-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Tif0WVohMudnLh1E7jI7fc2Avsc1yNx06o75kewjj3NMMgpraunETzKECjc7JDZS rh6Pj0DHoTGSamPp6k8arw== 0000030697-99-000025.txt : 19990312 0000030697-99-000025.hdr.sgml : 19990312 ACCESSION NUMBER: 0000030697-99-000025 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 19990225 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 19990311 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TRIARC COMPANIES INC CENTRAL INDEX KEY: 0000030697 STANDARD INDUSTRIAL CLASSIFICATION: BEVERAGES [2080] IRS NUMBER: 380471180 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 001-02207 FILM NUMBER: 99563419 BUSINESS ADDRESS: STREET 1: 280 PARK AVENUE CITY: NEW YORK STATE: NY ZIP: 10017 BUSINESS PHONE: 2124513000 MAIL ADDRESS: STREET 1: 280 PARK AVENUE CITY: NEW YORK STATE: NY ZIP: 10017 FORMER COMPANY: FORMER CONFORMED NAME: DWG CORP DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: DWG CIGAR CORP DATE OF NAME CHANGE: 19680820 FORMER COMPANY: FORMER CONFORMED NAME: DEISEL WEMMER GILBERT CORP DATE OF NAME CHANGE: 19680820 8-K 1 TRIARC COMPANIES, INC. SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of report (Date of earliest event reported) February 25, 1999 TRIARC COMPANIES, INC. -------------------------------------------------- (Exact Name of Registrant as Specified in Charter) DELAWARE 1-2207 38-0471180 ----------------- -------------- -------------- (State or Other (Commission (I.R.S. Employer Jurisdiction of File Number) Identification No.) Incorporation) 280 Park Avenue New York, NY 10017 ------------------------------------------ ----------------- (Address of Principal Executive Offices) (Zip Code) Registrant's telephone number, including area code: (212) 451-3000 ------------------------------------------------------------------- (Former Name or Former Address, if Changed Since Last Report) Item 5. Other Events. Withdrawal of Going Private Proposal; Dutch Auction Tender Offer On March 10, 1999, Triarc Companies, Inc. ("Triarc") announced that it had been advised by Nelson Peltz and Peter W. May, the Chairman and Chief Executive Officer and the President and Chief Operating Officer, respectively, of Triarc, that they have withdrawn their $18 per share going-private proposal, effective immediately. Triarc also announced that its Board of Directors unanimously approved a tender offer for up to 5.5 million shares of the Company's Common Stock at a price of not less that $16 1/4 and not more than $18 1/4 per share, pursuant to a "Dutch Auction." The tender offer is expected to commence on March 12, 1999. The tender offer, proration period and withdrawal rights will expire at 12:00 midnight, New York City time on April 13, 1999, unless the tender offer is extended. The tender offer will be subject to various terms and conditions described in offering materials to be mailed on or about March 12, 1999 to Triarc shareholders of record as of March 10, 1999. The tender offer is conditioned on 3,500,000 shares of Common Stock being tendered, unless such condition is waived by the Company. Wasserstein Perella & Co., Inc. will act as Dealer Manager for the offer and Georgeson & Company Inc. will serve as Information Agent. A copy of the press release relating to the foregoing is being filed as an exhibit hereto. Refinancing of Subsidiary Indebtedness On February 25, 1999, Triarc Consumer Products Group, LLC ("Triarc LLC"), a new wholly-owned subsidiary of Triarc which owns Triarc's premium beverage, restaurant franchising and soft drink concentrates businesses, completed the sale of $300 million principal amount of 10.25% Senior Subordinated Notes due 2009 (the "Notes"), pursuant to Rule 144A of the Securities Act of 1933, as amended (the "Securities Act"). Concurrently, subsidiaries of Triarc LLC entered into a new $535 million Senior Secured Credit Facility. On February 25, 1999, RC/Arby's Corporation, a subsidiary of Triarc, announced that it is redeeming its $275 million principal amount of 9 3/4% Senior Secured Notes due 2000 on March 30, 1999 at a redemption price of 102.786% of the principal amount, plus accrued and unpaid interest. The Notes have not been registered under the Securities Act, and may not be offered or sold in the United States absent registration or an applicable exemption from the registration requirements of the Securities Act. This Current Report on Form 8-K shall not constitute an offer to sell or a solicitation of an offer to buy the Notes. A copy of the Indenture and Registration Rights Agreement relating to the Notes and the Credit Agreement are being filed as exhibits hereto. Item 7. Financial Statements, Pro Forma Financial Information and Exhibits (c) Exhibits 4.1-- Credit Agreement dated as of February 25, 1999, among Snapple Beverage Corp., Mistic Brands, Inc., Cable Car Beverage Corporation, RC/Arby's Corporation and Royal Crown Company, Inc., as Borrowers, various financial institutions party thereto, as Lenders, DLJ Capital Funding, Inc., as syndication agent, Morgan Stanley Senior Funding, Inc., as Documentation Agent, and The Bank of New York, as Administrative Agent . 4.2-- Indenture dated of February 25, 1999 among Triarc Consumer Products Group, LLC ("TCPG"), Triarc Beverage Holdings Corp. ("TBHC"), as Issuers, the subsidiary guarantors party thereto and The Bank of New York, as Trustee. 4.3-- Registration Rights Agreement dated February 18, 1999 among TCPG, TBHC, the Guarantors party thereto and Morgan Stanley & Co. Incorporated, Donaldson, Lufkin & Jenrette Securities Corporation and Wasserstein Perrella Securities, Inc. 99.1-- Press Release dated March 10, 1999. Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on behalf by the undersigned hereunto duly authorized. TRIARC COMPANIES, INC. By: BRIAN L. SCHORR ------------------------------- Brian L. Schorr Executive Vice President and General Counsel Dated: March 11, 1999 EXHIBIT INDEX Exhibit No. Description Page No. 4.1 Credit Agreement dated as of February 25, 1999, among Snapple Beverage Corp., Mistic Brands, Inc., Cable Car Beverage Corporation, RC/Arby's Corporation and Royal Crown Company, Inc., as Borrowers, various financial institutions party thereto, as Lenders, DLJ Capital Funding, Inc., as syndication agent, Morgan Stanley Senior Funding, Inc., as Documentation Agent, and The Bank of New York, as Administrative Agent 4.2 Indenture dated of February 25, 1999 among Triarc Consumer Products Group, LLC ("TCPG"), Triarc Beverage Holdings Corp. ("TBHC"), as Issuers, the subsidiary guarantors party thereto and The Bank of New York, as Trustee. 4.3 Registration Rights Agreement dated February 18, 1999 among TCPG, TBHC, the Guarantors party thereto and Morgan Stanley & Co. Incorporated, Donaldson, Lufkin & Jenrette Securities Corporation and Wasserstein Perrella Securities, Inc. 99.1 Press Release dated March 10, 1999. EX-4.1 2 CREDIT AGREEMENT Exhibit 4.1 U.S. $535,000,000 CREDIT AGREEMENT, dated as of February 25, 1999, among SNAPPLE BEVERAGE CORP., MISTIC BRANDS, INC., CABLE CAR BEVERAGE CORPORATION, RC/ARBY'S CORPORATION and ROYAL CROWN COMPANY, INC., as the Borrowers, VARIOUS FINANCIAL INSTITUTIONS, as the Lenders, DLJ CAPITAL FUNDING, INC., as the Syndication Agent for the Lenders, MORGAN STANLEY SENIOR FUNDING, INC., as the Documentation Agent for the Lenders, and THE BANK OF NEW YORK, as the Administrative Agent for the Lenders. ARRANGED BY DLJ CAPITAL FUNDING, INC. AND MORGAN STANLEY SENIOR FUNDING, INC. TABLE OF CONTENTS SECTION PAGE ARTICLE I DEFINITIONS AND ACCOUNTING TERMS 1.1. Defined Terms.......................................................... 1.2. Use of Defined Terms.................................................. 1.3. Cross-References...................................................... 1.4. Accounting and Financial Determinations............................... ARTICLE II COMMITMENTS, BORROWING PROCEDURES AND NOTES 2.1. Loans and Commitments................................................. 2.1.1. Term Loans.......................................................... 2.1.2. Revolving Loan Commitment and Swing Line Loan Commitment............ 2.1.3. Letter of Credit Commitment......................................... 2.1.4. Lenders Not Permitted or Required to Make Loans..................... 2.1.5. Issuer Not Permitted or Required to Issue Letters of Credit......... 2.1.6. RC/Arby's and Royal Crown........................................... 2.2. Reduction of Commitment Amounts....................................... 2.2.1. Optional............................................................ 2.2.2. Mandatory........................................................... 2.3. Borrowing Procedures and Funding Maintenance.......................... 2.3.1. Term Loans and Revolving Loans...................................... 2.3.2. Swing Line Loans.................................................... 2.4. Continuation and Conversion Elections................................. 2.5. Funding............................................................... 2.6. Issuance Procedures................................................... 2.6.1. Other Lenders' Participation........................................ 2.6.2. Disbursements; Conversion to Revolving Loans........................ 2.6.3. Reimbursement....................................................... 2.6.4. Deemed Disbursements................................................ 2.6.5. Nature of Reimbursement Obligations................................. 2.7. Register; Notes....................................................... ARTICLE III REPAYMENTS, PREPAYMENTS, INTEREST AND FEES 3.1. Repayments and Prepayments; Application............................... 3.1.1. Repayments and Prepayments.......................................... 3.1.2. Application......................................................... 3.1.3. Cash Collateral..................................................... 3.2. Interest Provisions................................................... 3.2.1. Rates............................................................... 3.2.2. Post-Maturity Rates................................................. 3.2.3. Payment Dates....................................................... 3.3. Fees.................................................................. 3.3.1. Commitment Fee...................................................... 3.3.2. Agents' and Arrangers' Fees......................................... 3.3.3. Letter of Credit Fees............................................... ARTICLE IV CERTAIN LIBO RATE AND OTHER PROVISIONS 4.1. LIBO Rate Lending Unlawful............................................ 4.2. Deposits Unavailable.................................................. 4.3. Increased LIBO Rate Loan Costs, etc................................... 4.4. Funding Losses........................................................ 4.5. Increased Capital Costs............................................... 4.6. Taxes................................................................. 4.7. Payments, Computations, etc........................................... 4.8. Sharing of Payments................................................... 4.9. Setoff................................................................ 4.10. Change of Lending Office............................................. 4.11. Replacement of Lenders............................................... ARTICLE V CONDITIONS PRECEDENT 5.1. Initial Credit Extension.............................................. 5.1.1. Resolutions, etc.................................................... 5.1.2. Delivery of Notes................................................... 5.1.3. Transaction Consummated.............................................. 5.1.4. Closing Date Certificate............................................. 5.1.5. Transaction Documents, etc........................................... 5.1.6. Payment of Outstanding Indebtedness, etc............................. 5.1.7. Subsidiary Guaranty.................................................. 5.1.8. Pledge Agreements.................................................... 5.1.9. Security Agreements.................................................. 5.1.10. UCC Filing Service................................................. 5.1.11. Financial Information, etc......................................... 5.1.12. Solvency, etc...................................................... 5.1.13. Opinions of Counsel................................................ 5.1.14. Reliance Letters................................................... 5.1.15. Insurance.......................................................... 5.1.16. RC/Arby's Notes Repayment.......................................... 5.1.17. Closing Fees, Expenses, etc........................................ 5.2. All Credit Extensions................................................ 5.2.1. Compliance with Warranties, No Default, etc.......................... 5.2.2. Credit Extension Request............................................. 5.2.3. Satisfactory Legal Form.............................................. ARTICLE VI REPRESENTATIONS AND WARRANTIES 6.1. Organization, etc..................................................... 6.2. Due Authorization, Non-Contravention, etc............................. 6.3. Government Approval, Regulation, etc.................................. 6.4. Validity, etc......................................................... 6.5. Financial Information................................................. 