A.
By:
Title:
KZH-ING-1 CORPORATION
By:
Title:
KZH-ING-2 CORPORATION
By:
Title:
KZH HOLDING CORPORATION III
By:
Title:
KZH-SOLEIL CORPORATION
By:
Title:
KZH-CRESCENT CORPORATION
By:
Title:
XXXXXXX XXXXX PRIME RATE
PORTFOLIO
By: XXXXXXX XXXXX ASSET
MANAGEMENT, L.P., as
Investment Advisor
By: XXXX XXXXXXX
------------------------
Title:
XXXXXXX XXXXX SENIOR FLOATING
RATE FUND, INC.
By: XXXX XXXXXXX
------------------------
Title:
XXXXXXX XXXXX XXXXXX XXXXXX
& XXXXX INCORPORATED
By: XXXX XXXXXXX
------------------------
Title: Director
ML CBO IV (CAYMAN) LTD.
By: PROTECTIVE ASSET
MANAGEMENT COMPANY, 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: XXXXXXX X. XXXXXX
------------------------
Title: Vice President &
Portfolio Manager
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By: XXXXXXX X. XXXXXX
------------------------
Title: Authorized
Representative
PILGRIM AMERICA PRIME RATE
TRUST
By: PILGRIM AMERICA
INVESTMENTS, INC., as
its Investment Manager
By: X. XXXXXXX
------------------------
Title: Vice
President/Assistant
Portfolio Manager
PRIME INCOME TRUST
By: XXXXX XXXXXXX
------------------------
Title: Authorized
Signatory
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: XXXXXXX X. XXXXXX
------------------------
Title: Vice President &
Portfolio Manager
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:
Title:
THE LONG-TERM CREDIT BANK OF
JAPAN, LIMITED, NEW YORK
BRANCH
By: XXXXXXX XXXXXX
------------------------
Title: Deputy General
Manager
MITSUBISHI TRUST AND BANKING
CORPORATION
By: XXXXXXXX X. XXXXXXX
------------------------
Title: Senior Vice
President
THE ROYAL BANK OF SCOTLAND PLC
By:
Title:
XXX XXXXXX AMERICAN CAPITAL
PRIME RATE INCOME TRUST
By: XXXXXXX X. XXXXXXX
------------------------
Title: Sr. Vice Pres. &
Director
XXX XXXXXX CLO I, LIMITED
By: XXX XXXXXX AMERICAN
CAPITAL MANAGEMENT, INC.,
as Collateral Manager
By: XXXXXXX X. XXXXXXX
------------------------
Title: Sr. Vice Pres. &
Director
