EXHIBIT C
UNCONDITIONAL GUARANTY
Dated as of August 9, 1995
by
TRIARC COMPANIES, INC.
in favor of
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION)
as Agent
UNCONDITIONAL GUARANTY
UNCONDITIONAL GUARANTY, dated as of August 9, 1995 (as
amended, supplemented or otherwise modified from time to time,
this "Agreement"), made by TRIARC COMPANIES, INC., a corporation
organized under the laws of Delaware (the "Guarantor") in favor of
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION), a national
banking association, as agent (in such capacity, together with its
successors in such capacity, the "Agent") for the benefit of each
of the lenders (the "Lenders") signatory to the Credit Agreement
dated as of August 9, 1995 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement") among Mistic
Brands, Inc., a Delaware corporation (the "Borrower"), the Agent
and the Lenders.
W I T N E S S E T H :
WHEREAS, pursuant to the terms of the Credit Agreement and
the other Facility Documents, the Lenders have agreed to extend
credit to the Borrower upon the terms and subject to the
conditions set forth therein to be evidenced by the Notes issued
by the Borrower thereunder and the Letters of Credit issued
thereunder and to be guarantied by the Guarantor hereunder;
WHEREAS, the Borrower is a wholly-owned Subsidiary of the
Guarantor and the Guarantor will directly benefit from the making
of the Loans and the issuance of the Letters of Credit; and
WHEREAS, it is a condition precedent to the obligation of the
Lenders to make their extensions of credit to the Borrower under
the Credit Agreement that the Guarantor shall have executed and
delivered this Agreement to the Agent to guaranty the obligations
of the Borrower under the Notes, the Letters of Credit, the Credit
Agreement and the other Facility Documents.
NOW, THEREFORE, in consideration of the premises and to
induce the Lenders to enter into the Credit Agreement and to
induce the Lenders to make their respective Loans and to purchase
Participating Interests in Letters of Credit issued under the
Credit Agreement, the Guarantor hereby agrees with the Agent, as
follows:
ARTICLE 1. GUARANTY AND OTHER RIGHTS AND UNDERTAKINGS.
Section 1.01. Guarantied Obligations. The Guarantor, in
consideration of the execution and delivery of the Credit
Agreement by the Lenders and the Agent, hereby irrevocably and
unconditionally guarantees to the Agent, for the benefit of the
Lenders, until final payment has been made:
(a) the due and punctual payment in full in cash by the
Borrower of the Obligations, in each case when and as the same
shall become due and payable, whether at maturity, pursuant to
mandatory or optional prepayment, by acceleration or otherwise,
all in accordance with the terms and provisions of the Credit
Agreement and the other Facility Documents, it being the intent of
the Guarantor that the guaranty set forth in this Section 1.01
(the "Unconditional Guaranty") shall be a guaranty of payment and
not a guaranty of collection; and
(b) the punctual and faithful performance, keeping,
observance, and fulfillment by the Borrower of all duties,
agreements, covenants and obligations of the Borrower contained in
each of the Facility Documents to which it is a party.
Section 1.02. Performance Under This Agreement. In the
event the Borrower fails to pay, on or before the due date
thereof, any Obligation or if the Borrower shall fail to perform,
keep, observe, or fulfill any other obligation referred to in
clause (a) or clause (b) of Section 1.01 hereof in the manner
provided in the Notes, the Letters of Credit or in any of the
other Facility Documents after, in each case, giving effect to any
applicable grace periods or cure provisions or waivers or
amendments, upon written request from the Agent therefor, the
Guarantor shall cause forthwith to be paid the moneys, or to be
performed, kept, observed, or fulfilled each of such obligations,
in respect of which such failure has occurred.