6.6. No Material Adverse Effect............................................ 6.7. Litigation, Labor Controversies, etc.................................. 6.8. Subsidiaries.......................................................... 6.9. Ownership of Properties............................................... 6.10. Taxes................................................................ 6.11. Pension and Welfare Plans............................................ 6.12. Environmental Warranties............................................. 6.13. Regulations U and X.................................................. 6.14. Accuracy of Information.............................................. 6.15. Solvency............................................................. 6.16. Year 2000............................................................ ARTICLE VII COVENANTS 7.1. Affirmative Covenants................................................ 7.1.1. Financial Information, Reports, Notices, etc......................... 7.1.2. Compliance with Laws, etc............................................ 7.1.3. Maintenance of Properties............................................ 7.1.4. Insurance............................................................ 7.1.5. Books and Records.................................................... 7.1.6. Environmental Covenant............................................... 7.1.7. Future Subsidiaries.................................................. 7.1.8. Future Leased Property and Future Acquisitions of Real Property; Future Acquisition of Other Property................................. 7.1.9. Use of Proceeds, etc................................................. 7.1.10. Hedging Obligations................................................ 7.1.11. RC/Arby's Notes Repayment; Execution and Delivery of Loan Documents.......................................................... 7.1.12. Consummation of Acquisition; Prepayment of Term C Loans............ 7.1.13. Additional Post-Closing Items...................................... 7.2. Negative Covenants................................................... 7.2.1. Business Activities.................................................. 7.2.2. Indebtedness......................................................... 7.2.3. Liens................................................................ 7.2.4. Financial Covenants.................................................. 7.2.5. Investments.......................................................... 7.2.6. Restricted Payments, etc............................................. 7.2.7. Capital Expenditures, etc............................................ 7.2.8. Consolidation, Merger, Acquisitions, etc............................. 7.2.9. Asset Dispositions, etc............................................. 7.2.10. Modification of Certain Agreements................................ 7.2.11. Transactions with Affiliates...................................... 7.2.12. Negative Pledges, Restrictive Agreements, etc..................... 7.2.13. Sale and Leaseback................................................ ARTICLE VIII EVENTS OF DEFAULT 8.1. Listing of Events of Default....................................... 8.1.1. Non-Payment of Obligations......................................... 8.1.2. Breach of Warranty................................................. 8.1.3. Non-Performance of Certain Covenants and Obligations............... 8.1.4. Non-Performance of Other Covenants and Obligations................. 8.1.5. Default on Other Indebtedness...................................... 8.1.6. Judgments.......................................................... 8.1.7. Pension Plans...................................................... 8.1.8. Change in Control.................................................. 8.1.9. Bankruptcy, Insolvency, etc........................................ 8.1.10. Impairment of Security, etc........................................ 8.2. Action if Bankruptcy............................................... 8.3. Action if Other Event of Default................................... ARTICLE IX THE AGENTS 9.1. Actions.............................................................. 9.2. Funding Reliance, etc................................................ 9.3. Exculpation.......................................................... 9.4. Successor............................................................ 9.5. Loans or Letters of Credit Issued by the Agents...................... 9.6. Credit Decisions..................................................... 9.7. Copies, etc.......................................................... ARTICLE X MISCELLANEOUS PROVISIONS 10.1. Waivers, Amendments, etc.......................................... 10.2. Notices........................................................... 10.3. Payment of Costs and Expenses..................................... 10.4. Indemnification................................................... 10.5. Survival.......................................................... 10.6. Severability...................................................... 10.7. Headings.......................................................... 10.8. Execution in Counterparts, Effectiveness, etc..................... 10.9. Governing Law; Entire Agreement................................... 10.10. Successors and Assigns............................................ 10.11. Sale and Transfer of Loans and Notes; Participation in Loans and Notes......................................................... 10.11.1. Assignments....................................................... 10.11.2. Participations.................................................... 10.12. Confidentiality................................................... 10.13. Other Transactions................................................ 10.14. Forum Selection and Consent to Jurisdiction....................... 10.15. Waiver of Jury Trial.............................................. CREDIT AGREEMENT THIS CREDIT AGREEMENT, dated as of February 25, 1999, among SNAPPLE BEVERAGE CORP., a Delaware corporation ("Snapple"), MISTIC BRANDS, INC., a Delaware corporation ("Mistic"), CABLE CAR BEVERAGE CORPORATION, a Delaware corporation ("Cable Car"), RC/ARBY'S CORPORATION, a Delaware corporation ("RC/Arby's") and ROYAL CROWN COMPANY, INC., a Delaware corporation ("Royal Crown") (Snapple, Mistic, Cable Car and, following the consummation of the RC/Arby's Notes Repayment, RC/Arby's and Royal Crown, are collectively referred to as the "Borrowers", and each, individually, a "Borrower"), the various financial institutions as are or may become parties hereto (collectively, the "Lenders"), DLJ CAPITAL FUNDING, INC. ("DLJ"), as syndication agent (the "Syndication Agent") for the Lenders, MORGAN STANLEY SENIOR FUNDING, INC. ("Morgan Stanley"), as documentation agent (the "Documentation Agent") for the Lenders, and THE BANK OF NEW YORK ("BNY"), as administrative agent (the "Administrative Agent") for the Lenders. W I T N E S S E T H: WHEREAS, Snapple, Mistic, Cable Car and Royal Crown are engaged directly and through their Subsidiaries in the business of producing, marketing and distributing beverages, beverage concentrates and other similar or related products under various trademarks and trade names, and Arby's (as defined below) is engaged directly and through its Subsidiaries in the business of franchising "Arby's" restaurants and other restaurant and food service concepts (collectively, with any related and ancillary businesses, the "Business"); WHEREAS, each Borrower is a direct or indirect, wholly-owned Subsidiary of Triarc Consumer Products Group, LLC, a Delaware limited liability company ("Holdco"), and Holdco is a direct, wholly-owned Subsidiary of Triarc Companies, Inc., a Delaware corporation ("Triarc"); WHEREAS, Holdco and Triarc Beverage Holdings Corp., a Delaware corporation ("Triarc Beverage"), intend to issue senior subordinated notes due 2009 (the "Subordinated Notes Offering") for gross cash proceeds of at least $300,000,000; WHEREAS, the Borrowers intend to use the proceeds of the Borrowings hereunder and Holdco and Triarc Beverage intend to use the proceeds of the Subordinated Notes Offering (a) to refinance (the "Refinancing") certain existing indebtedness of each of Triarc Beverage, Cable Car, Snapple and Mistic, (b) to acquire (the "Acquisition") all of the issued and outstanding Capital Stock of Millrose Distributors, Inc., a New Jersey corporation, for an aggregate purchase price not to exceed $17,250,000 (subject to adjustment pursuant to the terms of the Acquisition Agreement), (c) to make the Triarc Dividend (as defined below) and (d) to make the RC/Arby's Notes Repayment (as defined below) (the Subordinated Notes Offering, the Refinancing, the Acquisition, the Triarc Dividend, the RC/Arby's Notes Repayment and each of the other transactions relating thereto (other than Triarc's proposed going-private transaction) are collectively referred to as the "Transaction"); WHEREAS, upon, and only upon, the consummation of the RC/Arby's Notes Repayment, RC/Arby's and Royal Crown shall be entitled to the rights and subject to the obligations and liabilities of a "Borrower" hereunder; WHEREAS, to finance in part each of the Refinancing, the Acquisition and the Triarc Dividend, and to provide for the ongoing working capital and general corporate needs of the Borrowers and their respective subsidiaries, the Borrowers desire to obtain the following financing facilities from the Lenders: (a) a Term Loan Commitment pursuant to which Borrowings of Term Loans will be made in a maximum original principal amount of (i) $45,000,000 (in the case of Term A Loans), (ii) $125,000,000 (in the case of Term B Loans) and (iii) $305,000,000 (in the case of Term C Loans) to the Borrowers in a single Borrowing to occur on the Closing Date; (b) a Revolving Loan Commitment (to include availability for Revolving Loans, Swing Line Loans and Letters of Credit) pursuant to which Borrowings of Revolving Loans, in a maximum aggregate principal amount (together with all Swing Line Loans and Letter of Credit Outstandings) not to exceed the lesser of (i) the then existing Revolving Loan Commitment Amount and (ii) the Borrowing Base Amount, will be made to the Borrowers from time to time on and subsequent to the Closing Date but prior to the Revolving Loan Commitment Termination Date; (c) a Letter of Credit Commitment pursuant to which the Issuer will issue Letters of Credit for the account of the Borrowers and their respective Subsidiaries from time to time on and subsequent to the Closing Date but prior to the Revolving Loan Commitment Termination Date in a maximum aggregate Stated Amount at any one time outstanding not to exceed $25,000,000 (provided, that the aggregate outstanding principal amount of Revolving Loans, Swing Line Loans and Letter of Credit Outstandings at any time shall not exceed the lesser of (i) the then existing Revolving Loan Commitment Amount and (ii) the Borrowing Base Amount); and (d) a Swing Line Loan Commitment pursuant to which Borrowings of Swing Line Loans in an aggregate outstanding principal amount not to exceed $10,000,000 will be made on and subsequent to the Closing Date but prior to the Revolving Loan Commitment Termination Date (provided, that the aggregate out- standing principal amount of Swing Line Loans, Revolving Loans and Letter of Credit Outstandings at any time shall not exceed the lesser of (i) the then existing Revolving Loan Commitment Amount and (ii) the Borrowing Base Amount); with all the proceeds of the Credit Extensions to be used for the purposes set forth in Section 7.1.9; and WHEREAS, the Lenders are willing, on the terms and subject to the conditions hereinafter set forth (including Article V), to extend the Commitments, make Loans to the Borrowers and issue (or participate in) Letters of Credit; NOW, THEREFORE, the parties hereto agree as follows: ARTICLE I DEFINITIONS AND ACCOUNTING TERMS SECTION 1.1. Defined Terms. The following terms (whether or not underscored) when used in this Agreement, including its preamble and recitals, shall, except where the context otherwise requires, have the following meanings (such meanings to be equally applicable to the singular and plural forms thereof): "Account" means (i) any account (as that term is defined in Section 9-106 of the UCC) of any Borrower or any of their wholly-owned U.S. Subsidiaries arising from the sale or lease of goods or the rendering of services, and (ii) with respect to Arby's and its wholly-owned U.S. Subsidiaries, to the extent not otherwise included in clause (i), all royalties, fees and other amounts due under any franchise or master development agreement which, in accordance with GAAP, would be classified as an account receivable and which are included on the balance sheets of Arby's and its Subsidiaries. "Account Debtor" is defined in clause (b) of the definition of "Eligible Accounts". "Acquisition" is defined in the fourth recital. "Acquisition Agreement" means, collectively, the stock purchase agreements executed in connection with the Acquisition. "Acquisition Escrow Account" means the escrow account established pursuant to the Acquisition Escrow Agreement. "Acquisition Escrow Agreement" means