Exhibit 4.26
FIRST AMENDMENT AGREEMENT
dated as of October 6, 1995
among
MISTIC BRANDS, INC.
TRIARC COMPANIES, INC.
THE LENDERS SIGNATORY HERETO
and
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION)
as Agent
FIRST AMENDMENT AGREEMENT
FIRST AMENDMENT AGREEMENT (this "Agreement") dated as of October 6,
1995 among MISTIC BRANDS, INC., a corporation organized under the laws of
Delaware (the "Borrower"), TRIARC COMPANIES, INC., a corporation organized
under the laws of Delaware (the "Guarantor"), each of the lenders which is
a signatory hereto (the "Lenders") and THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION), a national banking association organized under the laws of
the United States of America, as agent for the Lenders (in such capacity,
together with its successors in such capacity, the "Agent").
WHEREAS, the Borrower, the Lenders and the Agent have entered into
that certain Credit Agreement dated as of August 9, 1995 (the "Credit
Agreement") pursuant to which the Lenders have extended credit to the
Borrower evidenced by certain Promissory Notes issued by the Borrower and
guarantied by the Guarantor under the Unconditional Guaranty;
WHEREAS, the Borrower, the Guarantor, the Lenders and the Agent have
agreed to enter this Agreement to provide for modification to certain of
the Facility Documents to reflect the Guarantor's interest in the Borrower
as 873 shares of the Common Stock instead of 884.25 shares; and
WHEREAS, the Facility Documents, as amended and supplemented by this
Agreement (including, without limitation, this Agreement), and as each may
be amended or supplemented from time to time, are referred to herein as the
"Amended Facility Documents".
NOW THEREFORE, for valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1. AMENDMENTS TO EXISTING AGREEMENTS.
Section 1.01. Amendment to Credit Agreement. Each of the
Borrower and the Guarantor and, subject to the satisfaction of
the conditions set forth in Section 3, the Agent and the Lenders
hereby consents and agrees that Section 6.10 of the Credit
Agreement is hereby amended to substitute "873" in place of
"884.25".
Section 1.02. Amendment to Pledge Agreement. Each of the
Guarantor and, subject to the satisfaction of the conditions set
forth in Section 3, the Agent and the Lenders hereby consents and
agrees that Schedule A to the Pledge Agreement is hereby amended
to substitute "873" in place of "884.25".
Section 1.03. Amendments to SAR Agreement. Each of the
Borrower and the Guarantor and, subject to the satisfaction of
the conditions set forth in Section 3, the Agent and the Lenders
hereby consents to the amendments to the SAR Agreement set forth
below:
(a) Section 2.03 of the SAR Agreement is hereby
amended to substitute "$28,636.88" in place of "$28,272.55"; and
(b) Section 3.04 of the SAR Agreement is hereby
amended to substitute "873" in place of "884.25".
ARTICLE 2. REPRESENTATIONS AND WARRANTIES.
Each of the Borrower and the Guarantor hereby represents and
warrants that as of the Effective Date:
Section 2.01. Existing Representations and Warranties.
Each of the representations and warranties contained in Article 6
of the Credit Agreement and in each of the other Amended Facility
Documents are true and correct in all material respects (provided
that any representations and warranties which speak to a specific
date shall remain true and correct in all material respects as of
such specific date).
Section 2.02. No Defaults. No event has occurred and no
condition exists which would constitute a Default or an Event of
Default under the Amended Facility Documents.
Section 2.03. Corporate Power and Authority; No Conflicts.
The execution, delivery and performance by each of the Borrower
and the Guarantor of the Amended Facility Documents to which it
is a party do not and will not: (a) require any consent or
approval of the Guarantor's 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 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 Amended Facility 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 2.04. Legally Enforceable Agreements. Each Amended
Facility Document to which the Borrower or the Guarantor is a
party is, or when delivered under this Agreement will be, a
legal, valid and binding obligation of such Person enforceable
against such Person 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).
ARTICLE 3. CONDITIONS PRECEDENT.
The consent and the agreement of the Agent and the Lenders
to the amendments set forth in Section 1 are subject to the
condition precedent that the Agent shall have received on or
before October 6, 1995 (the "Effective Date") each of the
following, in form and substance satisfactory to the Agent and
its counsel:
(a) counterparts of this Agreement executed by each of
the Borrower, the Guarantor, the Lenders and the Agent;
(b) replacement stock certificates representing all of
the outstanding capital stock of the Borrower held by the
Guarantor together with undated stock powers executed in blank;
and
(c) a legal opinion of the Vice President and
Associate General Counsel of the Guarantor, in substantially the
form of Exhibit A.
ARTICLE 4. MISCELLANEOUS.
Section 4.01. Defined Terms. The terms used herein and not
defined herein shall have the meanings assigned to such terms in
the Credit Agreement.
Section 4.02. Reaffirmation. Each of the Borrower and the
Guarantor acknowledges that the Liens granted to the Agent under
the Security Documents in and to the Collateral secures all of
the Obligations under the Credit Agreement and the other Amended
Facility Documents. Each of the Borrower and the Guarantor
further acknowledges and reaffirms all of its other respective
obligations and duties under the Amended Facility Documents to
which it is a party.
Section 4.03. Amendments and Waivers. Any provision of
this Agreement may be amended or modified only by an instrument
in writing signed by the Borrower, the Guarantor, the Agent and
the Required Lenders, or by the Borrower, 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.
Section 4.04. Expenses. The Borrower shall reimburse the
Agent on demand for all reasonable out-of-pocket costs, expenses
and charges (including, without limitation, reasonable fees and
charges of external legal counsel for the Agent) in connection
with the preparation of, and any amendment, supplement, waiver or
modification to (in each case, whether or not consummated), this
Agreement, any other Amended Facility Document and any other
documents prepared in connection herewith or therewith.
Section 4.05. 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, the Borrower and
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 4.06. 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 4.07. 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 4.08. Integration. The Amended Facility Documents
set forth the entire agreement among the parties hereto relating
to the transactions contemplated thereby and supersede any prior
oral or written statements or agreements with respect to such
transactions.
SECTION 4.09. GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY, AND INTERPRETED AND CONSTRUED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above
written.
MISTIC BRANDS, INC.
By: Ernest J. Cavallo
Name: Ernest J. Cavallo
Title: President and CFO
Address for Notices:
Mistic Brands, Inc.
2525 Palmer Avenue
New Rochelle, NY 10801
Attention: Chief Financial
Officer
Telecopier No.: (914) 637-0020
With a copy to:
Triarc Companies, Inc.
900 Third Avenue
New York, New York 10022
Attention: Executive Vice
President and
General Counsel
Telecopier No.: (212) 230-3216
TRIARC COMPANIES, INC.
By: John L. Cohlan
Name: John L. Cohlan
Title: Senior Vice
President -
Corporate Finance
Address for Notices:
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: Michael D. Anthony
Name: Michael D. Anthony
Title: Vice President
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
LENDERS:
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
By: Michael D. Anthony
Name: Michael D. Anthony
Title: Vice President
Lending Office and Address for
Notices:
31 Mamaroneck Avenue
White Plains, NY 10601
Attention: Michael D. Anthony
Telecopier No.: (914) 328-8373