EXHIBIT E
August 9, 1995
The Lenders Parties to the
Credit Agreement Referred to Below
c/o The Chase Manhattan Bank (National Association), as Agent
4 Chase Metrotech Center
Brooklyn, N.Y. 11245
Ladies and Gentlemen:
I am Vice President and Associate General Counsel of Triarc
Companies, Inc. (the "Guarantor") and in my capacity as such
have represented the Guarantor and its wholly-owned subsidiary
Mistic Brands, Inc. (the "Borrower"), in connection with the
execution and delivery of that certain Credit Agreement dated as
of August 9, 1995 (the "Credit Agreement") among the Borrower,
each of the lenders signatory thereto (the "Lenders") and The
Chase Manhattan Bank (National Association), as Agent (the
"Agent"), and the various other agreements and instruments
referred to in the next following paragraph. Except where
otherwise indicated, capitalized terms used herein and not
otherwise defined have the respective meanings given those terms
in the Credit Agreement. This opinion is being furnished to you
pursuant to Section 5.01(m) of the Credit Agreement.
In connection with this opinion, I have examined originals,
or copies certified or otherwise identified to my satisfaction,
of the following documents, each dated the date hereof:
a. the Credit Agreement;
b. the Notes;
c. the Unconditional Guaranty;
d. the Security Agreement;
e. the Trademark Security Agreement;
f. the Pledge Agreement;
g. the SAR Agreement;
h. the Affiliate Subordination Agreement; and
i. the uniform commercial code financing
statements being executed and delivered
pursuant to Section 5.01(d) and (f) of the
Credit Agreement, copies of forms of which
are attached hereto as Exhibit A
(collectively, the "Financing Statements").
The documents referred to in clauses (a) to (h) above are
hereinafter sometimes referred to collectively as the "Credit
Documents." The agreements referred to in clauses (d) to (f)
are collectively referred to as the "Security Documents." The
Guarantor and the Borrower are herein collectively referred to
as the "Obligors."
In addition, I have examined originals or copies of
originals, certified or otherwise identified to my satisfaction,
of (i) such corporate records and resolutions of the board of
directors of each Obligor and (ii) such other agreements,
documents, instruments, certificates of public and governmental
officials and corporate officers and other representatives of
entities referred to herein, and have made such inquiries of
such officers and other representatives, as I have deemed
relevant or appropriate as a basis for the opinions hereinafter
expressed.
In my examination of the aforesaid documents, I have
assumed, without independent investigation, the genuineness of
all signatures, the enforceability of the Credit Documents
against each party thereto, other than the Obligors, the legal
capacity of all individuals who have executed any of the Credit
Documents, the authenticity of all documents submitted to me as
originals, the conformity to the original documents of all
documents submitted to me as certified, photostatic, reproduced
or conformed copies of valid existing agreements or other
documents and the authenticity of all such latter documents.
In expressing the opinions set forth herein, I have relied
upon the factual matters contained in the representations and
warranties of the Obligors made in the Credit Documents and upon
certificates of public officials.
Based upon the foregoing and subject to the assumptions,
exceptions and qualifications set forth herein, I am of the
opinion that:
1. Each of the Borrower and the Guarantor is duly
incorporated, validly existing and in good standing under the
laws of the State of Delaware, 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 set forth on Schedule 1 hereto.
2. The execution, delivery and performance by each of the
Borrower and the Guarantor of the Facility Documents to which is
a party, the borrowings by Borrower thereunder and the issuance
of the Letters of Credit and the issuance of the SARs have been
duly authorized by all necessary corporate action on the part of
Borrower and the Guarantor 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, to my knowledge,
any order, writ, judgment, injunction, decree, determination or
award presently in effect binding upon 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) to my knowledge, 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) to my knowledge, 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.
3. Each Facility Document to which it is a party has been
duly executed and delivered by each of the Borrower and the
Guarantor. Each Facility Document to which the Borrower or the
Guarantor is a party is a legal, valid and binding obligation of
such Person enforceable against such Person in accordance with
its terms.
