Exhibit 4.27
SECOND AMENDMENT AGREEMENT
dated as of March 15, 1996
among
MISTIC BRANDS, INC.
TRIARC COMPANIES, INC.
THE LENDERS SIGNATORY HERETO
and
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION)
as Agent
SECOND AMENDMENT AGREEMENT
SECOND AMENDMENT AGREEMENT (this "Agreement") dated as of March 15,
1996 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 (as amended by
that certain First Amendment Agreement dated as of October 6, 1995 and, as
in effect prior to the effectiveness of this Agreement, the "Existing
Credit Agreement" and, as amended by this Agreement, the "Amended 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, among other things,
modifications of certain covenants and definitions contained in the
Existing Credit Agreement; and
WHEREAS, the Facility Documents, as amended and supplemented by this
Agreement (including, without limitation, this Agreement and the Amended
Credit 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 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 to the amendments to the Existing Credit
Agreement set forth below:
(a) The definition of "Borrowing Base" in Section 1.01 of the
Existing Credit Agreement is hereby amended to add immediately prior to the
"." at the end of such definition ", plus (c) the amount of the Receivable
due from the Mistic Sellers in connection with the Arkansas Litigation but
only to the extent that (i) the Borrower is scheduled to make payments to
the Mistic Sellers under the Mistic Acquisition Documents during the
immediately subsequent twelve calendar months and (ii) the Borrower has the
right to offset such payments against the collection of such Receivable"
(b) The definition of "Consolidated Current Assets" in Section
1.01 of the Existing Credit Agreement is hereby amended to add "(but
excluding all amounts due from the Mistic Sellers in connection with the
Arkansas Litigation)" immediately subsequent to "current assets".
(c) The definition of "Consolidated Current Liabilities" in
Section 1.01 of the Existing Credit Agreement is hereby amended to add
"(but excluding all amounts owing with respect to the judgment entered into
in connection with the Arkansas Litigation and any interest accruing
thereon)" immediately subsequent to "current liabilities".
(d) The definition of "Consolidated EBIT" in Section 1.01 of the
Existing Credit Agreement is hereby amended and restated to read as
follows:
"Consolidated EBIT" means, with respect to any fiscal
period, the sum of (a) Consolidated Net Income for such period,
plus (b) the aggregate amount of (i) income taxes, (ii)
Consolidated Interest Expense and (iii) advertising expense
incurred by the Mistic Sellers prior to the Mistic Acquisition in
an amount not in excess of $852,000, to the extent that such
aggregate amount was deducted in the computation of Consolidated
Net Income for such period.
(e) Section 8.06 of the Existing Credit Agreement is hereby
amended to add immediately prior to the "." at the end of such section the
following insert:
; and
(e) the Borrower may make Distributions to the Guarantor on
December 31, 1997 and on each December 31 thereafter in an amount
up to but not exceeding $200,000 on each such date as
reimbursement for contributions made by the Guarantor after March
15, 1996 to the Juvenile Diabetes Foundation, so long as no
Default or Event of Default has occurred and is continuing or
would occur and be continuing after giving effect to each such
Distribution.
(f) Section 9.01 of the Existing Credit Agreement is hereby
amended to substitute the following three rows in place of the first row of
the table contained therein:
If such Fiscal Quarter ends Applicable Ratio
on March 31, 1996 2.20 to 1.00
on June 30, 1996 2.30 to 1.00
on September 30, 1996 2.50 to 1.00
(g) Section 9.02 of the Existing Credit Agreement is hereby
amended to substitute the following row in place of the first three rows of
the table contained therein:
If such Fiscal Quarter ends Applicable Ratio
after December 31, 1995 and on
or before September 30, 1998 1.30 to 1.00
(h) Section 9.03 of the Existing Credit Agreement is hereby
amended to substitute the following row in place of the first two rows of
the table contained therein:
If such Fiscal Quarter ends Applicable Ratio
after December 31, 1995 and on
or before June 30, 1996 5.00 to 1.00
(i) Section 9.05 of the Existing Credit Agreement is hereby
amended and restated to read as follows:
Section 9.05. Current Ratio. The Borrower shall maintain
at all times a Current Ratio of not less than 1.05 to 1.00.
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 Amended 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. Except for such Defaults and Events of
Default specifically waived by the Agent and the Lenders pursuant to
Article 4 of this Agreement, no event has occurred and no condition exists
which would constitute a Default or an Event of Default under the Facility
Documents, and 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 March 15, 1996 (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; and
(b) a legal opinion of the Vice President and Associate General
Counsel of the Guarantor, in substantially the form of Exhibit A.
ARTICLE 4. WAIVERS.
Subject to the satisfaction of the conditions set forth in Article 3
hereof, the Agent and the Lenders hereby waive any Default or Event of
Default arising from noncompliance by the Borrower with (a) Section 9.02 of
the Existing Credit Agreement for the Fiscal Quarter ending on December 31,
1995 and (b) Section 9.05 of the Existing Credit Agreement for the Fiscal
Quarter ending on December 31, 1995. Except for the foregoing waivers, the
terms of this Agreement shall not operate as a waiver by the Agent or the
Lenders, or otherwise prejudice the rights, remedies or powers of the Agent
or the Lenders, under the Amended Facility Documents or under applicable
law. Except as expressly provided herein: (x) no terms and provisions of
the Facility Documents are modified or changed by this Agreement; and (y)
the terms and provisions of the Facility Documents shall continue in full
force and effect.
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 Amended Credit
Agreement.
Section 5.02. 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
Amended 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 5.03. 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 5.04. 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 5.05. 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 5.06. 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 5.07. 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 5.08. 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 5.09. 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: Joseph A. Levato
Name: Joseph A. Levato
Title:Executive Vice President
and CFO
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
LENDERS:
BARCLAYS BANK PLC
By:
Name:
Title:
Lending Office and Address for Notices:
Barclays-BZW Division
222 Broadway
New York, NY 10038
Attention: John Sweeney
Fax: (212) 412-2441
LENDERS:
FIRST SOURCE FINANCIAL LLP
By First Source Financial, Inc., its
Manager
By: James J. Russell
Name: James J. Russell
Title: Vice President
Lending Office and Address for Notices:
2850 West Golf Road
5th Floor
Rolling Meadows, IL 60008
Attention: Andy Chidester
Telecopier No.: (708) 734-7910
LENDERS:
HARRIS TRUST AND SAVINGS BANK
By: R. Michael Newton
Name: R. Michael Newton
Title: Vice President
Lending Office and Address for Notices:
11 West Monroe Street
Chicago, IL 60690
Attention: Michael Newton
Telecopier No.: (312) 987-4856
LENDERS:
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A. "RABOBANK
NEDERLAND", NEW YORK BRANCH
By:
Name:
Title:
By:
Name:
Title:
Lending Office and Address for Notices:
245 Park Avenue
New York, NY 10167-0062
Attention: Corporate Services
Telecopier No.: (212) 987-4856