Section 1.03. Waivers. To the fullest extent permitted by
law, the Guarantor does hereby waive:
(a) notice of acceptance of the Unconditional Guaranty;
(b) notice of any borrowings under the Credit
Agreement, or the creation, existence or acquisition of any of the
Obligations, subject to the Guarantor's right to make inquiry of
the Agent to ascertain the amount of the Obligations at any
reasonable time and to consent to any amendments to the Credit
Agreement;
(c) notice of the amount of the Obligations, subject to
the Guarantor's right to make inquiry of the Agent to ascertain
the amount of the Obligations at any reasonable time;
(d) notice of adverse change in the financial condition
of the Borrower, any other guarantor or any other fact that might
increase the Guarantor's risk hereunder;
(e) notice of presentment for payment, demand, protest,
and notice thereof as to the Notes or any other Facility Document;
(f) notice of any "Default" or "Event of Default" under
and as defined in the Credit Agreement;
(g) all other notices and demands to which the
Guarantor might otherwise be entitled (except if such notice or
demand is specifically otherwise required to be given to the
Guarantor hereunder or under the other Facility Documents);
(h) the right by statute or otherwise to require any or
each Lender or the Agent to institute suit against the Borrower or
to exhaust the rights and remedies of any or each Lender or the
Agent against the Borrower, the Guarantor being bound to the
payment of each and all Obligations, whether now existing or
hereafter accruing, as fully as if such Obligations were directly
owing to each Lender by the Guarantor;
(i) any defense arising by reason of any disability or
other defense (other than the defense that the Obligations shall
have been fully and finally performed and indefeasibly paid) of
the Borrower or by reason of the cessation from any cause
whatsoever of the liability of the Borrower in respect thereof;
and
(j) any stay (except in connection with a pending
appeal or the automatic stay imposed under 11 U.S.C. Section 362 or any
successor or replacement thereof), valuation, appraisal,
redemption or extension law now or at any time hereafter in force
which, but for this waiver, might be applicable to any sale of
Property of the Guarantor made under any judgment, order or decree
based on this Agreement, and the Guarantor covenants that it will
not at any time insist upon or plead, or in any manner claim or
take the benefit or advantage of such law.
Until all of the Obligations shall have been paid in full, the
Guarantor shall not have any right of subrogation, reimbursement,
or indemnity whatsoever in respect thereof and no right of
recourse to or with respect to any assets or Property of the
Borrower or any of its Subsidiaries. Nothing shall discharge or
satisfy the obligations of the Guarantor hereunder except the full
and final performance and indefeasible payment of the Obligations
by the Guarantor, upon which each Lender agrees to transfer and
assign its interest in the Notes and other evidence of
indebtedness under the Facility Documents to the Guarantor without
recourse, representation or warranty of any kind (other than that
such Lender owns the Notes free of all Liens). All of the
Obligations shall in the manner and subject to the limitations
provided herein for the acceleration thereof forthwith become due
and payable without notice.
Section 1.04. Releases. The Guarantor consents and agrees
that, without notice to or by the Guarantor and without affecting
or impairing the obligations of the Guarantor hereunder, each
Lender or the Agent, in the manner provided herein, by action or
inaction, may:
(a) compromise or settle, extend the period of duration
or the time for the payment, or discharge the performance of, or
may refuse to, or otherwise not, enforce, or may, by action or
inaction, release all or any one or more parties to, any one or
more of the Notes or the other Facility Documents;
(b) grant other indulgences to the Borrower in respect
thereof;
(c) release or substitute any one or more of the
endorsers or guarantors of the Obligations whether parties hereto
or not; and
(d) exchange, enforce, waive, or release, by action or
inaction, any security for the Obligations (including, without
limitation, any of the collateral therefor) or any other guaranty
of any of the Obligations.
Section 1.05. Marshaling. The Guarantor consents and agrees
that:
(a) the Agent shall be under no obligation to marshal
any assets in favor of the Guarantor or against or in payment of
any or all of the Obligations; and
(b) to the extent the Borrower makes a payment or
payments to any Lender, which payment or payments or any part
thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside, or required, for any of the foregoing
reasons or for any other reason, to be repaid or paid over to a
custodian, trustee, receiver, or any other party under any
bankruptcy law, common law, or equitable cause, then to the extent
of such payment or repayment, the Obligation or part thereof
intended to be satisfied thereby shall be revived and continued in
full force and effect as if said payment or payments had not been
made and the Guarantor shall remain liable hereunder for such
Obligation.