4. Except as disclosed in Note 25 to the consolidated
financial statements of the Guarantor contained in the
Guarantor's Annual Report on Form 10-K and Quarterly Report on
Form 10-Q for the fiscal quarter ended March 31, 1995, or as
otherwise disclosed on Schedule I to the Guaranty, to the best
of my knowledge, there are no actions, suits or proceedings
pending or threatened in writing, against or affecting the
Borrower, the Guarantor or any of its Subsidiaries before any
Governmental Authority that could reasonably be expected to have
a Material Adverse Effect.
5. After giving effect to the making of the Loans on the
date hereof, and assuming that the Lenders are entering into the
Credit Documents in good faith without notice of any adverse
claim, the Security Documents are effective to create, in favor
of the Agent for itself and the other Lenders, a valid security
interest under the Uniform Commercial Code as in effect in the
State of New York (the "Uniform Commercial Code") in all of the
right, title and interest of the Borrower in, to and under the
Collateral (as defined in the Security Documents) to the extent
that Article 9 of the Uniform Commercial Code as in effect on
the date hereof is applicable thereto, except that (a) the
security interest in Collateral in which the Borrower or the
Guarantor acquires rights after the commencement of a case under
the Bankruptcy Code in respect of the Borrower or the Guarantor
may be limited by Section 552 of the Bankruptcy Code and (b) the
creation of a security interest in any "security" (as defined in
Section 8-102 of the Uniform Commercial Code) requires the
transfer of such security interest therein to the Agent pursuant
to Section 8-313(1) of the Uniform Commercial Code, which
transfer in the case of a "certificated security" (as defined in
said Section 8-102) may be effected in the manner contemplated
by paragraph 6(b) below.
6. The security interest referred to in paragraph 5 above
in the types of Collateral described below will be perfected as
described below:
(a) such security interest in that portion
of the Collateral consisting of
"indebtedness" owing to the Borrower that is
not evidenced by an "instrument" within the
meaning of such term in Section 9-105 of the
Uniform Commercial Code, "accounts" (as
defined in the Uniform Commercial Code) and
"general intangibles" (as defined in the
Uniform Commercial Code) may be perfected by
filing Financing Statements in the
appropriate offices in New York, the state
in which the Borrower has its chief
executive office;
(b) such security interest in that portion
of the Collateral consisting of instruments
or securities in certificated form will be
perfected when such instruments and the
certificates representing such securities
are delivered to the Agent in New York on
behalf of itself and the Lenders; provided
that the perfection of such security
interest may cease if the Agent fails to
maintain continuous possession of such
securities;
(c) such security interest in that portion
of the Collateral consisting of "goods" or
"documents covering goods" (as defined in
the Uniform Commercial Code) may be
perfected by filing Financing Statements in
the appropriate offices in the states in
which such goods are located; and
(d) such security interest in that portion
of the Collateral consisting of "proceeds"
(as defined in the Uniform Commercial Code)
may be perfected as and to the extent
provided in Section 9-306 of the Uniform
Commercial Code.
7. The authorized capital stock of the Borrower
consists of (a) 3,000 shares of Common Stock, 884.25 shares of
which are issued and outstanding, all of which are owned by the
Guarantor. All of the outstanding shares of Common Stock have
been duly authorized and validly issued, and are fully paid and
non-assessable. To my knowledge, there are no outstanding
preemptive, conversion or other rights, options or warrants
granted or issued by or binding upon the Borrower for the
purchase or acquisition by any other Person of any shares of
capital stock of the Borrower or any other securities
convertible into, exchangeable for or evidencing the right to
subscribe for any shares of such capital stock.
8. Neither the Borrower nor the Guarantor is subject to
regulation under the Public Utility Holding Company Act of 1935,
the Investment Company Act of 1940, the Interstate Commerce Act,
the Federal Power Act or any statute or regulation limiting is
ability in any material respect to incur indebtedness for money
borrowed as contemplated hereby.