the escrow agreement, dated as of the Closing Date, by and among the Borrowers and the Administrative Agent pursuant to which Borrowings under the Term C Loans shall be deposited to be used within 45 days thereafter to pay the purchase price in connection with the Acquisition, as amended, supplemented, amended and restated or otherwise modified from time to time in accordance herewith and therewith. "Administrative Agent" is defined in the preamble and includes each other Person as shall have subsequently been appointed as the successor Administrative Agent pursuant to Section 9.4. "Administrative Agent's Fee Letter" means the confidential fee letter, dated as of February 25, 1999, among the Administrative Agent and the Borrowers. "Affiliate" of any Person means any other Person which, directly or indirectly, controls, is controlled by or is under common control with such Person (excluding any trustee under, or any committee with responsibility for administering, any Plan). A Person shall be deemed to be "controlled by" any other Person if such other Person possesses, directly or indirectly, power (i) to vote 10% or more of the Capital Stock (on a fully diluted basis) of such Person having ordinary voting power for the election of directors or managing general partners, or (ii) to direct or cause the direction of the management and policies of such Person whether by contract or otherwise. "Agents" means, collectively, the Administrative Agent, the Syn- dication Agent and the Documentation Agent. "Agreement" means, on any date, this Credit Agreement as originally in effect on the Closing Date and as thereafter from time to time amended, supplemented, amended and restated, or otherwise modified and in effect on such date. "Alternate Base Rate" means, on any date and with respect to all Base Rate Loans, a fluctuating rate of interest per annum equal to the higher of (i) the rate of interest in effect on such day as publicly announced or established from time to time by the Administrative Agent in New York, New York as its "prime commercial lending rate", and (ii) the Federal Funds Rate most recently determined by the Administrative Agent plus 1/2 of 1%. The Alternate Base Rate is not necessarily intended to be the lowest rate of interest determined by the Administrative Agent in connection with extensions of credit. Changes in the rate of interest on that portion of any Loans maintained as Base Rate Loans will take effect simultaneously with each change in the Alternate Base Rate. The Administrative Agent will give notice promptly to the Borrowers and the Lenders of changes in the Alternate Base Rate. "Annualized" means (i) with respect to the end of the first full Fiscal Quarter of Holdco to occur after the Closing Date, the applicable amount for such Fiscal Quarter multiplied by four, (ii) with respect to the second Fiscal Quarter of Holdco to occur after the Closing Date, the applicable amount for such Fiscal Quarter and the immediately preceding Fiscal Quarter multiplied by two, and (iii) with respect to the third Fiscal Quarter of Holdco to occur after the Closing Date, the applicable amount for such Fiscal Quarter and the immediately preceding two Fiscal Quarters multiplied by 1.3333. "Applicable Commitment Fee" means, (i) at all times from the Closing Date through (and including) the day that is six months following the Closing Date, a fee which shall accrue at a rate of 3/4 of 1% per annum, and (ii) thereafter, a fee which shall accrue at a rate per annum determined by reference to the Leverage Ratio for the Fiscal Quarter last ended and the applicable percentage per annum set forth below under the column entitled "Applicable Commitment Fee": Applicable Leverage Ratio Commitment Fee -------------- -------------- greater than or 0.75% equal to 3.0:1 less than 3.0:1 0.50% The Leverage Ratio used to compute the Applicable Commitment Fee shall be the Leverage Ratio set forth in the Compliance Certificate most recently delivered by or on behalf of the Borrowers to the Administrative Agent pursuant to clause (d) of Section 7.1.1. Changes in the Applicable Commitment Fee resulting from a change in the Leverage Ratio shall become effective upon delivery by or on behalf of the Borrowers to the Administrative Agent of a new Compliance Certificate pursuant to clause (d) of Section 7.1.1. If the Borrowers shall fail to deliver a Compliance Certificate within the number of days required pursuant to clause (d) of Section 7.1.1 (after giving effect to any grace period), the Applicable Commitment Fee from and including the first day after the date on which such Compliance Certificate was required to be delivered to, but not including the date the Borrowers deliver to, the Administrative Agent an appropriately completed Compliance Certificate shall conclusively equal the highest Applicable Commitment Fee set forth above. "Applicable Margin" means at all times during the applicable periods set forth below, (a) with respect to the unpaid principal amount of each Term B Loan maintained as (i) a Base Rate Loan, 2.50% per annum and (ii) a LIBO Rate Loan, 3.50% per annum; (b) with respect to the unpaid principal amount of each Term C Loan maintained as (i) a Base Rate Loan, 2.75% per annum and (ii) a LIBO Rate Loan, 3.75% per annum; and (c) with respect to the unpaid principal amount of each Revolving Loan and each Term A Loan maintained as (i) a Base Rate Loan, (x) from the Closing Date through (and including) the day that is six months following the Closing Date, 2.00% per annum, and (y) thereafter, by reference to the Leverage Ratio and at the applicable percentage per annum set forth below under the column entitled "Applicable Margin for Base Rate Loans", and (ii) a LIBO Rate Loan, (x) from the Closing Date through (and including) the day that is six months following the Closing Date, 3.00% per annum, and (y) thereafter, by reference to the Leverage Ratio and at the applicable percentage per annum set forth below under the column entitled "Applicable Margin for LIBO Rate Loans": Applicable Margin For Revolving Loans and Term A Loans Applicable Applicable Margin For Base Margin For LIBO Leverage Ratio Rate Loans Rate Loans -------------- ---------- ---------- greater than or equal to 4.0:1 2.00% 3.00% greater than or equal to 3.5:1 and less than 4.0:1 1.75% 2.75% greater than or equal to 3.0:1 and less than 3.5:1 1.50% 2.50% less than 3.0:1 1.25% 2.25% The Leverage Ratio used to compute the Applicable Margin for Revolving Loans and Term A Loans shall be the Leverage Ratio set forth in the Compliance Certificate most recently delivered by or on behalf of the Borrowers to the Administrative Agent pursuant to clause (d) of Section 7.1.1. Changes in the Applicable Margin for Revolving Loans or Term A Loans resulting from a change in the Leverage Ratio shall become effective upon delivery by or on behalf of the Borrowers to the Administrative Agent of a new Compliance Certificate pursuant to clause (d) of Section 7.1.1. If the Borrowers shall fail to deliver a Compliance Certificate within the number of days required pursuant to clause (d) of Section 7.1.1 (after giving effect to any grace period), the Applicable Margin for Revolving Loans and Term A Loans from and including the first day after the date on which such Compliance Certificate was required to be delivered to, but not including the date the Borrowers deliver to, the Administrative Agent an appropriately completed Compliance Certificate shall conclusively equal the highest Applicable Margin for Revolving Loans and Term A Loans set forth above. "Arby's" means Arby's, Inc., a Delaware corporation, and includ- ing any successor thereto. "Arby's Assets" is defined in the definition of "Arby's Securiti- zation Residual Payment". "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 all or a portion of the Arby's Securitization Assets, the issuance and sale by one or more Arby's Securitization Entities of the Arby's Securitization Notes and the Arby's Securitization Residual Notes 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 one or more Arby's Securitization Entities. "Arby's Securitization Assets" means all right, title and interest to the trademarks "Arby's", "T.J. Cinnamons" 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. Cinnamons" and/or "Pasta Connection" or operate restaurants identified with the names "Arby's", "T.J. Cinnamons" and/or "Pasta Connection" and 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 direct or indirect subsidiary of Holdco formed for the sole purpose of consummating the Arby's Securitization. "Arby's Securitization Excess" is defined in the definition of "Arby's Securitization Residual Payment". "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 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 Arby's Securitization. "Arby's Securitization Residual Payment" means, in the event that the gross cash proceeds received from the Arby's Securitization exceed $350,000,000 (as such amount may be increased pursuant to clause (d)(iii) of Section 7.2.9) (with such excess being the "Arby's Securitization Excess"), the distribution to Triarc of all of the Capital Stock of RC/Arby's, the Arby's Securitization Entities and Subsidiaries of RC/Arby's (other than Royal Crown and its Subsidiaries, and so long as each such Person has no assets other than the Arby's Securitization Assets, the Arby's Securitization Excess, any Arby's Securitization Residual Notes, the Capital Stock of any Arby's Securitization Entity and businesses related thereto (collectively, the "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 the Arby's Assets) that has any obligations or liabilities, contingent or otherwise with respect to the assets transferred pursuant to the Arby's Securitization Residual Payment are also distributed to Triarc at such time; provided, further, that immediately after giving effect to the Arby's Securitization Residual Payment, no Default shall have occurred and be continuing or would result therefrom; provided, however, that, notwithstanding any of the aforementioned, the obligations of RC/Arby's and its Subsidiaries under Sections 4.3 through 4.6 and 10.3 (to the extent due and owing for any period prior to the date of the Arby's Securitization Residual Payment) and 10.4 (for any Indemnified Liabilities relating to the period prior to the date of the Arby's Securitization Residual Payment) shall in each case survive the transfer of the Capital Stock of RC/Arby's and its Subsidiaries (other than Royal Crown and its Subsidiaries) and the Arby's Securitization Assets pursuant to the Arby's Securitization Residual Payment, the termination of this Agreement, or the occurrence of the Termination Date. "Arby's Stock Option Plan" means a stock option plan that may be adopted by Arby's providing for the granting of options to acquire up to 15% of the voting Capital Stock of Arby's on a fully diluted basis, which stock option plan shall not contain any provisions that are inconsistent with or would cause a Default under this Agreement, as amended, supplemented, amended and restated or otherwise modified from time to time as permitted in accordance with the terms hereof. "Arrangers" means, collectively, DLJ and Morgan Stanley. "Assignee Lender" is defined in Section 10.11.1. "Assumed Restricted Debt" is defined in clause (a) of Section 7.1.7. "Authorized Officer" means, relative to any Obligor, those of its officers whose signatures and incumbency shall have been certified to the Agents and the Lenders pursuant to Section 5.1.1. "Base Rate Loan" means a Loan bearing interest at a fluctuating rate determined by reference to the Alternate Base Rate. "Beverage Companies" means, collectively, Snapple, Mistic, Cable Car and Royal Crown. "BNY" is defined in the preamble. "Borrower" and "Borrowers" are defined in the preamble. "Borrower Pledge Agreement" means the Pledge Agreement executed and delivered by the Borrowers pursuant to clause (b) of Section 5.1.8, substantially in the form of Exhibit J-2 hereto, as amended, supplemented, amended and restated or otherwise modified from time to time. "Borrower Security Agreement" means the Security Agreement executed and delivered by an Authorized Officer of each of the Borrowers pursuant to Section 5.1.9, substantially in the form of Exhibit K-1 hereto, as amended, supplemented, amended and restated or otherwise modified from time to time. "Borrowing" means the Loans of the same type and, in the case of LIBO Rate Loans, having the same Interest Period made by all Lenders on the same Business Day and pursuant to the same Borrowing Request in accordance with Section 2.3. "Borrowing Base Amount" means, at any time, the Net Asset Value of all Eligible Accounts and Eligible Inventory at such time as determined in accordance with the definition of "Net Asset Value" and as certified by each Borrower to the Lenders in the most recently delivered Borrowing Base Certificate, including the Borrowing Base Certificate delivered on the Closing Date pursuant to clause (c) of Section 5.1.11. "Borrowing Base Certificate" means a certificate duly completed and executed by the chief accounting or chief financial Authorized Officer of Holdco on behalf of the Borrowers, substantially in the form of Exhibit E hereto. "Borrowing Request" means a loan request and certificate duly executed by an Authorized Officer of