Section 1.06. Liability. The Guarantor agrees that the
liability of the Guarantor in respect of this Article 1 shall not
be contingent upon the exercise or enforcement by any Lender or
the Agent of whatever remedies such Lender or the Agent may have
against the Borrower or the enforcement of any Lien or realization
upon any security such Lender or the Agent may at any time
possess.
Section 1.07. Unconditional Obligation. The Unconditional
Guaranty set forth in this Article 1 is an absolute,
unconditional, continuing and irrevocable guaranty of payment and
performance and shall remain in full force and effect until the
full and final payment of the Obligations without respect to
future changes in conditions, including change of law or any
invalidity or irregularity with respect to the issuance or
assumption of any obligations (including, without limitation, the
Notes and the Letter of Credit Obligations) of or by the Borrower,
or, except as otherwise provided herein, with respect to the
execution and delivery of any agreement (including, without
limitation, the Notes and the other Facility Documents) of the
Borrower.
Section 1.08. Election to Perform Obligations. Any election
by the Guarantor to pay or otherwise perform any of the
obligations of the Borrower under the Notes or under any of the
other Facility Documents, whether pursuant to this Article 1 or
otherwise, shall not release the Borrower from any of its other
obligations under the Notes, the Letters of Credit or any of the
other Facility Documents.
Section 1.09. No Election. The Agent shall have the right
to seek recourse against the Guarantor to the fullest extent
provided for herein for the Guarantor's obligations under this
Agreement (including, without limitation, this Article 1) in
respect of the Notes, the Letters of Credit and the other Facility
Documents. No election to proceed in one form of action or
proceeding, or against any party, or on any obligation, shall
constitute a waiver of the Agent's right to proceed in any other
form of action or proceeding or against other parties unless the
Agent has expressly waived such right in writing. Specifically,
but without limiting the generality of the foregoing, no action or
proceeding by any Lender or the Agent against the Borrower under
any document or instrument evidencing obligations of the Borrower
to such Lender or the Agent shall serve to diminish the liability
of the Guarantor under this Agreement (including, without
limitation, this Article 1) except to the extent that the Agent or
such Lender finally and unconditionally shall have realized
payment by such action or proceeding, notwithstanding the effect
of any such action or proceeding upon the Guarantor's right of
subrogation against the Borrower.
Section 1.10. Severability. Subject to Article 10 of the
Credit Agreement and applicable law, each of the rights and
remedies granted under this Article 1 to the Agent may be
exercised by the Agent without notice by the Agent to, or the
consent of or any other action by, any Lender, provided that the
Agent will promptly thereafter give each Lender (and, if
applicable, the Borrower) notice of any exercise of rights and
remedies by the Agent under this Article 1.
Section 1.11. Other Enforcement Rights. The Agent may
proceed, as provided in Article 1 hereof, to protect and enforce
the Unconditional Guaranty by suit or suits or proceedings in
equity, at law or in bankruptcy, and whether for the specific
performance of any covenant or agreement contained herein
(including, without limitation, in this Article 1) or in execution
or aid of any power herein granted; or for the recovery of
judgment for the obligations hereby guarantied or for the
enforcement of any other proper, legal or equitable remedy
available under applicable law.
Section 1.12. Delay or Omission; No Waiver. No course of
dealing on the part of any Lender or the Agent and no delay or
failure on the part of any such Person to exercise any right
hereunder (including, without limitation, this Article 1) shall
impair such right or operate as a waiver of such right or
otherwise prejudice such Person's rights, powers and remedies
hereunder. Every right and remedy given by the Unconditional
Guaranty or by law to any Lender or the Agent may be exercised
from time to time as often as may be deemed expedient by such
Person.
