Exhibit 4.2
TRIARC CONSUMER PRODUCTS GROUP, LLC,
TRIARC BEVERAGE HOLDINGS CORP.,
AS ISSUERS,
THE SUBSIDIARY GUARANTORS PARTY HERETO
AND
THE BANK OF NEW YORK,
AS TRUSTEE
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INDENTURE
DATED AS OF FEBRUARY 25, 1999
--------------
10-1/4% SENIOR SUBORDINATED NOTES DUE 2009
TABLE OF CONTENTS
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PAGE
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ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions................................................
SECTION 1.02. Other Definitions..........................................
SECTION 1.03. Rules of Construction......................................
SECTION 1.04. Incorporation by Reference of TIA..........................
SECTION 1.05. Conflict with TIA..........................................
SECTION 1.06. Compliance Certificates and Opinions.......................
SECTION 1.07. Form of Documents Delivered to Trustee.....................
SECTION 1.08. Acts of Noteholders; Record Dates..........................
SECTION 1.09. Notices, Etc., to Trustee and Issuers......................
SECTION 1.10. Notices to Holders; Waivers................................
SECTION 1.11. Effect of Headings and Table of Contents...................
SECTION 1.12. Successors and Assigns.....................................
SECTION 1.13. Separability Clause........................................
SECTION 1.14. Benefits of Indenture......................................
SECTION 1.15. Governing Law..............................................
SECTION 1.16. Legal Holidays.............................................
SECTION 1.17. No Personal Liability of Directors, Officers, Employees,
Incorporators and Stockholders.............................
SECTION 1.18. Exhibits and Schedules.....................................
SECTION 1.19. Counterparts...............................................
ARTICLE 2
NOTE FORMS
SECTION 2.01. Forms Generally............................................
SECTION 2.02. Form of Trustee' Certificate of Authentication.............
SECTION 2.03. Restrictive Legends........................................
ARTICLE 3
THE NOTES
SECTION 3.01. Title and Terms............................................
SECTION 3.02. Denominations..............................................
SECTION 3.03. Execution, Authentication and Delivery and Dating..........
SECTION 3.04. Temporary Notes............................................
SECTION 3.05. Registration, Registration of Transfer and Exchange........
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Notes................
SECTION 3.07. Payment of Interest Rights Preserved.......................
SECTION 3.08. Persons Deemed Owners......................................
SECTION 3.09. Cancellation...............................................
SECTION 3.10. Computation of Interest....................................
SECTION 3.11. Payment of Additional Amounts..............................
SECTION 3.12. CUSIP Numbers..............................................
SECTION 3.13. Book-entry Provisions for Global Notes.....................
SECTION 3.14. Transfer Provisions........................................
ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Principal, Premium and Interest.................
SECTION 4.02. Maintenance of Office or Agency............................
SECTION 4.03. Money for Payments to Be Held in Trust.....................
SECTION 4.04. SEC Reports................................................
SECTION 4.05. Certificates to Trustee....................................
SECTION 4.06. Limitation on Indebtedness.................................
SECTION 4.07. Limitation on Restricted Payments..........................
SECTION 4.08. Limitation on Restrictions on Distributions from Restricted
Subsidiaries...............................................
SECTION 4.09. Limitation on Sales of Assets and Subsidiary Stock.........
SECTION 4.10. Limitation on Affiliate Transactions.......................
SECTION 4.11. Limitation on Liens........................................
SECTION 4.12. Limitation on Senior Subordinated Indebtedness.............
SECTION 4.13. Repurchase of Notes upon a Change in Control...............
SECTION 4.14. Limitation on the Sale or Issuance of Capital Stock of
Restricted Subsidiaries....................................
SECTION 4.15. Existence..................................................
SECTION 4.16. Payment of Taxes and Other Claims..........................
SECTION 4.17. Maintenance of Properties and Insurance....................
SECTION 4.18. Additional Subsidiary Guarantees...........................
ARTICLE 5
CONSOLIDATION, MERGER OR SALE OF ASSETS
SECTION 5.01. Consolidation, Merger or Sale of Assets by the Company.....
SECTION 5.02. Successor Company Substituted..............................
SECTION 5.03. Consolidation, Merger or Sale of Assets by a Material
Subsidiary Obligor.........................................
SECTION 5.04. Opinion of Counsel to Trustee..............................
ARTICLE 6
REMEDIES
SECTION 6.01. Events of Default..........................................
SECTION 6.02. Acceleration...............................................
SECTION 6.03. Other Remedies.............................................
SECTION 6.04. Waiver of Past Defaults....................................
SECTION 6.05. Control by Majority........................................
SECTION 6.06. Limitation on Suits........................................
SECTION 6.07. Rights of Holders to Receive Payment.......................
SECTION 6.08. Collection Suit by Trustee.................................
SECTION 6.09. Trustee May File Proofs of Claim...........................
SECTION 6.10. Priorities.................................................
SECTION 6.11. Undertaking for Costs......................................
SECTION 6.12. Restoration of Rights and Remedies.........................
SECTION 6.13. Rights and Remedies Cumulative.............................
SECTION 6.14. Waiver of Stay, Extension or Usury Laws....................
ARTICLE 7
THE TRUSTEE
SECTION 7.01. Certain Duties and Responsibilities........................
SECTION 7.02. Notice of Defaults.........................................
SECTION 7.03. Certain Rights of Trustees.................................
SECTION 7.04. Not Responsible for Recitals or Issuance of Notes..........
SECTION 7.05. Trustee's Disclaimer.......................................
SECTION 7.06. May Hold Notes.............................................
SECTION 7.07. Money Held in Trust........................................
SECTION 7.08. Compensation and Reimbursement.............................
SECTION 7.09. Conflicting Interests......................................
SECTION 7.10. Corporate Trustee Required; Eligibility....................
SECTION 7.11. Resignation and Removal; Appointment of Successor..........
SECTION 7.12. Acceptance of Appointment by Successor.....................
SECTION 7.13. Merger, Conversion, Consolidation or Succession to
Business...................................................
SECTION 7.14. Preferential Collection of Claims Against the Issuers......
SECTION 7.15. Appointment of Authenticating Agent........................
ARTICLE 8
HOLDERS' LIST AND REPORTS BY TRUSTEE AND THE ISSUERS
SECTION 8.01. The Issuers to Furnish Trustee Names and Addresses of
Holders....................................................
SECTION 8.02. Preservation of Information; Communications to Holders.....
SECTION 8.03. Reports by Trustee.........................................
ARTICLE 9
AMENDMENT, SUPPLEMENT OR WAIVER
SECTION 9.01. Without Consent of the Holders.............................
SECTION 9.02. With Consent of Holders....................................
SECTION 9.03. Execution of Amendments, Supplements or Waivers............
SECTION 9.04. Revocation and Effect of Consents..........................
SECTION 9.05. Conformity with TIA........................................
SECTION 9.06. Notation on or Exchange of Notes...........................
ARTICLE 10
REDEMPTION OF NOTES
SECTION 10.01. Right of Redemption.......................................
SECTION 10.02. Applicability of Article..................................
SECTION 10.03. Election to Redeem; Notice to Trustee.....................
SECTION 10.04. Selection by Trustee of Notes to Be Redeemed..............
SECTION 10.05. Notice of Redemption......................................
SECTION 10.06. Deposit of Redemption Price...............................
SECTION 10.07. Notes Payable on Redemption Date..........................
SECTION 10.08. Notes Redeemed in Part....................................
ARTICLE 11
SATISFACTION AND DISCHARGE
SECTION 11.01. Satisfaction and Discharges of Indenture..................
SECTION 11.02. Application of Trust Money................................
ARTICLE 12
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 12.01. Option of the Issuers to Effect Defeasance or Covenant
Defeasance................................................
SECTION 12.02. Legal Defeasance and Discharge............................
SECTION 12.03. Covenant Defeasance.......................................
SECTION 12.04. Conditions to Legal or Covenant Defeasance................
SECTION 12.05. Deposited Money and Government Securities to Be Held
in Trust; Other Miscellaneous Provisions..................
SECTION 12.06. Repayment to Issuers......................................
SECTION 12.07. Reinstatement.............................................
ARTICLE 13
SUBSIDIARY GUARANTEES
SECTION 13.01. The Guarantees............................................
SECTION 13.02. Guaranty Unconditional....................................
SECTION 13.03. Discharge; Reinstatement..................................
SECTION 13.04. Waiver by the Subsidiary Guarantors.......................
SECTION 13.05. Subrogation and Contribution..............................
SECTION 13.06. Stay of Acceleration......................................
SECTION 13.07. Subordination.............................................
SECTION 13.08. Limits of Guarantees......................................
SECTION 13.09. Execution and Delivery of Note Guarantee..................
ARTICLE 14
SUBORDINATION
SECTION 14.01. Agreement to Subordinate..................................
SECTION 14.02. Liquidation; Dissolution; Bankruptcy......................
SECTION 14.03. Default on Designated Senior Indebtedness.................
SECTION 14.04. When Distributions Must Be Paid Over......................
SECTION 14.05. Notice....................................................
SECTION 14.06. Subrogation...............................................
SECTION 14.07. Relative Rights...........................................
SECTION 14.08. The Issuers, Subsidiary Guarantors and Holders May Not
Impair Subordination......................................
SECTION 14.09. Distribution or Notice to Representative..................
SECTION 14.10. Rights of Trustee and Paying Agent........................
SECTION 14.11. Authorization to Effect Subordination.....................
SECTION 14.12. Payment...................................................
EXHIBIT A - Form of Note
EXHIBIT B - Form of Supplemental Indenture
EXHIBIT C - Form of Certificate of Beneficial Ownership EXHIBIT D - Form of
Regulation S Certificate EXHIBIT E - Form of Accredited Investor Certificate
INDENTURE, dated as of February 25, 1999 (as amended, supplemented or
otherwise modified from time to time, the "Indenture"), among TRIARC CONSUMER
PRODUCTS GROUP, LLC, a Delaware limited liability company (as further defined
below, the "Company"), TRIARC BEVERAGE HOLDINGS CORP., a Delaware corporation
(as further defined below, "Triarc Beverage", and together with the Company, the
"Issuers), the Subsidiary Guarantors party hereto and THE BANK OF NEW YORK, a
New York banking corporation, as trustee (the "Trustee").
RECITALS OF THE COMPANY
The Issuers and the Subsidiary Guarantors have duly authorized the
execution and delivery of this Indenture to provide for the issuance of (i)
initially, $300,000,000 aggregate principal amount of 10-1/4% Senior
Subordinated Notes due 2009 of the Issuers (the "Initial Notes" and, together
with any Exchange Notes issued in respect thereof, the "Original Notes") and
(ii) if and when issued, additional 10-1/4% Senior Subordinated Notes due 2009
of the Issuers (the "Initial Additional Notes" and, together with any Exchange
Notes issued in respect thereof, the "Additional Notes") issuable as provided in
this Indenture, in each case, guaranteed to the extent provided herein and in
the Notes by the Subsidiary Guarantors. All things necessary to make the
Original Notes, when duly issued, executed and delivered by the Issuers and
authenticated and delivered by the Trustee hereunder, the valid obligation of
the Issuers, and to make this Indenture a valid agreement of the Issuers and the
Subsidiary Guarantors as of the date hereof, in accordance with the terms of the
Original Notes and this Indenture, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes
by the Holders thereof, it is mutually agreed, for the equal and ratable benefit
of all Holders, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions.
"Additional Amounts" means additional interest owed to the Holders
pursuant to a Registration Rights Agreement.
"Additional Assets" means (i) any property, plant or equipment, other
tangible assets or intangible assets (if such assets are trademarks or
intellectual property used in connection with a brand), in each case used in a
Related Business; (ii) the Capital Stock of a Person that becomes a Restricted
Subsidiary as a result of the acquisition of such Capital Stock by the Company
or another Restricted Subsidiary or (iii) Capital Stock constituting a minority
interest in any Person that at such time is a Restricted Subsidiary; provided,
however, that any such Restricted Subsidiary described in clauses (ii) or (iii)
above is primarily engaged in a Related Business.
"Additional Notes" means any notes issued under this Indenture in
addition to the Original Notes, including any Exchange Notes issued in exchange
therefor.
"Affiliate" of any specified Person means any other Person, directly or
indirectly, controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Arby's" means Arby's, Inc., and its successors.
"Arby's Securitization Assets" means all right, title and interest to
the trademarks "Arby's," "T.J. Cinnamon's" and/or "Pasta Connection" or any
variations or successors thereto and the goodwill related to such trademarks,
all existing and future franchise, licensing and other rights to grant to any
Persons the right to use the names "Arby's," "T.J. Cinnamon's" and/or "Pasta
Connection" or operate restaurants identified with the names "Arby's," "T.J.
Cinnamon's" and/or "Pasta Connection" the right to enforce and take all other
actions with respect to such agreements and collect and receive all royalties,
fees and other amounts payable under such agreements, and all other assets of
Arby's and its Subsidiaries reasonably related to any of the foregoing.
"Arby's Securitization Entity" means any newly created Unrestricted
Subsidiary of the Company formed for the sole purpose of consummating the
Permitted Arby's Securitization.
"Arby's Securitization Notes" means the notes, certificates,
participation interests or other securities to be issued by an Arby's
Securitization Entity in connection with the Permitted Arby's Securitization.
"Arby's Securitization Residual Note" means a subordinated promissory
note payable by an Arby's Securitization Entity to Arby's in connection with the
Permitted Arby's Securitization.
"Asset Disposition" means any sale, lease, transfer or other disposition
(or series of related sales, leases, transfers or dispositions) by the Company
or any Restricted Subsidiary, including any disposition by means of a merger,
consolidation or similar transaction (each referred to for the purposes of this
definition as a "Disposition"), of (i) any shares of Capital Stock of a
Restricted Subsidiary (other than directors' qualifying shares or shares
required by applicable law to be held by a Person other than the Company or a
Restricted Subsidiary), (ii) all or substantially all the assets of any division
or line of business of the Company or any Restricted Subsidiary or (iii) any
other assets of the Company or any Restricted Subsidiary outside of the ordinary
course of business of the Company or such Restricted Subsidiary (other than, in
the case of (i), (ii) and (iii) above, (A) a disposition to the Company or a
Restricted Subsidiary, (B) a disposition that constitutes a Restricted Payment
permitted by Section 4.07 or a Permitted Investment, (C) sales or other
dispositions for consideration at least equal to the fair market value of the
assets sold or disposed of (as determined in good faith by the Board of
Directors), to the extent that the consideration received consists of property
or assets that are to be used in a Related Business or the Capital Stock of a
Person engaged in a Related Business if such Person becomes, or is merged or
consolidated into, a Restricted Subsidiary as a result of such receipt of
Capital Stock, (D) a Permitted Arby's Securitization, (E) a disposition covered
by and permitted under Article 5, (F) the sale or discount of accounts
receivable arising in the ordinary course of business, but only in connection
with the compromise or collection thereof, (G) a disposition of Capital Stock of
an Unrestricted Subsidiary, (H) a disposition of an Investment in any Person
made on or after the Closing Date that was not a Permitted Investment when made,
(I) disposals or replacements of obsolete or worn equipment in the ordinary
course of business, (J) a disposition of assets (including Capital Stock) in a
transaction or series of related transactions with a fair market value of less
than $1,000,000 and (K) the sale of Capital Stock of the Company or any of its
Restricted Subsidiaries to employees, managers, directors and consultants of the
Company and its Restricted Subsidiaries pursuant to plans approved by the Board
of Directors; provided that the net proceeds thereof, if any, are applied
pursuant to the provisions of Section 4.09.
"Attributable Debt" in respect of a Sale/Leaseback Transaction means, as
at the time of determination, the present value (discounted at the interest rate
borne by the Notes, compounded annually) of the total obligations of the lessee
for rental payments during the remaining term of the lease included in such
Sale/Leaseback Transaction (including any period for which such lease has been
extended).
"Authentication Agent" means any Person authorized by the Trustee
pursuant to Section 7.15 to act on behalf of the Trustee to authenticate Notes
of one or more series.
"Average Life" means, as of the date of determination, with respect to
any Indebtedness or Preferred Stock, the quotient obtained by dividing (i) the
sum of the products of numbers of years from the date of determination to the
dates of each successive scheduled principal payment of such Indebtedness or
redemption or similar payment with respect to such Preferred Stock multiplied by
the amount of such payment by (ii) the sum of all such payments.
"Banks" means the lenders under the Credit Agreement.
"Bank Indebtedness" means all Obligations and all other obligations
(monetary or otherwise) pursuant to the Credit Agreement (including, without
limitation, all interest accruing on or after, or which would accrue but for,
the filing of any petition in bankruptcy or for reorganization, whether or not
allowed thereby).
"Board of Directors" means, with respect to any Person, the board of
directors or board of managers of such Person or any committee thereof duly
authorized to act on behalf of such board. Unless the context otherwise
requires, "Board of Directors" refers to the Board of Directors of the Company.
"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification, and delivered to the
Trustee. Unless the context otherwise requires, "Board Resolution" refers to a
Board Resolution of the Company.
"Business Acquisition" means (i) an Investment by the Company or any of
its Restricted Subsidiaries in any other Person pursuant to which such Person
shall become a Restricted Subsidiary or shall be merged into or consolidated
with the Company or any of its Restricted Subsidiaries or (ii) an acquisition by
the Company or any of its Restricted Subsidiaries of the property and assets of
any Person other than the Company or any of its Restricted Subsidiaries that
constitute substantially all of the assets of such Person or of any division,
brand or line of business of such Person.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in The City of New York are authorized by law to close.
"Business Disposition" means any sale, transfer or other disposition
(including by way of merger or consolidation) in one transaction or a series of
related transactions by the Company or any of its Restricted Subsidiaries to any
Person other than the Company or any of its Restricted Subsidiary of (i) all or
substantially all of the Capital Stock of any Restricted Subsidiary or (ii) all
or substantially all of the assets of any Restricted Subsidiary or of any
division, brand or line of business of the Company or any of its Restricted
Subsidiaries.
"Capital Lease Obligations" means an obligation that is required to be
classified and accounted for as a capital lease for financial reporting purposes
in accordance with GAAP, and the amount of Indebtedness represented by such
obligation shall be the capitalized amount of such obligation determined in
accordance with GAAP; and the Stated Maturity thereof shall be the date of the
last payment of rent or any other amount due under such lease prior to the first
date upon which such lease may be terminated by the lessee without payment of a
penalty.
"Capital Stock" of any Person means any and all shares, interests,
rights to purchase, warrants, options, participation, membership interests or
other equivalents of or interests in (however designated) equity of such Person,
including any Preferred Stock, but excluding any debt securities convertible
into such equity.
"Cedel" means Cedel Bank, societe anonyme.
"Change of Control" means the occurrence of any of the following events:
(i) any "person" or "group" (within the meaning of Sections 13(d) and 14(d) of
the Exchange Act), other than one or more Permitted Holders, is or becomes the
beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act),
directly or indirectly, of more than 35% of the total voting power of the Voting
Stock of the Company or Triarc Parent; provided, however, that the Permitted
Holders beneficially own (as defined in this clause (i)), directly or
indirectly, in the aggregate a lesser percentage of the total voting power of
the Voting Stock of the Company or Triarc Parent than such other person or group
and do not have the right or ability by voting power, contract or otherwise to
elect or designate for election a majority of the Board of Directors of the
Company or Triarc Parent; (ii) individuals who on the Closing Date constituted
the Board of Directors of Triarc Parent, the Company or Triarc Beverage
(together with any new directors whose election by such Board of Directors or
whose nomination for election by the shareholders of such Person was approved by
a vote of a majority of the directors of such Person then still in office who
were either directors on the Closing Date or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the Board of Directors then in office; (iii) the adoption of a plan
relating to the liquidation or dissolution of the Company; (iv) the merger or
consolidation of the Company or Triarc Parent with or into another Person or the
merger of another Person with or into the Company or Triarc Parent, or the sale
of all or substantially all the assets of the Company or Triarc Parent to
another Person (other than a Person that is directly or indirectly controlled by
one or more Permitted Holders), and, in the case of any such merger or
consolidation, the securities of the Company or Triarc Parent that are
outstanding immediately prior to such transaction are changed into or exchanged
for cash, securities or property, unless pursuant to such transaction such
securities are changed into or exchanged for, in addition to any other
consideration, securities of the surviving Person or transferee that represent
immediately after such transaction, at least a majority of the aggregate voting
power of the voting Stock of the surviving Person or transferee; or (v) any
"person" or "group" (within the meaning of Section 13(d) and 14(d) of the
Exchange Act) other than one or more Permitted Holders, is or becomes the
"beneficial owner" (as defined in clause (i) above), directly or indirectly, of
both (A) 25% or more of the total voting power of all classes of capital stock
then outstanding of Triarc Beverage normally entitled to vote in elections of
directors ("Triarc Beverage Voting Stock") or 40% or more of the economic
interest in Triarc Beverage held by holders of Capital Stock thereof ("Triarc
Beverage Economic Interest") and (B) a greater percentage of the Triarc Beverage
Voting Stock or Triarc Beverage Economic Interest than is then beneficially
owned, directly or indirectly, in the aggregate by the Company and the Permitted
Holders.
"Closing Date" means the date on which the Initial Notes are originally
issued.
"Closing Dividend" means a cash dividend by the Company to Triarc Parent
on the Closing Date (and/or on a later date as provided in clauses (i) and (iii)
below) consisting of: (i) the net proceeds from the offering of the Notes and
the borrowings of term loans under the Credit Agreement made on the Closing Date
(to the extent such proceeds exceed the amount necessary to repay all amounts
outstanding under Triarc Beverage's existing credit agreement and RC/Arby's
existing notes, to fund the purchase price for the acquisition of a Snapple
distributor and the assets of a Stewart's distributors and to pay related fees
and expenses); provided that all or a portion of the excess proceeds of term
loan borrowings may also be dividended to Triarc Parent within thirty-five days
after the Closing Date; (ii) any amount contributed by Triarc Parent to fund the
purchase price for the acquisition of a Snapple distributor and the assets of a
Stewart's distributor, if such purchase occurred prior to the Closing Date; and
(iii) all cash and cash equivalents of the Company and its Subsidiaries (other
than RC/Arby's and its Subsidiaries) as of the Closing Date, determined on a
consolidated basis, to the extent such cash and cash equivalents exceed $2
million in the aggregate (and all cash and cash equivalents of RC/Arby's and its
Subsidiaries as of the Closing Date, determined on a consolidated basis, to be
paid on the date of the redemption of RC/Arby's existing notes).
"Code" means the Internal Revenue Code of 1986, as amended.
"Common Stock" means, with respect to any Person, any and all shares of
such Person's Capital Stock (excluding Preferred Stock of such Person),
including, without limitation, all series and classes of such common stock.
"Company" means Triarc Consumer Products Group, LLC, a Delaware limited
liability company, and any successor in interest thereto.
"Consolidated Coverage Ratio" as of any date of determination means the
ratio of (i) the aggregate amount of EBITDA for the period of the most recent
four consecutive fiscal quarters ending prior to the date of such determination
for which reports have been filed or provided to the Trustee pursuant to Section
4.04 to (ii) Consolidated Interest Expense for such four fiscal quarters;
provided, however, that
(A) if the Company or any Restricted Subsidiary has incurred any
Indebtedness since the beginning of such period that remains outstanding
or if the transaction giving rise to the need to calculate the
Consolidated Coverage Ratio is an Incurrence of Indebtedness, or both,
EBITDA and Consolidated Interest Expense for such period shall be
calculated after giving effect on a pro forma basis to such Indebtedness
as if such Indebtedness had been Incurred on the first day of such
period and the discharge of any other Indebtedness repaid, repurchased,
defeased or otherwise discharged with the proceeds of such new
Indebtedness as if such discharge had occurred on the first day of such
period,
(B) if the Company or any Restricted Subsidiary has repaid,
repurchased, defeased or otherwise discharged any Indebtedness since the
beginning of such period or if any Indebtedness is to be repaid,
repurchased, defeased or otherwise discharged (in each case other than
Indebtedness Incurred under any revolving credit facility unless such
Indebtedness has been permanently repaid and has not been replaced) on
the date of the transaction giving rise to the need to calculate the
Consolidated Coverage Ratio, EBITDA and Consolidated Interest Expense
for such period shall be calculated on a pro forma basis as if such
discharge had occurred on the first day of such period,
(C) if since the beginning of such period the Company or any
Restricted Subsidiary shall have made any Business Disposition, the
EBITDA for such period shall be reduced by an amount equal to the EBITDA
(if positive) directly attributable to the assets which are the subject
of such Business Disposition for such period, or increased by an amount
equal to the EBITDA (if negative), directly attributable thereto for
such period and Consolidated Interest Expense for such period shall be
reduced by an amount equal to the Consolidated Interest Expense directly
attributable to any Indebtedness of the Company or any Restricted
Subsidiary repaid, repurchased, defeased or otherwise discharged with
respect to the Company and its continuing Restricted Subsidiaries in
connection with such Business Disposition for such period (or, if the
Capital Stock of any Restricted Subsidiary is sold, the Consolidated
Interest Expense for such period directly attributable to the
Indebtedness of such Restricted Subsidiary to the extent the Company and
its continuing Restricted Subsidiaries are no longer liable for such
Indebtedness after such sale),
(D) if since the beginning of such period the Company or any
Restricted Subsidiary (by merger or otherwise) shall have made a
Business Acquisition, EBITDA and Consolidated Interest Expense for such
period shall be calculated after giving pro forma effect thereto
(including (x) pro forma effect to the Incurrence of any Indebtedness
and (y) pro forma effect to cost savings resulting from such Business
Acquisition (regardless of whether such cost savings could then be
reflected in pro forma financial statements under GAAP, Regulation S-X
promulgated by the SEC or any other regulation or policy of the SEC)
that the Company reasonably determines are probable based upon
specifically identified actions that it has determined to take (net of
any reduction in EBITDA as a result of such cost savings that the
Company reasonably determines are probable); provided that the Company's
chief financial officer shall have certified in an Officer's Certificate
delivered to the Trustee the specific actions to be taken, the cost
savings to be achieved from each such action, that such savings have
reasonably been determined to be probable, and the amount, if any, of
any reduction in EBITDA as a result thereof reasonably determined to be
probable, and such certificate shall be accompanied by a Board
Resolution specifically approving such cost savings and authorizing such
certification to be delivered to the Trustee (such cost savings, as
certified to the Trustee, the "Net Cost Savings") as if such Business
Acquisition occurred on the first day of such period,
(E) if since the beginning of such period any Person (that
subsequently became a Restricted Subsidiary or was merged with or into
the Company or any Restricted Subsidiary since the beginning of such
period) shall have made any Business Acquisition or Business Disposition
that would have required an adjustment pursuant to clause (C) or (D)
above if made by the Company or a Restricted Subsidiary during such
period, EBITDA and Consolidated Interest Expense for such period shall
be calculated after giving pro forma effect thereto (including any Net
Cost Savings in connection with any such Business Acquisition) as if
such Business Acquisition or Business Disposition occurred on the first
day of such period and
(F) if since the beginning of such period any Person was designated
as an Unrestricted Subsidiary or redesignated as a Restricted
Subsidiary, EBITDA and Consolidated Interest Expense for such period
shall be calculated after giving pro forma effect thereto as if such
designation or redesignation occurred on the first day of such period.
For purposes of this definition, to the extent that clause (C), (D) or
(E) require that pro forma effect be given to a Business Acquisition or Business
Disposition, such pro forma calculation shall be based upon the four full fiscal
quarters immediately preceding the date of determination of the Person, or
division, brand or line of business of the Person, that is acquired or disposed
for which financial information is available. If any Indebtedness bears a
floating rate of interest and is being given pro forma effect, the interest of
such Indebtedness shall be calculated as if the rate in effect on the date of
determination had been the applicable rate for the entire period (taking into
account any Interest Rate Agreement applicable to such Indebtedness if such
Interest Rate Agreement has a remaining term in excess of 12 months).
"Consolidated Interest Expense" means, for any period, the total
interest expense of the Company and its consolidated Restricted Subsidiaries,
plus, to the extent not included in such total interest expense, and to the
extent incurred by the Company or its Restricted Subsidiaries, without
duplication, (i) interest expense attributable to capital leases and the
interest expense attributable to leases constituting part of a Sale/Leaseback
Transaction, (ii) amortization of debt discount and debt issuance cost but
excluding amortization of deferred financing charges incurred in respect of the
Notes and the Credit Agreement on or prior to the Closing Date), (iii)
capitalized interest, (iv) non-cash interest expenses, (v) commissions,
discounts and other fees and charges owed with respect to letters of credit and
bankers' acceptance financing, (vi) net costs associated with Hedging
Obligations (including amortization of fees), and (vii) the product of (a)
dividends in respect of all Preferred Stock of any Restricted Subsidiary that is
not a Subsidiary Guarantor or an Issuer, and dividends in respect of all
Disqualified Stock of the Company or any Restricted Subsidiary, in each case
held by Persons other than the Company or a Wholly Owned Subsidiary (other than
dividend payments paid in Capital Stock that is not Disqualified Stock) times
(b) a fraction, the numerator of which is 1 and the denominator of which is 1
minus the then current combined federal, state and local statutory tax rate of
such Person expressed as a decimal. Consolidated Interest Expense shall also
include, without duplication, interest expense with respect to Capital Stock
issued under the Triarc Beverage 1997 Stock Option Plan as provided in the
definition of "Indebtedness."
Notwithstanding the foregoing, Consolidated Interest Expense shall
exclude any amount of such interest or dividends of any Restricted Subsidiary if
the net income of such Restricted Subsidiary is excluded in the calculation of
Consolidated Net Income pursuant to clause (iii) of the definition thereof (but
only in the same proportion as the net income of such Restricted Subsidiary is
excluded from the calculation of Consolidated Net Income pursuant to clause
(iii) of the definition thereof).