any Borrower, substantially in the form of Exhibit C hereto. "Business" is defined in the first recital. "Business Day" means (a) any day which is neither a Saturday or Sunday nor a legal holiday on which banks are authorized or required to be closed in New York, New York; and (b) relative to the making, continuing, prepaying or repaying of any LIBO Rate Loans, any day on which dealings in Dollars are carried on in the London interbank market. "Cable Car" is defined in the preamble and includes any successor thereto. "Capital Expenditures" means, with respect to any Person for any applicable period, the sum (without duplication) of (a) the aggregate amount of all expenditures of such Person and its Subsidiaries determined on a consolidated basis for fixed or capital assets made during such period which, in accordance with GAAP, would be classified as capital expenditures; and (b) the aggregate amount of all Capitalized Lease Liabilities incurred during such period; provided that Capital Expenditures shall not include (i) any such expenditures funded with (x) any Net Casualty Proceeds as permitted pursuant to clause (f) of Section 3.1.1 or (y) any Net Disposition Proceeds as permitted pursuant to clause (c) of Section 3.1.1 of any disposition of assets permitted pursuant to clause (b) or (e) of Section 7.2.9 or (ii) (x) any Investment made pursuant to Section 7.2.5 or (y) any purchase made pursuant to clause (b)(ii) of Section 7.2.8. "Capital Stock" means, with respect to any Person, (i) any and all shares, interests, participations or other equivalents of or interests in (however designated) corporate or capital stock, including, without limitation, shares of preferred or preference stock of such Person, (ii) all partnership interests (whether general or limited) in such Person, (iii) all membership interests or limited liability company or partnership interests in such Person, and (iv) all other equity or ownership interests in such Person of any other type. "Capitalized Lease Liabilities" means with respect to any Person for any applicable period, all monetary obligations of such Person and its Subsidiaries determined on a consolidated basis under any leasing or similar arrangement which, in accordance with GAAP, would be classified as capitalized leases, and, for purposes of this Agreement and each other Loan Document, the amount of such obligations shall be the capitalized amount thereof, 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. "Cash Equivalent Investment" means, at any time: (a) any evidence of Indebtedness, maturing not more than one year after such time, issued or guaranteed or insured by the United States Government of any agency thereof, or by any state of the United States (the securities of which state are rated at least AA by S&P or Aa by Moody's); (b) commercial paper, maturing not more than nine months from the date of issue, which is issued by (i) a corporation (other than an Affiliate of any Obligor) organized under the laws of any state of the United States or of the District of Columbia and rated at least A-1 by S&P or P-1 by Moody's, or (ii) any Lender (or its holding company); (c) any certificate of deposit, demand deposit account, time deposit account or bankers acceptance, maturing not more than one year after such time, which is issued by either (i) a commercial banking institution that is a member of the Federal Reserve System (or with respect to any Non-U.S. Subsidiary of any Borrower, a commercial banking institution located in the country where such Non-U.S. Subsidiary does business) and has a combined capital and surplus and undivided profits of not less than $500,000,000 (or the foreign currency equivalent thereof), or (ii) any Lender; (d) any repurchase agreement or transaction under a master repurchase agreement entered into with any Lender (or other commercial banking institution of the stature referred to in clause (c)(i)) which (i) is secured by a fully perfected security interest in any obligation of the type described in any of clauses (a) through (c), and (ii) has a market value at the time the transaction under such repurchase agreement is entered into of not less than 100% of the repurchase obligation of such Lender (or other commercial banking institution) thereunder; or (e) money market funds having no restrictions on liquidation rights and whose sole investments are comprised of investments permitted under clauses (a) through (d). "Casualty Event" means, with respect to any Person, the damage, destruction or condemnation, as the case may be, of any property of such Person. "CERCLA" means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended. "CERCLIS" means the Comprehensive Environmental Response Compensation Liability Information System List. "Change in Control" means (a) any Person, or two or more Persons acting in concert, other than the Permitted Holders, (individually or collectively) acquiring beneficial ownership (within the meaning of Rule 13d-3 of the Securities and Exchange Act of 1934, as amended) of 35% or more of the outstanding shares of voting Capital Stock of Triarc on a fully diluted basis, but only if the Permitted Holders (x) beneficially own (as defined in this clause (a)), directly or indirectly, in the aggregate, a lesser percentage of the outstanding shares of voting Capital Stock of Triarc on a fully diluted basis than such Person or Persons and (y) 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 Triarc; (b) prior to a merger of Holdco with and into Triarc Beverage, the failure of Triarc to own, either directly or indirectly, free and clear of all Liens (other than as permitted under the Loan Documents), 100% of the outstanding shares of voting Capital Stock of Holdco on a fully diluted basis; (c) (i) prior to a merger of Holdco with and into Triarc Beverage, the failure of Holdco to own, either directly or indirectly, free and clear of all Liens (other than as permitted under the Loan Documents), 100% of the outstanding shares of voting Capital Stock of Triarc Beverage on a fully diluted basis, (ii) after a merger of Holdco with and into Triarc Beverage and prior to an Initial Public Offering of Triarc Beverage, the failure of Triarc to own, either directly or indirectly, free and clear of all Liens (other than as permitted under the Loan Documents), 100% of the outstanding shares of voting Capital Stock of Triarc Beverage on a fully diluted basis, and (iii) after an Initial Public Offering of Triarc Beverage, the failure of Triarc to own, either directly or indirectly, free and clear of all Liens (other than as permitted under the Loan Documents), at least 51% of the outstanding shares of voting Capital Stock of Triarc Beverage on a fully diluted basis; provided, however, that, with respect to clauses (i) and (ii) above, Triarc Beverage may issue up to 15% of its outstanding shares of voting Capital Stock on a fully diluted basis pursuant to the Triarc Beverage Stock Option Plan; (d) except as otherwise permitted under the Loan Documents, (i) prior to a merger of Holdco with and into Triarc Beverage, the failure of Holdco to own, either directly or indirectly, free and clear of all Liens (other than as permitted under the Loan Documents), 100% of the outstanding shares of voting Capital Stock of each of the Borrowers and Arby's, in each case on a fully diluted basis (provided, however, that Triarc Beverage may issue up to 15% of its outstanding shares of voting Capital Stock on a fully diluted basis pursuant to the Triarc Beverage Stock Option Plan), and (ii) after a merger of Holdco with and into Triarc Beverage, the failure of Triarc Beverage to own, either directly or indirectly, free and clear of all Liens (other than as permitted under the Loan Documents), 100% of the outstanding shares of voting Capital Stock of each of the Borrowers and Arby's on a fully diluted basis; provided, however, that in either case, (A) Arby's may issue up to 15% of its outstanding shares of voting Capital Stock on a fully diluted basis pursuant to the Arby's Stock Option Plan, and (B) the Capital Stock of RC/Arby's and its Subsidiaries (to the extent provided in the definition of Arby's Securitization Residual Payment) may be transferred to Triarc in connection with the Arby's Securitization Residual Payment; (e) the chief executive officer of the "Triarc Beverage Group", as of the Closing Date, shall have ceased to continue to serve in the operational and managerial capacities in which he now serves or in an enhanced operational or managerial capacity with Holdco or any Borrower and a successor shall not be appointed within 180 days thereof with the prior consent of the Required Lenders (which consent shall not be unreasonably withheld or delayed); (f) during any period of 12 consecutive months, individuals who at the beginning of such 12-month period were directors of Holdco, Triarc Beverage or any Borrower cease for any reason to continue to constitute a majority of the Board of Directors of Holdco, Triarc Beverage or such Borrower unless their successors shall have been approved by a majority of the continuing directors; (g) except as otherwise permitted under the Loan Documents, the failure of each applicable Borrower to own, either directly or indirectly, free and clear of all Liens (other than as permitted under the Loan Documents), 100% of the outstanding shares of voting Capital Stock of each U.S. Subsidiary of such Borrower which is a Material Obligor on a fully diluted basis; or (h) any "Change in Control" as defined in any document or instrument evidencing or applicable to any Subordinated Debt. "Closing Date" means the date on which all the conditions set forth in Section 5.1 are satisfied or waived and the initial Credit Extension is made hereunder. "Closing Date Certificate" means a certificate of an Authorized Officer of each Borrower substantially in the form of Exhibit G hereto, delivered pursuant to Section 5.1.4. "Code" means the Internal Revenue Code of 1986, as amended, reformed or otherwise modified from time to time. "Commitment" means, as the context may require, a Lender's Term Loan Commitment, Revolving Loan Commitment, Letter of Credit Commitment or Swing Line Loan Commitment. "Commitment Amount" means, as the context may require, the Letter of Credit Commitment Amount, the Revolving Loan Commitment Amount, the Swing Line Loan Commitment Amount, the Term A Loan Commitment Amount, the Term B Loan Commitment Amount or the Term C Loan Commitment Amount. "Commitment Termination Event" means (a) the occurrence of any Default described in clauses (a) through (d) of Section 8.1.9 with respect to any Material Obligor; or (b) the occurrence and continuance of any other Event of Default and either (i) the declaration of the Loans to be due and payable pursuant to Section 8.3, or (ii) in the absence of such declaration, the giving of notice by the Administrative Agent, acting at the direction of the Required Lenders, to the Borrowers that the Commitments have been terminated. "Compliance Certificate" means a certificate duly completed and executed by the chief financial Authorized Officer of Holdco, on behalf of the Borrowers, substantially in the form of Exhibit H hereto. "Consummation Date" is defined in Section 7.1.12. "Contingent Liability" means any agreement, undertaking or arrangement (but not any obligation or liability arising by operation of law or pursuant to any statutory requirement) by which any Person guarantees, endorses or otherwise becomes or is contingently liable upon (by direct or indirect agreement, contingent or otherwise, to provide funds for payment, to supply funds to, or otherwise to invest in, a debtor, or otherwise to assure a creditor against loss) the indebtedness, obligation or any other liability of any other Person (other than by endorsements of instruments in the course of collection), or guarantees the payment of dividends or other distributions upon the shares of Capital Stock of any other Person. The amount of any Person's obligation under any Contingent Liability shall (subject to any limitation set forth therein) be deemed to be the outstanding principal amount (or maximum principal amount, if larger) of the debt, obligation or other liability guaranteed thereby. "Continuation/Conversion Notice" means a notice of continuation or conversion and certificate duly executed by an Authorized Officer of the applicable Borrower, substantially in the form of Exhibit F hereto. "Controlled Group" means all members of a controlled group of corporations and all members of a controlled group of trades or businesses (whether or not incorporated) under common control which, together with Holdco and the Borrowers, are treated as a single employer under Section 414(b) or 414(c) of the Code or Section 4001 of ERISA. "Copyright Security Agreement" means any Copyright Security Agreement executed and delivered by an Obligor in substantially the form of Exhibit C to any Security Agreement, as amended, supplemented, amended and restated or otherwise modified from time to time. "Credit Extension" means, as the context may require, (a) the making of a Loan by a Lender; or (b) the issuance of any Letter of Credit, or the extension of any Stated Expiry Date of any previously issued Letter of Credit, by any Issuer. "Credit Extension Request" means, as the context may require, any Borrowing Request or Issuance