Section 1.13. Restoration of Rights and Remedies. If any
Lender or the Agent shall have instituted any proceeding to
enforce any right or remedy under the Unconditional Guaranty,
under any Note held by such Lender, or under any Security
Document, and such proceeding shall have been discontinued or
abandoned for any reason, or shall have been determined adversely
to such Lender or the Agent, then and in every such case each such
Lender, the Agent, the Borrower and the Guarantor shall, except as
may be limited or affected by any determination in such
proceeding, be restored severally and respectively to its
respective former positions hereunder and thereunder, and
thereafter, subject as aforesaid, the rights and remedies of such
Lender or the Agent shall continue as though no such proceeding
had been instituted.
Section 1.14. Cumulative Remedies. No remedy under this
Agreement (including, without limitation, this Article 1), the
Notes, the Letters of Credit or any of the other Facility
Documents is intended to be exclusive of any other remedy, but
each and every remedy shall be cumulative and in addition to any
and every other remedy given under this Agreement (including,
without limitation, this Article 1), the Notes, the Letters of
Credit or any of the other Facility Documents.
Section 1.15. Survival. The obligations of the Guarantor
under this Article 1 shall survive the transfer and payment of any
Obligation until the indefeasible payment in full of all the
Obligations and the expiration and termination of the Commitments.
Section 1.16. No Setoff, Counterclaim or Withholding; Gross-
Up. Except as otherwise required by law, each payment by the
Guarantor shall be made without setoff or counterclaim and, except
as provided in the Credit Agreement, without withholding for or on
account of any present or future taxes imposed by any Governmental
Authority. If any such withholding is so required, such Guarantor
shall make the withholding and pay the amount withheld to the
appropriate Governmental Authority before penalties attach thereto
or interest accrues thereon.
Section 1.17. Certain Distributions. The Guarantor agrees
that payments and distributions by the Borrower and its
Subsidiaries are specifically limited by and in accordance with
Section 8.06, Section 8.08 and Section 8.13 of the Credit
Agreement. The Guarantor agrees that it will not receive or
accept any payment, distribution or security from the Borrower or
any of its Subsidiaries if the transfer of such payment,
distribution or security would constitute or cause a "Default" or
an "Event of Default" under and as defined in the Credit
Agreement. The Guarantor agrees that if any payment or
distribution of any character (whether in cash, securities or
other Property) or any security shall be received by the Guarantor
in contravention of the terms of any one or more of the Facility
Documents and before the full payment of the Obligations, such
payment, distribution or security shall be held in trust for the
benefit of, and shall be paid over or delivered and transferred to
the Agent for application to the payment of the Obligations.
Until the Obligations shall have been paid in full, the Guarantor
shall have no right of recourse to or against any assets of the
Borrower or any of its Subsidiaries with respect to any payments
or distributions made and held in trust for the Agent or paid over
to the Agent pursuant to this Agreement. Nothing in this Section
1.17 shall be deemed to relieve the Borrower or any of its
Subsidiaries of its obligation to pay any amounts due to the
Guarantor that may be paid or accrued in accordance with Section
8.06, Section 8.09 and Section 8.14 of the Credit Agreement.
Section 1.18. Management Fees. The Guarantor agrees that,
so long as this Unconditional Guaranty shall be in full force and
effect, the fees paid to the Guarantor by the Borrower pursuant to
the Management Agreement shall not exceed the Borrower's allocable
portion of the "Service Costs" (as defined in the Management
Agreement) pursuant to the formula set forth in the Management
Agreement as in effect on the date hereof.
ARTICLE 2. REPRESENTATIONS AND WARRANTIES.
The Guarantor hereby represents and warrants as of the
Closing Date that:
Section 2.01. Incorporation, Good Standing and Due
Qualification. The Guarantor is duly incorporated, validly
existing and in good standing under the laws of the jurisdiction
of its incorporation, has the corporate power and authority to own
its assets and to transact the business in which it is now
engaged, and is duly qualified as a foreign corporation and in
good standing under the laws of each other jurisdiction in which
such qualification is required, except where the failure to
qualify could not reasonably be expected to have a material
adverse effect on the business, profits, Properties or condition
of the Guarantor.
Section 2.02. Corporate Power and Authority; No Conflicts.