"Consolidated Leverage Ratio" as of any date of determination means the
ratio of (i) the aggregate amount of Indebtedness of the Company and its
Restricted Subsidiaries (net of (x) net cash proceeds from the initial public
offering of the Company, to the extent not otherwise used by the Company as of
such date of determination (other than to invest in cash equivalents) and (y)
cash and cash equivalents on hand as of such date in the ordinary course of
business) to (ii) EBITDA for the most recent four consecutive fiscal quarters
ending prior to the date of such determination for which reports have been filed
pursuant to Section 4.04 (the "Reference Period"); provided, however, that
(A) if the Company or any Restricted Subsidiary has incurred
or will incur any Indebtedness or will repay, defease or
discharge any Indebtedness on the date of the transaction giving
rise to the need to calculate the Consolidated Leverage Ratio,
the aggregate amount of Indebtedness as of such date of
determination shall be calculated on a pro forma basis giving
effect to such Incurrence of Indebtedness and the discharge of
any other Indebtedness repaid, repurchased, defeased or otherwise
discharged with the proceeds of such new Indebtedness or the
initial public offering of the Company as if such discharge had
occurred on the first day of such period,
(B) if since the beginning of such period the Company or any
Restricted Subsidiary shall have made any Business Disposition,
the EBITDA for such period shall be reduced by an amount equal to
the EBITDA (if positive) directly attributable to the assets
which are the subject of such Business Disposition for such
period, or increased by an amount equal to the EBITDA (if
negative), directly attributable thereto for such period,
(C) if since the beginning of such period the Company or any
Restricted Subsidiary (by merger or otherwise) shall have made a
Business Acquisition, the aggregate amount of Indebtedness shall
be calculated on a pro forma basis giving effect to any
Incurrence of Indebtedness as a result thereof and EBITDA for
such period shall be calculated after giving pro forma effect
thereto (including pro forma effect to (x) the Incurrence of any
Indebtedness and (y) Net Cost Savings) as if such Business
Acquisition occurred on the first day of such period,
(D) if since the beginning of such period any Person (that
subsequently became a Restricted Subsidiary or was merged with or
into the Company or any Restricted Subsidiary since the beginning
of such period) shall have made any Business Acquisition or
Business Disposition that would have required an adjustment
pursuant to clause (B) or (C) above if made by the Company or a
Restricted Subsidiary during such period, EBITDA for such period
shall be calculated after giving pro forma effect thereto
(including any Net Cost Savings in connection with any such
Business Acquisition) as if such Business Acquisition or Business
Disposition occurred on the first day of such period and
(E) if since the beginning of such period any Person was
designated as an Unrestricted Subsidiary or redesignated as a
Restricted Subsidiary, EBITDA for such period shall be calculated
after giving pro forma effect thereto as if such designation or
redesignation occurred on the first day of such period.
For purposes of this definition, to the extent that clause (B), (C) or
(D) require that pro forma effect be given to a Business Acquisition or Business
Disposition, such pro forma calculation shall be based upon the four full fiscal
quarters immediately preceding the date of determination of the Person, or
division, brand or line of business of the Person, that is acquired or disposed
for which financial information is available. The aggregate amount of
Indebtedness outstanding at such date of determination shall be deemed to
include the average amount of funds outstanding during such Reference Period
under any revolving credit or similar facilities of the Company or its
Restricted Subsidiaries (in lieu of the actual amount outstanding thereunder as
of the date of determination).
"Consolidated Net Income" means, for any period, the net income of the
Company and its consolidated Subsidiaries; provided, however, that there shall
not be included in such Consolidated Net Income:
(i) any net income of any person (other than the Company) if
such Person is not a Restricted Subsidiary, except that subject
to the exclusion contained in clause (iv) below, the Company's
equity in the net income of any such Person for such period shall
be included in such Consolidated Net Income up to the aggregate
amount of cash actually distributed by such Person during such
period to the Company or a Restricted Subsidiary as a dividend or
other distribution (subject, in the case of a dividend or other
distribution paid to a Restricted Subsidiary, to the limitations
contained in clause (iii) below),
(ii) any net income (or loss) of any Person acquired by the
Company or a Subsidiary in a pooling of interests transaction for
any period prior to the date of such acquisition,
(iii) the net income (but not loss) of any Restricted
Subsidiary to the extent that the declaration or payment of
dividends or similar distributions by such Restricted Subsidiary
of such net income is not permitted at such time of determination
by its charter or any agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable to
such Restricted Subsidiary (other than any restriction under the
Credit Agreement),
(iv) any gain or loss (on an after-tax basis) realized upon
the sale or other disposition of any assets of the Company, its
consolidated Subsidiaries or any other Person (including pursuant
to any sale-and-leaseback arrangement) which is not sold or
otherwise disposed of in the ordinary course of business and any
gain or loss (on an after-tax basis) realized upon the sale or
other disposition of any Capital Stock of any Person,
(v) any net after-tax extraordinary gains or losses and
(vi) the cumulative effect of a change in accounting
principles.
Notwithstanding the foregoing, for purposes of Section 4.07 only, there
shall be excluded from Consolidated Net Income any dividends, repayments of
loans or advances or other transfers of assets from Unrestricted Subsidiaries to
the Company or a Restricted Subsidiary to the extent such dividends, repayments
or transfers increase the amount of Restricted Payments permitted under Section
4.07(a)(iii)(C) or (D) thereof.
"Consolidated Total Assets" means, as of any date of determination, the
total assets of the Foreign Restricted Subsidiaries of the Company, on a
consolidated basis, included in the consolidated balance sheet of the Company
and its Restricted Subsidiaries as of the most recent date for which such a
balance sheet has been filed or delivered to the Trustee pursuant to Section
4.04 (and, in the case of any determination relating to any Incurrence of
Indebtedness, on a pro forma basis including any property or assets being
acquired in connection therewith).
"Corporate Trust Office" means the principal office of the Trustee, at
which at any particular time its corporate trust business shall be administered,
which office on the Closing Date is located at 101 Barclay Street, Floor 21
West, New York, New York 10286.
"Credit Agreement" means the Credit Agreement to be entered into on the
Closing Date by and among, the Company and/or certain of its Subsidiaries, the
financial institutions party thereto from time to time, the Administrative Agent
party thereto, DLJ Capital Funding, Inc., as Syndication Agent, and Morgan
Stanley Senior Funding, Inc., as Documentation Agent, together with the related
documents thereto (including, without limitation, the term loans, revolving
loans and swingline loans thereunder, the letters of credit issued pursuant
thereto and any guarantees and security documents), as amended, extended,
renewed, restated, supplemented or otherwise modified (in whole or in part, and
without limitation as to amount, terms, conditions, covenants and other
provisions) from time to time, and any agreement (and related document)
governing Indebtedness incurred to Refinance, in whole or in part, the
borrowings, letters of credit, commitments and other Obligations then
outstanding or permitted to be outstanding under such Credit Agreement or a
successor Credit Agreement, whether by the same or any other lender or group of
lenders.
"Currency Agreement" means in respect of a Person any foreign exchange
contract, currency swap agreement or other similar agreement designed to protect
such Person against fluctuations in currency values.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Depositary" means The Depository Trust Company, its nominees and
successors.
"Designated Senior Indebtedness" means, with respect to any Person, (i)
the Bank Indebtedness and (ii) any other Senior Indebtedness of the referent
Person which, at the date of determination, has an aggregate principal amount
outstanding of, or under which, at the date of determination, the holders
thereof are committed to lend up to, at least $25.0 million and is specifically
designated by the referent Person in the instrument evidencing or governing such
Senior Indebtedness as "Designated Senior Indebtedness" for purposes of this
Indenture.
"Disqualified Stock" means, with respect to any Person, any Capital
Stock which by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable at the option of the holder) or upon
the happening of any event (i) matures or is mandatorily redeemable pursuant to
a sinking fund obligation or otherwise, (ii) is convertible or exchangeable at
the option of the holder for Indebtedness or Disqualified Stock or (iii) is
mandatorily redeemable or must be purchased, upon the occurrence of certain
events or otherwise, in whole or in part, in each case on or prior to the Stated
Maturity of the Notes; provided, however, that any Capital Stock that would not
constitute Disqualified Stock but for provisions thereof giving holders thereof
the right to require such Person to purchase or redeem such Capital Stock upon
the occurrence of an "asset sale" or "change of control" occurring prior to the
Stated Maturity of the Notes shall not constitute Disqualified Stock if (x) the
"asset sale" or "change of control" provisions applicable to such Capital Stock
cannot become operative in any circumstance that does not trigger the provisions
of Section 4.09 or Section 4.13, as applicable and (y) any such requirement only
becomes operative after compliance with such terms applicable to the Notes,
including the purchase of any Notes tendered pursuant thereto.
"Domestic Restricted Subsidiary" means, with respect to the Company, any
Restricted Subsidiary of the Company (x) that was formed under the laws of the
United States of America or any state, district or territory thereof or the
District of Columbia or (y) 50% or more of the assets of which are located in
the United States or any territory thereof.
"EBITDA" for any period means the sum of Consolidated Net Income, plus
the following to the extent deducted in calculating such Consolidated Net
Income: (a) all income tax expense of the Company and its consolidated
Restricted Subsidiaries (other than income taxes (either positive or negative)
attributable to extraordinary gains or losses or sales of assets that are
excluded from the computation of Consolidated Net Income), (b) Consolidated
Interest Expense, (c) depreciation and amortization expense of the Company and
its consolidated Restricted Subsidiaries (excluding amortization expense
attributable to a prepaid cash item that was paid in a prior period), (d) all
other non-cash charges of the Company and its consolidated Restricted
Subsidiaries (excluding any such non-cash charge to the extent that it
represents an accrual of or reserve for cash expenditures in any future period
or amortization of a prepaid cash expense that was paid in a prior period), (e)
expenses and charges of the Company relating to the Transactions which are paid,
taken or otherwise accounted for within 180 days of the Closing Date, plus (f)
nonrecurring charges (cash or otherwise) incurred in connection with any
Business Acquisition (but not otherwise), in each case for such period.
Notwithstanding the foregoing, the provision for taxes based on the income or
profits of, and the depreciation and amortization and non-cash charges of, a
Restricted Subsidiary shall be added to Consolidated Net Income to compute
EBITDA only to the extent (and in the same proportion) that the net income of
such Restricted Subsidiary was included in calculating Consolidated Net Income
and only if a corresponding amount would be permitted at the date of
determination to be dividended to the Company by such Restricted Subsidiary
without prior approval of a third party (that has not been obtained), pursuant
to the terms of its charter and all agreements, instruments, judgments, decrees,
orders, statutes, rules and governmental regulations applicable to such
Restricted Subsidiary (other than pursuant to the Credit Agreement).
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels Office, as operator of the Euroclear System.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Notes" means the debt securities of the Issuers issued
pursuant to this Indenture in exchange for, and in an aggregate principal amount
at maturity equal to, the Initial Notes or any Initial Additional Notes, in
compliance with the terms of a Registration Rights Agreement and containing
terms substantially identical to the Initial Notes or any Initial Additional
Notes (except that (i) such Exchange Notes shall not contain terms with respect
to transfer restrictions and shall be registered under the Securities Act, and
(ii) certain provisions relating to an increase in the stated rate of interest
thereon shall be eliminated).
"Exchange Offer" means an offer by the Issuers to the Holders of the
Initial Notes to exchange Outstanding Notes for Exchange Notes, as provided for
in a Registration Rights Agreement.
"Exchange Offer Registration Statement" means the Exchange Offer
Registration Statement as defined in a Registration Rights Agreement.
"Executive Officer Purchasers" means Nelson Peltz, the Company's
chairman and chief executive officer and Peter W. May, the Company's president
and chief operating officer.
"Foreign Restricted Subsidiary" means any Restricted Subsidiary other
than a Domestic Restricted Subsidiary.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect as of the Closing Date, including those set forth
in (i) the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants, (ii) statements and
pronouncements of the Financial Accounting Standards Board, (iii) such other
statements by such other entity as approved by a significant segment of the
accounting profession and (iv) the rules and regulations of the SEC governing
the inclusion of financial statements (including pro forma financial statements)
in periodic reports required to be filed pursuant to Section 13 of the Exchange
Act, including opinions and pronouncements in staff accounting bulletins and
similar written statements from the accounting staff of the SEC.
"Guarantee" means, without duplication, any obligation, contingent or
otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of
any other Person and any obligation, direct or indirect, contingent or
otherwise, of such Person (i) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Indebtedness or other obligation of such other
Person (whether arising by virtue of partnership arrangements, or by agreements
to keep-well, to purchase assets, goods, securities or services, to take or pay
or to maintain financial statement conditions or otherwise) or (ii) entered into
for the purpose of assuring in any other manner the obligee of such Indebtedness
of the payment thereof or to protect such obligee against loss in respect
thereof (in whole or in part); provided, however, that the term "Guarantee"
shall not include endorsements for collection or deposit in the ordinary course
of business. The term "Guarantee" used as a verb has a corresponding meaning.
The term "Guarantor" shall mean any Person Guaranteeing any obligation.
"Hedging Obligations" of any Person means the net obligations of such
Person pursuant to any Interest Rate Agreement or Currency Agreement.
"Holder" or "Noteholders" means the Person in whose name a Note is
registered on the Registrar's books.
"Incur" means issue, assume, Guarantee, incur or otherwise become liable
for; provided, however, that any Indebtedness or Capital Stock of a Person
existing at the time such Person becomes a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be Incurred by such
Subsidiary at the time it becomes a Subsidiary. The term "Incurrence" when used
as a noun shall have a correlative meaning. The accretion of principal of a
non-interest bearing or other discount security shall not be deemed the
Incurrence of Indebtedness.
"Indebtedness" means, with respect to any Person on any date of
determination (without duplication):
(i) the principal in respect of (A) indebtedness of such
Person for money borrowed and (B) indebtedness evidenced by
notes, debentures, bonds or other similar instruments for the
payment of which such Person is responsible or liable, including,
in each case, any premium on such indebtedness to the extent such
premium has become due and payable,
(ii) all Capital Lease Obligations of such Person and all
Attributable Debt in respect of Sale/Leaseback Transactions
entered into by such Person,
(iii) all obligations of such Person issued or assumed as the
deferred purchase price of property, all conditional sale
obligations of such Person and all obligations of such Person
under any title retention agreement (but excluding take-or-pay
agreements and trade accounts payable arising, in each case, in
the ordinary course of business),
(iv) all obligations of such Person for the reimbursement of
any obligor on any letter of credit, banker's acceptance or
similar credit transaction (other than obligations with respect
to letters of credit securing obligations (other than obligations
described in clauses (i) through (iii) above) entered into in the
ordinary course of business of such Person to the extent such
letters of credit are not drawn upon or, if and to the extent
drawn upon, such drawing is reimbursed no later than the tenth
Business Day following payment on the letter of credit),
(v) the amount of all obligations of such Person with respect
to the redemption, repayment or other repurchase of any
Disqualified Stock or, with respect to any Subsidiary of such
Person that is not a Subsidiary Guarantor or an Issuer, the
liquidation preference with respect to, any Preferred Stock (but
excluding, in each case, any accrued dividends),
(vi) all obligations of the type referred to in clauses (i)
through (v) of other Persons and all dividends of other Persons
for the payment of which, in either case, such Person is
responsible or liable, directly or indirectly, as obligor,
guarantor or otherwise, including by means of any Guarantee,
(vii) all obligations of the type referred to in clauses (i)
through (vi) of other Persons secured by any Lien on any property
or asset of such Person (whether or not such obligation is
assumed by such Person), the amount of such obligation being
deemed to be the lesser of the value of such property or assets
or the amount of the obligation so secured and
(viii) to the extent not otherwise included in this definition,
Hedging Obligations of such Person.
Except as provided in clause (vii), the amount of indebtedness of any
Person at any date shall be the outstanding balance at such date of all
unconditional obligations as described above and the maximum liability, upon the
occurrence of the contingency giving rise to the obligation, of any contingent
obligations at such date. Notwithstanding the foregoing, Capital Stock issued or
issuable pursuant to the Triarc Beverage 1997 Stock Option Plan as such plan is
in effect on the Closing Date (and as such plan may be amended, but not to
change the financial terms thereof in any way that is materially less favorable
to the Company and its Subsidiaries or the holders of the Notes) and any stock
option plan of Arby's (provided that such plan (and any amendment thereto) is
not materially less favorable to the Company and its Subsidiaries or to the
Holders (including with respect to the percentage of shares of Arby's to be
issued thereunder) than the Triarc Beverage 1997 Stock Option Plan as such plan
is in effect on the Closing Date) shall not be considered Indebtedness (unless,
as of the date of determination, the Company is required to purchase such stock
pursuant to the put rights contained in such plan, is not prohibited by the
terms of any Indebtedness from purchasing such stock and has not purchased it)
but any interest thereon shall be included in the calculation of Consolidated
Interest Expense.
"Initial Additional Notes" means Additional Notes issued in an offering
not registered under the Securities Act.
"Initial Notes" means the Issuers' 10-1/4% Senior Subordinated Notes Due
2009, issued on the Closing Date (and any Notes issued in respect thereof
pursuant to Section 3.04, 3.05, 3.06, 3.13, 3.14 or 10.08), but not including
any Exchange Notes issued in exchange therefor.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act.
"Interest Payment Date" means, when used with respect to any Note and
any installment of interest thereon, the date specified in such Note as the
fixed date on which such installment of interest is due and payable, as set
forth in such Note.
"Interest Rate Agreement" means in respect of a Person any interest rate
swap agreement, interest rate cap agreement or other financial agreement or
arrangement designed to protect such Person against fluctuations in interest
rates.
"Investment" in any Person means any direct or indirect advance, loan
(other than advances to customers in the ordinary course of business that are
recorded as accounts receivable on the balance sheet of the lender) or other
extensions of credit (including by way of Guarantee or similar arrangement but
only when payment has been made thereunder or such arrangement would be
classified and accounted for as a liability upon a balance sheet of the Person
extending such credit prepared in accordance with GAAP) or capital contribution
to (by means of any transfer of cash or other property to others or any payment
for property or services for the account or use of others), or any purchase or
acquisition of Capital Stock, Indebtedness or other similar instruments issued
by such Person and shall include (i) the designation of a Restricted Subsidiary
as an Unrestricted Subsidiary and (ii) the fair market value of the Capital
Stock (or any other Investment) held by the Company or any of its Restricted
Subsidiaries of (or in) any Person that has ceased to be a Restricted
Subsidiary, including without limitation by reason of a transaction permitted by
Section 4.14(d). For purposes of the definition of "Unrestricted Subsidiary",
the definition of "Restricted Payment" and Section 4.07, (i) "Investment" shall
include the portion (proportionate to the Company's equity interest in such
Subsidiary) of the fair market value of the net assets of any Subsidiary of the
Company at the time that such Subsidiary is designated an Unrestricted
Subsidiary and (ii) any property transferred to or from an Unrestricted
Subsidiary shall be valued at its fair market value at the time of such
transfer, in each case as determined in good faith by the Board of Directors.
"Issuer Request," "Issuer Order" and "Issuer Consent" mean,
respectively, a written request, order or consent signed in the name of the
Issuers by an Officer of each Issuer.
"Lien" means any mortgage, pledge, security interest, encumbrance, lien
or charge of any kind (including any conditional sale or other title retention
agreement or lease in the nature thereof).
"Liquid Securities" means securities (i) of an issuer that is not an
Affiliate of the Company, (ii) that are publicly traded on the New York Stock
Exchange, the American Stock Exchange, or the NASDAQ National Market and (iii)
as to which the Company or the Restricted Subsidiary holding such securities is
not subject to any restrictions on sale or transfer (including any volume
restrictions under Rule 144 under the Securities Act or any other restrictions
imposed by the Securities Act) or as to which a registration statement under the
Securities Act covering the resale thereof is in effect for as long as the
securities are held; provided that securities meeting the requirements of
clauses (i), (ii) and (iii) above shall be treated as Liquid Securities from the
date of receipt thereof until and only until the earlier of (x) the date on
which such securities are sold or exchanged for cash or Temporary Cash
Investments and (y) 90 days following the date of receipt of such securities. If
such securities are not sold or exchanged for cash or Temporary Cash Investments
within 90 days of receipt thereof, for purposes of determining whether the
transaction pursuant to which the Company or a Restricted Subsidiary received
the securities was in compliance with Section 4.09, such securities shall be
deemed not to have been Liquid Securities at any time.
"Management Agreement" means the management services agreement(s)
between Triarc Parent and the Company and/or its Subsidiaries for the provision
of management and other services by Triarc Parent as in effect on, or entered
into on, the Closing Date, and as such agreement may be amended from time to
time to, among other things, add additional Subsidiaries as parties thereto (but
not to change the financial terms thereof in any way that is less favorable to
the Company and its Subsidiaries).
"Material Subsidiary Obligor" means (i) any Subsidiary Guarantor, Triarc
Beverage and any other Subsidiary that is an Issuer (other than, in each case,
any Subsidiary principally engaged in the Company's soft drink concentrates
business segment) which, together with its consolidated Subsidiaries, had EBITDA
for the period of the most recent four consecutive fiscal quarters of the
Company ending prior to the date of such determination for which reports have
been filed or provided to the Trustee pursuant to Section 4.04 equal to or more
than 15% of the EBITDA of the Company and its Restricted Subsidiaries (including
such Issuer or Subsidiary Guarantor) for such four fiscal quarters, in each case
calculated on a pro forma basis giving effect to any Business Disposition (other
than the disposition of such Subsidiary Guarantor), Business Acquisition,
designation of a Restricted Subsidiary as an Unrestricted Subsidiary or
redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary occurring
since the beginning of such period and on or prior to the date of such
determination.
"Moody's" means Moody's Investors Service, Inc., and its successors.
"Net Available Cash" from an Asset Disposition means cash payments
received therefrom (including any cash payments received by way of deferred
payment of principal pursuant to a note or installment receivable or otherwise
and proceeds from the sale or other disposition of any securities received as
consideration, but only as and when received, but excluding any other
consideration received in the form of assumption by the acquiring Person of
Indebtedness or other obligations relating to such properties or assets or
received in any other noncash form), in each case net of (i) all legal, title
and recording tax expenses, commissions and other fees and expenses incurred,
and all Federal, state, provincial, foreign and local taxes required to be
accrued as a liability under GAAP, as a consequence of such Asset Disposition,
(ii) all payments made on any Indebtedness which is secured by any assets
subject to such Asset Disposition, in accordance with the terms of any Lien upon
or other security agreement of any kind with respect to such assets, or which
must by its terms, or in order to obtain a necessary consent to such Asset
Disposition, or by applicable law, be repaid out of the proceeds from such Asset
Disposition, (iii) all distributions and other payments required to be made to
minority interest holders in Restricted Subsidiaries as a result of such Asset
Disposition and (iv) the deduction of appropriate amounts provided by the seller
as a reserve, in accordance with GAAP, against any liabilities associated with
the property or other assets disposed in such Asset Disposition and retained by
the Company or any Restricted Subsidiary after such Asset Disposition.
"Net Cash Proceeds," with respect to any issuance or sale of Capital
Stock and with respect to a Permitted Arby's Securitization, means the cash
proceeds of such issuance, sale or transaction, net of attorneys, fees,
accountants' fees, underwriters, or placement agents' fees, discounts or
commissions and brokerage, consultant and other fees actually incurred in
connection with such issuance, sale or transaction and net of taxes paid or
payable as a result thereof.
"Non-Recourse Debt" means Indebtedness of any Person: (i) as to which
neither the Company nor any of its Subsidiaries (a) provides credit support of
any kind (including, without limitation, any undertaking, agreement or
instrument that would constitute Indebtedness) or (b) is directly or indirectly
liable (as a guarantor or otherwise); and (ii) no default with respect to which
(including any rights that the holders thereof may have to take enforcement
action) would permit (upon notice, lapse of time or both) any holder of any
other Indebtedness of the Company or any of its Subsidiaries to declare a
default on such other Indebtedness or cause the payment thereof to be
accelerated or payable prior to its stated maturity.
"Non-U.S. Person" means a Person who is not a U.S. person, as defined
in Regulation S.
"Notes" means the Initial Notes, any Additional Notes, and the Exchange
Notes.
"Obligations" means with respect to any Indebtedness all obligations for
principal, premium, interest, penalties, fees, indemnifications, reimbursements,
and other amounts payable pursuant to the documentation governing such
Indebtedness and, in the case of the Credit Agreement, any Hedging Obligations
with respect thereto.
"Officer" means, with respect to any Issuer, any Subsidiary Guarantor or
any other obligor upon the Notes, the Chairman of the Board, the President, the
Chief Executive Officer, the Chief Financial Officer, the Secretary, the
Treasurer, any Assistant Secretary or Assistant Treasurer or any Vice President
of such Person.
"Officer's Certificate" means, with respect to any Issuer or any other
obligor upon the Notes, a certificate signed by an Officer of such Person.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to any Issuer or the Trustee.
"Original Notes" means the Initial Notes and any Exchange Notes issued
in exchange therefor.
"Outstanding" when used with respect to Notes means, as of the date of
determination, all Notes theretofore authenticated and delivered under this
Indenture, except:
(i) Notes theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Notes for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying
Agent in trust for the Holders of such Notes, provided that, if such
Notes are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor reasonably satisfactory
to the Trustee has been made; and
(iii) Notes in exchange for or in lieu of which other Notes have
been authenticated and delivered pursuant to this Indenture.
A Note does not cease to be Outstanding because the Issuers or any
Affiliate of the Issuers holds the Note, provided that in determining whether
the Holders of the requisite amount of Outstanding Notes have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, Notes
owned by the Issuers or any Affiliate of the Issuers shall be disregarded and
deemed not to be Outstanding, except that, for the purpose of determining
whether the Trustee shall be protected in relying on any such request, demand,
authorization, direction, notice, consent or waiver, only Notes which the
Trustee actually knows are so owned shall be so disregarded. Notes so owned that
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the reasonable satisfaction of the Trustee the pledgee's right to
act with respect to such Notes and that the pledgee is not an Issuer or an
Affiliate of such Issuer.
"Paying Agent" means any Person authorized by the Issuers to pay the
principal of (and premium, if any) or interest on any Notes on behalf of the
Issuers.
"Permitted Arby's Dividend" means (i) a Permitted Arby's Securitization
Residual Payment and (ii) a Permitted Arby's IPO Dividend; provided that, in
each case, immediately after giving effect to such dividend of Capital Stock,
(x) RC/Arby's and its Subsidiaries (a) have no Indebtedness other than
Non-Recourse Debt and (b) are not party to any arrangement with the Company or
any of its Subsidiaries, including without limitation any arrangement to make
payments in respect of service provided to RC/Arby's and its Subsidiaries under
the Management Agreement, the Tax Sharing Agreement or any other agreement,
unless the terms of such arrangement are on an arms-length basis, (y) neither
the Company nor any of its Subsidiaries has any direct or indirect contractual
obligations (i) with respect to any obligation of RC/Arby's and its
Subsidiaries, including without limitation, any Guarantee thereof, (ii) to
subscribe for additional Capital Stock of RC/Arby's or any of its Subsidiaries
or (iii) to maintain or preserve the financial condition of RC/Arby's or any of
its Subsidiaries or to cause any of them to achieve any specified levels of
operating results and (z) RC/Arby's and its Subsidiaries shall jointly and
severally indemnify the Company and its Subsidiaries from and against all
losses, claims, damages and liabilities, including, without limitation, any tax,
ERISA or environmental losses (collectively, "Losses") related to the actions or
operations of RC/Arby's and its Subsidiaries (other than any losses related to
the actions or operations of Royal Crown Company, Inc. and each of its
Subsidiaries, the Capital Stock of which has been conveyed to the Company or any
of its Subsidiaries), and the Company and its Subsidiaries shall jointly and
severally indemnify RC/Arby's and its Subsidiaries from and against all losses
related to the actions or operations of the Company and its Subsidiaries
(including Royal Crown Company, Inc. and each of its Subsidiaries, if the
Capital Stock of such Person has been conveyed to the Company or any of its
Subsidiaries).
"Permitted Arby's IPO Dividend" means a distribution by the Company to
Triarc Parent of all of the Capital Stock (but not assets) of RC/Arby's and any
of its Subsidiaries (so long as each such Person has no assets other than Arby's
Securitization Assets, the Net Cash Proceeds of any Permitted Arby's
Securitization, any Arby's Securitization Residual Notes, the Capital Stock of
any Arby's Securitization Entity and businesses related thereto and any other
assets (other than cash and cash equivalents that do not constitute Net Cash
Proceeds of a Permitted Arby's Securitization) used in connection with any
restaurant franchising business, and not used in connection with the beverage
business, of the Company and its Restricted Subsidiaries); provided that, as a
condition to such distribution:
(i) no Default shall have occurred and be continuing;
(ii) the Company shall have consummated an underwritten primary
public offering of its Common Stock substantially concurrently with, but
no later than, the date of such distribution; and
(iii) immediately after giving effect to such transaction
(including the distribution of RC/Arby's Capital Stock, the public
offering described in clause (ii) and the use of proceeds therefrom),
the Company would (A) be able to Incur an additional $1.00 of
Indebtedness pursuant to Section 4.06(a) and (b) have a Consolidated
Leverage Ratio no greater than 5.0 to 1.
"Permitted Arby's Securitization" means the sale, transfer and
assignment by Arby's and/or one or more of its Subsidiaries to one or more
Arby's Securitization Entities of Arby's Securitization Assets to occur within
nine months of the Closing Date, the issuance and sale by the Arby's
Securitization Entity of the Arby's Securitization Notes and the Arby's
Securitization Residual Note and the right and obligations of Arby's and/or one
or more of its Subsidiaries to provide certain servicing and other services with
respect to such Arby's Securitization Assets and the Arby's Securitization
Entity; provided that:
(i) the Company receives Net Cash Proceeds from such sale by Arby's
and/or one or more of the Subsidiaries of at least $300.0 million;
(ii) the aggregate consideration received in such sale is at least
equal to the aggregate fair market value of the assets sold, as
determined by the Company's board of directors in good faith;
(iii) the Company applies the Net Cash Proceeds from the first
$350.0 million of gross proceeds of such sale to repay Senior
Indebtedness of an Issuer or any Subsidiary Guarantor (and to
correspondingly reduce any commitments therefor in the case of revolving
credit indebtedness) and, if such proceeds exceed the amount of Senior
Indebtedness outstanding, to offer to purchase the Notes and any other
pari passu Indebtedness, on a pro rata basis (such offer to be on
substantially the same terms and at the same price as an offer to
purchase pursuant to Section 4.09); and
(iv) (A) neither the Company nor any Restricted Subsidiary of the
Company retains any obligation (contingent or otherwise) (x) with
respect to the assets so sold, (y) for the indebtedness or other
liabilities (contingent or otherwise) of any Arby's Securitization
Entity purchasing such assets or (z) to subscribe for additional shares
of Capital Stock or other Equity Interests or make any additional
capital contribution or similar payment or transfer to any Arby's
Securitization Entity or any other Person purchasing such assets or to
maintain or preserve the solvency or any balance sheet term, financial
condition, level of income or results of operations thereof and (B) no
property of the Company or any Restricted Subsidiary of the Company is
subject, directly or indirectly, to the satisfaction therefor (other
than any such obligations or subjecting of property of Arby's or any
Subsidiary of Arby's pursuant to customary representations, warranties
and covenants made in connection with the sale of such assets and other
than obligations to service such assets).
"Permitted Arby's Securitization Residual Payment" means, in the event
that the gross proceeds received by the Company from the Permitted Arby's
Securitization exceeds $350.0 million, a distribution by the Company to Triarc
Parent of all of the Capital Stock of RC/Arby's and any of its Subsidiaries (so
long as each such Person has no assets other than Arby's Securitization Assets,
the Net Cash Proceeds of the Permitted Arby's Securitization, any Arby's
Securitization Residual Notes, the Capital Stock of any Arby's Securitization
Entity and businesses related thereto (collectively, "Arby's Assets")); provided
that the Capital Stock of any other subsidiary of RC/Arby's (but not any assets
of such Person other than Arby's Assets) that has any obligations or
liabilities, contingent or otherwise with respect to the assets transferred
pursuant to such securitization are also distributed to Triarc Parent at such
time.
"Permitted Holders" means, collectively, Nelson Peltz, Peter W. May, DWG
Acquisition Group, L.P., and/or their respective Affiliates (including members
of their immediate families) and any trusts and estates of which any of them are
primary beneficiaries and any entities of which any of them hold a majority of
the equity securities.