Request. "Current Assets" means, on any date with respect to any Person, without duplication, all assets (other than cash) which, in accordance with GAAP consistently applied, would be included as current assets on a consolidated balance sheet of such Person and its Subsidiaries at such date as current assets. "Current Liabilities" means, on any date with respect to any Person, without duplication, all amounts which, in accordance with GAAP (consistently applied), would be included as current liabilities on a consolidated balance sheet of such Person and its Subsidiaries at such date, excluding current maturities of Indebtedness ("Indebtedness" for purposes of this definition includes principal and interest with respect to Revolving Loans). "Debt" means the outstanding principal amount of all Indebtedness of Holdco and its Subsidiaries of the nature referred to in clauses (a), (b), and (c) of the definition of "Indebtedness" plus (without duplication) the aggregate amount of all Contingent Liabilities to the extent covering or supporting the principal amount of any such Indebtedness. "Default" means any Event of Default or any condition, occurrence or event which, after notice or lapse of time or both, would constitute an Event of Default. "Disbursement" is defined in Section 2.6.2. "Disbursement Date" is defined in Section 2.6.2. "Disclosure Schedule" means the Disclosure Schedule attached hereto as Schedule I, as it may be amended, supplemented or otherwise modified from time to time by the Borrowers with the written consent of the Required Lenders. "DLJ" is defined in the preamble. "Documentation Agent" is defined in the preamble. "Dollar" and the sign "$" mean lawful money of the United States. "Domestic Office" means, relative to any Lender, the office of such Lender designated as such as set forth opposite its name on Schedule II hereto under the applicable column heading or as set forth in the Lender Assignment Agreement or such other office of a Lender (or any successor or assign of such Lender) within the United States as may be designated from time to time by notice from such Lender, as the case may be, to each other Person party hereto. "EBITDA" means, with respect to Holdco and its Subsidiaries (including each of the Borrowers) for any applicable period, the sum (without duplication), determined on a consolidated basis, of (a) Net Income, plus - ---- (b) the amount deducted in determining Net Income representing depreciation and amortization, plus - ---- (c) the amount deducted in determining Net Income representing federal, state, local and foreign income and franchise tax expense (including (i) reserves for deferred taxes not payable currently and (ii) payments or accruals made pursuant to the Tax Sharing Agreement), plus - ---- (d) the amount deducted in determining Net Income representing Interest Expense, plus - ---- (e) an amount equal to the amount of all non-cash charges deducted in determining Net Income, plus - ---- (f) an amount equal to the amount of any extraordinary charges deducted in determining Net Income, plus - ---- (g) an amount equal to the amount of all non-recurring fees and expenses incurred in connection with the Transaction and deducted in determining Net Income, minus - ---- (h) an amount equal to the amount of all non-cash credits included in determining Net Income. "Effective Date" means the date this Agreement becomes effective pursuant to Section 10.8. "Eligible Account" means, with respect to each Borrower and any of its wholly-owned U.S. Subsidiaries which are Subsidiary Guarantors, at the time of any determination thereof, any Account as to which each of the following requirements has been fulfilled to the reasonable satisfaction of the Agents: (a) such Borrower or such Subsidiary owns such Account free and clear of all Liens other than any Lien in favor of the Administrative Agent and the Lenders granted pursuant to or in connection with this Agreement or another Loan Document; (b) such Account is a legal, valid, binding and enforceable obligation of the Person obligated under such Account (the "Account Debtor"); (c) such Account is not subject to any bona fide dispute, setoff, counterclaim or other claim (or right to assert any such setoff right, counterclaim or other claim) or defense on the part of the Account Debtor or any other Person denying liability under such Account; provided, however, that such Account shall constitute an Eligible Account to the extent it is not subject to any such dispute, setoff, counterclaim or other claim or defense; (d) such Borrower or such Subsidiary has the full and unqualified right to assign and grant a Lien in such Account to the Administrative Agent, for its benefit and that of the Lenders, as security for the Obligations; (e) such Account is evidenced by an invoice rendered to the Account Debtor (which shall include computer records) or is reflected by computer records maintained by such Borrower or such Subsidiary evidencing such Account and is not evidenced by any instrument or chattel paper (as the terms "instrument" and "chattel paper" are defined in Section 9-105 of the UCC), unless such instrument or chattel paper has been delivered to the Administrative Agent; (f) such Account arose from the sale of goods or services by such Borrower or such Subsidiary or pursuant to a franchise or master development agreement in the ordinary course of such Borrower's or such Subsidiary's business, and such goods or services have been shipped or delivered (in the case of goods) or rendered in full (in the case of services) to the Account Debtor for such Account; (g) with respect to such Account, no Account Debtor is (i) an Affiliate of such Borrower or any of its Subsidiaries or (ii) the subject of any of the conditions described in clauses (a) through (d) of Section 8.1.9 unless the payment of Accounts from such Account Debtor is secured by a letter of credit from an issuer and in a manner satisfactory to the Agents; (h) such Account is not outstanding more than 90 days from the date of invoice giving rise to such Account (unless such Account, by its terms, is permitted to be outstanding for a longer period, in which case such Account shall not be outstanding for more than such period, provided that such period does not exceed 180 days and such Account together with all such other Eligible Accounts outstanding in excess of 90 days do not in the aggregate exceed $5,000,000 at any time); (i) such Account is not an Account owing by an Account Debtor having, at the time of any determination of Eligible Accounts, in excess of 35% of the aggregate outstanding amount of all Accounts of such Account Debtor (other than any Accounts which are the subject of bona fide disputes between such Account Debtor and such Borrower or such Subsidiary, as the case may be) outstanding more than 90 days past the date of invoice (unless such Account, by its terms, is permitted to be outstanding for a longer period, in which case such Account shall not be outstanding for more than such period, provided that such period does not exceed 180 days and such Account together with all such other Eligible Accounts outstanding in excess of 90 days do not in the aggregate exceed $5,000,000 at any time); (j) with respect to the Account Debtor under such Account, neither such Borrower nor any such Subsidiary is indebted to such Account Debtor, unless such Borrower or such Subsidiary and such Account Debtor have entered into an agreement whereby the Account Debtor is prohibited from exercising any right of setoff with respect to the Accounts of such Borrower or such Subsidiary; provided, that in any event, if such an agreement prohibiting setoff rights is not delivered by the Account Debtor, then only the amount that such Borrower or such Subsidiary is indebted to such Account Debtor shall be excluded as an Eligible Account pursuant to this clause; and (k) such Account arises from a sale to an Account Debtor, or pursuant to a franchise or master development agreement with a franchisee, located within the United States, Canada (to the extent such Account is owed to a Borrower or any U.S. Subsidiary of any Borrower) or Puerto Rico, unless the Account Debtor's obligations (or that portion of such obligations which is acceptable to the Agents) with respect to a sale to an Account Debtor not located within the United States, Canada (to the extent provided above) or Puerto Rico are secured by a letter of credit, guaranty or eligible bankers' acceptance having terms, and from such issuers and confirmation banks, as are acceptable to the Agents. "Eligible Inventory" means, with respect to each Borrower and any of its wholly-owned U.S. Subsidiaries which are Subsidiary Guarantors, at the time of any determination thereof, any Inventory arising in the ordinary course of business and as to which each of the following requirements has been fulfilled to the reasonable satisfaction of the Agents: (a) such Inventory is located in the United States or Puerto Rico; (b) such Borrower or its wholly-owned U.S. Subsidiary owning such Inventory, as the case may be, has full and unqualified right to assign and grant a Lien in such Inventory to the Administrative Agent, for its benefit and that of the Lenders, as security for the Obligations; (c) such Borrower or one of its wholly-owned U.S. Subsidiaries owns such Inventory free and clear of all Liens in favor of any Person other than any Lien in favor of the Administrative Agent and the Lenders granted pursuant to or in connection with this Agreement or another Loan Document; and (d) none of such Inventory is obsolete, unsalable, damaged or otherwise unfit for sale or consumption or further processing. "Environmental Laws" means all applicable federal, state or local statutes, laws, ordinances, codes, rules, regulations and binding guidelines (including consent decrees and administrative orders) relating to the protection of the environment. "ERISA" means the Employee Retirement Income Security Act of 1974, as amended, and any successor statute of similar import, together with the regulations thereunder, in each case as in effect from time to time. References to sections of ERISA also refer to any successor sections. "Event of Default" is defined in Section 8.1. "Excess Amount" is defined in Section 3.1.3. "Excess Cash Flow" means, with respect to Holdco and its Subsid- iaries for any applicable period, the excess (if any) of (a) EBITDA for such applicable period; over - ---- (b) the sum, without duplication (for such applicable period) on a consolidated basis of (i) the cash portion of Interest Expense (net of cash interest income) actually paid during such applicable period; plus ---- (ii) (x) scheduled payments and optional and mandatory prepayments, to the extent actually made, of the principal amount of the Term Loans or any other term Debt (including Capitalized Lease Liabilities), (y) mandatory prepayments of the principal amount of the Revolving Loans and Swing Line Loans pursuant to clauses (b) or (k) of Section 3.1.1 in connection with a reduction of the Revolving Loan Commitment Amount, in each case for such applicable period and (z) to the extent not deducted in the computation of EBITDA, all cash payments in respect of other Indebtedness (exclusive of optional prepayments of amounts outstanding under the Revolving Loan Commitment); plus ---- (iii) all federal, state, local and foreign income and franchise taxes actually paid in cash (including payments made pursuant to the Tax Sharing Agreement) during such applicable period, net of any refunds of such taxes received during such applicable period; plus ---- (iv) Capital Expenditures actually made during such applicable period pursuant to Section 7.2.7 (excluding Capital Expenditures constituting Capitalized Lease Liabilities and by way of the incurrence of Indebtedness permitted pursuant to clause (g) of Section 7.2.2 to a vendor of any assets permitted to be acquired pursuant to Section 7.2.7 to finance the acquisition of such assets); plus ---- (v) the amount of the net increase (or minus in the case of a net decrease) of Current Assets over Current Liabilities of Holdco and its Subsidiaries for such applicable period (or, with respect to the period ending January 2, 2000, for the full Fiscal Year ending January 2, 2000); plus ---- (vi) the cash portion of any fees and expenses incurred in connection with any required Hedging Obligation. "Federal Funds Rate" means, for any period, a fluctuating interest rate per annum equal for each day during such period to (a) the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York; or (b) if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected by it. "Fee Letters" means, collectively, (i) the confidential fee letter, dated January 27, 1999, among the Arrangers and Triarc, and (ii) the Administrative Agent's Fee Letter. "Filing Agent" is defined in Section 5.1.10. "Filing Statements" is defined in Section 5.1.10. "Fiscal Month" means any fiscal month of any Fiscal Year of Holdco. "Fiscal Quarter" means any fiscal quarter of any Fiscal Year of Holdco. "Fiscal Year" means any fiscal year of Holdco; provided that, as of the Closing Date, Holdco's Fiscal Year shall end on the Sunday occurring closest to December 31 of each year, including December 31; references to a Fiscal Year with a number corresponding to any calendar year (e.g., "1999 