The execution, delivery and performance by the Guarantor of the
Facility Documents to which it is a party have been duly
authorized by all necessary corporate action and do not and will
not: (a) require any consent or approval of its stockholders;
(b) contravene its charter or by-laws; (c) violate any provision
of, or require any filing (other than the filing of the financing
statements and assignments required pursuant to the terms of the
Security Documents), registration, consent or approval under, any
law, rule or regulation (including, without limitation,
Regulations G, T, U and X of the Federal Reserve Board) or any
order, writ, judgment, injunction, decree, determination or award
presently in effect having applicability to the Guarantor or any
of its Subsidiaries; (d) result in a breach of or constitute a
default or require any consent under any indenture or loan or
credit agreement or any other material agreement, lease or
instrument to which the Guarantor or any of its Subsidiaries is a
party or by which it or its Properties may be bound or affected;
(e) result in, or require, the creation or imposition of any Lien
(other than as created under the Security Documents), upon or with
respect to any of the Properties now owned or hereafter acquired
by the Guarantor or any of its Subsidiaries; or (f) cause the
Guarantor or any of its Subsidiaries to be in default under any
such law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award or any such indenture, agreement,
lease or instrument.
Section 2.03. Legally Enforceable Agreements. Each Facility
Document to which the Guarantor is a party is a legal, valid and
binding obligation of the Guarantor, enforceable against the
Guarantor in accordance with its terms, except to the extent that
such enforcement may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws
affecting creditors' rights generally and general principles of
equity (regardless of whether such enforceability is considered in
a proceeding at law or in equity).
Section 2.04. Financial Statements. The consolidated
balance sheet of the Guarantor and its Subsidiaries as at December
31, 1994, and the related consolidated income statement and
consolidated statement of cash flows and changes in stockholders'
equity of the Guarantor and its Subsidiaries, for the Fiscal Year
then ended, and the accompanying footnotes, together with the
opinion thereon of Deloitte & Touche LLP, independent certified
public accountants, and the unaudited interim consolidated balance
sheet of the Guarantor and its Subsidiaries as at June 30, 1995
and the related unaudited income statement and statement of cash
flows and changes in stockholders' equity of the Guarantor and its
Subsidiaries for the three month period then ended, copies of
which have been furnished to each of the Lenders, are complete and
correct in all material respects and fairly present the financial
condition of the Guarantor and its Subsidiaries at such dates and
the results of the operations of the Guarantor and its
Subsidiaries for the periods covered by such statements, all in
accordance with GAAP (subject, in the case of the aforementioned
interim financial statements, to year-end adjustments and that no
footnotes are provided) consistently applied. Except as set forth
on the consolidated balance sheet of the Guarantor and its
Subsidiaries as at June 30, 1995, on the Pro Forma Balance Sheet
and on Schedule I hereto, there are no liabilities of the
Guarantor and its Subsidiaries, fixed or contingent, which are
individually in excess of $20,000,000 but are not reflected in the
financial statements or in the notes thereto and which would be
required to be recorded in such financial statements or notes in
accordance with GAAP, other than liabilities arising in the
ordinary course of business since June 30, 1995. There is no fact
or facts actually known to the Guarantor, other than conditions
affecting the United States economy generally and trends affecting
generally the industries in which the Guarantor's Subsidiaries do
business, that the Guarantor has not disclosed to the Agent that
materially adversely affects or, so far as the Guarantor can now
reasonably foresee, will materially adversely affect, the
condition of the business, Properties or assets of the Guarantor
and its Subsidiaries, taken as a whole.
ARTICLE 3. FINANCIAL REPORTING REQUIREMENTS.