"Permitted Investment" means an Investment by the Company or any
Restricted Subsidiary in (i) the Company, a Restricted Subsidiary or a Person
that will, upon the making of such Investment, become a Restricted Subsidiary;
provided, however, that the primary business of such Restricted Subsidiary is a
Related Business; (ii) another Person if as a result of such Investment such
other Person is merged or consolidated with or into, or transfers or conveys all
or substantially all its assets to, the Company or a Restricted Subsidiary;
provided, however, that such Person's primary business is a Related Business;
(iii) Temporary Cash Investments; (iv) receivables owing to the Company or any
Restricted Subsidiary if created or acquired in the ordinary course of business
and payable or dischargeable in accordance with customary trade terms; provided,
however, that such trade terms may include such concessionary trade terms as the
Company or any such Restricted Subsidiary deems reasonable under the
circumstances; (v) payroll, travel and similar advances to cover matters that
are expected at the time of such advances ultimately to be treated as expenses
for accounting purposes and that are made in the ordinary course of business;
(vi) loans or advances to employees or directors made in the ordinary course of
business consistent with past practices of the Company or such Restricted
Subsidiary; (vii) stock, obligations or securities received in settlement of
debts created in the ordinary course of business and owing to the Company or any
Restricted Subsidiary or in satisfaction of judgments; (viii) any Arby's
Securitization Residual Note and any contribution of Arby's Securitization
Assets to any Arby's Securitization Entity and (ix) any Person to the extent
such Investment represents the non-cash portion of the consideration received
for an Asset Disposition as permitted pursuant to Section 4.09.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Place of Payment" means a city or any political subdivision thereof
referred to in Article 3 and initially designated under Section 4.02.
"Predecessor Notes" of any particular Note means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 3.06 in lieu of a mutilated,
destroyed, lost or stolen Note shall be deemed to evidence the same debt as the
mutilated, destroyed, lost or stolen Note.
"Preferred Stock," as applied to the Capital Stock of any Person, means
Capital Stock of any class or classes (however designated) which is preferred as
to the payment of dividends or distributions, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
Person, over shares of Capital Stock of any other class of such Person.
"Principal" of a Note means the principal of the Note plus the premium,
if any, payable on the Note which is due or overdue or is to become due at the
relevant time.
"QIB", or "Qualified Institutional Buyer" means a "qualified
institutional buyer," as the term is defined in Rule 144A under the Securities
Act.
"Qualified Public Equity Offering" means an underwritten primary public
offering of Common Stock of the Company or Triarc Parent (to the extent the
proceeds are contributed to the Company as equity) pursuant to an effective
registration statement under the Securities Act.
"RC/Arby's" means RC/Arby's Corporation and its successors.
"Redemption Date" when used with respect to any Note to be redeemed or
purchased means the date fixed or such redemption or purchase by or pursuant to
this Indenture and the Notes.
"Redemption Price" when used with respect to any Note to be redeemed or
purchased means the price at which it is to be redeemed or purchased pursuant to
this Indenture and the Notes.
"Refinance" means, in respect of any Indebtedness, to refinance, extend,
renew, refund, repay, prepay, redeem, defease or retire, or to issue other
Indebtedness in exchange or replacement for, such indebtedness. "Refinanced" and
"Refinancing" shall have correlative meanings.
"Refinancing Indebtedness" means Indebtedness that Refinances any
Indebtedness of the Company or any Restricted Subsidiary existing on the Closing
Date or Incurred in compliance with this Indenture, including Indebtedness that
Refinances Refinancing Indebtedness; provided, however, that (i) such
Refinancing Indebtedness has a Stated Maturity no earlier than the Stated
Maturity of the Indebtedness being Refinanced, (ii) such Refinancing
Indebtedness has an Average Life at the time such Refinancing Indebtedness is
Incurred that is equal to or greater than the Average Life of the Indebtedness
being Refinanced and (iii) such Refinancing Indebtedness has an aggregate
principal amount (or if Incurred with original issue discount, an aggregate
issue price) that is equal to or less than the aggregate principal amount (or if
Incurred with original issue discount, the aggregate accreted value) then
outstanding or committed (plus fees and expenses, including any premium and
defeasance costs) under the Indebtedness being Refinanced; provided, further,
however, that Refinancing Indebtedness shall not include (x) Indebtedness of a
Subsidiary that is not a Subsidiary Guarantor or an Issuer that Refinances
Indebtedness of an Issuer or a Subsidiary Guarantor or (y) Indebtedness of the
Company or a Restricted Subsidiary that Refinances Indebtedness of an
Unrestricted Subsidiary.
"Registration Rights Agreement" means (i) the Registration Rights
Agreement dated as of February 18, 1999 among the Issuers, the Guarantors party
thereto and Morgan Stanley & Co. Incorporated, Donaldson, Lufkin & Jenrette
Securities Corporation and Wasserstein Perella Securities, Inc., as Placement
Agents, as such agreement may be amended from time to time, and (ii) with
respect to any Additional Notes, one or more registration rights agreements
between the Issuers and the other parties thereto, as such agreement(s) may be
amended from time to time, relating to rights given by the Issuers to the
purchasers of Additional Notes to register or exchange such Additional Notes
under the Securities Act.
"Registration Statement" means the Registration Statement as defined in
the Registration Rights Agreement.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the date specified for that purpose in Section 3.01.
"Regulation S" means Regulation S under the Securities Act.
"Related Business" means the business of the Company and its Restricted
Subsidiaries on the Closing Date and any business related, ancillary or
complementary to the businesses of the Company and its Restricted Subsidiaries
on the Closing Date.
"Representative" means any trustee, agent or representative (if any) for
an issue of Senior Indebtedness of an Issuer or any Subsidiary Guarantor;
provided that, with respect to the Credit Agreement as in effect on the Closing
Date, "Representative" shall, for purposes of delivering a Blockage Notice,
refer only to the "Administrative Agent" (as defined in the Credit Agreement)
unless otherwise agreed in writing by all of the Banks party to the Credit
Agreement.
"Resale Restriction Termination Date" means, with respect to any Note,
the date that is two years (or such other period as may hereafter be provided
under Rule 144(k) under the Securities Act or any successor provision thereto as
permitting the resale by non-affiliates of Restricted Securities without
restriction) after the later of the original issue date in respect of such Note
and the last date on which the Company or any Affiliate of the Company was the
owner of such Note (or any Predecessor Note thereto).
"Responsible Officer" when used with respect to the Trustee means any
officer in the corporate trust department of the Trustee, and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his or her knowledge of and familiarity with the
particular subject.
"Restricted Payment" with respect to any Person means (i) the
declaration or payment of any dividends or any other distributions of any sort
in respect of its Capital Stock (including any payment in connection with any
merger or consolidation involving such Person) or similar payment to the direct
or indirect holders of its Capital Stock in their capacity as such (other than
dividends or distributions payable solely in its Capital Stock (other than
Disqualified Stock) and dividends or distributions payable solely to the Company
or a Restricted Subsidiary), (ii) the purchase, redemption or other acquisition
or retirement for value of any Capital Stock of an Issuer, any Affiliate of the
Company or any Subsidiary Guarantor held by any Person (other than the Company
or a Wholly Owned Subsidiary) or of any Capital Stock of a Restricted Subsidiary
that is not a Subsidiary Guarantor or an Issuer held by any Affiliate of the
Company (other than a Restricted Subsidiary), including the exercise of any
option to exchange any Capital Stock (other than into Capital Stock of the
Company that is not Disqualified Stock), (iii) the purchase, repurchase,
redemption, defeasance or other acquisition or retirement for value, prior to
scheduled maturity, scheduled repayment or scheduled sinking fund payment of any
Subordinated Obligations (other than the purchase, repurchase or other
acquisition of Subordinated Obligations purchased in anticipation of satisfying
a sinking fund obligation, principal installment or final maturity, in each case
due within one year of the date of acquisition) or (iv) the making of any
Investment in any Person (other than a Permitted Investment).
"Restricted Period" means the 40-day distribution compliance period as
defined in Regulation S which, in the case of the Initial Notes, ends April 7,
1999.
"Restricted Security" has the meaning assigned to such term in Rule
144(a)(3) under the Securities Act; provided, however, that the Trustee shall be
entitled to receive, at its request, and conclusively rely on an Opinion of
Counsel with respect to whether any Note constitutes a Restricted Security.
"Restricted Subsidiary" means any Subsidiary of the Company that is not
an Unrestricted Subsidiary.
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc., and its successors.
"Sale/Leaseback Transaction" means an arrangement relating to property
now owned or hereafter acquired whereby the Company or a Restricted Subsidiary
transfers such property to a Person and the Company or a Restricted Subsidiary
leases it from such Person (other than pursuant to an operating lease).
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Indebtedness" means, with respect to any Person on any date of
determination, (i) the Bank Indebtedness, (ii) all other Indebtedness of such
Person, whether outstanding on the Closing Date or thereafter Incurred, and
(iii) accrued and unpaid interest (including interest accruing on or after, or
which would accrue but for, the filing of any petition in bankruptcy or for
reorganization, whether or not allowed thereby in respect of (A) indebtedness of
such Person for money borrowed and (B) indebtedness evidenced by notes,
debentures, bonds or other similar instruments for the payment of which such
Person is responsible or liable) unless, in each case, in the instrument
creating or evidencing the same or pursuant to which the same is outstanding, it
is provided that such obligations are pari passu or subordinate in right of
payment to the Notes; provided, however, that Senior Indebtedness shall not
include (1) any obligation of an Issuer or Subsidiary Guarantor to any Affiliate
of the Company, (2) any liability for Federal, state, local or other taxes owed
or owing by such Person, (3) any accounts payable or other liability to trade
creditors arising in the ordinary course of business (including guarantees
thereof or instruments evidencing such liabilities), (4) any Indebtedness of
such Person (and any accrued and unpaid interest in respect thereof) which is
subordinate or junior in any respect to any other Indebtedness or other
obligation of such Person or (5) that portion of any Indebtedness which at the
time of Incurrence is Incurred in violation of this Indenture; provided that
Bank Indebtedness shall be deemed not to have been Incurred in violation of this
Indenture if the Company shall (or shall be deemed to) have represented that the
Incurrence thereof does not violate this Indenture.
"Senior Subordinated Indebtedness" means the Notes, the Exchange Notes
and the Subsidiary Guarantees and any other Indebtedness of the Issuers or the
Subsidiary Guarantors that specifically provides that such Indebtedness is to
rank pari passu with the Notes or the Subsidiary Guarantees, as applicable, in
right of payment and is not subordinated by its terms in right of payment to any
Indebtedness or other obligation of the Issuers or the Subsidiary Guarantors, as
applicable, which is not Senior Indebtedness.
"Shelf Registration Statement" means the Shelf Registration Statement as
defined in a Registration Rights Agreement.
"Significant Subsidiary" means any Subsidiary that would be a
"Significant Subsidiary" of the Company within the meaning of Rule 1-02 under
Regulation S-X promulgated by the SEC.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed date on which the final payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the
happening of any contingency unless such contingency has occurred).
"Subordinated Obligation" means any Indebtedness of an Issuer or a
Subsidiary Guarantor (whether outstanding on the Closing Date or thereafter
Incurred) which is subordinate or junior in right of payment to the Notes
pursuant to a written agreement to that effect.
"Subsidiary" means, with respect to any Person, any corporation,
association, partnership, limited liability company, business or other business
entity of which more than 50% of the total voting power of shares of Capital
Stock or other interests (including partnership interests) entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by such Person, (ii) such Person and one or more
Subsidiaries of such Person or (iii) one or more Subsidiaries of such Person.
"Subsidiary Guarantor" means (i) each Domestic Restricted Subsidiary of
the Company (other than Triarc Beverage) in existence on the Closing Date (other
than RC/Arby's and each Domestic Restricted Subsidiary of RC/Arby's), (ii) from
and after the redemption of the existing RC/Arby's notes, RC/Arby's and each
Domestic Restricted Subsidiary of RC/Arby's in existence on such redemption date
and (iii) each Domestic Restricted Subsidiary that executes a supplemental
indenture, in the form of Exhibit B hereto, providing for the Guarantee of the
payment of the Notes, in each case until such time as such Subsidiary is
released from its Subsidiary Guarantee as permitted by this Indenture.
"Subsidiary Guaranty" means a Guaranty by a Subsidiary Guarantor of the
Issuers' obligations with respect to the Notes.
"Tax Sharing Agreement" means (i) the tax sharing agreement among the
Company, certain of its Subsidiaries and Triarc Parent as in effect on the
Closing Date and as such agreement may be amended from time to time to, among
other things, add additional Subsidiaries as parties thereto (but not to change
the financial terms thereof in any way that is less favorable to the Company and
its Subsidiaries) and (ii) any other tax sharing agreement between Triarc
Parent, the Company and/or any other Subsidiaries of the Company containing
terms no less favorable to the Company and its Subsidiaries than the tax sharing
agreement referred to in clause (i).
"Temporary Cash Investments" means any of the following;
(i) any investment in direct obligations of the United States of
America or any agency thereof or obligations guaranteed by the United
States of America or any agency thereof,
(ii) investments in demand deposit accounts, time deposit accounts,
certificates of deposit and money market deposits maturing within 365
days of the date of acquisition thereof issued by a commercial banking
institution that is a lender under the Credit Agreement or a member of
the Federal Reserve System and has a combined capital and surplus and
undivided profits aggregating in excess of $500,000,000 (or the foreign
currency equivalent thereof) or any money-market fund sponsored by a
registered broker dealer or mutual fund distributor,
(iii) repurchase obligations with a term of not more than 30 days
for underlying securities of the types described in clause (i), (ii) or
(iv) entered into with a bank meeting the qualifications described in
clause (ii) above,
(iv) investments in commercial paper, maturing not more than nine
months after the date of acquisition, issued by a corporation (other
than an Affiliate of the Company) organized and in existence under the
laws of the United States of America or any foreign country recognized
by the United States of America with a rating at the time as of which
any investment therein is made of "P-l" (or higher) according to Moody's
or "A-1" (or higher) according to S&P, and
(v) investments in securities with maturities of one year or less
from the date of acquisition issued or fully guaranteed by any state,
commonwealth or territory of the United States of America, or by any
political subdivision or taxing authority thereof, and rated at least
"AA" by S&P or "Aa" by Moody's.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. sections 77aaa-
77bbbb) as in effect on the date of this Indenture.
"Transactions" means the issuance and sale of the Notes and the closing
of the Credit Agreement and the borrowings thereunder for the purpose of (i)
repaying Triarc Beverage's existing credit agreement, (ii) redeeming RC/Arby's
existing notes, (iii) paying the Closing Dividend and (iv) purchasing certain
premium beverage distributors on or about the Closing Date.
"Triarc Beverage" means Triarc Beverage Holdings Corp. and any Person
who is the successor to Triarc Beverage Holdings Corp.
"Triarc Beverage 1997 Stock Option Plan" means the 1997 Stock Option
Plan of Triarc Beverage.
"Triarc Parent" means Triarc Companies, Inc. and its successors.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this Indenture until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
such successor Trustee.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Company that
at the time of determination shall be designated an Unrestricted Subsidiary by
the Board of Directors in the manner provided below and (ii) any Subsidiary of
an Unrestricted Subsidiary. The Board of Directors may designate any Subsidiary
of the Company (including any newly acquired or newly formed Subsidiary) to be
an Unrestricted Subsidiary (other than Triarc Beverage) unless such Subsidiary
or any of its Subsidiaries owns any Capital Stock or Indebtedness of, or holds
any Lien on any property of, the Company or any other Subsidiary of the Company
that is not a Subsidiary of the Subsidiary to be so designated; provided that
(A) any Guarantee by the Company or any Restricted Subsidiary of any
Indebtedness of the Subsidiary being so designated shall be deemed an
"Incurrence" of such Indebtedness and, if such Guarantee is called upon or would
be required to be classified and accounted for as a liability upon a balance
sheet of the Company or any Restricted Subsidiary prepared in accordance with
GAAP, an "Investment" by the Company or such Restricted Subsidiary (or both, if
applicable) at the time of such designation, (B) either (i) the Subsidiary to be
so designated has total assets of $1,000 or less or (ii) if such Subsidiary has
assets greater than $1,000, such designation would be permitted under Section
4.07 and (C) if applicable, the Incurrence of Indebtedness and the Investment
referred to in clause (A) of this proviso would be permitted under Sections 4.06
and 4.07. The Board of Directors may designate any Unrestricted Subsidiary to be
a Restricted Subsidiary; provided, however, that immediately after giving effect
to such designation (x) the Company could Incur $1.00 of additional Indebtedness
under 4.06(a) and (y) no Default shall have occurred and be continuing. Any such
designation by the Board of Directors shall be evidenced to the Trustee by
promptly filing with the Trustee a copy of the resolution of the Board of
Directors giving effect to such designation and an Officer's Certificate
certifying that such designation complied with the foregoing provisions.
"U.S. Government Obligations" means direct obligations (or certificates
representing an ownership interest in such obligations) of the United States of
America (including any agency or instrumentality thereof) for the payment of
which the full faith and credit of the United States of America is pledged and
which are not callable at the issuer's option.
"Voting Stock" of a Person means all classes of Capital Stock or other
interests (including partnership or membership interests) of such Person then
outstanding and normally entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof.
"Wholly Owned Subsidiary" means a Restricted Subsidiary all the Capital
Stock of which (other than directors' qualifying shares and other than Capital
Stock issued to employees, directors, managers and consultants of such
Subsidiary pursuant to plans approved by the Board of Directors of the Company
or such Subsidiary) is owned by the Company or one or more Wholly Owned
Subsidiaries.
SECTION 1.02. Other Definitions.
DEFINED
TERM IN SECTION
Acceleration Notice 6.02
Act 1.08
Affiliate Transaction 4.10
Agent Members 3.13
Authentication Order 3.03
Blockage Notice 14.03
Change of Control Offer 4.13
Change of Control Payment 4.13
Change of Control Payment Date 4.13
Covenant Defeasance 12.03
Defaulted Interest 3.07
DTC 2.03
Event of Default 6.01
Excess Proceeds 4.09
Excess Proceeds Offer 4.09
Excess Proceeds Payment 4.09
Executive Officer Legend 2.03
Executive Officer Notes 3.14
Expiration Date 1.08
Global Notes 2.01
Guaranteed Amount 13.01
Guaranteed Indebtedness 4.12
Legal Defeasance 12.02
Offshore Global Note 2.01
Offshore Note Exchange Date 2.01
Offshore Physical Note 2.01
Pay the Notes 14.03
Payment Blockage Period 14.03
Permanent Offshore Global Note 2.01
Permitted Indebtedness 4.06
Physical Notes 2.01
Place of Payment 3.01
Plan Participants 4.07
Private Placement Legend 2.03
Redemption Amount 10.01
Redemption date 13.01
Regular Record Date 3.01
Related Party Transaction 4.10
Secured Indebtedness 4.11
Successor Company 5.01
Temporary Offshore Global Note 2.01
U.S. Global Note 2.01
U.S. Physical Notes 2.01
SECTION 1.03. Rules of Construction. For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Indenture have the meanings assigned to
them in this Indenture;
(b) "or" is not exclusive;
(c) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with GAAP and, unless expressly provided
otherwise, all determinations and computations made pursuant to any provision
hereof shall be made in accordance with GAAP;
(d) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision;
(e) all references to "$" or "dollars" shall refer to the lawful currency
of the United States of America;
(f) the words "include," "included" and "including" as used herein shall
be deemed in each case to be followed by the phrase "without limitation," if not
expressly followed by such phrase or the phrase "but not limited to";
(g) words in the singular include the plural, and words in the plural
include the singular; and
(h) any reference to a Section or Article refers to such Section or
Article of this Indenture unless otherwise indicated.
SECTION 1.04. Incorporation by Reference of TIA. Whenever this Indenture
refers to a provision of the TIA, the provision is incorporated by reference in
and made a part of this Indenture. This Indenture is subject to the mandatory
provisions of the TIA, which are incorporated by reference in and made a part of
this Indenture. Any terms incorporated by reference in this Indenture that are
defined by the TIA, defined by any TIA reference to another statute or defined
by SEC rule under the TIA, have the meanings so assigned to them therein. The
following TIA terms have the following meanings:
"Indenture Securities" means the Notes.
"Indenture Security Holder" means a Holder or Noteholders.
"Indenture to be Qualified" means this Indenture.
"Indenture Trustee" or "Institutional Trustee" means the Trustee.
"Obligor" on the indenture securities means the Issuers, any Subsidiary
Guarantor and any other obligor on the indenture securities.
SECTION 1.05. Conflict with TIA. If any provision hereof limits,
qualifies or conflicts with a provision of the TIA that is required under the
TIA to be a part of and govern this Indenture, the latter provision shall
control. If any provision of this Indenture modifies or excludes any provision
of the TIA that may be so modified or excluded, the latter provision shall be
deemed (a) to apply to this Indenture as so modified or (b) to be excluded, as
the case may be.
SECTION 1.06. Compliance Certificates and Opinions. Upon any application
or request by the Issuers or by any other obligor upon the Notes to the Trustee
to take any action under any provision of this Indenture, the Issuers or such
other obligor upon the Notes, as the case may be, shall furnish to the Trustee
such certificates and opinions as may be required under the TIA. Each such
certificate or opinion shall be given in the form of one or more Officer's
Certificates, if to be given by an Officer, or an Opinion of Counsel, if to be
given by counsel, and shall comply with the requirements of the TIA and any
other requirements set forth in this Indenture. Notwithstanding the foregoing,
in the case of any such request or application as to which the furnishing of any
Officer's Certificate or Opinion of Counsel is specifically required by any
provision of this Indenture relating to such particular request or application,
no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (except for certificates provided for
in Section 4.05) shall include:
(a) a statement that the individual signing such certificate or opinion
has read such covenant or condition and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such individual, he or she made
such examination or investigation as is necessary to enable him or her to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether, in the opinion of such individual, such
condition or covenant has been complied with.
SECTION 1.07. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an Officer may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such Officer knows that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or opinion of counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an Officer or Officers to the effect that the
information with respect to such factual matters is in the possession of the
Issuers, unless such counsel knows that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.08. Acts of Noteholders; Record Dates. (a) Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such Holders in person or by agent duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee, and, where it is
hereby expressly required, to the Issuers. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Indenture and (subject to Section 7.01)
conclusive in favor of the Trustee, the Issuers and any other obligor upon the
Notes, if made in the manner provided in this Section 1.08.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by an officer of a corporation or a member of a partnership or
other entity, on behalf of such corporation or partnership or other entity, such
certificate or affidavit shall also constitute sufficient proof of such Person's
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the person executing the same, may also be proved in any
other manner that the Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Note shall bind the Holder of every
Note issued upon the transfer thereof or in exchange therefor or in lieu
thereof, in respect of anything done or suffered to be done by the Trustee, the
Issuers or any other obligor upon the Notes in reliance thereon, whether or not
notation of such action is made upon such Note.
(e) (i) The Issuers may set any day as a record date for the purpose of
determining the Holders of Outstanding Notes entitled to give, make or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given, made or taken by
Holders, provided that the Issuers may not set a record date for, and the
provisions of this paragraph shall not apply with respect to, the giving or
making of any notice, declaration, request or direction referred to in Section
1.08(e)(ii). If any record date is set pursuant to this paragraph, the Holders
of Outstanding Notes on such record date (or their duly designated proxies), and
no other Holders, shall be entitled to take the relevant action, whether or not
such Persons remain Holders after such record date; provided that no such action
shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Notes on such record date. Nothing in this paragraph shall be construed to
prevent the Issuers from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person
be canceled and of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the requisite principal
amount of Outstanding Notes on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Issuers, at their own
expense, shall cause notice of such record date, the proposed action by Holders
and the applicable Expiration Date to be given to the Trustee in writing and to
each Holder in the manner set forth in Section 1.10.
(ii) The Trustee may set any day as a record date for the purpose
of determining the Holders of Outstanding Notes entitled to join in the giving
or making of (w) any Notice of Default, (x) any declaration of acceleration
referred to in Section 6.02, (y) any request to institute proceedings referred
to in Section 6.06(b) or (z) any direction referred to in Section 6.05, in each
case with respect to Notes. If any record date is set pursuant to this
paragraph, the Holders of Outstanding Notes on such record date, and no other
Holders, shall be entitled to join in such notice, declaration, request or
direction, whether or not such Holders remain Holders after such record date;
provided that no such action shall be effective hereunder unless taken on or
prior to the applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Notes on such record date. Nothing in this paragraph shall
be construed to prevent the Trustee from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be canceled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Notes on the date such action
is taken. Promptly after any record date is set pursuant to this paragraph, the
Trustee, at the expense of the Issuers, shall cause notice of such record date,
the proposed action by Holders and the applicable Expiration Date to be given to
the Issuers in writing and to each Holder in the manner set forth in Section
1.10.
(iii) With respect to any record date set pursuant to this Section
1.08, the party hereto that sets such record dates may designate any day as the
"Expiration Date" and from time to time may change the Expiration Date to any
earlier or later day; provided that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the Issuers or the
Trustee, whichever such party is not setting a record date pursuant to this
Section 1.08(e) in writing, and to each Holder in the manner set forth in
Section 1.10, on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section,
the party hereto that set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
(iv) Without limiting the foregoing, a Holder entitled hereunder to
take any action hereunder with regard to any particular Note may do so with
regard to all or any part of the principal amount of such Note or by one or more
duly appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
SECTION 1.09. Notices, Etc., to Trustee and Issuers. Any request,
demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
(a) the Trustee by any Holder or by the Issuers or any other obligor upon
the Notes shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at the Corporate Trust
Office (telephone: (212) 815-5092; facsimile: (212) 815-5915), or at any other
address furnished in writing to the Issuers by the Trustee, or
(b) the Issuers by the Trustee or by any Holder shall be sufficient for
every purpose hereunder if in writing and delivered in person or mailed,
first-class postage prepaid, to the Issuers at c/o Triarc Companies, Inc., 280
Park Avenue, 41st Floor, New York, New York 10017, Attention: General Counsel
(facsimile: (212) 451-3216), with copies to Paul, Weiss, Rifkind, Wharton &
Garrison at 1285 Avenue of the Americas, New York, New York 10019, Attention:
Paul Ginsberg, Esq. (facsimile: (212) 757-3990), or at any other address
previously furnished in writing to the Trustee by the Issuers.
SECTION 1.10. Notices to Holders; Waivers. Where this Indenture provides
for notice to Holders of any event, such notice shall be deemed to have been
given upon the mailing by first class mail, postage prepaid, of such notices to
Holders at their registered addresses as recorded in the Register, not later
than the latest date, and not earlier than the earliest date, prescribed herein
for the giving of such notice. In any case where notice to Holders is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case, by reason of the suspension of regular mail service, or by
reason of any other cause, it shall be impossible to mail notice of any event as
required by any provision of this Indenture, then such notification as shall be
made with the approval of the Trustee (such approval not to be unreasonably
withheld) shall constitute a sufficient notification for every purpose
hereunder.
SECTION 1.11. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 1.12. Successors and Assigns. All covenants and agreements in
this Indenture by the Issuers shall bind their respective successors and
assigns, whether so expressed or not.
SECTION 1.13. Separability Clause. In case any provision in this
Indenture or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 1.14. Benefits of Indenture. Nothing in this Indenture or in the
Notes, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, any Paying Agent and the Holders, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 1.15. Governing Law. THIS INDENTURE, THE NOTES AND THE
SUBSIDIARY GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY PRINCIPLES OF
CONFLICT OF LAWS TO THE EXTENT THAT THE APPLICATION OF THE LAW OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY. THE TRUSTEE, THE ISSUERS, THE SUBSIDIARY
GUARANTORS, ANY OTHER OBLIGORS IN RESPECT OF THE NOTES AND (BY THEIR ACCEPTANCE
OF THE NOTES) THE HOLDERS, AGREE TO SUBMIT TO THE JURISDICTION OF ANY UNITED
STATES FEDERAL OR STATE COURT LOCATED IN THE BOROUGH OF MANHATTAN, IN THE CITY
OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
INDENTURE OR THE NOTES.
SECTION 1.16. Legal Holidays. In any case where any Interest Payment
Date, Redemption Date or Stated Maturity of any Note shall not be a Business
Day, then (notwithstanding any other provision of this Indenture or of the
Notes) payment of interest or principal and premium (if any) need not be made on
such date, but may be made on the next succeeding Business Day with the same
force and effect as if made on the Interest Payment Date or Redemption Date, or
at the Stated Maturity.
SECTION 1.17. No Personal Liability of Directors, Officers, Employees,
Incorporators and Stockholders. No director, manager, officer, employee,
incorporator, member or stockholder of any Issuer or Subsidiary Guarantor, as
such, shall have any liability for any obligations of such Issuer or Subsidiary
Guarantor under the Notes, Subsidiary Guarantees or the Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder of Notes by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for issuance of
the Notes.
SECTION 1.18. Exhibits and Schedules. All exhibits and schedules
attached hereto are by this reference made a part hereof with the same effect as
if herein set forth in full.
SECTION 1.19. Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such counter-
parts shall together constitute but one and the same instrument.
ARTICLE 2
NOTE FORMS
SECTION 2.01. Forms Generally. The Notes and the Trustee's certificate
of authentication relating thereto shall be in substantially the forms set
forth, or referenced, in Exhibit A annexed hereto and in this Article 2. The
Notes may have such appropriate insertions, omissions, substitutions, notations,
legends, endorsements, identifications and other variations as are required or
permitted by law, stock exchange rule or depository rule or usage, agreements to
which the Issuers are subject, if any, or other customary usage, or as may
consistently herewith be determined by the Officers or members of the Issuers
executing such Notes, as evidenced by such execution (provided always that any
such notation, legend, endorsement, identification or variation is in a form
acceptable to the Issuers). Each Note shall be dated the date of its
authentication.
Initial Notes and any Additional Notes offered and sold in reliance on
Rule 144A under the Securities Act shall be issued initially in the form of a
single permanent global Note in substantially the form set forth in Exhibit A
and shall contain the legends set forth in Section 2.03(a) and (b) (the "U.S.
Global Note"), registered in the name of the nominee of the Depositary,
deposited with the Trustee, as custodian for the Depositary or its nominee, duly
executed by the Issuers and authenticated by the Trustee as hereinafter
provided. The aggregate principal amount of the U.S. Global Note may from time
to time be increased or decreased by adjustments made on the records of the
Trustee, as custodian for the Depositary or its nominee, as provided in Sections
3.13 and 3.14.