Fiscal Year") refer to the Fiscal Year ending on the Sunday occurring closest to December 31 of such calendar year. "Fixed Charge Coverage Ratio" means, at the end of any Fiscal Quarter, the ratio for the period consisting of such Fiscal Quarter and each of the three immediately preceding Fiscal Quarters (provided that for the first three Fiscal Quarters after the Closing Date, the amounts determined in clauses (b)(ii), (b)(iii) and (b)(v) below shall be determined on an Annualized basis) of (a) EBITDA for all such Fiscal Quarters, plus the aggregate amount of all management fees permitted and paid during such Fiscal Quarters pursuant to clause (a) of Section 7.2.11, to the extent deducted in computing EBITDA; to - -- (b) the sum (without duplication) of (i) Capital Expenditures actually made during all such Fiscal Quarters pursuant to Section 7.2.7; plus ---- (ii) the cash portion of Interest Expense (net of cash interest or investment income) for all such Fiscal Quarters; plus ---- (iii) all scheduled payments of principal, to the extent actually made, of the Term Loans and other term Debt (including the principal portion of any Capitalized Lease Liabilities) during all such Fiscal Quarters; plus ---- (iv) all federal, state, local and foreign income and franchise taxes actually paid in cash (including payments made pursuant to the Tax Sharing Agreement) during all such Fiscal Quarters, net of any refunds of such taxes received during such applicable period; plus ---- (v) all payments of management fees permitted and paid during all such Fiscal Quarters pursuant to clause (a) of Section 7.2.11; plus ---- (vi) all payments permitted and paid during such Fiscal Quarters pursuant to clause (d) of Section 7.2.6. "F.R.S. Board" means the Board of Governors of the Federal Re- serve System or any successor thereto. "GAAP" is defined in Section 1.4. "Hazardous Material" means (a) any "hazardous substance", as defined by CERCLA; (b) any "hazardous waste", as defined by the Resource Conservation and Recovery Act, as amended; (c) any petroleum product; or (d) any pollutant or contaminant or hazardous, dangerous or toxic chemical, material or substance within the meaning of any other applicable federal, state or local law, regulation, ordinance or requirement (including consent decrees and administrative orders) relating to or imposing liability or standards of conduct concerning any hazardous, toxic or dangerous waste, substance or material, all as amended or hereafter amended. "Hedging Obligations" means, with respect to any Person, all liabilities of such Person under interest rate swap agreements, interest rate cap agreements and interest rate collar agreements, and all other agreements or arrangements designed to protect such Person against fluctuations in interest rates or currency exchange rates. "herein", "hereof", "hereto", "hereunder" and similar terms contained in this Agreement or any other Loan Document refer to this Agreement or such other Loan Document, as the case may be, as a whole and not to any particular Section, paragraph or provision of this Agreement or such other Loan Document. "Holdco" is defined in the second recital and includes any suc- cessor thereto. "Holdco/Triarc Beverage Guaranty and Pledge Agreement" means the Guaranty and Pledge Agreement executed and delivered by Holdco and Triarc Beverage pursuant to clause (a) of Section 5.1.8, substantially in the form of Exhibit J-1 hereto, as amended, supplemented, amended and restated or otherwise modified from time to time. "Impermissible Qualification" means, relative to the opinion or certification of any independent public accountant as to any financial statement of any Obligor, any qualification or exception to such opinion or certification (a) which is of a "going concern" or similar nature; (b) which relates to the limited scope of examination of matters relevant to such financial statement; or (c) which relates to the treatment or classification of any item in such financial statement and which, as a condition to its removal, would require an adjustment to such item the effect of which would be to cause such Obligor to be in default of any of its obligations under Section 7.2.4. "including" means including without limiting the generality of any description preceding such term, and, for purposes of this Agreement and each other Loan Document, the parties hereto agree that the rule of ejusdem generis shall not be applicable to limit a general statement, which is followed by or referable to an enumeration of specific matters, to matters similar to the matters specifically mentioned. "Indebtedness" of any Person means, without duplication (a) all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments; (b) all obligations, contingent or otherwise, relative to the face amount of all letters of credit, whether or not drawn, and banker's acceptances issued for the account of such Person; (c) all obligations of such Person as lessee under leases which have been or should be, in accordance with GAAP, recorded as Capitalized Lease Liabilities; (d) net liabilities of such Person under all Hedging Obligations; (e) whether or not so included as liabilities in accordance with GAAP, (i) all obligations of such Person to pay the deferred purchase price of property or services (but not including liabilities incurred in connection with any employment severance arrangements), (ii) liabilities (but only to the extent required by GAAP to be reflected on the balance sheet of such Person) in connection with take-or-pay contracts, and (iii) indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse (provided, however, that, to the extent such Indebtedness is limited in recourse to the assets securing such Indebtedness, the amount of such Indebtedness shall be limited to the fair market value of such assets); and (f) all Contingent Liabilities of such Person in respect of any of the foregoing. For all purposes of this Agreement, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture in which such Person is a general partner or a joint venturer to the extent such Person is liable for such Indebtedness. "Indemnified Liabilities" is defined in Section 10.4. "Indemnified Parties" is defined in Section 10.4. "Indenture" means the Indenture, dated as of February 25, 1999, among Holdco, Triarc Beverage, the guarantors party thereto and The Bank of New York, as trustee, as the same may be amended, supplemented, amended and restated or otherwise modified from time to time in accordance with Section 7.2.10. "Initial Public Offering" means a primary underwritten public offering of the voting Capital Stock of Holdco or Triarc Beverage, other than any public offering or sale pursuant to a registration statement on Form S-8 or a comparable form. "Interest Coverage Ratio" means, at the end of any Fiscal Quarter, the ratio computed for the period consisting of such Fiscal Quarter and each of the three immediately prior Fiscal Quarters (provided, that, for the first three Fiscal Quarters after the Closing Date, the amount determined in clause (b) below shall be determined on an Annualized basis) of: (a) EBITDA for all such Fiscal Quarters; to -- (b) the cash portion of Interest Expense for all such Fiscal Quarters. "Interest Expense" means, for any applicable period, the aggregate consolidated interest expense of Holdco and its Subsidiaries (including the Borrowers) for such applicable period, as determined in accordance with GAAP, including the portion of any payments made in respect of Capitalized Lease Liabilities allocable to interest expense, but excluding (to the extent included in interest expense) (i) the amortization of fees and expenses incurred in connection with the Transaction and (ii) any fees and expenses incurred in connection with any required Hedging Obligation. "Interest Period" means, relative to any LIBO Rate Loans, the period beginning on (and including) the date on which such LIBO Rate Loan is made or continued as, or converted into, a LIBO Rate Loan pursuant to Section 2.3 or 2.4 and ending on (but excluding) the day which numerically corresponds to such date one, two, three or six months (or, if available to each applicable Lender, nine or twelve months) thereafter (or, if such month has no numerically corresponding day, on the last Business Day of such month), in each case as the applicable Borrower may select in its relevant notice pursuant to Section 2.3 or 2.4; provided, however, that (a) no more than 10 Interest Periods shall be in effect at any one time; (b) Interest Periods commencing on the same date for Loans comprising part of the same Borrowing shall be of the same duration; (c) if such Interest Period would otherwise end on a day which is not a Business Day, such Interest Period shall end on the next following Business Day (unless such next following Business Day is the first Business Day of a calendar month, in which case such Interest Period shall end on the Business Day next preceding such numerically corresponding day); and (d) no Interest Period for any Loan may extend beyond the Stated Maturity Date for such Loan. "Inventory" means any "inventory" (as that term is defined in Section 9-109(4) of the UCC) of any Borrower or any of its wholly-owned U.S. Subsidiaries. "Investment" means, relative to any Person, (a) any loan or advance made by such Person to any other Person (excluding (i) payroll, commission, travel and similar advances to officers and employees made in the ordinary course of business or (ii) ordinary trade debt (in the nature of open accounts payable) extended in the ordinary course of business on customary terms); (b) any Contingent Liability of such Person; and (c) any ownership or similar interest held by such Person in any other Person. The amount of any Investment shall be the original principal or capital amount thereof less all returns of principal or equity thereon, whether by means of dividend, distribution or otherwise (and without adjustment by reason of the financial condition of such other Person), and shall, if made by the transfer or exchange of property other than cash, be deemed to have been made in an original principal or capital amount equal to the fair market value of such property. "Issuance Request" means a Letter of Credit request and certificate duly executed by an Authorized Officer of the applicable Borrower, substantially in the form of Exhibit D hereto. "Issuer" means, collectively, BNY, in its individual capacity hereunder as the issuer of the Letters of Credit, and such other Lender or Lenders as may be designated from time to time by the Syndication Agent (and agreed to by the Borrowers and each such Lender), in its individual capacity hereunder as the issuer of any Letter of Credit. "Lender Assignment Agreement" means a Lender Assignment Agreement substantially in the form of Exhibit L hereto. "Lenders" is defined in the preamble. "Letter of Credit" is defined in clause (a) of Section 2.1.3. "Letter of Credit Commitment" means, with respect to each Issuer, such Issuer's obligation to issue Letters of Credit pursuant to Section 2.1.3 and, with respect to each of the other Lenders that has a Revolving Loan Commitment, the obligation of such Lender to participate in such Letters of Credit pursuant to Section 2.6.1. "Letter of Credit Commitment Amount" means, on any date, a maximum amount of $25,000,000, as such amount may be reduced from time to time pursuant to Section 2.2. "Letter of Credit Outstandings" means, on any date, an amount equal to the sum of (a) the aggregate Stated Amount at such time of all Letters of Credit then outstanding and undrawn (as such aggregate Stated Amount shall be adjusted, from time to time, as a result of drawings, the issuance of Letters of Credit, or otherwise), plus - ---- (b) the then aggregate amount of all unpaid and outstanding Reimbursement Obligations. "Leverage Ratio" means, at the end of any Fiscal Quarter, the ratio of (a) total Debt; to (b) EBITDA for the period of four consecutive Fiscal Quarters most recently ended on or prior to such date; provided, however, that during each of the first two Fiscal Quarters of each Fiscal Year, the amount determined in clause (a) above shall be reduced by the Seasonal Working Capital Amount. "LIBO Rate" means, relative to any Interest Period for LIBO Rate Loans, the rate of interest per annum determined by the Administrative Agent to be the arithmetic mean (rounded upward to the next 1/32 of 1%) of the rates of interest per annum at which dollar deposits in the approximate amount of the amount of the Loan to be made or continued as, or converted into, a LIBO Rate Loan by the Administrative Agent and having a maturity comparable to such Interest Period would be offered to the Administrative Agent in the London interbank market at its request at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such Interest Period. "LIBO Rate Loan" means a Loan bearing interest, at all times during an Interest Period applicable to such Loan, at a fixed rate of interest determined by reference to the LIBO Rate (Reserve Adjusted). "LIBO Rate (Reserve Adjusted)" means, relative to any Loan to be made, continued or maintained as, or converted into, a LIBO Rate Loan for any Interest Period, the rate of interest per annum (rounded upwards to the next 1/32 of 1%) determined by the Administrative Agent as follows: LIBO Rate = LIBO Rate -------------------------------- (Reserve Adjusted) 1.00 - LIBOR Reserve Percentage The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO Rate Loans will be adjusted automatically as to all LIBO Rate Loans then outstanding as of the effective date of any change in the LIBOR Reserve Percentage. "LIBOR Office" means, relative to any Lender, the office of such Lender designated as such as set forth opposite its name on Schedule II hereto under the applicable column heading or as set forth in the Lender Assignment Agreement or such other office of a Lender (or any successor or assign of such Lender) as designated from time to time by notice from such Lender to the Borrowers and the Administrative Agent, whether or not outside the United States, which shall be making or maintaining LIBO Rate Loans of such Lender hereunder. "LIBOR Reserve Percentage" means, relative to any Interest Period for LIBO Rate Loans, the percentage (expressed as a decimal, rounded upward to the next 1/100th of 1%) in effect on such day (whether or not applicable to any Lender) under regulations issued from time to time by the F.R.S. Board for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) with respect to Eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in Regulation D of the F.R.S. Board). "Lien" means any security interest, mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or otherwise), charge against or interest in property to secure payment of a debt or performance of an obligation or other priority or preferential arrangement of any kind or nature whatsoever. "Loan" means, as the context may require, a Revolving Loan, a Swing Line Loan or a Term Loan of any type. "Loan Document" means this Agreement, the Notes, the Letters of Credit, each Borrowing Base Certificate, the Administrative Agent's Fee Letter, each Pledge Agreement, the Subsidiary Guaranty, each Mortgage (if any), each Security Agreement, each Copyright Security Agreement, each Patent Security Agreement, each Trademark Security Agreement, each Rate Protection Agreement and each other material agreement, document or instrument delivered in connection with this Agreement or any other Loan Document, whether or not specifically mentioned herein. "Material Adverse Effect" means (i) a material adverse effect on the financial condition, operations, assets, business, properties or prospects of (A) Holdco and its Subsidiaries, taken as a whole; or (B) the Beverage Companies and their Subsidiaries, taken as a whole; (ii) a material impairment of the ability of any Borrower or any other Material Obligor to perform its respective material obligations under the Loan Documents to which it is or will be a party; or (iii) an impairment of the validity or enforceability of, or a material impairment of the rights, remedies or benefits available to each Issuer, the Agents or the Lenders under this Agreement or any other Loan Document. "Material Obligor" means, at any time of determination, (i) any Borrower, (ii) Holdco, (iii) Triarc Beverage or (iv) any Material Subsidiary. "Material Subsidiary" means each direct and indirect Subsidiary of Holdco (other than Triarc Beverage or any Borrower) that (a) accounted for 5% or more of the EBITDA of Holdco and its Subsidiaries on a consolidated basis for the most recently completed Fiscal Quarter with respect to which, pursuant to Section 7.1.1, financial statements have been, or are required to have been, delivered by the Borrowers on or before the date as of which any such determination is made, as reflected in such financial statements; or (b) has assets which represent 5% or more of the consolidated gross assets of Holdco and its Subsidiaries as of the last day of the most recently completed Fiscal Quarter with respect to which, pursuant to Section 7.1.1, financial statements have been, or are required to have been, delivered by the Borrowers on or before the date as of which any such determination is made, as reflected in such financial statements. "Mistic" is defined in the preamble and includes any successor thereto. "Moody's" means Moody's Investors Service, Inc. or any successor thereto. "Morgan Stanley" is defined in the preamble. "Mortgage" means, collectively, each mortgage or deed of trust or leasehold mortgage that may be executed and delivered pursuant to Section 7.1.7(a), Section 7.1.8(b) or Section 7.1.13 in form and substance reasonably satisfactory to the Agents, in each case as amended, supplemented, amended and restated or otherwise modified from time to time. "Net Asset Value" means, at any time of any determination, (i) with respect to Eligible Accounts, 80% of an amount equal to the book value of all Eligible Accounts as reflected on the books of the Borrowers and their applicable U.S. Subsidiaries, determined on a consolidated basis and valued in accordance with GAAP, net of all credits, discounts and allowances in respect of such Eligible Accounts and (ii) with respect to Eligible Inventory, an amount equal to 50% of the lesser of the market value and the cost of goods of all Eligible Inventory as reflected on the books of the Borrowers and their applicable U.S. Subsidiaries, determined on a consolidated basis and valued in accordance with GAAP. "Net Casualty Proceeds" means, with respect to any Casualty Event, the excess of: (a) the gross amount of all insurance proceeds or condemnation awards received by the Person suffering such Casualty Event as a result of such Casualty Event, over - ---- (b) the sum (without duplication) of (i) the reasonable and customary legal and other professional fees and expenses actually incurred in connection with the receipt of such proceeds or awards and (ii) all taxes (including any payments made or to be made pursuant to the Tax Sharing Agreement) and other governmental costs and expenses actually paid or estimated by any Borrower or any of its Subsidiaries (in good faith) to be payable in cash in connection with the receipt of such proceeds or awards; provided, however, that if, after the payment of all taxes and other governmental costs and expenses (including payments payable pursuant to the Tax Sharing Agreement) with respect to such proceeds, the amount of estimated taxes and other governmental costs and expenses, if any, pursuant to clause (b)(ii) above exceeded the amount actually paid in cash in respect of such proceeds, the aggregate amount of such excess shall, within two (2) Business Days thereafter, be payable, pursuant to clause (f) of Section 3.1.1, as Net Casualty Proceeds. "Net Debt Proceeds" means, with respect to the incurrence, sale or issuance by Holdco or any of its Subsidiaries of any Debt (other than Debt permitted by Section 7.2.2), the excess of: (a) the gross cash proceeds received by such Person from such incurrence, sale or issuance, over - ---- (b) all reasonable and customary underwriting commissions and legal, investment banking, brokerage and accounting and other professional fees, sales commissions and disbursements and all other reasonable fees, expenses and charges, in each case actually incurred in connection with such incurrence, sale or issuance, including any reasonable up-front fees and expenses incurred in connection with any required Hedging Obligation; provided such Hedging Obligation relates solely to the new Debt incurred pursuant to such incurrence, sale or issuance. "Net Disposition Proceeds" means, with respect to any sale, transfer or other disposition of any assets of Holdco or any of its Subsidiaries (other than (i) as permitted pursuant to clause (a), (c), (e) (to the extent provided therein) or (f)(i) of Section 7.2.9 or (ii) between Holdco and Triarc Beverage) or from the Arby's Securitization, the excess of: (a) the gross cash proceeds received by such Person from any such sale, transfer, other disposition or the Arby's Securitization, and any cash payments received in respect of promissory notes or other non-cash consideration delivered to such Person in respect thereof, over - ---- (b) the sum (without duplication) of (i) all reasonable and customary fees and expenses with respect to legal, investment banking, brokerage and accounting and other professional fees, sales commissions and disbursements and all other reasonable fees, expenses and charges, in each case actually incurred in connection with such sale, transfer, other disposition or the Arby's Securitization, (ii) all taxes (including any payments made or to be made pursuant to the Tax Sharing Agreement) and other governmental costs and expenses actually paid or estimated by Holdco or any of its Subsidiaries (in good faith) to be payable in cash in connection with such sale, transfer, other disposition or the Arby's Securitization (including any costs and expenses actually paid or incurred relating to compliance with Environmental Laws), (iii) payments made by Holdco or any of its Subsidiaries to retire Indebtedness (other than the Loans) of such Person where payment of such Indebtedness is required in connection with such sale, transfer, other disposition or the Arby's Securitization and (iv) reasonable amounts to be provided by Holdco or any of its Subsidiaries, as the case may be, as a reserve, in accordance with GAAP, against any liabilities associated with such sale, transfer, other disposition or the Arby's Securitization and retained by Holdco or such Subsidiary, as the case may be; provided, however, that if, after the payment of all taxes and other governmental costs and expenses (including payments payable pursuant to the Tax Sharing Agreement) with respect to such sale, transfer, other disposition or the Arby's Securitization, the amount of estimated taxes and other governmental costs and expenses, if any, pursuant to clause (b)(ii) above exceeded the amount actually paid in cash in respect of such sale, transfer, other disposition or the Arby's Securitization, or if any amounts reserved pursuant to clause (b)(iv) shall be released or reversed, the aggregate amount of such excess or released or reversed reserve amount shall, within two (2) Business Days thereafter, be payable, pursuant to clause (c) of Section 3.1.1, as Net Disposition Proceeds. "Net Equity Proceeds" means, with respect to the sale or issuance by Holdco or any of its Subsidiaries to any Person (other than Holdco or any of its wholly-owned U.S. Subsidiaries) of any of its Capital Stock or any warrants or options with respect to its Capital Stock or the exercise of any such warrants or options after the Closing Date (other than pursuant to any subscription agreement, incentive plan or similar arrangement with any officer, employee or director of Holdco or any of its Subsidiaries, including without limitation the Triarc Beverage Stock Option Plan and the Arby's Stock Option Plan) the excess of: (a) the gross cash proceeds received from such sale, exer- cise or issuance, over ---- (b) all reasonable and customary underwriting commissions and legal, investment banking, brokerage and accounting and other professional fees, sales commissions and disbursements and all other reasonable fees, expenses and charges, in each case actually incurred in connection with such sale or issuance. "Net Income" means, for any period, without duplication, the sum of the aggregate of all amounts which, in accordance with GAAP, would be included as net income of Holdco and its Subsidiaries (including each of the Borrowers) for such period on a consolidated basis, excluding extraordinary gains. "Net Worth" means the consolidated net worth of Holdco and its Subsidiaries (including each of the Borrowers), determined in accordance with GAAP. "Non-U.S. Subsidiary" means any Subsidiary other than a U.S. Sub- sidiary. "Note" means, as the context may require, a Revolving Note, a Swing Line Note, a Term A Note, a Term B Note or a Term C Note. "Obligations" means all obligations (monetary or otherwise) of each Borrower and each other Obligor arising under or in connection with this Agreement and each other Loan Document. "Obligor" means any Borrower, Holdco, Triarc Beverage, any Subsidiary Guarantor or any Affiliate thereof obligated under, or otherwise a party to, any Loan Document. "Organic Document" means, relative to any Obligor, as applicable, its certificate of incorporation, by-laws, certificate of partnership, partnership agreement, certificate of formation, limited liability agreement and all shareholder agreements, voting trusts and similar arrangements applicable to any of such Obligor's partnership interests, limited liability company interests or authorized shares of Capital Stock. "Participant" is defined in Section 10.11.2. "Patent Security Agreement" means any Patent Security Agreement executed and delivered by an Obligor in substantially the form of Exhibit A to any Security Agreement, as amended, supplemented, amended and restated or otherwise modified from time to time. "PBGC" means the Pension Benefit Guaranty Corporation and any entity succeeding to any or all of its functions under ERISA. "Pension Plan" means a "pension plan", as such term is defined in section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a multi-employer plan as defined in section 4001(a)(3) of ERISA), and to which Holdco or any of its Subsidiaries or any corporation, trade or business that is, along with Holdco or any of its Subsidiaries, a member of a Controlled Group, may have liability, including any liability by reason of