So long as any Obligation shall remain unpaid, any Letter of
Credit shall remain outstanding or any Lender shall have any
Commitment, the Guarantor shall deliver to the Agent: (a) as soon
as available and in any event within 105 days after the end of
each Fiscal Year, a consolidated balance sheet of the Guarantor
and its Subsidiaries as of the end of such Fiscal Year and a
consolidated income statement and consolidated statement of cash
flows and statements of additional capital (or equivalent
financial statements) of the Guarantor and its Subsidiaries for
such Fiscal Year, all in reasonable detail and stating in
comparative form the respective figures for the corresponding date
and period in the prior Fiscal Year and all prepared in accordance
with GAAP and accompanied by an unqualified opinion thereon by
Deloitte & Touche LLP or other independent accountants of national
standing selected by the Guarantor; provided that delivery within
the period specified above of copies of the Annual Report on Form
10-K of the Guarantor filed with the Securities and Exchange
Commission shall be deemed to satisfy the requirements of this
subparagraph (a) so long as such Form 10-K shall contain the
information referred to in this subparagraph (a); (b) as soon as
available and in any event within 50 days after the end of each of
the first three Fiscal Quarters of each Fiscal Year, a
consolidated balance sheet of the Guarantor and its Subsidiaries
as of the end of such Fiscal Quarter and a consolidated income
statement and consolidated statement of cash flows of the
Guarantor and its Subsidiaries for the period commencing at the
end of the previous Fiscal Year and ending with the end of such
Fiscal Quarter, all in reasonable detail and stating in
comparative form the respective figures for the corresponding date
and period in the previous Fiscal Year and all prepared in
accordance with GAAP (subject to year-end adjustments and that no
footnotes are provided) and certified by the chief financial
officer or the chief accounting officer of the Guarantor; provided
that delivery within the period specified above of copies of the
Quarterly Report on Form 10-Q of the Guarantor filed with the
Securities and Exchange Commission shall be deemed to satisfy the
requirements of this subparagraph (b) so long as such Form 10-Q
shall contain the information referred to in this subparagraph
(b); and (c) promptly after the sending or filing thereof, copies
of all proxy statements, financial statements and reports which
the Guarantor sends to its stockholders, and copies of all
regular, periodic and special reports, and all registration
statements which the Guarantor files with the Securities and
Exchange Commission or any Governmental Authority which may be
substituted therefor.
ARTICLE 4. EVENTS OF DEFAULT.
Section 4.01. Events of Default. Any of the following
events shall be an "Event of Default":
(a) the Guarantor shall fail to pay any amount on or
before such date when due and payable under this Agreement and
under the Facility Documents;
(b) any representation or warranty made by the
Guarantor in this Agreement or in the Pledge Agreement shall prove
to have been incorrect in any material respect on or as of the
date made;
(c) the Guarantor shall fail to perform or observe any
term, covenant or agreement on its part to be performed or
observed (other than the obligations specifically referred to
elsewhere in this Section 4.01) in any Facility Document to which
it is a party and such failure shall continue for 30 consecutive
days after Knowledge thereof;
(d) the Guarantor shall: (i) fail to pay any Debt in an
aggregate amount exceeding $20,000,000 (other than the payment
obligations described in (a) above), of the Guarantor, or any
interest or premium thereon, when due (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise),
taking into account any applicable grace periods or waivers; or
(ii) fail to perform or observe any term, covenant or condition on
its part to be performed or observed under any agreement or
instrument relating to any such Debt, when required to be
performed or observed, taking into account any applicable grace
periods or waivers, if, in either case, the effect of such failure
to pay, perform or observe is to accelerate the maturity of such
indebtedness;
(e) the Guarantor: (i) shall generally not, or be
unable to, or shall admit in writing its inability to, pay its
debts as such debts become due; or (ii) shall make an assignment
for the benefit of creditors, petition or apply to any tribunal
for the appointment of a custodian, receiver or trustee for it or
a substantial part of its assets; or (iii) shall commence any
proceeding under any bankruptcy, reorganization, arrangement,
readjustment of debt, dissolution or liquidation law or statute of
any jurisdiction, whether now or hereafter in effect; or (iv)
shall have had any such petition or application filed or any such
proceeding shall have been commenced, against it, in which an
adjudication or appointment is made or order for relief is
entered, or which petition, application or proceeding remains
undismissed for a period of 90 days or more; or (v) shall be the
subject of any such proceeding under which all or any substantial
part of its Property may be subject to seizure, forfeiture or
divestiture; or (vi) by any act or omission shall indicate its
consent to, approval of or acquiescence in any such petition,
application or proceeding or order for relief or the appointment
of a custodian, receiver or trustee for all or any substantial
part of its Property; or (vii) shall suffer any such
custodianship, receivership or trusteeship to continue
undischarged for a period of 90 days or more; or
(f) one or more judgments, decrees or orders for the
payment of money in excess of $20,000,000 in the aggregate shall
be rendered against the Borrower and such judgments, decrees or
orders shall continue unsatisfied and in effect for a period of 30
consecutive days without being vacated, discharged, satisfied or
stayed or bonded pending appeal.