Initial Notes and any Additional Notes offered and sold in offshore
transactions in reliance on Regulation S under the Securities Act shall be
issued initially in the form of a single temporary global Note in substantially
the form set forth in Exhibit A and containing each of the legends set forth in
Section 2.03 (the "Temporary Offshore Global Note"), registered in the name of
the nominee of the Depositary, deposited with the Trustee, as custodian for the
Depositary or its nominee, duly executed by the Issuers and authenticated by the
Trustee as hereinafter provided. At any time following termination of the
Restricted Period (the "Offshore Note Exchange Date"), upon receipt by the
Trustee and the Issuers of a certificate substantially in the form set forth in
Exhibit C hereto, a single permanent global Note substantially in the form of
Exhibit A hereto (the "Permanent Offshore Global Note," and together with the
Temporary Offshore Global Note, the "Offshore Global Note") duly executed by the
Issuers and authenticated by the Trustee as hereinafter provided shall be
deposited with the Trustee, as custodian for the Depositary, and the Registrar
shall reflect on its books and records the date and a decrease in the principal
amount of the Temporary Offshore Global Note in an amount equal to the principal
amount of the beneficial interest in the Temporary Offshore Global Note
transferred. Prior to the Offshore Note Exchange Date and receipt of the
certificate referred to above, beneficial interests in a Temporary Offshore
Global Note may be held only through Euroclear or Cedel. The aggregate principal
amount of the Offshore Global Note may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as custodian for
the nominee of the Depositary for the Offshore Global Note, for the accounts of
Euroclear and Cedel Bank, as provided in Sections 3.13 and 3.14.
Initial Notes and any Additional Notes initially offered and sold to an
Executive Officer Purchaser in reliance on Section 4(2) of the Securities Act
shall be issued in the form of permanent certificated Notes in substantially the
form set forth in Exhibit A containing the Private Placement Legend as set forth
in Section 2.03 and the Executive Officer Legend as set forth in Section 2.03
(the "Executive Officer Notes").
Initial Notes and any Additional Notes issued pursuant to Section 3.05
in exchange for or upon transfer of beneficial interests in the U.S. Global Note
or the Offshore Global Note shall be in the form of permanent certificated Notes
in substantially the form set forth in Exhibit A containing the Private
Placement Legend as set forth in Section 2.03 (the "U.S. Physical Notes"), or in
the form of permanent certificated Notes substantially in the form set forth in
Exhibit A (the "Offshore Physical Notes"), respectively, as hereinafter
provided.
The Executive Officer Notes, the Offshore Physical Notes and the U.S.
Physical Notes, together with any other certificated notes in registered form,
are sometimes collectively herein referred to as the "Physical Notes." The U.S.
Global Note and the Offshore Global Note are sometimes collectively referred to
as the "Global Notes."
Initial Notes and Additional Notes offered and sold in reliance on any
exemption under the Securities Act other than Regulation S and Rule 144A
thereunder shall be issued, and, upon the request of the Issuers to the Trustee,
Notes offered and sold in reliance on Rule 144A may be issued, in the form of
permanent certificated Notes substantially in the form set forth in Exhibit A
and shall contain the Private Placement Legend as set forth in Section 2.03. No
Offshore Physical Notes may be issued until expiration of the applicable
Restricted Period and receipt by the Issuers and the Trustee from the proposed
transferor of a certificate substantially in the form set forth in Exhibit D.
Exchange Notes shall be issued substantially in the form set forth in
Exhibit A and, subject to Section 3.13, shall be in the form of one or more
Global Notes.
SECTION 2.02. Form of Trustee' Certificate of Authentication. The
Trustee's certificate of authentication shall be in substantially the following
form:
This is one of the Notes referred to in the within-mentioned Indenture.
The Bank of New York,
as Trustee
Dated: __________ By: __________________________
Authorized Signatory
If an appointment of an Authenticating Agent is made pursuant to Section
7.15, the Notes may have endorsed thereon, in lieu of the Trustee's certificate
of authentication, an alternative certificate of authentication in the following
form:
This is one of the Notes referred to in the within-mentioned Indenture.
The Bank of New York,
As Trustee
By _____________________________
As Authenticating Agent
By _____________________________
Authorized Signatory
Dated:
SECTION 2.03. Restrictive Legends. (a) Unless and until (i) an Initial
Note or any Additional Note is sold pursuant to an effective registration
statement, whether pursuant to the Registration Rights Agreement or otherwise or
(ii) an Initial Note or any Additional Note is exchanged for an Exchange Note in
an Exchange Offer pursuant to an effective Exchange Offer Registration Statement
pursuant to the Registration Rights Agreement, (A) each U.S. Global Note and
U.S. Physical Note and each Executive Officer Note shall bear the following
legend set forth below (the "Private Placement Legend") on the face thereof and
(B) the Temporary Offshore Global Note shall bear the Private Placement Legend
on the face thereof until the Offshore Note Exchange Date and receipt by the
Issuers and the Trustee of a certificate substantially in the form provided in
Exhibit C with respect to the entire principal amount of such Temporary Offshore
Global Note:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE U.S. OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS
SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT), (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR"
(AS DEFINED IN RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR"), [For Executive Officer
Notes Add - OR IS AN ACCREDITED INVESTOR (AS DEFINED IN RULE 501(A)(4) UNDER THE
SECURITIES ACT) THAT IS AN EXECUTIVE OFFICER PURCHASER PURCHASING THIS NOTE ON
THE DATE OF ITS INITIAL ISSUANCE OR SUCH OTHER PERSON TO WHOM AN EXECUTIVE
OFFICER PURCHASER TRANSFERRED THIS NOTE IN ACCORDANCE WITH SECTION 3.14 (g) AND
(k) OF THE INDENTURE] OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE
IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES
ACT, (2) AGREES THAT IT WILL NOT [For all Notes other than Executive Officer
Notes Add - , WITHIN THE TIME PERIOD REFERRED TO IN RULE 144(k) UNDER THE
SECURITIES ACT AS IN EFFECT ON THE DATE OF THE TRANSFER OF THIS NOTE,] RESELL OR
OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE ISSUERS OR ANY SUBSIDIARY
THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A
UNDER THE SECURITIES ACT, (C) INSIDE THE U.S. TO AN INSTITUTIONAL ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS
ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE
TRUSTEE), AND IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF
NOTES OF LESS THAN $100,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE ISSUERS
THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (D) OUTSIDE THE
U.S. IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH [For Executive Officer Notes
Add - RULE 903 OR] RULE 904 UNDER THE SECURITIES ACT, (E) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE), OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT [For Executive Officer Notes Add - OR (G) PURSUANT TO ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN
ACCORDANCE WITH SECTION 3.14(g) AND (k) OF THE INDENTURE] AND (3) AGREES THAT IT
WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF
THIS NOTE WITHIN THE TIME PERIOD REFERRED TO ABOVE, THE HOLDER MUST CHECK THE
APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH
TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE. IF THE PROPOSED TRANSFEREE
IS AN INSTITUTIONAL ACCREDITED INVESTOR OR A NON-U.S. PERSON THAT, IN EITHER
CASE, IS NOT A QUALIFIED INSTITUTIONAL BUYER, THE HOLDER MUST, PRIOR TO SUCH
TRANSFER, FURNISH TO THE TRUSTEE AND THE ISSUERS SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "U.S." AND "U.S. PER-
SON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER
ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS
(b) Each Global Note, whether or not an Initial Note or Additional Note,
shall also bear the following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUERS OR
THEIR AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTIONS 3.13 AND 3.14 OF THE INDENTURE.
(c) Each Temporary Offshore Global Note shall bear the following legend
on the face thereof:
THIS NOTE IS A TEMPORARY GLOBAL NOTE. PRIOR TO THE EXPIRATION OF THE
RESTRICTED PERIOD APPLICABLE HERETO, BENEFICIAL INTERESTS HEREIN MAY NOT BE HELD
BY ANY PERSON OTHER THAN (1) A NON-U.S. PERSON OR (2) A U.S. PERSON WHO
PURCHASED SUCH INTEREST IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") PURSUANT TO RULE 144A
THEREUNDER. BENEFICIAL INTERESTS HEREIN ARE NOT EXCHANGEABLE FOR PHYSICAL NOTES
OTHER THAN A PERMANENT GLOBAL NOTE IN ACCORDANCE WITH THE TERMS OF THE
INDENTURE. TERMS IN THIS LEGEND ARE USED AS USED IN REGULATION S UNDER THE
SECURITIES ACT.
(d) Each Executive Officer Note that bears a Private Placement Legend
shall also bear the following legend (the "Executive Officer Legend") thereon:
THIS NOTE WAS INITIALLY ISSUED TO AN AFFILIATE OF THE ISSUERS. FOR
PURPOSES OF RULE 144(d) UNDER THE SECURITIES ACT OF 1933, AS AMENDED, THE
HOLDING PERIOD FOR THIS NOTE WILL NOT BEGIN UNTIL IT IS RESOLD BY SUCH AFFILIATE
TO A PERSON THAT IS NOT AN AFFILIATE OF THE ISSUERS. PRIOR TO ANY SALE OF THIS
NOTE OR AN INTEREST HEREIN PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR
ANY EXCHANGE OF THIS NOTE OR AN INTEREST HEREIN IN CONNECTION WITH A REGISTERED
EXCHANGE OFFER, THIS NOTE MAY NOT BE TRANSFERRED FOR AN INTEREST IN A GLOBAL
NOTE BUT CAN ONLY BE TRANSFERRED OR EXCHANGED FOR A PHYSICAL NOTE BEARING THIS
LEGEND IN ACCORDANCE WITH THE TERMS OF THE INDENTURE. THIS NOTE MAY NOT BE
TRANSFERRED UNLESS, PRIOR TO THE PROPOSED TRANSFER, THE TRANSFEROR OR TRANSFEREE
FURNISH TO THE ISSUERS AND THE TRUSTEE AN OPINION OF COUNSEL SATISFACTORY TO THE
ISSUERS AND THE TRUSTEE AND SUCH OTHER CERTIFICATIONS OR INFORMATION AS THE
ISSUERS MAY REQUIRE. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO
REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING
RESTRICTIONS.
ARTICLE 3
THE NOTES
SECTION 3.01. Title and Terms. The aggregate principal amount of Notes
that may be authenticated and delivered and Outstanding under this Indenture is
initially limited to $300,000,000, but may be increased, without limit, subject
to compliance with the covenants contained in Article 4 below and except as may
be limited by applicable law. The Initial Notes will be issued in an aggregate
principal amount of $300,000,000. All the Original Notes shall vote and consent
together on all matters as one class, and none of the Original Notes will have
the right to vote or consent as a class separate from one another on any matter.
Subject to the covenants contained in Article 4 below, the Issuers may issue
Additional Notes hereunder. Additional Notes (including any Exchange Notes
issued in exchange therefor) shall vote (or consent) as a class with the other
Notes and otherwise be treated as Notes for all purposes of this Indenture.
The Notes shall be known and designated as the "10-1/4% Senior
Subordinated Notes Due 2009" of the Issuers. The final Stated Maturity of the
Notes shall be February 15, 2009. Interest on the Outstanding principal amount
of Notes will accrue, subject to Section 3.11, at the rate of 10-1/4% per annum
and will be payable semiannually in arrears on February 15 and August 15 in each
year, commencing on August 15, 1999, to holders of record at the close of
business on the immediately preceding February 1 and August 1, respectively
(each such February 1 and August 1, a "Regular Record Date"). Interest on the
Original Notes will accrue from the most recent date to which interest has been
paid or duly provided for or, if no interest has been paid, from February 25,
1999, and interest on any Additional Notes (and Exchange Notes issued in
exchange therefor) will accrue from the most recent date to which interest has
been paid or duly provided for or, if no interest has been paid on such
Additional Notes, from the date of issuance of such Additional Notes; provided
that if any Note is surrendered for exchange on or after a record date for an
Interest Payment Date that will occur on or after the date of such exchange,
interest on the Note received in exchange thereof will accrue from the date of
such Interest Payment Date. The Issuers will pay interest on overdue principal
at a rate of 1% per annum in excess of the interest rate referred to above and
will pay interest on overdue installments of interest at such higher rate to the
extent permitted by law.
The principal of, and premium, if any, and interest, on the Notes shall
be payable at the Corporate Trust Office or at the office or agency of the
Issuers maintained for that purpose in the Borough of Manhattan, The City of New
York (each, a "Place of Payment") in the manner provided in Section 4.01(b);
provided, however, that, under the circumstances set forth in Section 4.01(b),
payment of interest on a Note may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the Register.
SECTION 3.02. Denominations. The Notes shall be issuable only in
registered form without coupons and only in denominations of $1,000 and any
integral multiple thereof.
SECTION 3.03. Execution, Authentication and Delivery and Dating. The
Notes shall be executed on behalf of each Issuer by an Officer of such Issuer.
The signature of such Officers on the Notes may be manual or facsimile.
Notes bearing the manual or facsimile signature of an individual who was
at any time a proper Officer of an Issuer shall bind such Issuer,
notwithstanding that such individual has ceased to hold such office prior to the
authentication and delivery of such Notes or did not hold such office at the
date of such Notes.
At any time and from time to time after the execution and delivery of
this Indenture, the Issuers may deliver Notes executed by the Issuers to the
Trustee for authentication; and the Trustee shall authenticate and deliver (i)
Initial Notes for original issue in the aggregate principal amount not to exceed
$300,000,000 and (ii) Additional Notes from time to time for original issue in
aggregate principal amounts specified by the Issuers and (iii) Exchange Notes
from time to time for issue in exchange for a like principal amount of Initial
Notes or Initial Additional Notes, in each case specified in clauses (i) through
(iii) above, upon a written order of the Issuers in the form of an Officer's
Certificate of each Issuer (an "Authentication Order"). Such Officer's
Certificates shall specify the amount of Notes to be authenticated and the date
on which the Notes are to be authenticated, whether the Notes are to be Initial
Notes, Additional Notes or Exchange Notes, that the issuance of such Notes (in
the case of Additional Notes) does not contravene any provision of Article 4 of
this Indenture, whether the Notes are to be issued as one or more Global Notes
or Physical Notes and such other information as the Issuers may include or the
Trustee may reasonably request.
All Notes shall be dated the date of their authentication.
No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any Note
shall be conclusive evidence, and the only evidence, that such Note has been
duly authenticated and delivered hereunder.
SECTION 3.04. Temporary Notes. Until definitive Notes are ready for
delivery, the Issuers may prepare and upon receipt of an Authentication Order
the Trustee shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form of definitive Notes but may have variations that the
Issuers consider appropriate for temporary Notes. If temporary Notes are issued,
the Issuers will cause definitive Notes to be prepared without unreasonable
delay. After the preparation of definitive Notes, the temporary Notes shall be
exchangeable for definitive Notes upon surrender of the temporary Notes at the
office or agency of the Issuers in a Place of Payment, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Notes, the
Issuers shall execute and upon receipt of an Authentication Order the Trustee
shall authenticate and deliver in exchange therefor a like principal amount of
definitive Notes of authorized denominations. Until so exchanged the temporary
Notes shall in all respects be entitled to the same benefits under this
Indenture as definitive Notes of the same series and tenor.
SECTION 3.05. Registration, Registration of Transfer and Exchange. The
Issuers shall cause to be kept at the Corporate Trust Office of the Trustee a
register (the register maintained in such office and in any other office or
agency of the Issuers in a Place of Payment being herein sometimes collectively
referred to as the "Register") in which, subject to such reasonable regulations
as it may prescribe, the Issuers shall provide for the registration of Notes and
of transfers of Notes. The Trustee is hereby appointed "Registrar" for the
purpose of registering Notes and transfers of Notes as herein provided.
Upon surrender for transfer of any Note at the office or agency of the
Issuers in a Place of Payment, in compliance with all applicable requirements of
this Indenture and applicable law, the Issuers shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Notes, of any authorized denominations and of a
like aggregate principal amount.
At the option of the Holder, Notes may be exchanged for other Notes, of
any authorized denominations and of a like tenor and aggregate principal amount,
upon surrender of the Notes to be exchanged at such office or agency. Whenever
any Notes are so surrendered for exchange, the Issuers shall execute, and the
Trustee shall authenticate and deliver, the Notes that the Holder making the
exchange is entitled to receive; provided that no exchange of Initial Notes or
Initial Additional Notes for Exchange Notes shall occur until an Exchange Offer
Registration Statement shall have been declared effective by the SEC and the
Trustee shall have received an Officer's Certificate confirming that the
Exchange Offer Registration Statement has been declared effective by the SEC and
an exchange offer thereunder has been consummated. The Initial Notes or
Additional Notes to be exchanged for the Exchange Notes shall be canceled by the
Trustee.
All Notes issued upon any registration of transfer or exchange of Notes
shall be the valid obligations of the Issuers, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or
exchange shall (if so required by the Issuers or the Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer, in form
satisfactory to the Issuers and the Registrar duly executed, by the Holder
thereof or such Holder's attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange or redemption of Notes, but the Issuers may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Notes under this
Section 3.05.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Notes. If (a) any
mutilated Note is surrendered to the Trustee, or the Issuers and the Trustee
receive evidence to their satisfaction of the destruction, loss or theft of any
Note, and (b) there is delivered to the Issuers and the Trustee such security or
indemnity as may be required by them to save each of them harmless, then, in the
absence of notice to the Issuers or the Trustee that such Note has been acquired
by a bona fide purchaser, the Issuers shall execute and upon receipt of an
Authentication Order the Trustee shall authenticate and deliver, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Note, a new Note of
like tenor and principal amount, bearing a number not contemporaneously
Outstanding.
In case any such mutilated, destroyed, lost or stolen Note has become or
is about to become due and payable, the Issuers in their discretion may, instead
of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section 3.06, the Issuers
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Note issued pursuant to this Section 3.06 in lieu of any
mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Issuers, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and ratably with
any and all other Notes duly issued hereunder.
The provisions of this Section 3.06 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 3.07. Payment of Interest Rights Preserved. Interest on any Note
that is payable, and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that Note (or one or more
Predecessor Notes) is registered at the close of business on the Regular Record
Date for such interest specified in Section 3.01.
Any interest on any Note that is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the registered Holder on the
relevant Regular Record Date by virtue of having been such Holder; and such
Defaulted Interest shall be paid by the Issuers, as provided in 3.07(a) or
3.07(b) below:
(a) The Issuers may elect to make payment of any Defaulted Interest to
the Persons in whose names the Notes (or their respective Predecessor Notes) are
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner. The
Issuers shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Note and the date of the proposed payment, and at
the same time the Issuers shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements reasonably satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as provided in this Section 3.07(a). Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 nor less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify the
Issuers of such Special Record Date and, in the name and at the expense of the
Issuers, shall cause notice of the proposed payment of such Defaulted Interest,
the amount thereof and the Special Record Date and payment date therefor to be
mailed, first class postage prepaid, to each Holder at such Holder's address as
it appears in the Register, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted Interest shall be
paid to the Persons in whose names the Notes (or their respective Predecessor
Notes) are registered on such Special Record Date and shall no longer be payable
pursuant to the following 3.07(b).
(b) The Issuers may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Notes may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Issuers to the Trustee of the
proposed payment pursuant to this clause (b), such payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section 3.07, each Note
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Note shall carry the rights to interest (including
any Additional Amount) accrued and unpaid, and to accrue, that were carried by
such other Note.
SECTION 3.08. Persons Deemed Owners. Prior to due presentment of a Note
for registration of transfer, the Issuers, the Trustee and any agent of the
Issuers or the Trustee may treat the Person in whose name such Note is
registered as the owner of such Note for the purpose of receiving payment of
principal of (and premium, if any, on) and (subject to Section 3.07) interest on
such Note and for all other purposes whatsoever, whether or not such Note be
overdue, and none of the Issuers, the Subsidiary Guarantors, the Trustee or any
agent of the Issuers, the Subsidiary Guarantors or the Trustee shall be
affected by notice to the contrary.
SECTION 3.09. Cancellation. All Notes surrendered for payment,
redemption, registration of transfer or exchange shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee and, if not already
canceled, shall be promptly canceled by it. The Issuers may at any time deliver
to the Trustee for cancellation any Notes previously authenticated and delivered
hereunder that the Issuers may have acquired in any manner whatsoever, and all
Notes so delivered shall be promptly canceled by the Trustee. No Notes shall be
authenticated in lieu of or in exchange for any Notes canceled as provided in
this Section 3.09, except as expressly permitted by this Indenture. All canceled
Notes held by the Trustee shall be disposed of as directed by an Issuer Order.
SECTION 3.10. Computation of Interest. Interest on the Notes shall be
computed on the basis of a 360-day year of twelve 30-day months.
SECTION 3.11. Payment of Additional Amounts. (a) Under certain
circumstances the Issuers will be obligated to pay certain Additional Amounts of
interest to the Holders of certain Initial Notes, as more particularly set forth
in such Initial Notes.
(b) Under certain circumstances the Company may be obligated to pay
certain Additional Amounts of interest to the Holders of certain Initial
Additional Notes, as may be more particularly set forth in such Initial
Additional Notes.
SECTION 3.12. CUSIP Numbers. The Issuers in issuing the Notes may use
"CUSIP" or "CINS" numbers (if then generally in use) in addition to serial
numbers, and, if so, the Trustee shall use such "CUSIP" or "CINS" numbers in
addition to serial numbers in notices of redemption, repurchase or other notices
to Holders as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness of such CUSIP or CINS
numbers either as printed on the Notes or as contained in any notice of a
redemption or repurchase and that reliance may be placed only on the serial or
other identification numbers printed on the Notes, and any such redemption or
repurchase shall not be affected by any defect in or omission of such numbers.
The Issuers will promptly notify the Trustee of any change in the CUSIP or CINS
numbers.
SECTION 3.13. Book-entry Provisions for Global Notes.
(a) Each Global Note initially shall (i) be registered in the name of the
Depositary for such Global Notes or the nominee of such Depositary, (ii) be
delivered to the Trustee as custodian for such Depositary and (iii) to the
extent relevant thereto, bear legends as set forth in Section 2.03. None of the
Issuers or the Subsidiary Guarantors, nor any of their agents shall have any
responsibility or liability for any aspect of the records relating to, or
payments made on account of beneficial ownership interests of, a Global Note, or
for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Note, and the
Depositary may be treated by the Issuers, the Subsidiary Guarantors, the Trustee
and any agent of the Issuers, the Subsidiary Guarantors or the Trustee as the
absolute owner of such Global Note for all purposes whatsoever. Notwithstanding
the foregoing, nothing herein shall prevent the Issuers, the Subsidiary
Guarantors, the Trustee or any agent of the Issuers, the Subsidiary Guarantors
or the Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary
and its Agent Members, the operation of customary practices governing the
exercise of the rights of a beneficial owner of any Note. The registered holder
of a Global Note may grant proxies and otherwise authorize any person, including
Agent Members and persons that may hold interests through Agent Members, to take
any action which a Holder is entitled to take under this Indenture or the Notes.
(b) Interests of beneficial owners in a Global Note may be transferred in
accordance with the applicable rules and procedures of the Depositary and the
provisions of Section 3.14. Transfers of a Global Note shall be limited to
transfers of such Global Note in whole, but not in part, to the Depositary, its
successors or their respective nominees, except (i) as otherwise set forth in
Section 3.14 and (ii) U.S. Physical Notes or, subject to Section 3.14(e),
Offshore Physical Notes shall be transferred to all beneficial owners in
exchange for their beneficial interests in the U.S. Global Note or the Offshore
Global Note, respectively, in the event that (A) the Depositary notifies the
Issuers that it is unwilling or unable to continue as Depositary for the
applicable Global Note or the Depositary ceases to be a "Clearing Agency"
registered under the Exchange Act and a successor depositary is not appointed by
the Issuers within 90 days, (B) an Event of Default has occurred and is
continuing and the Registrar has received a request from the Depositary or (C)
the Issuers, at their option, notify the Trustee in writing that they elect to
cause the issuance of Physical Notes under this Indenture. In connection with
any transfer or exchange of a portion of the beneficial interest in any Global
Note to beneficial owners for Physical Notes pursuant to paragraph (b) of this
Section 3.13, the Registrar shall record on its books and records (and make a
notation on the Global Note of) the date and a decrease in the principal amount
of such Global Note in an amount equal to the beneficial interest in the Global
Note being transferred, and the Issuers shall execute, and the Trustee shall
authenticate and deliver, one or more Physical Notes of like tenor and principal
amount of authorized denominations. In connection with a transfer of an entire
Global Note to beneficial owners pursuant to clause (ii) of this paragraph (b),
the applicable Global Note shall be deemed to be surrendered to the Trustee for
cancellation, and the Issuers shall execute, and the Trustee shall authenticate
and deliver, to each beneficial owner identified by the Depositary in exchange
for its beneficial interest in the applicable Global Note, an equal aggregate
principal amount at maturity of U.S. Physical Notes (in the case of the U.S.
Global Note) or Offshore Physical Notes (in the case of the Offshore Global
Note), as the case may be, of authorized denominations.
(c) Any beneficial interest in one of the Global Notes that is
transferred to a person who takes delivery in the form of an interest in the
other Global Note will, upon transfer, cease to be an interest in such Global
Note and become an interest in the other Global Note and, accordingly, will
thereafter be subject to all transfer restrictions, if any, and other procedures
applicable to beneficial interests in such other Global Note for as long as it
remains such an interest.
(d) The Issuers, the Subsidiary Guarantors, any other obligor upon the
Notes or the Trustee, in the discretion of any of them, may treat as the Act of
a Holder any instrument or writing of any Person that is identified by the
Depositary as the owner of a beneficial interest in the Global Note, provided
that the fact and date of the execution of such instrument or writing is proved
in accordance with Section 1.08(b).
(e) Any U.S. Physical Note delivered in exchange for an interest in the
U.S. Global Note pursuant to paragraph (b) of this Section shall, except as
otherwise provided in Section 3.14, bear the Private Placement Legend.
SECTION 3.14. Transfer Provisions. Unless and until (i) an Initial Note
or any Initial Additional Note is sold pursuant to an effective registration
statement, whether pursuant to the Registration Rights Agreement or otherwise,
or (ii) an Initial Note or any Initial Additional Note is exchanged for an
Exchange Note in the Exchange Offer pursuant to an effective Registration
Statement pursuant to the Registration Rights Agreement, the following
provisions shall apply:
(a) General. The provisions of this Section 3.14 shall apply to all
transfers involving any Physical Note and any beneficial interest in any Global
Note.
(b) Transfers to Non-QIB Institutional Accredited Investors. With respect
to the registration of any proposed transfer of a Note that is a Restricted
Security to any Institutional Accredited Investor which is not a QIB, the
Registrar shall register such transfer if it complies with all other applicable
requirements of this Indenture (including Section 3.05 and Section 3.14(g)) and,
(i) if (x) such transfer is after the relevant Resale Restriction
Termination Date with respect to such Note, or (y) the proposed
transferee has delivered to the Registrar a Certificate substantially in
the form of Exhibit E, and, if such transfer is in respect of an
aggregate principal amount of Notes of less than $100,000, the Trustee
and the Issuers have received an opinion of counsel, certifications and
other information satisfactory to the Issuers and the Trustee, and
(ii) if the proposed transferor is or is acting through an Agent
Member holding a beneficial interest in a Global Note, upon receipt by
the Registrar of (x) the certificate, opinion, certifications and other
information, if any, required by clause (i) above and (y) written
instructions given in accordance with the Depositary's and the
Registrar's procedures;
the Registrar shall reflect on its books and records (and make a notation on the
relevant Global Note of) the date and, if the transfer does not involve a
transfer of any Outstanding Physical Note, a decrease in the principal amount of
the relevant Global Note in an amount equal to the principal amount of the
beneficial interest in the relevant Global Note to be transferred, and the
Company shall execute and the Trustee shall authenticate and deliver one or more
Physical Notes of like tenor and amount.
(c) Transfers to QIBs. With respect to the registration of any proposed
transfer of a Note that is a Restricted Security to a QIB (excluding transfers
to Non-U.S. Persons), the Registrar shall register such transfer if it complies
with all other applicable requirements of this Indenture (including Section 3.05
and 3.14(g)) and,
(i) if such transfer is being made by a proposed transferor who has
checked the box provided for on the form of such Note stating, or has
otherwise certified to the Issuers and the Registrar in writing, that
the sale has been made in compliance with the provisions of Rule 144A to
a transferee who has signed the certification provided for on the form
of such Note stating, or has otherwise certified to the Issuers and the
Registrar in writing, that it is purchasing such Note for its own
account or an account with respect to which it exercises sole investment
discretion and that it and any such account is a QIB within the meaning
of Rule 144A, and is aware that the sale to it is being made in reliance
on Rule 144A and acknowledges that it has received such information
regarding the Issuers as it has requested pursuant to Rule 144A or has
determined not to request such information and that it is aware that the
transferor is relying upon its foregoing representations in order to
claim the exemption from registration provided by Rule 144A; and
(ii) if the proposed transferee is or is acting through an Agent
Member, and the Note to be transferred consists of (A) a Physical Note
that after transfer is to be evidenced by an interest in a Global Note
or (B) a beneficial interest in a Global Note that after the transfer is
to be evidenced by an interest in a different Global Note, upon receipt
by the Registrar of written instructions given in accordance with the
Depositary's and the Registrar's procedures,
the Registrar shall reflect on its books and records (and make a notation on the
relevant Global Note of) the date and an increase in the principal amount of the
transferee Global Note in an amount equal to the principal amount of the
Physical Note or such beneficial interest in such transferor Global Note to be
transferred, and the Trustee shall cancel the Physical Note so transferred or
reflect on its books and records (and make a notation on the relevant Global
Note of) the date and a decrease in the principal amount of such transferor
Global Note, as the case may be.
(d) Transfers of Interests in the Temporary Offshore Global Notes. With
respect to registration of any proposed transfer of interests in any Temporary
Offshore Global Note:
(i) the Registrar shall register the transfer of any interest in
such Note only (x) if the proposed transferee is a Non-U.S. Person and
the proposed transferor has delivered to the Registrar a certificate
substantially in the form of Exhibit D hereto and will take delivery in
the form of an interest in the Temporary Offshore Global Note or (y) if
the proposed transferee is a QIB and the proposed transferor has checked
the box provided for on the form of Note stating, or has otherwise
certified to the Issuers and the Registrar in writing, that the sale has
been made in compliance with provisions of Rule 144A to a transferee who
has signed the certification provided for on the form of Note stating,
or has otherwise advised the Issuers and the Registrar in writing, that
it is purchasing the Note for its own account or an account with respect
to which it exercises sole investment discretion and that it and any
such account is a QIB within the meaning of Rule 144A, and is aware that
the sale to it is being made in reliance on Rule 144A and acknowledges
that it has received such information regarding the Issuers as it has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon its
foregoing representations in order to claim the exemption from
registration provided by Rule 144A; and
(ii) if the proposed transferee is or is acting through an Agent
Member and is a QIB (and not a non-U.S. person), upon receipt by the
Registrar of the documents referred to in clause (i)(y) above and
written instructions given in accordance with the Depositary's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and an increase in the principal amount of the U.S.
Global Note, in an amount equal to the principal amount of the Temporary
Offshore Global Note to be transferred, and the Registrar shall reflect
on its books and records the date and a decrease in the principal amount
of the Temporary Offshore Global Note.
(e) Transfers to Non-U.S. Persons. The following provisions shall apply
with respect to any transfer of a Note to a Non-U.S. Person (except for any
transfer referred to in Section 3.14(d)):
(i) prior to the end of the Restricted Period, the Registrar shall
register any proposed transfer of a Note to a Non-U.S. Person upon
receipt of a certificate substantially in the form of Exhibit D hereto
from the proposed transferor.