The foregoing opinion is subject to the following
assumptions, exceptions and qualifications:
a. The enforceability of each of the Credit
Documents may be: (i) subject to bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or
similar laws affecting creditors' rights generally; (ii) subject
to general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in
equity), including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing; and (iii) subject
to the qualification that certain remedial provisions of the
Credit Documents are or may be unenforceable in whole or in part
under the laws of the State of New York, but the inclusion of
such provisions does not make the remedies afforded by the
Credit Documents inadequate for the practical realization of the
rights and benefits purported to be provided thereby, except for
the economic consequences resulting from any delay imposed by,
or any procedure required by, applicable New York laws, rules,
regulations and court decisions and by constitutional
requirements in and of the State of New York.
b. I express no opinion as to: (i) the
enforceability of any provisions contained in the Credit
Documents that purport to establish (or may be construed to
establish) evidentiary standards; (ii) the enforceability of any
provisions contained in the Security Documents or the
Unconditional Guaranty that constitute waivers which are
prohibited under the Uniform Commercial Code prior to default;
(iii) the enforceability of any provisions in the Unconditional
Guaranty purporting to preserve and maintain the liability of
any party thereto despite the fact the guaranteed obligations
are unenforceable due to illegality; or (iv) the enforceability
of forum selection clauses in the federal courts.
c. In giving the opinion set forth in paragraph 6
above, I express no opinion as to (i) any Obligor's right, title
or interest in or to any Collateral or the description of such
Collateral in the Security Documents; (ii) the laws of any other
state or the perfection and effect of perfection or non-
perfection of a security interest in the Collateral subject to
the laws of any state other than New York; (iii) the perfection
of security interests in fixtures, equipment used in farming
operations, farm products, consumer goods, timber or minerals or
the like, or accounts resulting from the sale thereof; or (iv)
the creation, validity, perfection, priority or enforceability
of any security interest sought to be created in any patents,
trademarks, trade names, service marks, copyrights, deposit
accounts, insurance policies, real property or any other items
of property to the extent that a security interest therein is
excluded from the coverage of Articles 8 or 9 of the Uniform
Commercial Code. In addition, except as specifically set forth
in paragraphs 6 and 7 above, I express no opinion as to the
perfection of any security interest. I express no opinion as to
the priority of any security interest.
d. I wish to point out that, in the case of proceeds
(as defined in Article 9 of the Uniform Commercial Code), the
continuation of perfection of any security interest therein (i)
is limited to the extent set forth in Section 9-306 of the
Uniform Commercial Code, (ii) if such proceeds consist of
property in which a perfect security interest cannot be obtained
or maintained by the filing of Uniform Commercial Code financing
statements in New York, will require additional compliance with
applicable provisions of the Uniform Commercial Code.
e. I call to your attention the fact that (i)
Article 9 of the Uniform Commercial Code requires the filing of
continuation statements within the period of six months prior to
the expiration of each five year period from the date of the
original filing of financing statements, as applicable, in order
to maintain the effectiveness of any filings in New York and
(ii) additional filings may be necessary if an Obligor changes
its name, identity or corporate structure or the jurisdictions
in which its places of business, its chief executive office or
the Collateral are located.
f. I express no opinion with respect to any
Collateral of the type described in Section 9-401(1)(a) or (b)
of the Uniform Commercial Code or represented by a certificate
of title.
The opinions expressed above are limited to the laws of the
State of New York, the federal laws of the United States and the
Delaware General Corporation Law. My opinions are rendered only
with respect to the laws, and the rules, regulations and orders
thereunder, which are currently in effect. Please be advised
that I am not admitted to practice in the State of Delaware.
This letter is furnished by me solely for your benefit in
connection with the transactions referred to in Credit Documents
and may not be relied upon it or circulated to any other person
or entity.