Section 4.02. Remedies. If an Event of Default shall occur
and be continuing, the Agent may exercise all of the rights and
remedies conferred in this Agreement and in each of the other
Facility Documents; it being expressly understood that no such
remedy is intended to be exclusive of any other remedy or
remedies; but each and every remedy shall be cumulative and shall
be in addition to every other remedy given in this Agreement and
each of the other Facility Documents or now or hereafter existing
at law or in equity or by statute, and may be exercised from time
to time as often as may be deemed expedient by the Agent.
ARTICLE 5. MISCELLANEOUS
Section 5.01. Defined Terms. The terms used herein and not
defined herein shall have the meanings assigned to such terms in
the Credit Agreement.
Section 5.02. Amendments and Waivers. Except as otherwise
expressly provided in this Agreement, any provision of this
Agreement may be amended or modified only by an instrument in
writing signed by the Guarantor, the Agent and the Required
Lenders, or by the Guarantor and the Agent acting with the consent
of the Required Lenders and any provision of this Agreement may be
waived by the Required Lenders or by the Agent acting with the
consent of the Required Lenders; provided that no amendment,
modification or waiver shall, unless by an instrument signed by
all of the Lenders or by the Agent acting with the consent of all
of the Lenders: (a) discharge the Guarantor from the Unconditional
Guaranty; or (b) amend, waive or modify the definition of
Obligations.
Section 5.03. Expenses. The Guarantor shall reimburse the
Agent and each Lender for all reasonable out-of-pocket costs,
expenses and charges (including, without limitation, reasonable
fees and charges of external legal counsel for the Agent and each
Lender) in connection with the enforcement or preservation of any
rights or remedies during the existence of an "Event of Default"
(including, without limitation, to the extent permitted by law, in
connection with any restructuring or insolvency or bankruptcy
proceeding) under this Agreement or the Credit Agreement.
Section 5.04. Survival. The obligations of the Guarantor
under Section 5.03 shall survive the repayment of the Loans and
the Letters of Credit and the termination of the Commitments.
Section 5.05. Successors and Assigns. This Agreement shall
be binding upon, and shall inure to the benefit of, the Guarantor,
the Agent, the Lenders and their respective successors and
assigns.
Section 5.06. Notices. Unless the party to be notified
otherwise notifies the other party in writing as provided in this
Section, and except as otherwise provided in this Agreement,
notices shall be given to the Agent in writing, by telex, telecopy
or other writing or by telephone, confirmed by telex, telecopy or
other writing, and to the Lenders and to the Guarantor by ordinary
mail, hand delivery, overnight courier or telecopier addressed to
such party at its address on the signature page of this Agreement.
Notices shall be effective: (a) if given by mail, 72 hours after
deposit in the mails with first class postage prepaid, addressed
as aforesaid; and (b) if given by telecopier, when confirmation of
delivery of the telecopy to the telecopier number as aforesaid is
transmitted; provided that notices to the Agent and the Lenders
shall be effective upon receipt.