(ii) after the end of the Restricted Period, the Registrar shall
register any proposed transfer to any Non-U.S. Person if the Note to be
transferred is a U.S. Certificated Note or an interest in the U.S.
Global Note, upon receipt of a certificate substantially in the form of
Exhibit D from the proposed transferor.
(iii) (A) if the proposed transferor is or is acting through an
Agent Member holding a beneficial interest in a U.S. Global Note, upon
receipt by the Registrar of (x) the documents, if any, required by
paragraph (i) or (ii) and (y) written instructions in accordance with
the Depositary's and the Registrar's procedures, the Registrar shall
reflect on its books and records the date and a decrease in the
principal amount of the U.S. Global Note in an amount equal to the
principal amount of the beneficial interest in the U.S. Global Note to
be transferred, and (B) if the proposed transferee is or is acting
through an Agent Member, upon receipt by the Registrar of written
instructions given in accordance with the Depositary's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and an increase in the principal amount of the Offshore
Global Note in an amount equal to the principal amount of the U.S.
Certificated Note or the U.S. Global Note, as the case may be, to be
transferred, and the Trustee shall cancel the Certificated Notes, if
any, so transferred or decrease the amount of the U.S. Global Note, as
the case may be;
provided that, in each case, if the Note being transferred is an Executive
Officer Note, the transferor and transferee comply with the provisions of
Section 3.14(g).
(f) Interests in the Offshore Global Note prior to the Offshore Note
Exchange Date. Notwithstanding anything to the contrary contained in this
Indenture, until the Offshore Note Exchange Date occurs and appropriate
certification substantially in the form of Exhibit C is made as provided in
Section 2.01, beneficial interests in the Offshore Global Note may be held only
in or through accounts maintained at the Depositary by Euroclear or Cedel, and
no person shall be entitled to effect any transfer or exchange that would result
in any such interest being held otherwise than in or through such an account,
and no Physical Notes may be issued in exchange therefor.
(g) Executive Officer Notes. Notwithstanding anything to the contrary
contained in this Indenture, until an Executive Officer Note is sold pursuant to
an effective registration statement or is exchanged for Exchange Notes in the
Exchange Offer pursuant to an effective registration statement (it being
understood that no Executive Officer Purchaser or other affiliate of the Issuers
may participate in an Exchange Offer), no Executive Officer Note or interest in
an Executive Officer Note may be transferred or exchanged for an interest in a
Global Note, but may only be transferred or exchanged for another Physical Note
bearing the Executive Officer Legend and the Private Placement Legend; provided
that if a portion of such Executive Officer Note is sold or exchanged pursuant
to an effective registration statement, such portion may be transferred for an
interest in a Global Note, and the remaining portion of such Note shall remain
in the form of a Physical Note. The Registrar shall effect and register, upon
receipt of a written request from the Issuers to do so, a transfer of such Note
only if such transfer was made in accordance with the provisions of the Private
Placement Legend and the Executive Officer Legend and upon the furnishing by the
proposed transferor and/or transferee of a written opinion of counsel (which
opinion and counsel are satisfactory to the Issuers and the Trustee) to the
effect that, and such other certifications or information as the Issuers may
require to confirm that, the proposed transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act.
(h) Limitation on Issuance of Physical Notes. No Physical Note shall be
exchanged for a beneficial interest in any Global Note, except in accordance
with Section 3.13 and this Section 3.14.
(i) Execution, Authentication and Delivery of Physical Notes. In any case
in which the Registrar is required to deliver a Physical Note to a transferee or
transferor, the Issuers shall execute, and the Trustee shall authenticate and
make available for delivery, such Physical Note.
(j) Private Placement Legend. Upon the transfer, exchange or replacement
of Notes not bearing the Private Placement Legend, the Registrar shall deliver
Notes that do not bear the Private Placement Legend. Upon the transfer, exchange
or replacement of Notes bearing the Private Placement Legend, the Registrar
shall deliver only Notes that bear the Private Placement Legend, unless (i) the
requested transfer is after the relevant Resale Restriction Termination Date
with respect to such Notes, (ii) upon written request of the Issuers after there
is delivered to the Registrar an opinion of counsel (which opinion and counsel
are satisfactory to the Issuers and the Trustee) to the effect that neither such
legend nor the related restrictions on transfer are required in order to
maintain compliance with the provisions of the Securities Act, or (iii) with
respect to an Offshore Global Note, with the agreement of the Issuers on or
after the Offshore Note Exchange Date with respect to such Note, or (iv) such
Notes are sold or exchanged pursuant to an effective registration statement
under the Securities Act.
(k) Other Transfers. The Registrar shall effect and register, upon
receipt of a written request from the Issuers to do so, a transfer not otherwise
permitted by this Section 3.14, such registration to be done in accordance with
the otherwise applicable provisions of this Section 3.14, upon the furnishing by
the proposed transferor or transferee of a written opinion of counsel (which
opinion and counsel are satisfactory to the Issuers and the Trustee) to the
effect that, and such other certifications or information as the Issuers may
require to confirm that, the proposed transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act.
A Note that is a Restricted Security may not be transferred other than
as provided in this Section 3.14. A beneficial interest in a Global Note that is
a Restricted Security may not be exchanged for a beneficial interest in another
Global Note other than through a transfer in compliance with this Section 3.14.
(l) General. By its acceptance of any Note bearing the Private Placement
Legend and/or the Executive Officer Legend, as applicable, each Holder of such a
Note acknowledges the restrictions on transfer of such Note set forth in this
Indenture and in the Private Placement Legend and/or the Executive Officer
Legend, as applicable, and agrees that it will transfer such Note only as
provided in this Indenture.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 3.13 or this Section 3.14
(including all Notes received for transfer pursuant to this Section 3.14). The
Issuers shall have the right to require the Registrar to deliver to the Issuers,
at the Issuers' expense, copies of all such letters, notices or other written
communications at any reasonable time upon the giving of reasonable written
notice to the Registrar.
In connection with any transfer of any Note, the Trustee, the Registrar,
the Issuers and the Subsidiary Guarantors shall be entitled to receive, shall be
under no duty to inquire into, may conclusively presume the correctness of, and
shall be fully protected in relying upon the certificates, opinions and other
information referred to herein (or in the forms provided herein, attached hereto
or to the Notes, or otherwise) received from any Holder and any transferee of
any Note regarding the validity, legality and due authorization of any such
transfer, the eligibility of the transferee to receive such Note and any other
facts and circumstances related to such transfer.
(m) Certain Additional Terms Applicable to Physical Notes. Any transferee
entitled to receive a Physical Note may request that the principal amount
thereof be evidenced by one or more Physical Notes in any authorized
denomination or denominations and the Registrar shall comply with such request
if all other transfer restrictions are satisfied.
ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Principal, Premium and Interest. (a) The
Issuers will duly and punctually pay the principal of (and premium, if any) and
interest on the Notes in accordance with the terms of the Notes and this
Indenture. An installment of principal (and premium, if any) or interest shall
be considered paid on the date it is due if the Trustee or Paying Agent or
Paying Agents hold on that date money designated for and sufficient to pay the
installment.
(b) Payments in respect of the Notes represented by the Global Notes
(including principal, premium, if any, interest and Additional Amounts, if any)
shall be made by wire transfer of immediately available funds to the accounts
specified by the Global Note Holder. With respect to Physical Notes, the Issuers
will make all payments of principal, premium, if any, interest and Additional
Amounts, if any, by wire transfer of immediately available funds to the accounts
specified by the Holders thereof or, if no such account is specified, by mailing
a check to each such Holder's registered address.
SECTION 4.02. Maintenance of Office or Agency. The Issuers will maintain
in the Borough of Manhattan, The City of New York an office or agency where
Notes may be presented or surrendered for payment, where Notes may be
surrendered for transfer or exchange and where notices and demands to or upon
the Issuers in respect of the Notes and this Indenture may be served. The
Issuers will give prompt written notice to the Trustee of the location, and of
any change in the location, of such office or agency. If at any time the Issuers
shall fail to maintain such office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee. The
Issuers hereby designate the Corporate Trust Office as an initial Place of
Payment and as such office of the Issuers in the Borough of Manhattan, the City
of New York, and appoint the Trustee as their agent to receive all such
presentations, surrenders, notices and demands so long as such Corporate Trust
Office remains a Place of Payment.
SECTION 4.03. Money for Payments to Be Held in Trust. If the Issuers
shall at any time act as their own Paying Agent, they will, on or before each
due date of the principal of (and premium, if any) or interest on, any of the
Notes, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided, and will promptly notify the Trustee of their
action or failure so to act.
If the Issuers are not acting as their own Paying Agent, they will,
prior to each due date of the principal of (and premium, if any) or interest on,
any Notes, deposit with a Paying Agent a sum sufficient to pay the principal
(and premium, if any) or interest, so becoming due, such sum to be held in trust
for the benefit of the Persons entitled to such principal, premium or interest,
and (unless such Paying Agent is the Trustee) the Issuers will promptly notify
the Trustee of their action or failure so to act.
If the Issuers are not acting as their own Paying Agent, the Issuers
will cause any Paying Agent other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee,
subject to the provisions of this Section 4.03, that such Paying Agent will:
(a) hold all sums held by it for the payment of principal of (and
premium, if any) or interest on Notes in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(b) give the Trustee notice of any default by the Issuers (or any other
obligor upon the Notes) in the making of any such payment of principal (and
premium, if any) or interest;
(c) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent; and
(d) acknowledge, accept and agree to comply in all respects with the
provisions of this Indenture and TIA relating to the duties, rights and
liabilities of such Paying Agent.
The Issuers may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Issuer Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Issuers or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Issuers or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Issuers, in trust for the payment of the principal of (and premium, if
any) or interest on any Note and remaining unclaimed for two years after such
principal (and premium, if any) or interest has become due and payable shall be
paid in the appropriate proportion to the Issuers upon an Issuer Request, or (if
then held by the Issuers) shall be discharged from such trust; and the Holder of
such Note shall thereafter, as an unsecured general creditor, look only to the
Issuers for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Issuers as
trustee thereof, shall thereupon cease.
SECTION 4.04. SEC Reports. (a) Notwithstanding that the Company may not
be subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act, the Company shall provide the Trustee and Noteholders with (i) all
quarterly and annual financial information that would be required to be
contained in a filing with the SEC on Forms 10-Q and 10-K, if the Company were
required to file such forms including a "Management's Discussion and Analysis of
Financial Condition and Results of Operations" and, with respect to annual
information only, a report thereon by the Company's certified independent
accountants, and (ii) all current reports that would be required to be filed
with the SEC on Form 8-K, if the Company were required to file such reports. In
addition, following the consummation of the exchange offer contemplated by the
Registration Rights Agreement, whether or not required by the rules and
regulations of the SEC, the Company will file a copy of all such information and
reports with the SEC for public availability (unless the SEC will not accept
such a filing) and make such information available to prospective investors upon
request.
(b) In addition, for so long as any of the Notes remain outstanding and
constitute "restricted securities" under Rule 144, the Company will furnish to
the Holders of the Notes and prospective investors, upon their request, the
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act.
(c) All obligors on the Notes will comply with Section 314(a) of the TIA.
(d) The Company shall promptly mail copies of all such annual reports,
information, documents and other reports provided to the Trustee pursuant to
clauses (a) and (c) hereof to the Holders at their addresses appearing in the
Register maintained by the Registrar.
(e) Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Issuers'
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officer's Certificates).
SECTION 4.05. Certificates to Trustee. (a) The Issuers will deliver to
the Trustee within 120 days after the end of each fiscal year of the Issuers a
certificate from the principal executive, financial or accounting officer of the
Issuers stating that such officer has conducted or supervised a review of the
activities of the Issuers and their Restricted Subsidiaries and the Issuers' and
their Restricted Subsidiaries' performance under this Indenture and that, based
upon such review, the Issuers have fulfilled all obligations thereunder or, if
there has been a default in the fulfillment of any such obligation (determined
without regard to any period of grace or requirement of notice provided in this
Indenture), specifying each such default and the nature and status thereof.
(b) The Issuers will deliver to the Trustee, as soon as possible and in
any event within 30 days after the Issuers become aware or should reasonably
become aware of the occurrence of an Event of Default or a Default, an Officer's
Certificate setting forth the details of such Event of Default or Default, and
the action which the Issuers propose to take with respect thereto.
(c) The Issuers will deliver to the Trustee within 120 days after the end
of each fiscal year of the Issuers a written statement by the Issuers'
independent public accountants stating (i) that their audit examination has
included a review of the terms of this Indenture and the Notes as they relate to
accounting matters, and (ii) whether, in connection with their audit
examination, any Default has come to their attention and, if such a Default has
come to their attention, specifying the nature and period of the existence
thereof.
SECTION 4.06. Limitation on Indebtedness. (a) The Company shall not, and
shall not permit any Restricted Subsidiary to, Incur, directly or indirectly,
any Indebtedness; provided, however, that any Issuer or any Subsidiary Guarantor
may Incur Indebtedness if, on the date of such Incurrence and after giving
effect thereto, the Consolidated Coverage Ratio exceeds 2.0 to 1.
(b) Notwithstanding Section 4.06(a), the Company and the Restricted
Subsidiaries may Incur any or all of the following Indebtedness:
(i) Indebtedness Incurred pursuant to the Credit Agreement by an
Issuer or a Subsidiary Guarantor; provided, however, that, after giving
effect to any such Incurrence, the aggregate principal amount of such
Indebtedness then outstanding does not exceed the greater of (A) $545.0
million less the sum of all principal payments with respect to such
Indebtedness pursuant to (1) Section 4.09 and/or (2) a Permitted Arby's
Securitization; provided that, after a Permitted Arby's IPO Dividend,
the aggregate principal amount of such Indebtedness then outstanding
shall not exceed $425.0 million less the sum of all principal payments
with respect to such Indebtedness pursuant to Section 4.09 or (B) the
sum of (x) 50.0% of the book value of the inventory of the Company and
its Restricted Subsidiaries and (y) 80.0% of the book value of the
accounts receivable of the Company and its Restricted Subsidiaries (to
the extent such inventory or accounts receivable is not subject to any
Lien securing Indebtedness other than Liens securing Obligations under
the Credit Agreement), in each case as of the date of the most recent
balance sheet of the Company filed or delivered to the Trustee pursuant
to Section 4.04 (as determined on a pro forma basis after giving effect
to any Business Disposition, Business Acquisition or designation of a
Restricted Subsidiary as an Unrestricted Subsidiary occurring after the
date of such balance sheet);
(ii) Indebtedness owed to and held by the Company or a Restricted
Subsidiary; provided, however, that (A) any subsequent issuance or
transfer of any Capital Stock which results in any such Restricted
Subsidiary ceasing to be a Restricted Subsidiary or any subsequent
transfer of such Indebtedness (other than to the Company or a Restricted
Subsidiary) shall be deemed, in each case, to constitute the Incurrence
of such Indebtedness by the obligor thereon not permitted by this clause
(ii) and (B) if an Issuer or a Subsidiary Guarantor is the obligor on
such Indebtedness, such Indebtedness is expressly subordinated to the
prior payment in full in cash of all obligations with respect to the
Notes;
(iii) the Initial Notes (but not any Additional Notes), the
Exchange Notes and the Subsidiary Guarantees;
(iv) Indebtedness outstanding on the Closing Date (other than
Indebtedness described in clause (i), (ii) or (iii) of this Section
4.06(b));
(v) Indebtedness of Foreign Restricted Subsidiaries in an aggregate
principal amount at any time outstanding under this clause (v) not to
exceed the greater of (x) $5.0 million or (y) 10% of Consolidated Total
Assets of the Company's Foreign Restricted Subsidiaries;
(vi) Refinancing Indebtedness in respect of Indebtedness Incurred
pursuant to Section 4.06(a) or pursuant to clause (iii), (iv) or this
clause (vi);
(vii) Hedging Obligations under Currency Agreements and Interest
Rate Agreements (provided that such Currency Agreements do not increase
the Indebtedness of the obligor outstanding at any time other than as a
result of fluctuations in foreign currency exchange rates or by reason
of fees, indemnities and compensation payable thereunder and provided
further that the notional principal amount of Indebtedness with respect
to any such Interest Rate Agreement does not exceed the principal amount
of the Indebtedness to which such Interest Rate Agreement relates);
(viii) Indebtedness represented by Capital Lease Obligations or
other purchase money Indebtedness of an Issuer or any Subsidiary
Guarantor incurred for the purpose of leasing or financing or
refinancing all or any part of the purchase price or cost of
construction or improvements of any property (real or personal) or other
assets that are used or useful in a Related Business (whether through
the direct purchase of assets or the Capital Stock of any Person owning
such assets and whether such Indebtedness is owed to the seller or the
Person carrying out any construction or improvement or to any third
party) in an aggregate principal amount at any time outstanding under
this clause (viii) not to exceed $20.0 million; provided that (x) such
Indebtedness is not secured by any property or assets of the Company and
its Restricted Subsidiaries other than the property or assets so leased,
acquired, constructed or improved and (y) such Indebtedness is created
within 90 days of the acquisition or completion of construction or
improvement of the related property or asset;
(ix) Indebtedness arising from agreements of the Company or a
Restricted Subsidiary providing for indemnification, adjustment of
purchase price or similar obligations, in each case, incurred or assumed
in connection with the disposition of any business, asset or Subsidiary,
other than Guarantees of Indebtedness incurred by any Person acquiring
all or any portion of such business, assets or Subsidiary for the
purpose of financing such acquisition; provided that the maximum
assumable liability in respect of such Indebtedness shall at no time
exceed the gross proceeds, including non-cash proceeds (the fair market
value of such non-cash proceeds being measured at the time received and
without giving effect to any such subsequent changes in value) actually
received by the Company and/or such Restricted Subsidiary in connection
with such disposition;
(x) Obligations in respect of performance and surety bonds and
completion guarantees provided by the Company or any Restricted
Subsidiary in the ordinary course of business;
(xi) Indebtedness of a Subsidiary Guarantor Incurred and
outstanding on or prior to the date on which such Person was acquired by
the Company (other than Indebtedness Incurred in connection with, or to
provide all or any portion of the funds or credit support utilized to
consummate, the transactions or series of related transactions pursuant
to which such Person became a Subsidiary or was acquired by the Company)
in an aggregate principal amount which, together with the principal
amount of all other Indebtedness under this clause (xi) outstanding on
the date of such Incurrence, does not exceed $20.0 million;
(xii) Guarantees by any Issuer or any Subsidiary Guarantor of any
Indebtedness permitted to be Incurred pursuant to this Section 4.06; and
(xiii) Indebtedness of any Issuer or Subsidiary Guarantor in an
aggregate principal amount which, together with all other Indebtedness
of the Issuers and the Subsidiary Guarantors outstanding on the date of
such Incurrence (other than Indebtedness permitted by clauses (i)
through (xii) above or Section 4.06(a)) after giving effect to the use
of the proceeds of such Incurrence of Indebtedness on such day does not
exceed $45.0 million.
(c) Notwithstanding the foregoing, the Issuers and the Subsidiary
Guarantors shall not Incur any Indebtedness pursuant to Section 4.06(b) if the
proceeds thereof are used, directly or indirectly, to Refinance any Subordinated
Obligations unless such Indebtedness shall be subordinated to the Notes or the
Subsidiary Guarantees, as the case may be, to at least the same extent as such
Subordinated Obligations.
(d) For purposes of determining compliance with this Section 4.06, (i) in
the event that an item of Indebtedness meets the criteria of more than one of
the types of Indebtedness described above, the Company, in its sole discretion,
will classify such item of Indebtedness and only be required to include the
amount and type of such Indebtedness in one of the above clauses or paragraph
(a) hereof and (ii) an item of Indebtedness may be divided and classified in
more than one of the types of Indebtedness described above. In addition, the
Company may, at any time, change the classification of an item of Indebtedness
(or any portion thereof) to any other clause or to paragraph (a) hereof;
provided that the Company would be permitted to incur such item of Indebtedness
(or portion thereof) pursuant to such clause or paragraph (a) hereof, as the
case may be, at such time of reclassification.
SECTION 4.07. Limitation on Restricted Payments. (a) The Company shall
not, and shall not permit any Restricted Subsidiary, directly or indirectly, to
make a Restricted Payment if at the time the Company or such Restricted
Subsidiary makes such Restricted Payment: (i) a Default shall have occurred and
be continuing (or would result therefrom); (ii) the Company is not able to Incur
an additional $1.00 of Indebtedness pursuant to Section 4.06(a); or (iii) the
aggregate amount of such Restricted Payment and all other Restricted Payments
since the Closing Date would exceed the sum of (without duplication):
(A) 50% of the Consolidated Net Income accrued during the
period (treated as one accounting period) from the beginning of
the fiscal quarter immediately following the Closing Date to the
end of the most recent fiscal quarter ending prior to the date of
such Restricted Payment for which reports have been filed or
provided to the Trustee pursuant to Section 4.04 (or, in case
such Consolidated Net Income shall be a deficit, minus 100% of
such deficit);
(B) the aggregate Net Cash Proceeds received by the Company as
a contribution to its capital or from the issuance or sale of its
Capital Stock (other than Disqualified Stock) subsequent to the
Closing Date (other than an issuance or sale to a Subsidiary of
the Company), including an issuance or sale permitted by the
Indenture of Indebtedness of the Company for cash subsequent to
the Closing Date upon the conversion of such Indebtedness into
Capital Stock (other than Disqualified Stock) of the Company;
(C) an amount equal to the sum of (i) the net reduction in
Investments in Unrestricted Subsidiaries resulting from
dividends, repayments of loans or advances or other transfers of
assets, in each case to the Company or any Restricted Subsidiary
from Unrestricted Subsidiaries, and (ii) the portion
(proportionate to the Company's equity interest in such
Subsidiary) of the fair market value of the net assets of an
Unrestricted Subsidiary at the time such Unrestricted Subsidiary
is designated a Restricted Subsidiary; provided, however, that
the foregoing sum shall not exceed, in the case of any
Unrestricted Subsidiary, the amount of Investments previously
made (and treated as a Restricted Payment) by the Company or any
Restricted Subsidiary in such Unrestricted Subsidiary; and
(D) to the extent that any Investment (other than a Permitted
Investment) that was made after the Closing Date is sold for cash
or otherwise liquidated, repaid or otherwise reduced (including
by way of dividend) for cash, an amount equal to the lesser of
(i) the cash return of capital with respect to such Investment
(less the cost of disposition, if any) and (ii) the initial
amount of such Investment.
(b) The provisions of Section 4.07(a) shall not prohibit, so long as,
other than with respect to clauses (iv), (viii) (except for payments of any
management fees), (x) and (xii), no Default or Event of Default shall have
occurred and be continuing or occur as a consequence of the actions or payments
set forth therein:
(i) payment of the Closing Dividend to Triarc Parent; provided
that such payment shall be excluded in the calculation of the amount of
Restricted Payments made under Section 4.07(a);
(ii) any Restricted Payment (other than a Restricted Payment
described in clause (i) of the definition of "Restricted Payment") made
out of the Net Cash Proceeds of a capital contribution to the Company or
the substantially concurrent sale of, or made by exchange for, Capital
Stock of the Company (other than Disqualified Stock); provided, however,
that (A) the capital contribution or sale occurs within 20 Business Days
of the date of the Restricted Payment, (B) such Restricted Payment shall
be excluded in the calculation of the amount of Restricted Payments made
under paragraph (a) above and (C) the Net Cash Proceeds from such
capital contribution or sale shall, to the extent used to make such
payment, be excluded from the calculation of amounts under Section
4.07(a)(iii)(B);
(iii) any purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value of Subordinated Obligations made by
exchange for, or out of the sale of, Indebtedness of the Company which
is permitted to be Incurred pursuant to Section 4.07(b)(vi); provided,
however, that (A) the sale occurs within 20 Business Days of the date of
the Restricted Payment and (B) such purchase, repurchase, redemption,
defeasance or other acquisition or retirement for value shall be
excluded in the calculation of the amount of Restricted Payments made
under Section 4.07(a);
(iv) dividends paid within 60 days after the date of declaration
thereof if at such date of declaration such dividend would have complied
with this Section; provided, however, that such dividend shall be
included in the calculation of the amount of Restricted Payments made
under Section 4.07(a);
(v) the repurchase or other acquisition of shares of, or options
to purchase shares of, Common Stock of the Company or any of its
Subsidiaries from employees, former employees, directors or former
directors of the Company or any of its Subsidiaries (or permitted
transferees of such employees, former employees, directors or former
directors), pursuant to the terms of the agreements, (including
employment agreements) or plans (or amendments thereto) approved by the
board of directors of the Company or the applicable Subsidiary under
which such individuals purchase or sell shares of such Common Stock
(collectively, "Plan Participants"); provided that the aggregate price
paid for all such repurchased or acquired Common Stock repurchased or
acquired pursuant to this clause (v) shall not exceed (x) $5 million in
the twelve month period beginning on the Closing Date, (y) $7.5 million
in the twelve month period beginning on the first anniversary of the
Closing Date and (z) $10.0 million in each twelve month period beginning
on the second anniversary of the Closing Date and each anniversary of
the Closing Date thereafter; provided, however, that the aggregate price
paid for all such repurchased or acquired Common Stock repurchased or
acquired pursuant to this clause (v) on and after the Closing Date shall
not exceed $25.0 million plus an amount equal to the Net Cash Proceeds
received by the Company or any Restricted Subsidiary after the Closing
Date from the sale of Capital Stock (other than Disqualified Stock) to
Plan Participants; provided further, however, that (A) such repurchases
and other acquisitions shall be excluded in the calculation of the
amount of Restricted Payments made under Section 4.07(a); and (B) the
Net Cash Proceeds from such sales shall, to the extent used to make such
repurchase or other acquisition, be excluded from the calculation of
amounts under Section 4.07(A)(iii)(B);
(vi) any Permitted Arby's Dividend; provided that such payment
shall be excluded in the calculation of the amount of Restricted
Payments made under Section 4.07(a);
(vii) dividends or distributions by any Restricted Subsidiary
payable to all holders of a class of Capital Stock of such Restricted
Subsidiary on a pro rata basis; provided that such payment shall be
excluded in the calculation of the amount of Restricted Payments made
under Section 4.07(a);
(viii) payments to Triarc Parent pursuant to the Management
Agreement; provided that such payment shall be excluded in the
calculation of the amount of Restricted Payments made under Section
4.07(a);
(ix) Investments by Arby's or any of its Subsidiaries in the Arby's
Securitization Entity in an amount that, together with all other
Investments made pursuant to this clause (ix) on or after the Closing
Date, do not exceed $15.0 million; provided that such Investment shall
be included in the calculation of the amount of Restricted Payments made
under Section 4.07(a);
(x) payments or distributions to Triarc Parent pursuant to any Tax
Sharing Agreement; provided that such payment shall, to the extent not
deducted in calculating Consolidated Net Income or recorded as deferred
income taxes, be included in the calculation of the amount of Restricted
Payments made under Section 4.07(a);
(xi) the declaration and payment of dividends to holders of any
class or series of Disqualified Stock issued on or after the Closing
Date in accordance with Section 4.06; provided that such payment shall
be excluded in the calculation of Restricted Payments made under Section
4.07(a);
(xii) repurchases of Capital Stock deemed to occur upon exercise
of stock options to the extent that such Capital Stock represents a
portion of the exercise price of such options; provided that such amount
shall be excluded in the calculation of the amount of Restricted
Payments made pursuant to Section 4.07(a);
(xiii) any other Investment made in a Related Business or a Person
engaged in a Related Business which, together with all other Investments
made pursuant to this clause (xiii) on or after the Closing Date, does
not exceed $25.0 million (in each case, after giving effect to any
subsequent reduction in the amount of any Investments made pursuant to
this clause (xiii) as a result of the repayment or other disposition
thereof for cash as set forth in Section 4.07(a)(iii)(D), the amount of
such reduction not to exceed the amount of such Investment previously
made pursuant to this clause (xiii)); provided that such Investment
shall be included in the calculation of Restricted Payments made under
Section 4.07(a); or
(xiv) any other Restricted Payment that, together with all other
Restricted Payments made pursuant to this clause (xiv) on or after the
Closing Date, does not exceed $10.0 million; provided that such amount
shall be included in the calculation of the amount of Restricted
Payments made pursuant to Section 4.07(a).
The amount of all Restricted Payments (other than cash) shall be the
fair market value on the date of the Restricted Payment of the assets or
securities proposed to be transferred or issued by the Company or such
Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair
market value of any non-cash Restricted Payment shall be determined in good
faith by the Board of Directors, whose good faith determination shall be
conclusive.
SECTION 4.08. Limitation on Restrictions on Distributions from
Restricted Subsidiaries. The Company shall not, and shall not permit any
Restricted Subsidiary to, create or otherwise cause or permit to exist or become
effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to (a) pay dividends or make any other distributions on
its Capital Stock to the Company or any other Restricted Subsidiary or pay any
Indebtedness owed to the Company or any other Restricted Subsidiary, (b) make
any loans or advances to the Company or any other Restricted Subsidiary or (c)
transfer any of its property or assets to the Company or any other Restricted
Subsidiary, except:
(i) any encumbrance or restriction pursuant to an agreement in
effect at or entered into on the Closing Date, including the Credit
Agreement as in effect on the Closing Date;
(ii) any encumbrance or restriction with respect to a Restricted
Subsidiary pursuant to an agreement relating to any Indebtedness
Incurred by such Restricted Subsidiary on or prior to the date on which
such Restricted Subsidiary was acquired by the Company (other than
Indebtedness Incurred as consideration in, or to provide all or any
portion of the funds or credit support utilized to consummate, the
transaction or series of related transactions pursuant to which such
Restricted Subsidiary became a Restricted Subsidiary or was acquired by
the Company) and outstanding on such date;
(iii) any encumbrance or restriction pursuant to an agreement
effecting a Refinancing of Indebtedness Incurred pursuant to an
agreement referred to in clause (i) or (ii) of this Section 4.08 or this
clause (iii) or contained in any amendment to an agreement referred to
in clause (i) or (ii) of Section 4.08 or this clause (iii); provided,
however, that the encumbrances and restrictions with respect to such
Restricted Subsidiary contained in any such refinancing agreement or
amendment are, taken as a whole, not materially more restrictive than
encumbrances and restrictions with respect to such Restricted Subsidiary
contained in such predecessor agreements (as determined in good faith by
the Company's Board of Directors);
(iv) any such encumbrance or restriction consisting of customary
non-assignment provisions in leases governing leasehold interests to the
extent such provisions restrict the transfer of the lease or the
property leased thereunder or other customary non-assignment provisions
in agreements entered into in the ordinary course of business to the
extent such provisions restrict assignment of such agreements;
(v) in the case of clause (c) above, restrictions contained in
security agreements or mortgages securing Indebtedness of a Restricted
Subsidiary to the extent such restrictions restrict the transfer of the
property subject to such security agreements or mortgages;
(vi) any restriction with respect to a Restricted Subsidiary
imposed pursuant to an agreement entered into for the sale or
disposition of all or substantially all the Capital Stock or assets of
such Restricted Subsidiary pending the closing of such sale or
disposition;
(vii) encumbrances or restrictions contained in the terms of any
Indebtedness or any agreement pursuant to which such Indebtedness was
issued if (A) the encumbrances or restrictions, taken as a whole, are
not materially more restrictive than is customary in comparable
financings (as determined in good faith by the Company's Board of
Directors); and (B) any such encumbrances or restrictions will not
materially adversely affect the ability of the Issuers to make principal
or interest payments on the Notes (as determined in good faith by the
Company's Board of Directors); and
(viii) any applicable law, rule, regulation or order.