Very truly yours,
Stuart I. Rosen
Vice President and
Associate General Counsel
August 9, 1995
WRITER'S DIRECT LINE: (212) 596-9152
The Chase Manhattan Bank
(National Association), as Agent
4 Chase Metrotech Center
Brooklyn, New York 11245
Ladies and Gentlemen:
We have acted as special trademark counsel to Mistic
Beverage, Inc., a Delaware corporation ("the Borrower"), and
Triarc Companies, Inc., a Delaware corporation (the "Guarantor")
in connection with the Borrower's acquisition of certain assets
from Best Flavors, Inc.
In our role as special trademark counsel to the
Borrower and the Guarantor, we were provided with and have
reviewed the following documents:
(1) the Asset Purchase Agreement dated as of August
9, 1995, by and among Mistic Brands, Inc. and
Joseph Victori Wines, Inc., Best Flavors, Inc.,
Nature's Own Beverage Company and Joseph Umbach
("Asset Purchase Agreement"); and
(2) the Trademark Security Agreement dated as of July
31, 1995 by Mistic Brands, Inc. in favor of The
Chase Manhattan Bank (National Association) as
Agent ("Trademark Security Agreement").
The Asset Purchase Agreement and the Trademark Security
Agreement are hereinafter collectively referred to as the
"Documents." Other terms defined (or incorporated by reference)
in the Asset Purchase Agreement are used herein as therein
defined.
In rendering our opinion, we have assumed without
independent investigation the legal capacity of all individuals
who have executed any of the Documents, the authenticity of all
documents submitted to us as originals and the conformity to
original documents of all documents submitted to us as copies.
We have further assumed, but have not verified, that each United
States trademark registration and application for registration
identified in Schedule A to the Trademark Security Agreement is
not subject to any agreement prohibiting the grant of a security
interest in such trademark registration or application for
registration. We have also relied upon the specific
representations and warranties of the Borrower made in the
Documents, including without limitation those representations
and warranties made in Section 3 of the Trademark Security
Agreement and Sections 5.11 and 5.17 of the Asset Purchase
Agreement. We have further relied upon the representations of
the Borrower as to the location of its chief executive office as
that term is used in Uniform Commercial Code ("UCC") Section 9-
103(3)(d).
Upon the basis of the foregoing, and subject to the
assumptions, exceptions and qualifications set forth herein, we
are of the opinion that:
1. Schedule A to the Trademark Security Agreement
completely and accurately lists all of the
Trademarks in which the Borrower has any right,
title or interest as of the Closing. To our
knowledge, each of the registrations listed on that
schedule is currently subsisting, valid and
enforceable.
2. The Trademark Security Agreement creates a valid
security interest in favor of the Agent in the
Collateral as defined in the Trademark Security
Agreement, as security for the payment of the
"Secured Obligations" described therein, and, upon
the filing of the UCC-1 Financing Statements with
the appropriate authorities in the State of New
York, the Agent will have a perfected security
interest in such "Collateral, and such security
interest will be senior to all other Liens, security
interests and encumbrances. It is also permissible,
although not mandatory, to record the Trademark
Security Agreement in the United States Patent and
Trademark Office. While such a filing has no effect
on the perfection of the security interest, it
provides notice to third parties of the existence of
the security interest.
We exclude from our opinion the effect of any antitrust
and bankruptcy issues that may arise under the laws of the
United States, or any foreign jurisdiction, as to which issues
we express no opinion. The enforceability of the Guarantor's
and the Borrower's obligations under the Trademark Security
Agreement is subject to general principles of equity (regardless
of whether such enforceability is considered in a proceeding in
equity or at law).
We are qualified to practice law in the State of New
York, and we do not purport to be experts on, or to express any
opinion herein concerning, any law other than the law of the
State of New York and the Federal law of the United States
insofar as it applies to intellectual property.
We do not give any opinion except as set forth above. In
accordance with our firm's policy, this letter is furnished by
us solely for your information in connection with the subject
transaction and may be relied upon solely in connection
therewith. This letter may not be circulated to, or relied upon
by, any other Person, other than the Secured Parties, and is not
to be (i) quoted in whole or in part, or otherwise referred to,
in any public disclosure document or financial statement, of
(ii) filed with any governmental agency.
Very truly yours,
Susan Progoff