SECTION 5.07. JURISDICTION; IMMUNITIES. (A) EACH OF THE
GUARANTOR AND THE AGENT HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY NEW YORK STATE OR UNITED STATES FEDERAL COURT
SITTING IN NEW YORK COUNTY OVER ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE GUARANTOR
AND THE AGENT HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT
OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH
NEW YORK STATE OR FEDERAL COURT. EACH OF THE GUARANTOR AND THE
AGENT IRREVOCABLY CONSENT TO THE SERVICE OF ANY AND ALL PROCESS IN
ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES OF SUCH
PROCESS TO EACH OF THE GUARANTOR AND THE AGENT AT ITS ADDRESS
SPECIFIED IN SECTION 5.06. EACH OF THE GUARANTOR AND THE AGENT
AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING
SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY
SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. EACH
OF THE GUARANTOR AND THE AGENT FURTHER WAIVES ANY OBJECTION TO
VENUE IN SUCH STATE AND ANY OBJECTION TO AN ACTION OR PROCEEDING
IN SUCH STATE ON THE BASIS OF FORUM NON CONVENIENS. THE GUARANTOR
FURTHER AGREES THAT ANY ACTION OR PROCEEDING BROUGHT AGAINST THE
AGENT OR ANY LENDER SHALL BE BROUGHT ONLY IN NEW YORK STATE OR
UNITED STATES FEDERAL COURT SITTING IN NEW YORK COUNTY. EACH OF
THE GUARANTOR AND THE AGENT WAIVES ANY RIGHT IT MAY HAVE TO JURY
TRIAL.
(b) Nothing in this Section 5.07 shall affect the right
of the Guarantor, the Agent or any Lender to serve legal process
in any other manner permitted by law or affect the right of the
Agent or any Lender to bring any action or proceeding against the
Guarantor or its property in the courts of any other
jurisdictions.
(c) To the extent that the Guarantor has or hereafter
may acquire any immunity from jurisdiction of any court or from
any legal process (whether from service or notice, attachment
prior to judgment, attachment in aid of execution, execution or
otherwise) with respect to itself or its property, the Guarantor
hereby irrevocably waives such immunity in respect of its
obligations under this Agreement.
Section 5.08. Headings. The headings and captions hereunder
are for convenience only and shall not affect the interpretation
or construction of this Agreement.
Section 5.09. Severability. The provisions of this
Agreement are intended to be severable. If for any reason any
provision of this Agreement shall be held invalid or unenforceable
in whole or in part in any jurisdiction, such provision shall, as
to such jurisdiction, be ineffective to the extent of such
invalidity or unenforceability without in any manner affecting the
validity or enforceability thereof in any other jurisdiction or
the remaining provisions hereof in any jurisdiction.
Section 5.10. Counterparts. This Agreement may be executed
in any number of counterparts, all of which taken together shall
constitute one and the same instrument, and any party hereto may
execute this Agreement by signing any such counterpart.
SECTION 5.11. GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY, AND INTERPRETED AND CONSTRUED IN ACCORDANCE WITH, THE
LAW OF THE STATE OF NEW YORK.
Section 5.12. Subject to the Credit Agreement. Any and all
rights granted to the Agent under this Agreement are to be held
and exercised by the Agent for the benefit of the Lenders,
pursuant to the provisions of the Credit Agreement. To the extent
set forth in the Facility Documents, each of the Lenders shall be
a beneficiary of the terms of this Agreement. Any and all
obligations under this Agreement of the parties to this Agreement,
and the rights granted to the Agent under this Agreement, are
created and granted subject to the terms of the Credit Agreement.
Section 5.13. Term of Agreement. This Agreement shall be
and remain in full force and effect so long as any Obligation
shall remain unpaid, any Letter of Credit shall remain outstanding
or any Lender shall have any Commitment.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above
written.
GUARANTOR:
TRIARC COMPANIES, INC.
By:
Name:
Title:
Triarc Companies, Inc.
900 Third Avenue
New York, New York 10022
Attention: Executive Vice
President and General Counsel
Telecopier No.: (212) 230-3216
AGENT:
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
By:
Name:
Title:
Address for Notices:
New York Agency
4 Chase Metrotech Center
13th Floor
Brooklyn, NY 11245
Attention: Lucy D'Orazio
Telecopier No.: (718) 242-6909
with a copy to:
31 Mamaroneck Avenue
White Plains, NY 10601
Attention: Michael D. Anthony
Telecopier No.: (914) 328-8373