SECTION 4.09. Limitation on Sales of Assets and Subsidiary Stock. The
Company will not, and will not permit any Restricted Subsidiary to, consummate
any Asset Disposition, unless (i) the consideration received by the Company or
such Restricted Subsidiary is at least equal to the fair market value of the
assets sold or disposed of and (ii) at least 75% of the consideration received
consists of cash, Temporary Cash Investments, Liquid Securities or the
assumption by the purchaser of Indebtedness (other than Subordinated
Obligations).
In the event and to the extent that the Net Available Cash received by
the Company or any Restricted Subsidiary from one or more Asset Dispositions
occurring on or after the Closing Date in any period of 12 consecutive months
exceeds $10.0 million, then the Company shall (i) within 360 days after the date
that such Net Available Cash so received exceeds $10.0 million and to the extent
the Company elects (or is required by the terms of any Indebtedness) (A) apply
an amount equal to such excess Net Available Cash to repay Senior Indebtedness
of an Issuer or any Subsidiary Guarantor, in each case owing to a Person other
than the Company or any Affiliate of the Company (and to correspondingly reduce
any commitment therefor, in the case of revolving credit indebtedness) or (B)
invest all or a portion of such amount, or the amount not so applied pursuant to
clause (A), in Additional Assets and (ii) apply such excess Net Available Cash
(to the extent not applied pursuant to clause (i)) as provided in the following
paragraphs of this Section. The amount of such excess Net Available Cash
required to be applied or reinvested during the applicable period and not
applied or reinvested as so required by the end of such period shall constitute
"Excess Proceeds."
If, as of the first day of any calendar month, the aggregate amount of
Excess Proceeds not theretofore subject to an Excess Proceeds Offer (as defined
below) totals at least $10.0 million, the Issuers must, not later than the
fifteenth Business Day of such month, make an offer (an "Excess Proceeds Offer")
to purchase on a pro rata basis from the Holders and, if an Issuer or a
Subsidiary Guarantor is required to do so under the terms of any other
Indebtedness of such Issuer or such Subsidiary Guarantor that is not
subordinated to the Notes, such other Indebtedness, an aggregate principal
amount of Notes and such other Indebtedness equal to the Excess Proceeds
(rounded down to the nearest multiple of $1,000) on such date, at a purchase
price equal to 100% of the principal amount of such Notes or such other
Indebtedness, as the case may be, plus, in each case, accrued interest (if any)
to the date of purchase (the "Excess Proceeds Payment"). Upon completion of such
an offer to purchase, the amount of Excess Proceeds shall be reset at zero.
The Issuers will comply, to the extent applicable, with the requirements
of Section 14(e) of the Exchange Act and any other securities laws or
regulations thereunder in the event that such Excess Proceeds are received by
the Company under this Section 4.09 and the Issuers are required to repurchase
Notes as described above. To the extent that the provisions of any securities
laws or regulations conflict with the provisions of this Section, the Issuers
shall comply with the applicable securities laws and regulations and shall not
be deemed to have breached its obligations under this Section 4.09 by virtue
thereof.
SECTION 4.10. Limitation on Affiliate Transactions. (a) The Company
shall not, and shall not permit any Restricted Subsidiary to, enter into or
permit to exist any transaction (including the purchase, sale, lease or exchange
of any property, employee compensation arrangements or the rendering of any
service) with any Affiliate of the Company (an "Affiliate Transaction") unless
the terms thereof (i) are no less favorable to the Company or such Restricted
Subsidiary than those that could be obtained at the time of such transaction in
arm's-length dealings with a Person who is not such an Affiliate, (ii) if such
Affiliate Transaction involves an amount in excess of $2.5 million, (A) are set
forth in writing and (B) have been approved by a majority of the members of the
Board of Directors having no personal stake in such Affiliate Transaction and
(iii) if such Affiliate Transaction involves as amount in excess of $10.0
million, the financial terms of which have been determined by a nationally
recognized investment banking firm to be fair, from a financial standpoint, to
the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.10(a) shall not prohibit (i) any
Restricted Payment permitted to be paid pursuant to Section 4.07, (ii) any
issuance of securities, or other payments, awards or grants in cash, securities
or otherwise pursuant to, or the funding of, employment arrangements, stock
options and stock ownership plans approved by the Board of Directors, (iii) the
grant of stock options or similar rights to employees, managers, directors and
consultants of the Company and its Subsidiaries pursuant to plans approved by
the Board of Directors, (iv) loans or advances to employees in the ordinary
course of business in accordance with the past practices of the Company or its
Restricted Subsidiaries, but in any event not to exceed $2.5 million in the
aggregate outstanding at any one time, (v) the payment of reasonable fees to
directors of the Company and its Restricted Subsidiaries who are not employees
of the Company or its Restricted Subsidiaries, (vi) any Affiliate Transaction
between the Company and a Restricted Subsidiary or between Restricted
Subsidiaries, (vii) the issuance or sale of any Capital Stock (other than
Disqualified Stock) of the Company, (viii) transactions pursuant to any contract
or agreement in effect on (or entered into on) the Closing Date and any renewal,
extension or amendment thereof that is on terms no less favorable to the Company
than the terms in effect on the Closing Date (as determined in good faith by the
Company's Board of Directors), (ix) the purchase by the Company and its
Restricted Subsidiaries of raw materials, flavors and packaging materials from
Triarc Parent at Triarc Parent's cost, (x) the Transactions and (xi) any
transactions constituting part of the Permitted Arby's Securitization.
SECTION 4.11. Limitation on Liens. The Issuers and the Subsidiary
Guarantors shall not Incur any Indebtedness secured by a Lien ("Secured
Indebtedness") which is not Senior Indebtedness unless contemporaneously
therewith effective provision is made to secure the Notes, or the Subsidiary
Guarantee, as the case may be, equally and ratably with (or, if the Secured
Indebtedness is subordinated in right of payment to the Notes or the Subsidiary
Guarantee, prior to) such Secured Indebtedness for so long as such Secured
Indebtedness is secured by a Lien.
SECTION 4.12. Limitation on Senior Subordinated Indebtedness. The
Issuers and the Subsidiary Guarantors shall not Incur any Indebtedness that is
subordinate in right of payment to any Senior Indebtedness unless such
Indebtedness is pari passu with, or subordinated in right of payment to, the
Notes or the Subsidiary Guarantees, as the case may be; provided that the
foregoing limitation shall not apply to distinctions between categories of
Senior Indebtedness of an Issuer or a Subsidiary Guarantor that exist by reason
of any Liens or Guarantees arising or created in respect of some but not all
such Senior Indebtedness.
SECTION 4.13. Repurchase of Notes upon a Change in Control. (a) Upon the
occurrence of a Change of Control, each Holder shall have the right to require
that the Issuers repurchase such Holder's Notes at a purchase price in cash
equal to 101% of the principal amount thereof on the date of purchase plus
accrued and unpaid interest, if any, to the date of purchase (subject to the
right of holders of record on the relevant record date to receive interest on
the relevant interest payment date), in accordance with the terms contemplated
in Section 4.13(b).
(b) Within 30 days following any Change of Control, the Issuers shall
mail a notice to each Holder with a copy to the Trustee (the "Change of Control
Offer") stating: (1) that a Change of Control has occurred and that such Holder
has the right to require the Issuers to purchase such Holder's Notes at a
purchase price in cash equal to 101% of the principal amount thereof on the date
of purchase plus accrued and unpaid interest, if any, to the date of purchase
(subject to the right of holders of record on the relevant record date to
receive interest on the relevant interest payment date); (2) the circumstances
and relevant facts regarding such Change of Control (including, if applicable,
information with respect to pro forma historical income, cash flow and
capitalization after giving effect to such Change of Control); (3) the
repurchase date (which shall be no earlier than 30 days nor later than 60 days
from the date such notice is mailed); and (4) the instructions determined by the
Issuers, consistent with this Section, that a Holder must follow in order to
have its Notes purchased.
(c) The Issuers will not be required to make a Change of Control Offer
following a Change of Control if a third party makes the Change of Control Offer
in the manner, at the times and otherwise in compliance with the requirements
set forth in this Indenture applicable to a Change of Control Offer made by the
Issuers and purchases all Notes validly tendered and not withdrawn under such
Change of Control Offer.
(d) The Issuers shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Notes pursuant to this
Section. To the extent that the provisions of any securities laws or regulations
conflict with the provisions of this Section, the Issuers shall comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations under this Section by virtue thereof.
SECTION 4.14. Limitation on the Sale or Issuance of Capital Stock of
Restricted Subsidiaries. The Company shall not sell or otherwise dispose of any
Capital Stock of a Restricted Subsidiary, and shall not permit any Restricted
Subsidiary, directly or indirectly, to issue or sell or otherwise dispose of any
of its Capital Stock except (a) to the Company or a Restricted Subsidiary, (b)
directors' qualifying shares, (c) if, immediately after giving effect to such
issuance, sale or other disposition, neither the Company nor any of its
Subsidiaries own any Capital Stock of such Restricted Subsidiary (d) if,
immediately after giving effect to such issuance, sale or other disposition,
such Restricted Subsidiary would no longer constitute a Restricted Subsidiary
and any Investment in such Person remaining after giving effect thereto would
have been permitted to be made under Section 4.07 if made on the date of such
issuance, sale or other disposition, or (e) the issuance or sale of Common Stock
of a Restricted Subsidiary that remains a Restricted Subsidiary after such
transaction and the issuance or sale of Preferred Stock of any Subsidiary
Guarantor or Triarc Beverage.
SECTION 4.15. Existence. Subject to Articles 4 and 5 of this Indenture,
the Company will do or cause to be done all things necessary to preserve and
keep in full force and effect its existence and the existence of each of its
Restricted Subsidiaries in accordance with the respective organizational
documents of the Company and each such Subsidiary and the rights (whether
pursuant to charter, partnership certificate, agreement, statute or otherwise),
material licenses and franchises of the Company and each such Subsidiary,
provided that the Company shall not be required by this Section 4.15 to preserve
any such right, license or franchise, or the existence of any Restricted
Subsidiary, if the Company shall determine that the maintenance or preservation
thereof is no longer desirable in the conduct of the business of the Company and
its Restricted Subsidiaries taken as a whole.
SECTION 4.16. Payment of Taxes and Other Claims. The Company will pay or
discharge and shall cause each of its Restricted Subsidiaries to pay or
discharge, or cause to be paid or discharged, before the same shall become
delinquent (a) all material taxes, assessments and governmental charges levied
or imposed upon (i) the Company or any such Subsidiary, (ii) the income or
profits of any such Subsidiary which is a corporation or (iii) the property of
the Company or any such Subsidiary and (b) all material lawful claims for labor
materials and supplies that, if unpaid, might by law become a lien upon the
property of the Company or any such Subsidiary; provided that the Company shall
not be required to pay or discharge, or cause to be paid or discharged, any such
tax, assessment, charge or claim the amount, applicability or validity of which
is being contested in good faith by appropriate proceedings and for which
adequate reserves have been established.
SECTION 4.17. Maintenance of Properties and Insurance. The Company will
cause all material properties used or useful in the conduct of its business or
the business of any of its Restricted Subsidiaries, to be maintained and kept in
good condition, repair and working order (ordinary wear and tear excepted) and
supplied with all necessary equipment and will cause to be made all necessary
repairs, renewals, replacements, betterments and improvements thereof, all as in
the judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided that nothing in this Section 4.17 shall prevent the Company or any such
Subsidiary from discontinuing the use, operation or maintenance of any of such
properties or disposing of any of them, if such discontinuance or disposal is,
in the judgment of the Company, desirable in the conduct of the business of the
Company or such Subsidiary.
The Company will provide or cause to be provided, for itself and its
Restricted Subsidiaries, insurance (including appropriate self-insurance)
against loss or damage of the kinds customarily insured against by corporations
similarly situated and owning like properties, including, but not limited to,
products liability insurance and public liability insurance, with reputable
insurers or with the government of the United States of America, or an agency or
instrumentality thereof, in such amounts, with such deductibles and by such
methods as shall be customary for corporations similarly situated in the
industry in which the Company or such Restricted Subsidiary, as the case may be,
is then conducting business.
SECTION 4.18. Additional Subsidiary Guarantees. (a) If the Company or
any of its Restricted Subsidiaries shall acquire or create another Domestic
Restricted Subsidiary after the date of this Indenture, then such acquired or
created Domestic Restricted Subsidiary shall become a Subsidiary Guarantor by
executing a supplemental indenture in the form of Exhibit B hereto providing for
the Subsidiary Guaranty and shall deliver an Opinion of Counsel to the Trustee
pursuant to paragraph (b) below.
(b) The Opinion of Counsel described above shall be to the effect that
such supplemental indenture has been duly authorized, executed and delivered by
such Subsidiary and constitutes a valid and binding obligation of such
Subsidiary, enforceable against such Subsidiary in accordance with its terms
(subject to certain customary exceptions).
ARTICLE 5
CONSOLIDATION, MERGER OR SALE OF ASSETS
SECTION 5.01. Consolidation, Merger or Sale of Assets by the Company.
(a) The Company shall not consolidate with or merge with or into, or convey,
transfer or lease, in one transaction or a series of related transactions, all
or substantially all its assets to, any Person, unless:
(i) the resulting, surviving or transferee Person (the "Successor
Company") shall be a Person organized and existing under the laws of the
United States of America, any State thereof or the District of Columbia
and the Successor Company (if not the Company) shall expressly assume,
by an indenture supplemental thereto, executed and delivered to the
Trustee, in form reasonably satisfactory to the Trustee, all the
obligations of the Company under the Notes and this Indenture;
(ii) immediately after giving effect to such transaction (and
treating any Indebtedness which becomes an obligation of the Successor
Company or any Subsidiary as a result of such transaction as having been
Incurred by such Successor Company or such Subsidiary at the time of
such transaction), no Default shall have occurred and be continuing;
(iii) immediately after giving effect to such transaction (and
treating any Indebtedness which becomes an obligation of the Successor
Company or any Subsidiary as a result of such transaction as having been
Incurred by such Successor Company or such Subsidiary at the time of
such transaction), the Successor Company would be able to Incur an
additional $1.00 of Indebtedness pursuant to Section 4.06(a); provided
that this clause (iii) shall not apply to a consolidation or merger with
or into a Wholly Owned Restricted Subsidiary that is an Issuer or a
Subsidiary Guarantor; provided that, in connection with any such merger
or consolidation, no consideration (other than Common Stock in the
surviving Person or the Company) shall be issued or distributed to the
stockholders of the Company; and
(iv) the Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if
any) comply with this Indenture;
provided that clause (iii) above does not apply if, in the good faith
determination of the Board of Directors of the Company, whose determination
shall be evidenced by a Board Resolution, the principal purpose of such
transaction is to change the state of organization of, or to incorporate, the
Company; and provided further that any such transaction shall not have as one of
its purposes the evasion of the foregoing limitations.
SECTION 5.02. Successor Company Substituted. (a) Upon any consolidation
or merger, or any sale, assignment, transfer, lease, conveyance or other
disposition of all or substantially all of the assets of the Company in
accordance with Section 5.01 hereof, the successor corporation formed by such
consolidation or into or with which the Company is merged or to which such sale,
assignment, transfer, lease, conveyance or other disposition is made shall
succeed to, and be substituted for (so that from and after the date of such
consolidation, merger, sale, assignment, transfer, lease, conveyance or other
disposition, the provisions of this Indenture referring to the "Company" shall
refer instead to the successor corporation), and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and the predecessor
Company shall be released from all of its obligations hereunder and under the
Notes.
(b) Notwithstanding the foregoing, the sale, assignment, transfer, lease,
conveyance or other disposition by the Company of all or substantially all of
its property or assets to an Affiliate of the Company shall not relieve the
Company from its obligations under this Indenture and the Notes.
SECTION 5.03. Consolidation, Merger or Sale of Assets by a Material
Subsidiary Obligor. (a) No Material Subsidiary Obligor shall consolidate with or
merge with or into (unless such Material Subsidiary Obligor or an Issuer or any
Wholly-Owned Subsidiary that is or becomes a Subsidiary Guarantor concurrently
with such transaction is the surviving Person and a Wholly Owned Subsidiary,
after giving effect to such transaction or the Company is the surviving Person),
or convey, transfer or lease, in one transaction or a series of transactions,
all or substantially all its assets to, any Person (other than an Issuer or any
Wholly Owned Subsidiary that is or becomes a Subsidiary Guarantor concurrently
with such transaction) unless:
(i) except as set forth in Section 5.03(b), the resulting,
surviving or transferee Person shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
reasonably satisfactory to the Trustee, all the obligations of such
Material Subsidiary Guarantor under the Notes or its Subsidiary
Guarantee, as the case may be, and this Indenture;
(ii) immediately after giving effect to such transaction, no
Default shall have occurred and be continuing; and
(iii) immediately after giving effect to such transaction, the
Company would be able to Incur an additional $1.00 of Indebtedness
pursuant to Section 4.06(a). No transaction made pursuant to this
paragraph shall be permitted if it is not made in compliance with
Section 5.01(a).
All the Subsidiary Guarantees issued pursuant to clause (i) above shall
in all respects have the same legal rank and benefit under this Indenture as the
Subsidiary Guarantees theretofore and thereafter issued in accordance with the
terms of this Indenture as though all of such Subsidiary Guarantees had been
issued at the date of the execution hereof.
(b) (i) The requirements of clause (i) of Section 5.03(a) will not apply
in the case of a sale or other disposition (including by way of consolidation or
merger) of a Material Subsidiary Obligor or the sale or disposition of all or
substantially all the assets of a Material Subsidiary Obligor (in each case
other than to the Company or an Affiliate of the Company) otherwise permitted by
this Indenture (and in compliance with clauses (ii) and (iii) of Section
5.03(a)). Upon delivery by the Issuers to the Trustee of an Officer's
Certificate and an Opinion of Counsel to the effect that a sale or other
disposition of a Material Subsidiary Obligor was made by the Issuers in
accordance with the applicable provisions of this Indenture, including without
limitation Section 4.09 hereof, the Trustee shall execute any documents
reasonably required in order to evidence the release of such Material Subsidiary
Obligor from its obligations under the Notes or its Subsidiary Guarantee, as the
case may be, and the Indenture.
(ii) Triarc Beverage shall not consolidate with or merge with or
into, or convey, transfer or lease, in one transaction or a series of
transactions, all or substantially all of its assets to any Person
unless concurrently therewith, a corporate Restricted Subsidiary of the
Company (which may be the successor to Triarc Beverage as a result of
such transaction) shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to
the Trustee, all the obligations of an Issuer under the Notes and this
Indenture.
(iii) This Section 5.03 shall not apply to a transfer of
substantially all of the Capital Stock of RC/Arby's or any of its
Subsidiaries to Triarc Parent as a Permitted Arby's Dividend.
SECTION 5.04. Opinion of Counsel to Trustee. The Trustee, subject to the
provisions of Sections 7.01 and 7.03, may receive an Opinion of Counsel as
conclusive evidence that any such consolidation, merger, conveyance, sale,
transfer, lease, exchange or other disposition referred to in Section 5.01 or
5.03 complies with the applicable provisions of this Indenture.
ARTICLE 6
REMEDIES
SECTION 6.01. Events of Default. Each of the following constitutes an
"Event of Default":
(a) a default in the payment of interest or any Additional Amounts on the
Notes when due, which has continued for 30 days, whether or not such payment is
prohibited by the provisions of Article 14;
(b) a default in the payment of principal of any Note when due at its
Stated Maturity, upon optional redemption, upon required repurchase, upon
declaration or otherwise, whether or not such payment is prohibited by the
provisions of Article 14;
(c) the failure by the Issuers to comply with their obligations under
Article 5 above and under Section 4.09 and under Section 4.13;
(d) the Issuers or any Subsidiary Guarantor defaults in the performance
of or breaches any other covenant or agreement in this Indenture or under the
Notes (other than (a), (b) or (c) above) and such default or breach continues
for a period of 60 consecutive days after written notice by the Trustee or the
Holders of 25% or more in aggregate principal amount of the Notes;
(e) there occurs with respect to any issue or issues of Indebtedness of
an Issuer or any Significant Subsidiary having an outstanding principal amount,
in the aggregate for all such issues of all such Persons, of $20 million or
more, whether such Indebtedness now exists or shall hereafter be created, (i) an
event of default that has caused the holder thereof to declare such Indebtedness
to be due and payable prior to its Stated Maturity and/or (ii) the failure to
make a principal payment at the final (but not any interim) fixed maturity and
such defaulted payment shall not have been made, waived or extended within the
applicable grace period, if any, after such payment default;
(f) any final judgment or order for the payment of money in excess of $20
million in the aggregate for all such final judgments or orders against all such
Persons shall be rendered against an Issuer and/or any Significant Subsidiary
and shall not be discharged, waived or stayed and there shall be any period of
60 consecutive days following entry of the final judgment or order that causes
the aggregate amount for all such final judgments or orders outstanding and not
discharged, waived or stayed against all such Persons to exceed $20 million (in
excess of amounts which the Issuers' insurance carriers have agreed to pay under
applicable policies) during which a stay of enforcement of such final judgment
or order, by reason of a pending appeal or otherwise, shall not be in effect;
(g) a court having jurisdiction in the premises enters a decree or order
for (i) relief in respect of an Issuer or any Significant Subsidiary in an
involuntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, (ii) appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of an Issuer or
any Significant Subsidiary or for all or substantially all of the property and
assets of an Issuer or any Significant Subsidiary or (iii) the winding up or
liquidation of the affairs of an Issuer or any Significant Subsidiary and, in
each case, such decree or order shall remain unstayed and in effect for a period
of 60 consecutive days;
(h) an Issuer or any Significant Subsidiary (i) commences a voluntary
case under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consents to the entry of an order for relief in an
involuntary case under any such law, (ii) consents to the appointment of or
taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of an Issuer or any Significant Subsidiary or
for all or substantially all of the property and assets of an Issuer or any
Significant Subsidiary or (iii) effects any general assignment for the benefit
of creditors; or
(i) any Subsidiary Guarantee ceases to be in full force and effect (other
than in accordance with its terms), a Subsidiary Guarantor denies or disaffirms
its obligations under such Subsidiary Guarantee or any Subsidiary Guarantee of
RC/Arby's or any of its Domestic Restricted Subsidiaries does not have the
Guaranteed Amount specified in Section 13.01(a) at any time more than
thirty-five days after the Closing Date because the redemption date has not yet
occurred at such time.
SECTION 6.02. Acceleration. (a) If an Event of Default (other than an
Event of Default specified in clause (g) or (h) of Section 6.01 that occurs with
respect to an Issuer) occurs and is continuing under this Indenture, the Trustee
or the Holders of at least 25% in aggregate principal amount of the Notes then
Outstanding, by written notice to the Issuers (and to the Trustee if such notice
is given by the Holders (the "Acceleration Notice")), may, and the Trustee at
the request of such Holders shall, declare the principal of, premium, if any,
and accrued but unpaid interest on all the Notes to be due and payable. Upon a
declaration of acceleration, such principal, premium, if any, and accrued
interest shall be immediately due and payable; provided that if any Designated
Senior Indebtedness is outstanding, such principal, premium and interest shall
not become due and payable until five Business Days after the Representatives of
all the issues of Designated Senior Indebtedness receive notice of such
acceleration. If an Event of Default specified in clause (g) or (h) of Section
6.01 occurs with respect to an Issuer, the principal of, premium, if any, and
accrued interest on the Notes then Outstanding shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder.
(b) If payment of the Notes is accelerated because of an Event of
Default, the Issuers or the Trustee shall promptly notify the holders of
Designated Senior Indebtedness or the Representative of such holders of the
acceleration. If any Designated Senior Indebtedness is outstanding upon such
declaration of acceleration, neither the Issuers nor any Subsidiary Guarantor
may pay the Notes until five Business Days after the Representatives of all
issues of Designated Senior Indebtedness receive notice of such acceleration
and, thereafter, the Issuers or any Subsidiary Guarantor may pay the Notes only
if this Indenture otherwise permits payment at that time.
SECTION 6.03. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of principal or interest on the Notes or to enforce the performance of any
provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Notes or does not produce any of them in the proceeding. A delay or omission
by the Trustee or any Holder in exercising any right or remedy accruing upon an
Event of Default shall not impair the right or remedy or constitute a waiver of
or acquiescence in the Event of Default. All remedies are cumulative to the
extent permitted by law.
SECTION 6.04. Waiver of Past Defaults. The Holders of at least a
majority in principal amount of the Outstanding Notes by written notice to the
Issuers and to the Trustee, may waive all past defaults and rescind and annul a
declaration of acceleration and its consequences if (i) all existing Events of
Default, other than the nonpayment of the principal of, premium, if any, and
interest on the Notes that have become due solely by such declaration of
acceleration, have been cured or waived and (ii) the rescission would not
conflict with any judgment or decree of a court of competent jurisdiction. Upon
any such waiver, such Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default or
impair any right consequent thereon.
SECTION 6.05. Control by Majority. The Holders of at least a majority in
aggregate principal amount of the Outstanding Notes may direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee
or exercising any trust or power conferred on the Trustee. However, the Trustee
may refuse to follow any direction that conflicts with law or this Indenture,
that may involve the Trustee in personal liability, or that the Trustee
determines in good faith may be unduly prejudicial to the rights of Holders not
joining in the giving of such direction and may take any other action it deems
proper that is not inconsistent with any such direction received from the
Holders.
SECTION 6.06. Limitation on Suits. A Holder may not pursue any remedy
with respect to this Indenture or the Notes unless:
(a) the Holder gives the Trustee written notice of a continuing Event of
Default;
(b) the Holders of at least 25% in aggregate principal amount of
Outstanding Notes make a written request to the Trustee to pursue the remedy;
(c) such Holder or Holders offer the Trustee reasonable security or
indemnity against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days after
receipt thereof and the offer of security or indemnity; and
(e) during such 60 day period, the Holders of at least a majority in
aggregate principal amount of the Outstanding Notes do not give the Trustee a
direction inconsistent with the request.
SECTION 6.07. Rights of Holders to Receive Payment. Notwithstanding any
other provision of this Indenture, the right of any Holder to receive payment of
principal, premium, if any, and interest on the Note, on or after the respective
due dates expressed in the Note, or to bring suit for the enforcement of any
such payment on or after such respective dates, shall not be impaired or
affected without the consent of the Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of Default
specified in Section 6.01(a) or (b) hereof occurs and is continuing, the Trustee
is authorized to recover judgment in its own name and as trustee of an express
trust against the Issuers or any other obligor for the whole amount of
principal, premium, if any, and interest remaining unpaid on the Notes and
interest on overdue principal and, to the extent lawful, interest and such
further amount as shall be sufficient to cover amounts due the Trustee under
Section 7.08, including the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee is
authorized to file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel) and the Holders allowed in any judicial
proceedings relative to the Issuers (or any other obligor upon the Notes), their
creditors or their property and shall be entitled and empowered to collect,
receive and distribute any money or other property payable or deliverable on any
such claims and any custodian in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee, and in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.08. To the
extent that the payment of any such compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.08 out of the estate in any such proceeding, shall be
denied for any reason, payment of the same shall be secured by a Lien on, and
shall be paid out of, any and all distributions, dividends, money, securities
and other properties which the Holders may be entitled to receive in such
proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.10. Priorities. If the Trustee collects any money pursuant to
this Article, it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due under
Section 7.08, including payment of all compensation, expense and liabilities
incurred, and all advances made, by the Trustee and the costs and expenses of
collection;
Second: to Holders for amounts due and unpaid on the Notes for
principal, premium, if any, and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Notes for
principal, premium, if any and interest, respectively; and
Third: to the Issuers or to such party as a court of competent juris-
diction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 6.10 upon five Business Days prior notice to
the Issuers.
SECTION 6.11. Undertaking for Costs. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as a Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees and expenses, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 6.06, or a suit by
Holders of more than 10% in aggregate principal amount of the then Outstanding
Notes.
SECTION 6.12. Restoration of Rights and Remedies. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture or any Note and such proceeding has been discontinued or abandoned for
any reason, or has been deter mined adversely to the Trustee or to such Holder,
then and in every such case the Issuers, any other obligor upon the Notes, the
Trustee and the Holders shall, subject to any determination in such proceeding,
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 6.13. Rights and Remedies Cumulative. No right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 6.14. Waiver of Stay, Extension or Usury Laws. The Issuers
covenant (to the extent that they may lawfully do so) that they will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury or other similar
law wherever enacted, now or at any time hereafter in force, that would prohibit
or forgive the Issuers from paying all or any portion of the principal of (or
premium, if any) or interest on the Notes contemplated herein or in the Notes or
that may affect the covenants or the performance of this Indenture; and the
Issuers (to the extent that they may lawfully do so) hereby expressly waive all
benefit or advantage of any such law, and covenant that they will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE 7
THE TRUSTEE
SECTION 7.01. Certain Duties and Responsibilities. (a) Except during
the continuance of an Event of Default,
(i) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements of
this Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein).
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that (i) this paragraph does not
limit the effect of Section 7.01(a); (ii) the Trustee shall not be liable for
any error of judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it takes or
omits to take in good faith in accordance with a direction received by it
pursuant to Section 6.06.
(d) The Trustee may refuse to perform any duty or exercise any right or
power or expend or risk its own funds or otherwise incur any financial liability
unless it receives indemnity satisfactory to it against any loss, liability or
expense.
(e) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of Sections 7.01
and 7.03 hereof.
SECTION 7.02. Notice of Defaults. (a) Within 90 days after the
occurrence of any Default, the Trustee shall transmit by mail to all Holders, as
their names and addresses appear in the Register, notice of such Default
hereunder known to the Trustee unless such Default shall have been cured or
waived; provided, however, that, except in the case of a Default in the payment
of the principal of, premium (if any) or interest on, any Note, the Trustee may
withhold such notice if and so long as the board of directors, the executive
committee or a trust committee of Responsible Officers of the Trustee determines
that the withholding of such notice is not opposed to the interests of the
Holders.
(b) The Trustee shall not be required to take notice or be deemed to
have notice or knowledge of any event or of any Default (except default in the
payment of monies to the Trustee which are required to be paid to the Trustee on
or before a specified date or within a specified time after receipt by the
Trustee of a notice or a certificate which was in fact received), unless the
Trustee shall receive from an Issuer or a Holder a notice stating that the same
has occurred and is continuing, and specifying the same, and in the absence of
such notice the Trustee may conclusively assume that the same does not exist,
except as aforesaid.
SECTION 7.03. Certain Rights of Trustees. (a) Subject to the provisions
of Section 7.01:
(i) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(ii) any request or direction of the Issuers mentioned herein shall
be sufficiently evidenced by an Issuer Request or an Issuer Order
thereof, and any resolution of any Person's board of directors shall be
sufficiently evidenced if certified by an Officer of such Person as
having been duly adopted and being in full force and effect on the date
of such certificate;
(iii) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon the Officer's Certificates of the
Issuers;
(iv) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(v) in case an Event of Default occurs and is continuing, the
Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Indenture at the request or direction of any
of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against any
loss, liability or expense which might be incurred by it in compliance
with such request or direction;
(vi) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, note, other evidence of indebtedness or other paper or document;
and
(vii) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due
care by it hereunder.
SECTION 7.04. Not Responsible for Recitals or Issuance of Notes. (a) The
recitals contained herein and in the Notes, except the Trustee's certificates of
authentication, shall be taken as the statements of the Issuers, and neither the
Trustee nor any Authenticating Agent assumes any responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Notes, except that the Trustee
represents that it is duly authorized to execute and deliver this Indenture,
authenticate the Notes and perform its obligations hereunder and that the
statements made by it in a Statement of Eligibility and Qualification on Form
T-1 supplied to the Issuers in connection with the registration of any Notes
issued hereunder are and will be true and accurate subject to the qualifications
set forth therein. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Issuers of the Notes or the
proceeds thereof.
SECTION 7.05. Trustee's Disclaimer. The Trustee makes no representation
as to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Issuers' use of the proceeds from the Notes, it shall not be
responsible for any statement in the offering memorandum for the Notes or in the
Indenture or the Notes (other than its certificate of authentication), the acts
of a prior Trustee hereunder, or the determination as to which beneficial owners
are entitled to receive any notices hereunder.
SECTION 7.06. May Hold Notes. (a) The Trustee, any Authenticating Agent,
any Paying Agent, any Registrar or any other agent of the Issuers, in its
individual or any other capacity, may become the owner or pledgee of Notes and,
subject to Section 7.09 and Section 7.14, may otherwise deal with the Issuers or
their Affiliates with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Registrar or such other agent.
SECTION 7.07. Money Held in Trust. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Issuers.
SECTION 7.08. Compensation and Reimbursement. The Issuers agree:
(a) to pay to the Trustee from time to time such compensation as the
Issuers and the Trustee shall from time to time agree in writing for all
services rendered by it hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust);
(b) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses, advances and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(c) to indemnify the Trustee for, and to hold it harmless against, any
loss, damage, claims, liability or expense incurred without negligence or bad
faith on its part, arising out of or in connection with the acceptance or
administration of this trust, including the reasonable costs and expenses of
defending itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder.
The Issuers' payment obligations pursuant to this Section 7.08 shall
survive the discharge of this Indenture. When the Trustee incurs expenses after
the occurrence of a Default specified in Section 6.01(g) or 6.01(h), the
expenses are intended to constitute expenses of administration under any
Bankruptcy Law.
SECTION 7.09. Conflicting Interests. If the Trustee has or shall acquire
a conflicting interest within the meaning of the TIA, the Trustee shall either
eliminate such conflicting interest, apply to the SEC for permission to continue
as Trustee with such conflicting interest, or resign, to the extent and in the
manner provided by, and subject to the provisions of, the TIA and this
Indenture. To the extent permitted by such Act, the Trustee shall not be deemed
to have a conflicting interest by virtue of being a trustee under this Indenture
with respect to Original Notes and Additional Notes, or a trustee under any
other indenture between the Issuers and the Trustee.
SECTION 7.10. Corporate Trustee Required; Eligibility. (a) There shall
at all times be one (and only one) Trustee hereunder. The Trustee shall be a
Person that is eligible pursuant to the TIA to act as such and has a combined
capital and surplus of at least $100,000,000. If any such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of this Section
7.10 and to the extent permitted by the TIA, the combined capital and surplus of
such Person shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section
7.10, it shall resign immediately in the manner and with the effect hereinafter
specified in this Article.
SECTION 7.11. Resignation and Removal; Appointment of Successor. (a) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 7.12.
(b) The Trustee may resign at any time by giving written notice thereof
to the Issuers. If the instrument of acceptance by a successor Trustee required
by Section 7.12 shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the Outstanding Notes, delivered to the Trustee
and to the Issuers.
If at any time:
(i) the Trustee shall fail to comply with Section 7.09 after
written request therefor by the Issuers or by any Holder who has been a
bona fide Holder for at least six months, or
(ii) the Trustee shall cease to be eligible under Section 7.10 and
shall fail to resign after written request therefor by the Issuers or by
any such Holder, or
(iii) the Trustee shall become incapable of acting or shall be
adjudged bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (A) the Issuers may remove the Trustee, or (B) subject
to Section 6.11, any Holder who has been a bona fide Holder for at least six
months may, on behalf of itself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee or Trustees.
(d) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Issuers shall promptly appoint a successor Trustee and shall comply with the
applicable requirements of Section 7.12. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Notes delivered to the Issuers and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements of
Section 7.12, become the successor Trustee and to that extent supersede the
successor Trustee appointed by the Issuers. If no successor Trustee shall have
been so appointed by the Issuers or the Holders and accepted appointment in the
manner required by Section 7.12, then, subject to Section 6.11, any Holder who
has been a bona fide Holder for at least six months may, on behalf of itself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee.
(e) The Issuers shall give notice of each resignation and each removal of
the Trustee and each appointment of a successor Trustee to all Holders in the
manner provided in Section 1.10. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.
SECTION 7.12. Acceptance of Appointment by Successor. (a) In case of the
appointment hereunder of a successor Trustee, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Issuers and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Issuers or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
(b) Upon request of any such successor Trustee, the Issuers shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to above.
(c) No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article 7.
SECTION 7.13. Merger, Conversion, Consolidation or Succession to
Business. (a) Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article 7, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Notes shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Notes so authenticated with the same effect
as if such successor Trustee had itself authenticated such Notes.
SECTION 7.14. Preferential Collection of Claims Against the Issuers. (a)
If and when the Trustee shall be or become a creditor of the Issuers (or any
other obligor upon the Notes), the Trustee shall be subject to the provisions of
the TIA regarding the collection of claims against the Issuers (or any such
other obligor).
SECTION 7.15. Appointment of Authenticating Agent. The Trustee may
appoint an Authenticating Agent acceptable to the Issuers to authenticate the
Notes. Any such appointment shall be evidenced by an instrument in writing
signed by a Responsible Officer, a copy of which instrument shall be promptly
furnished to the Issuers. Unless limited by the terms of such appointment, an
Authenticating Agent may authenticate Notes whenever the Trustee may do so. Each
reference in this Indenture to authentication (or execution of a certificate of
authentication) by the Trustee includes authentication (or execution of a
certificate of authentication) by such Authenticating Agent. An Authenticating
Agent has the same rights as any Registrar, Paying Agent or agent for service of
notices and demands.
ARTICLE 8
HOLDERS' LIST AND REPORTS BY TRUSTEE AND THE ISSUERS
SECTION 8.01. The Issuers to Furnish Trustee Names and Addresses of
Holders. (a) The Issuers will furnish or cause to be furnished to the Trustee
(i) semi-annually, not more than 15 days after each Regular Record
Date, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of such Regular Record Date, and
(ii) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Issuers of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
provided, however, that if and so long as the Trustee shall be the Registrar, no
such list need be furnished pursuant to this Section 8.01.
SECTION 8.02. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list, if any, furnished to the Trustee as provided in Section 8.01 and the names
and addresses of Holders received by the Trustee in its capacity as Registrar;
provided, however, that if and so long as the Trustee shall be the Registrar,
the Register shall satisfy the requirements relating to such list. None of the
Issuers, the Trustee or any other Person shall be under any responsibility with
regard to the accuracy of such list. The Trustee may destroy any list furnished
to it as provided in Section 8.01 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with respect
to their rights under this Indenture or under the Notes, and the corresponding
rights and privileges of the Trustee, shall be as provided by the TIA.
(c) Every Holder, by receiving and holding the same, agrees with the
Issuers and the Trustee that neither the Issuers nor the Trustee nor any agent
of either of them shall be held accountable by reason of any disclosure of
information as to names and addresses of Holders made pursuant to the TIA.
SECTION 8.03. Reports by Trustee. (a) The Trustee shall transmit to
Holders such reports concerning the Trustee and its actions under this Indenture
as may be required pursuant to the TIA at the times and in the manner provided
pursuant thereto. A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange, if
any, upon which any Notes are listed, with the SEC and with the Issuers. The
Issuers will notify the Trustee when any Notes are listed on any stock exchange
and of any delisting thereof.
ARTICLE 9
AMENDMENT, SUPPLEMENT OR WAIVER
SECTION 9.01. Without Consent of the Holders. (a) Without the consent
of any Holder, the Issuers and the Trustee may enter into one or more indentures
supplemental hereto, for any of the following purposes:
(i) to cure any ambiguity, omission, defect or inconsistency,
(ii) to provide for the assumption by a successor of the obligations
of an Issuer under this Indenture,
(iii) to provide for uncertificated Notes in addition to or in place
of certificated Notes; provided that the uncertified Notes are issued in
registered form for purposes of Section 163(f) of the Code, or in a
manner such that the uncertificated Notes are described in Section
163(f)(2)(B) of the Code,
(iv) to add Subsidiary Guarantees with respect to the Notes, to
secure the Notes, to confirm and evidence the release, termination or
discharge of any Subsidiary Guaranty or Lien with respect to or securing
the Notes when such release, termination or discharge is provided for
under this Indenture,
(v) to add to the covenants of the Issuers for the benefit of the
Holders or to surrender any right or power conferred upon the Issuers,
(vi) to provide for or confirm the issuance of Additional Notes,
(vii) to make any change that does not adversely affect the rights
of any Holder under the Notes or this Indenture, or
(viii) to comply with any requirement of the SEC in connection with
the qualification of this Indenture under the TIA or otherwise.
SECTION 9.02. With Consent of Holders. (a) Subject to Section 6.07, the
Issuers, the Trustee and (if applicable) any Subsidiary Guarantor may amend or
supplement this Indenture or the Notes with the written consent of the Holders
of not less than a majority in aggregate principal amount of the Outstanding
Notes (including consents obtained in connection with a tender offer or exchange
offer for Notes), and any past Default or compliance with any provisions may
also be waived with the written consent of the Holders of not less than a
majority in aggregate principal amount of the Outstanding Notes (including
consents obtained in connection with a tender offer or exchange offer for
Notes).
(b) Notwithstanding the provisions of this Section 9.02, without the
consent of each Holder affected, an amendment or waiver, including a waiver
pursuant to Section 6.04, may not (with respect to any Notes held by a
nonconsenting Holder):
(i) reduce the amount of Notes whose holders must consent to an
amendment,
(ii) reduce the rate of or extend the time for payment of interest
on any Note,
(iii) reduce the principal or extend the Stated Maturity of any
Note,
(iv) reduce the amount payable upon the redemption of any Note or
change the time at which any Note may be redeemed
(v) make any Note payable in money other than that stated in the
Note,
(vi) impair the right of any holder of the Notes to receive payment
of principal of and interest on such holder's Notes, on or after the due
dates therefor or to institute suit for the enforcement of any payment
on or with respect to such holder's Notes,
(vii) make any change in the amendment provisions which require
each holder's consent or in the waiver provisions,
(viii) make any change to Article 14 of the Indenture that would
adversely affect the Noteholders or
(ix) make any change in any Subsidiary Guaranty that would
adversely affect the Noteholders.
provided that no modification or change may be made to any provision of this
Indenture adversely affecting the rights of any holder of Senior Indebtedness
then outstanding unless the holders of such Senior Indebtedness (or their
Representative) consent to such modification or change.
(c) It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
(d) After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Issuers shall mail to the Holders of each Note affected
thereby, with a copy to the Trustee, a notice briefly describing the amendment,
supplement or waiver. Any failure of the Issuers to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any supplemental indenture or the effectiveness of any such amendment,
supplement or waiver.
SECTION 9.03. Execution of Amendments, Supplements or Waivers. The
Trustee shall sign any amendment, supplement or waiver authorized pursuant to
this Article 9 if the amendment, supplement or waiver does not adversely affect
the rights, duties, liabilities or immunities of the Trustee. If it does, the
Trustee may, but need not, sign it. In signing or refusing to sign such
amendment, supplement or waiver, the Trustee shall be entitled to receive, and
shall be fully protected in relying upon, an Officer's Certificate and an
Opinion of Counsel to the effect that the execution of such amendment,
supplement or waiver has been duly authorized, executed and delivered by the
Issuers and that, subject to applicable bankruptcy, insolvency, fraudulent
transfer, fraudulent conveyance, reorganization, moratorium and other laws now
or hereinafter in effect affecting creditors' rights or remedies generally and
the general principles of equity (including, without limitation, standards of
materiality, good faith, fair dealing and reasonableness), whether considered in
a proceeding at law or at equity, such amendment, supplement or waiver is a
valid and binding agreement of the Issuers, enforceable against it in accordance
with its terms.
SECTION 9.04. Revocation and Effect of Consents. (a) Until an amendment,
supplement or waiver becomes effective, a consent to it by a Holder is a
continuing consent by the Holder and every subsequent Holder of that Note or any
Note that evidences all or any part of the same debt as the consenting Holder's
Note, even if notation of the consent is not made on any Note. Subject to the
following paragraph of this Section 9.04, any such Holder or subsequent Holder
may revoke the consent as to such Holder's Note by notice to the Trustee or the
Issuers received by the Trustee or the Issuers, as the case may be, before the
date on which the Trustee receives an Officer's Certificate certifying that the
Holders of the requisite principal amount of Notes have consented (and not
theretofore revoked such consent) to the amendment, supplement or waiver. The
Issuers may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders entitled to consent to any amendment, supplement or
waiver as set forth in Section 1.08.
(b) After an amendment, supplement or waiver becomes effective, it shall
bind every Holder, unless it makes a change described in any of clauses (i)
through (viii) of the second paragraph of Section 9.02. In that case, the
amendment, supplement or waiver shall bind each Holder of a Note who has
consented to it and every subsequent Holder of such Note or any Note that
evidences all or any part of the same debt as the consenting Holder's Note.
SECTION 9.05. Conformity with TIA. (a) Every amendment or supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the TIA as then in effect.
SECTION 9.06. Notation on or Exchange of Notes. (a) If an amendment,
supplement or waiver changes the terms of a Note, the Trustee shall (if required
by the Issuers and in accordance with the specific direction of the Issuers)
request the Holder to deliver its Note to the Trustee. The Trustee shall (if
required by the Issuers and in accordance with the specific direction of the
Issuers) place an appropriate notation on the Note about the changed terms and
return it to the Holder. Alternatively, if the Issuers or the Trustee so
determines, the Issuers in exchange for the Note shall issue and the Trustee
shall authenticate a new Note that reflects the changed terms. Failure to make
the appropriate notation or issue a new Note shall not affect the validity and
effect of such amendment, supplement or waiver.
ARTICLE 10
REDEMPTION OF NOTES
SECTION 10.01. Right of Redemption. (a) Except as set forth in this
Section 10.01, the Notes will not be redeemable at the option of the Issuers
prior to February 15, 2004. Thereafter, the Notes will be redeemable, at the
option of the Issuers, in whole or in part, at any time or from time to time on
and prior to maturity. Such redemption may be made upon notice mailed by
first-class mail to each Holder's registered address in accordance with Section
10.05. The Notes will be so redeemable at the following Redemption Prices
(expressed as a percentage of principal amount on the relevant Redemption Date),
plus accrued and unpaid interest, if any, to the relevant Redemption Date
(subject to the right of Holders of record on the relevant Regular Record Date
to receive interest due on the relevant Interest Payment Date), if redeemed
during the 12-month period commencing on February 15 of the years set forth
below:
REDEMPTION
YEAR PRICE
- ------ -------------
2004........................................... 105.1250%
2005........................................... 103.4167%
2006........................................... 101.7083%
2007 and thereafter............................ 100.0000%
(b) In addition, at any time and from time to time prior to February 15,
2002, the Issuers at their option may redeem the Notes in an aggregate principal
amount equal to up to 35% of the original aggregate principal amount of the
Notes, with the aggregate proceeds of one or more Qualified Public Equity
Offerings, at a Redemption Price (expressed as a percentage of principal amount
on the relevant Redemption Date) of 110.25% plus accrued and unpaid interest, if
any, to the Redemption Date (subject to the right of Holders of record on the
relevant Regular Record Date to receive interest due on the relevant Interest
Payment Date); provided, however, that (i) an aggregate principal amount of the
Notes equal to at least 65% of the aggregate principal amount of the Notes ever
issued under this Indenture must remain Outstanding and be held, directly or
indirectly by Persons other than the Company and its Affiliates, immediately
after each such redemption and (ii) such redemption shall occur within 60 days
of the date of the closing of the applicable Qualified Public Equity Offering.
SECTION 10.02. Applicability of Article. Redemption or purchase of
Notes as permitted by Section 10.01 shall be made in accordance with this
Article 10.
SECTION 10.03. Election to Redeem; Notice to Trustee. In case of any
redemption at the election of the Issuers of less than all of the Notes, the
Issuers shall, at least 30 days prior to the Redemption Date initially fixed by
the Issuers (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such Redemption Date and of the principal amount of Notes
to be redeemed.
SECTION 10.04. Selection by Trustee of Notes to Be Redeemed. In the case
of any partial redemption, selection of the Notes for redemption will be made
not more than 60 days prior to the Redemption Date by the Trustee on a pro rata
basis, by lot or by such other method as the Trustee in its sole discretion
shall deem to be fair and appropriate, although no Note of $1,000 in original
principal amount or less shall be redeemed in part; provided that, in the case
of any partial redemption of any Global Note, selection for redemption will be
made by the Depositary in accordance with the procedures of the Depositary
therefor.
(a) The Trustee shall promptly notify the Issuers in writing of the Notes
selected for redemption and, in the case of any Note selected for partial
redemption, the portion of the principal amount thereof to be redeemed. On and
after the Redemption Date, interest will cease to accrue on Notes or portions
thereof called for redemption.
(b) For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Notes shall relate, in
the case of any Note redeemed or to be redeemed only in part, to the portion of
the principal of such Note that has been or is to be redeemed.
SECTION 10.05. Notice of Redemption. (a) Notice of redemption or
purchase as provided in Section 10.01 shall be deemed to have been given upon
the mailing by first class mail, postage prepaid, of such notice to each Holder
of Notes to be redeemed, at its registered address as recorded in the Register,
not later than 30 nor more than 60 days prior to the Redemption Date.
Any such notice shall state:
(i) the expected Redemption Date,
(ii) the Redemption Price,
(iii) if less than all Outstanding Notes are to be redeemed, the
identification (and, in the case of partial redemption, the respective
principal amounts) of the Notes to be redeemed,
(iv) that on the Redemption Date the Redemption Price will become
due and payable upon each such Note, and that, unless the Issuers
default in making such redemption payment or any Paying Agent is
prohibited from making such payment pursuant to the terms of this
Indenture, interest thereon shall cease to accrue from and after said
date,
(v) the place where such Notes are to be surrendered for payment of
the Redemption Price and the name and address of the Paying Agent or
Paying Agents,
(vi) the CUSIP and other security identification numbers, if any,
subject to Section 3.12 hereof, and
(vii) the section of this Indenture pursuant to which the Notes are
to be redeemed.
(b) Notice of such redemption or purchase of Notes to be so redeemed or
purchased at the election of the Issuers shall be given by the Issuers or, at
the written request of the Issuers delivered at least five Business Days prior
to the date proposed for the mailing of such notice, by the Trustee in the name
and at the expense of the Issuers; provided that such notice to the Trustee may
be revoked by the Issuers by written notice delivered to the Trustee prior to
the date proposed for the mailing of the notice of such redemption to the
Holders.
(c) The notice if mailed in the manner herein provided shall be
conclusively presumed to have been given, whether or not the Holder receives
such notice. In any case, failure to give such notice by mail or any defect in
the notice to the Holder of any Note designated for redemption as a whole or in
part shall not affect the validity of the proceedings for the redemption of any
other Note.
SECTION 10.06. Deposit of Redemption Price. (a) On or prior to 10:00
a.m., New York City time on any Redemption Date, the Issuers shall deposit with
the Trustee or with a Paying Agent (or, if the Issuers is acting as its own
Paying Agent, the Issuers shall segregate and hold in trust as provided in
Section 4.03) an amount of money sufficient to pay the Redemption Price of, and
any accrued and unpaid interest on, all the Notes or portions thereof which are
to be redeemed on that date.
SECTION 10.07. Notes Payable on Redemption Date. (a) Notice of
redemption having been given as provided in this Article 10, the Notes so to be
redeemed shall, on the Redemption Date, become due and payable at the Redemption
Price herein specified and from and after such date (unless Issuers shall
default in the payment of the Redemption Price or any Paying Agent is prohibited
from paying the Redemption Price pursuant to the terms of this Indenture) such
Notes shall cease to bear interest. Upon surrender of such Notes for redemption
in accordance with such notice, such Notes shall be paid by the Issuers at the
Redemption Price. Installments of interest whose Interest Payment Date is on or
prior to the Redemption Date shall be payable to the Holders of such Notes
registered as such on the relevant Regular Record Dates according to their terms
and the provisions of Section 3.07.
(b) On and after any Redemption Date, if money sufficient to pay the
Redemption Price of and any accrued and unpaid interest on Notes called for
redemption shall have been made available in accordance with Section 10.06, the
Notes (or the portions thereof) called for redemption will cease to accrue
interest and the only right of the Holders of such Notes (or portions thereof)
will be to receive payment of the Redemption Price of, and subject to the last
sentence of Section 10.07(a), any accrued and unpaid interest on such Notes (or
portions thereof) to the Redemption Date. If any Note (or portion thereof)
called for redemption shall not be so paid upon surrender thereof for
redemption, the principal (and premium, if any) shall, until paid, bear interest
from the Redemption Date at the rate borne by the Note (or portion thereof).
SECTION 10.08. Notes Redeemed in Part. Any Note that is to be redeemed
only in part shall be surrendered at a Place of Payment (with, if the Issuers or
the Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Issuers and the Trustee duly executed by, the Holder
thereof or such Holder's attorney duly authorized in writing) and the Issuers
shall execute and the Trustee shall authenticate and deliver to the Holder of
such Note without service charge, a new Note or Notes, of any authorized
denomination as requested by such Holder in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Note so
surrendered.
ARTICLE 11
SATISFACTION AND DISCHARGE
SECTION 11.01. Satisfaction and Discharges of Indenture. (a) This
Indenture shall cease to be of further effect (except as to any surviving rights
of transfer or exchange of Notes herein provided for), and the Trustee, on
demand of and at the expense of the Issuers, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(i) either
(A) all Notes theretofore authenticated and delivered (other
than (y) Notes that have been destroyed, lost or stolen and that
have been replaced or paid as provided in Section 3.06, and (z)
Notes for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Issuers and
thereafter repaid to the Issuers or discharged from such trust,
as provided in Section 4.03) have been delivered to the Trustee
canceled or for cancellation; or
(B) all such Notes not theretofore delivered to the Trustee
canceled or for cancellation
(x) have become due and payable, or
(y) will become due and payable at their Stated
Maturity within one year, or
(z) are to be called for redemption within one year
under arrangements reasonably satisfactory to the Trustee
for the giving of notice of redemption by the Trustee in
the name, and at the expense, of the Issuers,
(ii) the Issuers have irrevocably deposited or caused to be
deposited with the Trustee an amount in United States dollars, U.S.
Government Obligations, or a combination thereof, sufficient to pay and
discharge the entire Indebtedness on such Notes not theretofore
delivered to the Trustee canceled or for cancellation, for principal
(and premium, if any) and interest to the date of such deposit (in the
case of Notes that have become due and payable), or to the Stated
Maturity or Redemption Date, as the case may be;
(iii) the Issuers have paid or caused to be paid all other sums
then payable hereunder by the Issuers; and
(iv) the Issuers have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel each to the effect that all
conditions precedent provided for in this Section 11.01 relating to the
satisfaction and discharge of this Indenture have been complied with;
provided that any such counsel may rely on any Officer's Certificate as
to matters of fact (including as to compliance with the foregoing
clauses (i), (ii) and (iii)).
(b) Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Issuers to the Trustee under Section 7.08 and, if money shall
have been deposited with the Trustee pursuant to clause (ii) of Section
11.01(a), the obligations of the Trustee under Section 11.02, shall survive.
SECTION 11.02. Application of Trust Money. Subject to the provisions of
the last paragraph of Section 4.03, all money deposited with the Trustee
pursuant to Section 11.01 shall be held in trust and applied by it, in
accordance with the provisions of the Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Issuers acting as
their own Paying Agent) as the Trustee may determine, to the Persons entitled
thereto, of the principal (and premium, if any) and interest on the Notes; but
such money need not be segregated from other funds except to the extent required
by law.
ARTICLE 12
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 12.01. Option of the Issuers to Effect Defeasance or Covenant
Defeasance. The Issuers may at their option by a Board Resolution, at any time,
elect to have either Section 12.02 or Section 12.03 applied to the Outstanding
Notes upon compliance with the conditions set forth below in this Article 12.
Upon compliance with such conditions, each Subsidiary Guarantor will be released
from all of its obligations with respect to its Subsidiary Guarantee.
SECTION 12.02. Legal Defeasance and Discharge. Upon the exercise by the
Issuers under Section 12.01 of the option applicable to this Section 12.02, the
Issuers shall be deemed to have been discharged from any and all Obligations
with respect to all Outstanding Notes (and any Subsidiary Guarantor will be
discharged from any and all Obligations in respect of its Subsidiary Guarantee)
on the date which is the 123rd day after the deposit referred to in Section
12.04(a); provided that all of the conditions set forth below are satisfied
(hereinafter, "Legal Defeasance"). For this purpose, such Legal Defeasance means
that the Issuers shall be deemed to have paid and discharged the entire
Indebtedness represented by the Outstanding Notes, which shall thereafter be
deemed to be "outstanding" only for the purposes of Section 12.05 hereof and the
other Sections of this Indenture referred to in clauses (i) and (ii) of this
Section 12.02, and to have satisfied all its other obligations under such Notes
and this Indenture (and the Trustee, on demand of and at the expense of the
Issuers, shall execute proper instruments acknowledging the same), except for
the following provisions which shall survive until otherwise terminated or
discharged hereunder: (i) the rights of Holders of Outstanding Notes to receive
solely from the trust fund described in Section 12.04 hereof, and as more fully
set forth in such Section, payments in respect of the principal of, premium, if
any, and interest on such Notes when such payments are due, (ii) the obligations
of the Issuers with respect to such Notes under Sections 1.06, 2.03, 3.03, 3.04,
3.05, 3.06, 3.13, 3.14, 4.01, 4.02, 4.03 and 12.05 hereof, (iii) the rights,
powers, trusts, duties and immunities of the Trustee hereunder, including,
without limitation, the Trustee's rights under Section 7.08 hereof, and the
obligations of the Issuers in connection therewith and with this Article 12.
Subject to compliance with this Article 12, the Issuers may exercise their
option under this Section 12.02 notwithstanding the prior exercise of their
option under Section 12.03 hereof with respect to the Notes.
SECTION 12.03. Covenant Defeasance. Upon the exercise by the Issuers
under Section 12.01 of the option applicable to this Section 12.03, the Issuers
shall be released from their obligations under the covenants contained in
Sections 4.04, 4.06 through 4.14 and clause (iii) of Section 5.01 hereof with
respect to the Outstanding Notes and no Default under Section 6.01(e), (f) or
(i) and, with respect to any Subsidiary, (g) or (h), shall thereafter constitute
a Default or Event of Default on the date which is the 123rd day after the
deposit referred to in Section 12.04(a); provided that all of the conditions set
forth below are satisfied (hereinafter, "Covenant Defeasance"), and the Notes
shall thereafter be deemed not Outstanding for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
Outstanding for all other purposes hereunder. For this purpose, such Covenant
Defeasance means that, with respect to the Outstanding Notes, the Issuers may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or
by reason of any reference in any such covenant to any other provision herein or
in any other document and such omission to comply shall not constitute a Default
or an Event of Default under Section 6.01(c) or (d), but, except as specified
above, the remainder of this Indenture and such Notes shall be unaffected
thereby.
SECTION 12.04. Conditions to Legal or Covenant Defeasance. The
following shall be the conditions to application of either Section 12.02 or
Section 12.03 to the Outstanding Notes:
(a) the Issuers have deposited with the Trustee, in trust, money and/or
U.S. Government Obligations that through the payment of interest and principal
in respect thereof in accordance with their terms will provide money in an
amount sufficient, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the
Trustee, to pay (i) the principal of, premium, if any, and accrued interest on
the Notes when such payments are in accordance with the terms of this Indenture
and the Notes or (ii) accrued interest on the Notes through a scheduled
redemption date and the principal of, and premium on the Notes on such
redemption date; provided that, at the time of deposit, the Issuers irrevocably
authorize the Trustee to issue a timely notice of redemption and to take such
other steps reasonably requested by the Trustee to ensure that such redemption
will be effectuated;
(b) in the case of an election under Section 12.02, the Issuers have
delivered to the Trustee (i) either (x) an Opinion of Counsel to the effect that
Holders will not recognize income, gain or loss for Federal income tax purposes
as a result of the exercise by the Issuers of their option under this Article 12
and will be subject to Federal income tax on the same amount and in the same
manner and at the same times as would have been the case if such deposit,
defeasance and discharge had not occurred, which Opinion of Counsel must be
based upon (and accompanied by a copy of) a ruling of the Internal Revenue
Service to the same effect unless there has been a change in applicable Federal
income tax law after the date of this Indenture such that a ruling is no longer
required or (y) a ruling directed to the Trustee received from the Internal
Revenue Service to the same effect as the aforementioned Opinion of Counsel and
(ii) an Opinion of Counsel to the effect that, as a result of the creation of
the defeasance trust, the Issuers will not be required to register under the
Investment Company Act of 1940 and after the passage of 123 days following the
deposit, the trust fund will not be subject to the effect of Section 547 of the
United States Bankruptcy Code or Section 15 of the New York Debtor and Creditor
Law;
(c) in the case of an election under Section 12.03, the delivery by the
Issuers to the Trustee of (i) an Opinion of Counsel to the effect that, among
other things, the Holders will not recognize income, gain or loss for Federal
income tax purposes as a result of such deposit and defeasance and will be
subject to Federal income tax on the same amount and in the same manner and at
the same times as would have been the case if such deposit and defeasance had
not occurred and (ii) an Opinion of Counsel to the effect that, as a result of
the creation of the defeasance trust, the Issuers will not be required to
register under the Investment Company Act of 1940 and after the passage of 123
days following the deposit, the trust fund will not be subject to the effect of
Section 547 of the United States Bankruptcy Code or Section 15 of the New York
Debtor and Creditor Law;
(d) immediately after giving effect to such deposit on a pro forma basis,
no Event of Default, or event that after the giving of notice or lapse of time
or both would become an Event of Default, shall have occurred and be continuing
on the date of such deposit or during the period ending on the 123rd day after
the date of such deposit, and such deposit shall not result in a breach or
violation of, or constitute a default under, any other agreement or instrument
to which the Issuers are a party or by which the Issuers are bound;
(e) if at such time the Notes are listed on a national securities
exchange, the Issuers have delivered to the Trustee an Opinion of Counsel to the
effect that the Notes will not be delisted as a result of such deposit,
defeasance and discharge;
(f) the Issuers shall have delivered to the Trustee Officer's
Certificates stating that the deposit made by the Issuers pursuant to their
election under Sections 12.02 or 12.03 was not made by the Issuers with the
intent of preferring the Holders over the other creditors of the Issuers with
the intent of defeating, hindering, delaying or defrauding creditors of the
Issuers or others; and
(g) the Issuers shall have delivered to the Trustee Officer's
Certificates and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the Legal Defeasance under Section
12.02 or the Covenant Defeasance under Section 12.03 (as the case may be) have
been complied with as contemplated by this Section 12.04.
SECTION 12.05. Deposited Money and Government Securities to Be Held in
Trust; Other Miscellaneous Provisions. Subject to Section 12.06, all money and
U.S. Government Obligations (including the proceeds thereof) deposited with the
Trustee pursuant to Section 12.04 in respect of the Outstanding Notes shall be
held in trust and applied by the Trustee, in accordance with the provisions of
such Notes and this Indenture, to the payment, either directly or through any
Paying Agent (including the Issuers acting as Paying Agent) as the Trustee may
determine, to the Holders of such Notes of all sums due and to become due
thereon in respect of principal of, premium, if any, and interest, but such
money need not be segregated from other funds except to the extent required by
law.
The Issuers shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the money or U.S. Government
Obligations deposited pursuant to Section 12.04 hereof or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the Outstanding Notes.
Anything in this Article 12 to the contrary notwithstanding, the Trustee
shall deliver or pay to the Issuers from time to time upon the request of the
Issuers any money or U.S. Government Obligations held by it as provided in
Section 12.04 hereof which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section
12.04(a) hereof), are in excess of the amount thereof which would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
SECTION 12.06. Repayment to Issuers. Any money deposited with the
Trustee or any Paying Agent, or then held by the Issuers, in trust for the
payment of the principal of, premium, if any, or interest on any Note and
remaining unclaimed for two years after such principal, premium, if any, or
interest has become due and payable shall be paid to the Issuers on their
written request or (if then held by the Issuers) shall be discharged from such
trust; and the Holder of such Note shall thereafter, as an unsecured general
creditor, look only to the Issuers for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Issuers as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Issuers cause to be published once, in The
New York Times and The Wall Street Journal (national edition), notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining will be repaid to the Issuers.
SECTION 12.07. Reinstatement. If the Trustee or Paying Agent is unable
to apply any money or U.S. Government Obligations in accordance with Section
12.02 or 12.03, as the case may be, by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the obligations of the Issuers under this Indenture and
the Notes shall be revived and reinstated as though no deposit had occurred
pursuant to Section 12.02 or 12.03 until such time as the Trustee or Paying
Agent is permitted to apply all such amounts in accordance with Section 12.02 or
12.03 hereof, as the case may be; provided, however, that, if the Issuers makes
any payment of principal of, premium, if any, or interest on any Note following
the reinstatement of its Obligations, the Issuers shall be subrogated to the
rights of the Holder of such Note to receive such payment from the amounts held
by the Trustee or Paying Agent.
ARTICLE 13
SUBSIDIARY GUARANTEES
SECTION 13.01. The Guarantees. (a) Except as specified in clause (b)
below and subject to the provisions of this Article 13, each Subsidiary
Guarantor hereby irrevocably and unconditionally guarantees (the "Guaranteed
Amount"), jointly and severally, on an unsecured senior subordinated basis, the
full and punctual payment (whether at Stated Maturity, upon acceleration,
optional redemption, upon repurchase following a Change of Control Offer or an
Excess Proceeds Offer or otherwise) of the principal of, premium, if any, and
interest on, and all other amounts payable under, each Note provided for under
this Indenture, and the full and punctual payment of all other amounts payable
by the Issuers under this Indenture. Upon failure by the Issuers to pay
punctually any such amount, each Subsidiary Guarantor shall forthwith on demand
pay the amount not so paid at the place and in the manner specified in this
Indenture.
(b) Prior to the date when RC/Arby's existing notes have been redeemed
(the "Redemption Date"), the Guaranteed Amount with respect to RC/Arby's and
each of its Domestic Restricted Subsidiaries shall be zero. On the redemption
date, the Guaranteed Amount with respect to RC/Arby's and each of its Domestic
Restricted Subsidiaries shall automatically, and without the need for further
action, be the amounts described in clause (a).
SECTION 13.02. Guaranty Unconditional. The obligations of the Subsidiary
Guarantors hereunder shall be unconditional and absolute and, without limiting
the generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(a) any extension, renewal, settlement, compromise, waiver or release in
respect of any obligation of the Issuers under this Indenture or any Note, by
operation of law or otherwise;
(b) any modification or amendment of or supplement to this Indenture or
any Note; provided that any such modification which increases the obligations of
each Subsidiary Guarantor hereunder shall not be effective as to such Subsidiary
Guarantor without its consent;
(c) any change in the corporate existence, structure or ownership of any
Issuer, or any insolvency, bankruptcy, reorganization or other similar
proceeding affecting any Issuer or its assets or any resulting release or
discharge of any obligation of an Issuer contained in this Indenture or any
Note;
(d) the existence of any claim, set-off or other rights which the
Subsidiary Guarantors may have at any time against any Issuer, the Trustee or
any other Person, whether in connection with this Indenture or any unrelated
transactions, provided that nothing herein shall prevent the assertion of any
such claim by separate suit or compulsory counterclaim;
(e) any invalidity or unenforceability relating to or against the Issuers
for any reason of this Indenture or any Note, or any provision of applicable law
or regulation purporting to prohibit the payment by the Issuers of the principal
of or interest on any Note or any other amount payable by the Issuers under this
Indenture; or
(f) any other act or omission to act or delay of any kind by the Issuers,
the Trustee or any other Person or any other circumstance whatsoever which
might, but for the provisions of this paragraph, constitute a legal or equitable
discharge of or defense to such Subsidiary Guarantor's obligations hereunder.
SECTION 13.03. Discharge; Reinstatement. The Subsidiary Guarantors'
obligations hereunder shall remain in full force and effect until the principal
of, premium, if any, and interest on the Notes and all other amounts payable by
the Issuers under this Indenture shall have been paid in full. If at any time
any payment of the principal of, premium, if any, or interest on any Note or any
other amount payable by the Issuers under this Indenture is rescinded or must be
otherwise restored or returned upon the insolvency, bankruptcy or reorganization
of an Issuer or otherwise, the Subsidiary Guarantors' obligations hereunder with
respect to such payment shall be reinstated as though such payment had been due
but not made at such time.
SECTION 13.04. Waiver by the Subsidiary Guarantors. The Subsidiary
Guarantors irrevocably waive acceptance hereof, presentment, demand, protest and
any notice not provided for herein, as well as any requirement that at any time
any action be taken by any Person against any Issuer or any other Person.
SECTION 13.05. Subrogation and Contribution. Upon making any payment
with respect to any obligation of the Issuers under this Article 13, the
Subsidiary Guarantor making such payment shall be subrogated to the rights of
the payee against the Issuers with respect to such obligation; provided that
such Subsidiary Guarantor shall not enforce either (i) any right to receive
payment by way of subrogation against the Issuers or against any direct or
indirect security for such obligation, or any other right to be reimbursed,
indemnified or exonerated by or for the account of the Issuers in respect
thereof or (ii) any right to receive payment, in the nature of contribution or
for any other reason, from any other Subsidiary Guarantor with respect to such
payment, in each case so long as any amount payable by the Issuers hereunder or
under the Notes remains unpaid.
SECTION 13.06. Stay of Acceleration. If acceleration of the time for
payment of any amount payable by the Issuers under this Indenture or the Notes
is stayed upon the insolvency, bankruptcy or reorganization of any Issuer, all
such amounts otherwise subject to acceleration under the terms of this Indenture
shall nonetheless be payable by the Subsidiary Guarantors hereunder forthwith on
demand by the Trustee or the Holders.
SECTION 13.07. Subordination. Each Subsidiary Guarantor's Obligations
under its Subsidiary Guarantee shall be junior and subordinated in right of
payment to any Senior Indebtedness of such Subsidiary Guarantor in the same
manner and to the same extent as the Notes are subordinated to Senior
Indebtedness of the Issuers pursuant to Article 14.
SECTION 13.08. Limits of Guarantees. Notwithstanding anything to the
contrary in this Article 13, each Subsidiary Guarantor, and by its acceptance of
Notes, each Holder, hereby confirms that it is the intention of all such parties
that the Subsidiary Guaranty of such Guarantor not constitute a fraudulent
conveyance under applicable fraudulent conveyance provisions of the United
States Bankruptcy Code or any comparable provision of state law. To effectuate
the foregoing intention, the Trustee, the Holders and the Subsidiary Guarantors
hereby irrevocably agree that the obligations of such Subsidiary Guarantor under
its Subsidiary Guaranty and this Article 13 shall be limited to the maximum
amount that would not render such Subsidiary Guarantor's obligations subject to
avoidance under applicable fraudulent conveyance provisions of the United States
Bankruptcy Code or any comparable provision of state law.
SECTION 13.09. Execution and Delivery of Note Guarantee. To evidence its
Subsidiary Guarantee set forth in Section 13.01, each Subsidiary Guarantor
hereby agrees that this Indenture (or a supplemental indenture in the form of
Exhibit B hereto) shall be executed on behalf of such Subsidiary Guarantor by
one of its Officers.
The signature of an Officer of a Subsidiary Guarantor on the Indenture
shall bind such Subsidiary Guarantor, notwithstanding that such individual has
ceased to hold such office prior to the authentication and delivery of any Note
or did not hold such office at the date of such Note.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Subsidiary Guarantee set
forth in this Indenture on behalf of the Subsidiary Guarantors.
ARTICLE 14
SUBORDINATION
SECTION 14.01. Agreement to Subordinate. The Issuers and the Subsidiary
Guarantors agree, and each Holder by accepting a Note agrees, any provision of
this Indenture or the Note to the contrary notwithstanding, that all obligations
owed under and in respect of the Notes and the Subsidiary Guarantees are
subordinated in right of payment, to the extent and in the manner provided in
this Article 14, to the prior payment in full of all Senior Indebtedness of the
Issuers and the Subsidiary Guarantors, and that the subordination of the Notes
and the Subsidiary Guarantees pursuant to this Article 14 is for the benefit of
all holders of all Senior Indebtedness of the Issuers and Subsidiary Guarantors
whether outstanding on the Closing Date or incurred thereafter. For purposes of
this Article, "payment in full", as used with respect to Senior Indebtedness,
means the payment of cash.
SECTION 14.02. Liquidation; Dissolution; Bankruptcy. Upon any payment or
distribution of the assets of an Issuer or Subsidiary Guarantor upon a total or
partial liquidation or dissolution or reorganization of or similar proceeding
relating to such Issuer or its property, the holders of Senior Indebtedness of
such Issuer or Subsidiary Guarantor will be entitled to receive payment in full
of such Senior Indebtedness before the Noteholders are entitled to receive any
payment from such Issuer, and until such Senior Indebtedness is paid in full,
any payment or distribution to which Noteholders would be entitled but for the
subordination provisions of the Indenture will be made to holders of such Senior
Indebtedness as their interests may appear except that Noteholders may receive
shares of stock (other than any shares of stock which, by their terms or the
terms of any security into which they are convertible or for which they are
exchangeable, or upon the happening of any event, mature or are mandatorily
redeemable or are redeemable at the option of the holder thereof, in whole or in
part) and any debt securities that are subordinated to such Senior Indebtedness
to at least the same extent as the Notes; provided that such stock and debt
securities are provided for by a plan of reorganization or readjustment
authorized by an order or decree of a court of competent jurisdiction in a
reorganization proceeding under any applicable bankruptcy, insolvency or other
similar law. If a distribution is made toNoteholders that, due to the
subordination provisions, should not have been made to them, such Noteholders
are required to hold it in trust for the holders of the relevant Senior
Indebtedness and pay it over to them as their interests may appear.
SECTION 14.03. Default on Designated Senior Indebtedness. (a) No direct
or indirect payment, deposit or distribution of any kind or character, whether
in cash, property or securities (including any payment made to the Holders under
the terms of Indebtedness subordinated to the Notes), may be made by set-off or
otherwise, by or on behalf of an Issuer or Subsidiary Guarantor of principal of,
premium (if any) or interest on, or any other obligation in respect of, the
Notes or the Subsidiary Guarantees, whether pursuant to the terms of the Notes
or upon acceleration, by way of repurchase, redemption, defeasance or otherwise
(the making of all such payments, deposits and distributions being referred to
herein, individually and collectively, as to, "Pay the Notes") if any Designated
Senior Indebtedness of such Issuer or Subsidiary Guarantor is not paid when due,
whether at maturity, on account of mandatory redemption or prepayment,
acceleration or otherwise, unless the default has been cured or waived and any
acceleration resulting therefrom has been rescinded or such Designated Senior
Indebtedness has been paid in full. However, such Issuer or Subsidiary Guarantor
may pay the Notes without regard to the foregoing if it and the Trustee receive
written notice approving such payment from the Representative of the Designated
Senior Indebtedness with respect to which the events set forth in the
immediately preceding sentence have occurred and is continuing. During the
continuance of any Default (other than a Default described in the second
preceding sentence) with respect to any Designated Senior Indebtedness of an
Issuer or Subsidiary Guarantor pursuant to which the maturity thereof may be
accelerated immediately without further notice (except such notice as may be
required to effect such acceleration) or upon the expiration of any applicable
grace periods, such Issuer or Subsidiary Guarantor may not pay the Notes for a
period (a "Payment Blockage Period") commencing upon the receipt by the Trustee
(with a copy to such Issuer) of written notice (a "Blockage Notice") of such
default from the Representative of the holders of such Designated Senior
Indebtedness specifying an election to effect a Payment Blockage Period and
ending 179 days thereafter (or earlier if such Payment Blockage Period is
terminated (i) by written notice to the Trustee and such Issuer from the Person
or Persons who gave such Blockage Notice, (ii) because the default giving rise
to such Blockage Notice is no longer continuing or (iii) because such Designated
Senior Indebtedness has been repaid in full). Notwithstanding the provisions
described in the immediately preceding sentence (but subject to the provisions
described in the first sentence of this Section 14.03), unless the holders of
such Designated Senior Indebtedness or the Representative of such holders have
accelerated the maturity of such Designated Senior Indebtedness, such Issuer or
Subsidiary Guarantor may resume payments on the Notes after the end of such
Payment Blockage Period. The Notes shall not be subject to more than one Payment
Blockage Period in any consecutive 360-day period, irrespective of the number of
defaults with respect to Designated Senior Indebtedness during such period.
To the extent any payment of Senior Indebtedness (whether by or on
behalf of the Issuers or the Subsidiary Guarantors, as proceeds of security or
enforcement of any right of setoff or otherwise) is declared to be fraudulent or
preferential, set aside or required to be paid to any receiver, trustee in
bankruptcy, liquidating trustee, agent or other similar Person under any
bankruptcy, insolvency, receivership, fraudulent conveyance or similar law, then
if such payment is recovered by, or paid over to, such receiver, trustee in
bankruptcy, liquidating trustee, agent or other similar Person, the Senior
Indebtedness or part thereof originally intended to be satisfied shall be deemed
to be reinstated and outstanding as if such payment had not occurred. To the
extent the obligation to repay any Senior Indebtedness is declared to be
fraudulent, invalid, or otherwise set aside under any bankruptcy, insolvency,
receivership, fraudulent conveyance or similar law, then the obligation so
declared fraudulent, invalid or otherwise set aside (and all other amounts that
would come due with respect thereto had such obligation not been so affected)
shall be deemed to be reinstated and outstanding as Senior Indebtedness for all
purposes hereof as if such declaration, invalidity or setting aside had not
occurred.
(b) Notwithstanding anything to the contrary in Section 14.02 or this
Section 14.03, Holders may continue to receive payments from any trust
established pursuant to Section 12.04 prior to occurrence of an event
prohibiting payment of or on the Notes.
SECTION 14.04. When Distributions Must Be Paid Over. If any Issuer or
Subsidiary Guarantor shall make any payment to the Trustee on account of the
principal of, or premium, if any, or interest on, the Notes, or the Holders
shall receive from any source any payment on account of the principal of,
premium, if any, or interest on, the Notes or any obligation in respect of the
Notes, at a time when such payment is prohibited by this Article 14, the Trustee
or such Holders shall hold such payment in trust for the benefit of, and shall
pay over and deliver to, the holders of the Senior Indebtedness of such Issuer
or Subsidiary Guarantor (pro rata as to each of such holders on the basis of the
respective amounts of such Senior Indebtedness held by them) or their
Representative, as their respective interests may appear, for application to the
payment of all outstanding Senior Indebtedness of such Issuer or Subsidiary
Guarantor until all such Senior Indebtedness has been paid in full, after giving
effect to all other payments or distributions to, or provisions made for, the
holders of Senior Indebtedness of such Issuer or Subsidiary Guarantor.
With respect to the holders of Senior Indebtedness of the Issuers and
Subsidiary Guarantors, the Trustee undertakes to perform only such obligations
on its part as are specifically set forth in this Article 14, and no implied
covenants or obligations with respect to any holders of the Senior Indebtedness
of the Issuers and the Subsidiary Guarantors shall be read into this Indenture
against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty
to the holders of the Senior Indebtedness of the Issuers and the Subsidiary
Guarantors, and shall not be liable to any holders of such Senior Indebtedness
if the Trustee shall pay over or distribute to, or on behalf of, Holders, the
Issuers, Subsidiary Guarantors or any other Person, money or assets to which any
holders of such Senior Indebtedness are entitled pursuant to this Article 14,
except if such payment is made at a time when a Responsible Officer has actual
knowledge that the terms of this Article 14 prohibit such payment.
SECTION 14.05. Notice. Neither the Trustee nor the Paying Agent shall at
any time be charged with the knowledge of the existence of any facts that would
prohibit the making of any payment to or by the Trustee or Paying Agent under
this Article 14 unless and until the Trustee or Paying Agent shall have received
written notice thereof from an Issuer, a Subsidiary Guarantor or one or more
holders of the Senior Indebtedness of an Issuer or Subsidiary Guarantor or a
representative of any holders of such Senior Indebtedness; and, prior to the
receipt of any such written notice, the Trustee or Paying Agent shall be
entitled to assume conclusively that no such facts exist; provided that if a
Responsible Officer of the Trustee shall not have received the notice provided
for in this Section 14.05 at least one Business Day prior to the date such
payment is due pursuant to the terms hereof, then, notwithstanding anything
herein to the contrary, the Trustee shall have full power and authority to make
such payment and shall not be affected by any notice to the contrary which may
be received by it within one Business Day prior to such date (it being
understood that nothing contained in this Section 14.05 shall limit the rights
of the holders of the Senior Indebtedness of the Issuers and the Subsidiary
Guarantors to recover any payment pursuant to Section 14.04). The Trustee shall
be entitled to rely on the delivery to it of written notice by a Person
representing itself to be a holder of the Senior Indebtedness of an Issuer or a
Subsidiary Guarantor (or a Representative thereof) to establish that such notice
has been given. In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any person as a holder
of Senior Indebtedness of an Issuer or any Subsidiary Guarantor to participate
in any payment or distribution pursuant to this Article, the Trustee may request
such person to furnish evidence to the reasonable satisfaction of the Trustee as
to the amount of such Senior Indebtedness held by such person, the extent to
which such person is entitled to participate in such payment or distribution and
any other facts pertinent to the rights of such person under this Article, and
if such evidence is not furnished, the Trustee may defer any payment which it
may be required to make for the benefit of such person pursuant to the terms of
this Indenture pending judicial determination as to the rights of such person to
receive such payment.
The Issuers and the Subsidiary Guarantors shall promptly notify the
Trustee and the Paying Agent in writing of any facts they know that would cause
a payment of principal of, premium, if any, or interest on, the Notes or any
other obligation in respect of the Notes to violate this Article 14, but failure
to give such notice shall not affect the subordination of the Notes to the
Senior Indebtedness of the Issuers and the Subsidiary Guarantors provided in
this Article 14 or the rights of holders of such Senior Indebtedness under this
Article 14.
SECTION 14.06. Subrogation. After all Senior Indebtedness of the Issuers
and the Subsidiary Guarantors has been paid in full and until the Notes are paid
in full, Holders shall be subrogated (equally and ratably with all other
Indebtedness pari passu with the Notes) to the rights of holders of such Senior
Indebtedness to receive distributions applicable to such Senior Indebtedness to
the extent that distributions otherwise payable to the Holders have been applied
to the payment of such Senior Indebtedness. A distribution made under this
Article 14 to holders of the Senior Indebtedness of the Issuers and the
Subsidiary Guarantors that otherwise would have been made to Holders is not, as
between the relevant Issuer or Subsidiary Guarantor and the Holders, a payment
by such relevant Issuer or Subsidiary Guarantor on its Senior Indebtedness.
SECTION 14.07. Relative Rights. This Article 14 defines the relative
rights of Holders and holders of the Senior Indebtedness of the Issuers and the
Subsidiary Guarantors. Nothing in this Indenture shall: (1) impair, as between
the Issuers and the Subsidiary Guarantors and Holders, the obligations of the
Issuers and the Subsidiary Guarantors, which are absolute and unconditional, to
pay principal of, premium, if any, and interest on the Notes in accordance with
their terms; (2) affect the relative rights of Holders and the creditors of the
relevant Issuer or Subsidiary Guarantor other than their rights in relation to
holders of the Senior Indebtedness of the relevant Issuer or Subsidiary
Guarantor; or (3) prevent the Trustee or any Holder from exercising its
available remedies upon a Default or Event of Default, subject to the rights of
holders of the Senior Indebtedness to receive distributions and payments
otherwise payable to Holders.
The failure to make a payment on account of principal of or interest on
the Notes by reason of any provision of this Article 14 shall not be construed
as preventing the occurrence of an Event of Default under Section 6.01.
SECTION 14.08. The Issuers, Subsidiary Guarantors and Holders May Not
Impair Subordination. (a) No right of any holder of the Senior Indebtedness of
an Issuer or any Subsidiary Guarantor to enforce the subordination as provided
in this Article 14 shall at any time or in any way be prejudiced or impaired by
any act or failure to act by the relevant Issuer or Subsidiary Guarantor or by
any noncompliance by the relevant Issuer or Subsidiary Guarantor with the terms,
provisions and covenants of this Indenture or the Notes or any other agreement
regardless of any knowledge thereof with which any such holder may have or be
otherwise charged.
(b) Without in any way limiting Section 14.08(a), the holders of any
Senior Indebtedness of an Issuer or a Subsidiary Guarantor may, at any time and
from time to time to the extent not otherwise prohibited by this Indenture,
without the consent of or notice to any Holders, without incurring any
liabilities to any Holder and without impairing or releasing the subordination
and other benefits provided in this Indenture or the Holders' obligations to the
holders of such Senior Indebtedness, even if any Holder's right of reimbursement
or subrogation or other right or remedy is affected, impaired or extinguished
thereby, do any one or more of the following: (i) amend, renew, exchange,
extend, modify, increase or supplement in any manner such Senior Indebtedness or
any instrument evidencing or guaranteeing or securing such Senior Indebtedness
or any agreement under which such Senior Indebtedness is outstanding (including,
but not limited to, changing the manner, place or terms of payment or changing
or extending the time of payment of, or renewing, exchanging, amending,
increasing or altering, (A) the terms of such Senior Indebtedness, (B) any
security for, or any Guarantee of, such Senior Indebtedness, (C) any liability
of any obligor on such Senior Indebtedness (including any guarantor) or any
liability incurred in respect of such Senior Indebtedness); (ii) sell, exchange,
release, surrender, realize upon, enforce or otherwise deal with in any manner
and in any order any property pledged, mortgaged or otherwise securing such
Senior Indebtedness or any liability of any obligor thereon, to such holder, or
any liability incurred in respect thereof; (iii) settle or compromise any such
Senior Indebtedness or any other liability of any obligor of such Senior
Indebtedness to such holder or any security therefor or any liability incurred
in respect thereof and apply any sums by whomsoever paid and however realized to
any liability (including, without limitation, payment of any of the Senior
Indebtedness of the Issuers and Subsidiary Guarantors) in any manner or order;
and (iv) fail to take or to record or otherwise perfect, for any reason or for
no reason, any lien or security interest securing such Senior Indebtedness by
whomsoever granted, exercise or delay in or refrain from exercising any right or
remedy against any obligor or any guarantor or any other Person, elect any
remedy and otherwise deal freely with any obligor and any security for such
Senior Indebtedness or any liability of any obligor to the holders of such
Senior Indebtedness or any liability incurred in respect of such Senior
Indebtedness.
(c) Each Holder by accepting a Note agrees not to compromise, release,
forgive or otherwise discharge the obligations with respect to such Holder's
Note unless holders of a majority of the outstanding amount of each class of
Senior Indebtedness of the Issuers and Subsidiary Guarantors consent to such
compromise, release, forgiveness or discharge.
SECTION 14.09. Distribution or Notice to Representative. Whenever a
distribution is to be made, or a notice given, to holders of Senior Indebtedness
of an Issuer or Subsidiary Guarantor, the distribution may be made and the
notice given to their Representative, if any. If any payment or distribution of
the assets of an Issuer or Subsidiary Guarantor is required to be made to
holders of any of the Senior Indebtedness of such Issuer or Subsidiary Guarantor
pursuant to this Article 14, the Trustee and the Holders shall be entitled to
rely upon any order or decree of any court of competent jurisdiction, or upon
any certificate of a representative of such Senior Indebtedness or a custodian,
in ascertaining the holders of such Senior Indebtedness entitled to participate
in any such payment or distribution, the amount to be paid or distributed to
holders of such Senior Indebtedness and all other facts pertinent to such
payment or distribution or to this Article 14.
SECTION 14.10. Rights of Trustee and Paying Agent. The Trustee or Paying
Agent may continue to make payments on the Notes unless prior to any payment
date it has received written notice of facts that would cause a payment of
principal of, or premium, if any, or interest on, the Notes to violate this
Article 14. Only the Issuers, Subsidiary Guarantors, a Representative of Senior
Indebtedness of an Issuer or a Subsidiary Guarantor, or a holder of Senior
Indebtedness of an Issuer or a Subsidiary Guarantor that has no Representative
may give such notice.
To the extent permitted by the TIA, the Trustee in its individual or any
other capacity may hold Indebtedness of the Issuers and Subsidiary Guarantors
(including Senior Indebtedness) with the same rights it would have if it were
not Trustee. Any agent of the Trustee may do the same with like rights.
Nothing in this Article 14 shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 7.08.
SECTION 14.11. Authorization to Effect Subordination. Each Holder by its
acceptance thereof authorizes and directs the Trustee on its behalf to take such
action as may be necessary or appropriate to effectuate the subordination as
provided in this Article 14, and appoints the Trustee as such Holder's
attorney-in-fact for any and all such purposes (including, without limitation,
the timely filing of a claim for the unpaid balance of the Note that such Holder
holds in the form required in any insolvency or liquidation proceeding and
causing such claim to be approved).
If a proper claim or proof of debt in the form required in such
proceeding is not filed by or on behalf of all Holders prior to 30 days before
the expiration of the time to file such claims or proofs, then the holders or a
Representative of any Senior Indebtedness of any Issuer or Subsidiary Guarantor
is hereby authorized, and shall have the right (without any duty), to file an
appropriate claim for and on behalf of the Holders.
SECTION 14.12. Payment. A payment on account of or with respect to any
Note shall include, without limitation, principal, premium or interest with
respect to or in connection with any optional redemption or purchase provisions,
any direct or indirect payment payable by reason of any other Indebtedness or
obligation being subordinated to the Notes, and any direct or indirect payment
or recovery on any claim as a Holder relating to or arising out of this
Indenture or any Note, or the issuance of any Note, or the transactions
contemplated by this Indenture or referred to herein.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the date first written above.
TRIARC CONSUMER PRODUCTS
GROUP, LLC, as Issuer
By: BRIAN L. SCHORR
Title: Executive Vice President
TRIARC BEVERAGE HOLDINGS CORP.,
as Issuer
By: BRIAN L. SCHORR
Title: Executive Vice President
MISTIC BRANDS, INC., as a Subsidiary
Guarantor
By: BRIAN L. SCHORR
Title: Executive Vice President
SNAPPLE BEVERAGE CORP., as a
Subsidiary Guarantor
By: BRIAN L. SCHORR
Title: Executive Vice President
SNAPPLE INTERNATIONAL CORP., as a
Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
SNAPPLE WORLDWIDE CORP., as a
Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
SNAPPLE FINANCE CORP., as a
Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
PACIFIC SNAPPLE DISTRIBUTORS,
INC., as a Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
MR. NATURAL, INC., as a Subsidiary
Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
SNAPPLE CARIBBEAN CORP., as a
Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
KELRAE, INC., as a Subsidiary Guarantor
By: JOHN L. BARNES, JR.
Title: President
RC/ARBY'S CORPORATION, as a
Subsidiary Guarantor
By: CURTIS S. GIMSON
Title: Senior Vice President, General
Counsel and Secretary
RCAC ASSET MANAGEMENT, INC., as a
Subsidiary Guarantor
By: FRANCIS T. MCCARRON
Title: Senior Vice President - Taxes
ARBY'S, INC., as a Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
ARBY'S BUILDING AND
CONSTRUCTION CO., as a Subsidiary
Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
TJ HOLDING COMPANY, INC., as a
Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
ARBY'S RESTAURANT
CONSTRUCTION COMPANY, as a
Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
ARBY'S RESTAURANT
DEVELOPMENT CORPORATION, as
Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
ARBY'S RESTAURANT HOLDING
COMPANY, as a Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
ARBY'S RESTAURANTS, INC., as a
Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
ARBY'S RESTAURANT OPERATIONS
COMPANY, as a Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
RC-11, INC., as a Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
RC LEASING, INC., as a Subsidiary
Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
ROYAL CROWN BOTTLING COMPANY
OF TEXAS, as a Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
ROYAL CROWN COMPANY, INC., as a
Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
RETAILER CONCENTRATE
PRODUCTS, INC., as a Subsidiary
Guarantor
By: FRANCIS T. MCCARRON
Title: Senior Vice President - Taxes
TRIBEV CORPORATION, as a Subsidiary
Guarantor
By: FRANCIS T. MCCARRON
Title: Senior Vice President - Taxes
CABLE CAR BEVERAGE
CORPORATION, as a Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
OLD SAN FRANCISCO SELTZER, INC.,
as a Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
FOUNTAIN CLASSICS, INC., as a
Subsidiary Guarantor
By: STUART I. ROSEN
Title: Vice President and Secretary
THE BANK OF NEW YORK, as Trustee
By: MARIE TRIMBOLI
Title: Trustee
List of Omitted Schedules
EXHIBIT A - Form of Note
EXHIBIT B - Form of Supplemental Indenture
EXHIBIT C - Form of Certificate of Beneficial Ownership EXHIBIT D - Form of
Regulation S Certificate EXHIBIT E - Form of Accredited Investor Certificate
The Registrant hereby agrees to furnish supplementaly a copy of any omitted
schedule to the Securities and Exchange Commission upon its request.