having been a substantial employer within the meaning of section 4063 of ERISA at any time during the preceding five years, or by reason of being deemed to be a contributing sponsor under section 4069 of ERISA. "Percentage" means, relative to any Lender, the applicable percentage relating to Term A Loans, Term B Loans, Term C Loans or Revolving Loans, as the case may be, set forth opposite its name on Schedule II hereto under the applicable column heading or set forth in the Lender Assignment Agreement, as such percentage may be adjusted from time to time pursuant to any Lender Assignment Agreement(s) executed by such Lender and its Assignee Lender(s) and delivered pursuant to Section 10.11. A Lender shall not have any Commitment to make Revolving Loans if its percentage under the respective column heading is zero. Each Lender's Percentage of Swing Line Loans and Letters of Credit shall be equal to such Lender's Percentage of Revolving Loans. "Permitted Holders" means, collectively, Nelson Peltz, Peter W. May 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. "Person" means any natural person, corporation, partnership, limited liability company, partnership, joint venture, association, trust, government, governmental agency or any other entity, whether acting in an individual, fiduciary or other capacity. "Plan" means any Pension Plan or Welfare Plan. "Pledge Agreement" means, as the context may require, the Holdco/Triarc Beverage Guaranty and Pledge Agreement, the Borrower Pledge Agreement and/or the Subsidiary Pledge Agreement. "Pro Forma Balance Sheet" is defined in clause (b) of Section 5.1.11. "Quarterly Payment Date" means June 15, 1999 and, thereafter, the fifteenth day of each March, June, September and December or, if such day is not a Business Day, the next succeeding Business Day. "Rate Protection Agreement" means, collectively, any interest rate swap, cap, collar or similar agreement entered into by any Borrower or any of its Subsidiaries in respect of the Loans pursuant to the terms of this Agreement under which the counterparty to such agreement is (or at the time such Rate Protection Agreement was entered into, was) a Lender, an Agent or an Affiliate of a Lender or an Agent. "RC/Arby's" is defined in the preamble and includes any successor thereto. "RC/Arby's Notes" means the $275,000,000 principal amount of 9.75% Senior Secured Notes due August 2000 issued by RC/Arby's pursuant to an Indenture, dated as of August 1, 1993, among RC/Arby's, Royal Crown, Arby's and The Bank of New York, as trustee. "RC/Arby's Notes Repayment" means the redemption of the RC/Arby's Notes on a date that is no more than 35 days after the Closing Date for an amount not to exceed the aggregate principal amount thereof plus the applicable premium of 2.786%, plus accrued interest and related fees and expenses through the date of redemption. "RC/Arby's Notes Repayment Pledge Account" means the account established pursuant to the RC/Arby's Notes Repayment Pledge Agreement pursuant to which Holdco and Triarc Beverage will deposit into a pledge account funds to be used to consummate the RC/Arby's Notes Repayment. "RC/Arby's Notes Repayment Pledge Agreement" means the pledge agreement, dated as of the Closing Date, by and among Holdco and Triarc Beverage, as pledgors, The Bank of New York, as securities intermediary, and the Administrative Agent pursuant to which Holdco and Triarc Beverage will grant the Administrative Agent a security interest in the funds to be used in connection with the RC/Arby's Notes Repayment, as amended, supplemented, amended and restated or otherwise modified from time to time in accordance herewith and therewith. "Rebuilding and Replacement Work" is defined in clause (f) of Section 3.1.1. "Refinancing" is defined in the fourth recital. "Refunded Swing Line Loans" is defined in Section 2.3.2(b). "Register" is defined in clause (b)(i) of Section 2.7. "Reimbursement Obligation" is defined in Section 2.6.3. "Related Funds" is defined in clause (b) of Section 10.11.1. "Release" means a "release", as such term is defined in CERCLA. "Replacement Lender" is defined in Section 4.11. "Replacement Notice" is defined in Section 4.11. "Required Lenders" means, at any time, Lenders holding more than 50% of the Total Exposure Amount. "Resource Conservation and Recovery Act" means the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., as in effect from time to time. "Revolving Loans" is defined in clause (a) of Section 2.1.2. "Revolving Loan Commitment" means, relative to any Lender, such Lender's obligation to make Revolving Loans pursuant to Section 2.1.2 and to issue (in the case of an Issuer) or participate in (in the case of all Lenders) Letters of Credit pursuant to Section 2.1.3. "Revolving Loan Commitment Amount" means, on any date, $60,000,000, as such amount may be reduced from time to time pursuant to Section 2.2. "Revolving Loan Commitment Termination Date" means the earliest of (a) March 1, 2005; (b) the date on which the Revolving Loan Commitment Amount is terminated in full or reduced to zero pursuant to Section 2.2; and (c) the date on which any Commitment Termination Event occurs. Upon the occurrence of any event described in clause (b) or (c), the Revolving Loan Commitments shall terminate automatically and without any further action. "Revolving Note" means a joint and several promissory note of the Borrowers payable to the order of any Lender, in the form of Exhibit A-1 hereto (as such promissory note may be amended, endorsed or otherwise modified from time to time), evidencing the aggregate Indebtedness of the Borrowers to such Lender resulting from outstanding Revolving Loans, and also means all other promissory notes accepted from time to time in substitution therefor or renewal thereof. "Royal Crown" is defined in the preamble and includes any suc- cessor thereto. "Royal Crown Disposition" means the sale of the Capital Stock of, or all or substantially all of the assets comprising the soft drink concentrates business of, Royal Crown and its Subsidiaries to a third Person pursuant to clause (f)(ii) of Section 7.2.9. "S&P" means Standard & Poor's Ratings Group, a division of McGraw Hill, Inc. or any successor thereto. "Seasonal Working Capital Amount" means, as of any time of determination, the lesser of (x) $40,000,000 and (y) the aggregate amount outstanding under the Revolving Loan Commitments, whether in respect of Loans, Letters of Credit, Reimbursement Obligations or otherwise. "Secured Parties" means, collectively, (i) the Lenders and the Agents, and (ii) any Lender, Agent or Affiliate of any Lender or Agent which may be party to any Rate Protection Agreement. "Security Agreement" means, as the context may require, the Borrower Security Agreement and/or the Subsidiary Security Agreement. "Snapple" is defined in the preamble and includes any successor thereto. "Solvency Certificate" means the solvency certificate delivered pursuant to clause (b) of Section 5.1.12, substantially in the form of Exhibit M hereto. "Solvent" means, with respect to any Person on a particular date, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person's ability to pay as such debts and liabilities mature, and (d) such Person is not engaged in business or a transaction, and such Person is not about to engage in business or a transaction, for which such Person's property would constitute an unreasonably small capital. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability. "Stated Amount" of each Letter of Credit means the total amount available to be drawn under such Letter of Credit upon the issuance thereof. "Stated Expiry Date" is defined in Section 2.6. "Stated Maturity Date" means (a) in the case of any Revolving Loan, Swing Line Loan or Term A Loan, March 1, 2005; (b) in the case of any Term B Loan, March 1, 2006; and (c) in the case of any Term C Loan, March 1, 2007. "Subject Lender" is defined in Section 4.11. "Subordinated Debt" means all unsecured Indebtedness for money borrowed which is subordinated in right of payment to the payment in full in cash of all Obligations, including the Subordinated Notes, but not including intercompany Indebtedness permitted pursuant to clause (i) of Section 7.2.2. "Subordinated Notes Offering" is defined in the third recital. "Subordinated Notes" means the 10.25% senior subordinated notes due 2009 of Holdco and Triarc Beverage issued pursuant to the Subordinated Notes Offering and the Indenture, including any senior subordinated notes of Holdco and Triarc Beverage with substantially identical terms exchanged therefor pursuant to a registration statement under the Securities Act of 1933, as amended. "Subsidiary" means, with respect to any Person, any corporation, limited liability company, partnership or other entity of which more than 50% of the outstanding Capital Stock having ordinary voting power to elect a majority of the board of directors, managers or other voting members of the governing body of such corporation, limited liability company, partnership or other entity (irrespective of whether at the time Capital Stock of any other class or classes of such corporation, limited liability company, partnership or other entity shall or might have voting power upon the occurrence of any contingency) is at the time directly or indirectly owned or controlled by such Person, by such Person and one or more other Subsidiaries of such Person, or by one or more other Subsidiaries of such Person; provided that the term "Subsidiary" shall not include any Arby's Securitization Entity. "Subsidiary Guarantor" means, on the Closing Date, each direct and indirect U.S. Subsidiary of each Borrower (except as otherwise provided herein) and, thereafter, each other direct and indirect Subsidiary of any such Borrower that is required, pursuant either to clause (a) of Section 7.1.7 or clause (b) of Section 7.1.11, to execute and deliver a supplement to the Subsidiary Guaranty. "Subsidiary Guaranty" means the Subsidiary Guaranty executed and delivered by each Subsidiary Guarantor pursuant to Section 5.1.7, clause (a) of Section 7.1.7 or clause (b) of Section 7.1.11, substantially in the form of Exhibit I hereto, as amended, supplemented, amended and restated or otherwise modified from time to time. "Subsidiary Pledge Agreement" means the Pledge Agreement executed and delivered by each Subsidiary Guarantor pursuant to clause (c) of Section 5.1.8, clause (b) of Section 7.1.7 or clause (b) of Section 7.1.11, substantially in the form of Exhibit J-3 hereto, in each case as amended, supplemented, amended and restated or otherwise modified from time to time. "Subsidiary Security Agreement" means the Security Agreement executed and delivered by each Subsidiary Guarantor pursuant to Section 5.1.9, clause (a) of Section 7.1.7 or clause (b) of Section 7.1.11, substantially in the form of Exhibit K-2 hereto, in each case as amended, supplemented, amended and restated or otherwise modified from time to time. "Swing Line Lender" means BNY (or another Lender designated by the Syndication Agent with the consent of the Borrowers, if such Lender agrees to be the Swing Line Lender hereunder), in such Person's capacity as the maker of Swing Line Loans. "Swing Line Loans" is defined in clause (b) of Section 2.1.2. "Swing Line Loan Commitment" means, with respect to the Swing Line Lender, the Swing Line Lender's obligation pursuant to clause (b) of Section 2.1.2 to make Swing Line Loans and, with respect to each Lender with a Commitment to make Revolving Loans (other than the Swing Line Lender), such Lender's obligation to participate in Swing Line Loans pursuant to Section 2.3.2. "Swing Line Loan Commitment Amount" means $10,000,000. "Swing Line Note" means a joint and several promissory note of the Borrowers payable to the Swing Line Lender, in the form of Exhibit A-2 hereto (as such promissory note may be amended, endorsed or otherwise modified from time to time), evidencing the aggregate Indebtedness of the Borrowers to the Swing Line Lender resulting from outstanding Swing Line Loans, and also means all other promissory notes accepted from time to time in substitution therefor or renewal thereof. "Syndication Agent" is defined in the preamble. "Tax Sharing Agreement" means, collectively, (i) the Tax Sharing Agreement, dated as of February 25, 1999, among the Borrowers, certain Subsidiaries of RC/Arby's, Holdco, Triarc Beverage and Triarc, as amended, supplemented, amended and restated or otherwise modified from time to time, and (ii) any other tax sharing agreement, in form and substance reasonably satisfactory to the Arrangers, among Triarc, Holdco, the Borrowers and/or any of their Subsidiaries containing terms no less favorable to the Borrowers and their Subsidiaries than the tax sharing agreement referred to in clause (i). "Taxes" is defined in Section 4.6. "Term A Loan" is defined in clause (a) of Section 2.1.1. "Term A Loan Commitment Amount" means $45,000,000. "Term A Note" means a joint and several promissory note of the Borrowers payable to the order of any Lender, in the form of Exhibit B-1 hereto (as such promissory note may be amended, endorsed or otherwise modified from time to time), evidencing the aggregate Indebtedness of the Borrowers to such Lender resulting from outstanding Term A Loans, and also means all other promissory notes accepted from time to time in substitution therefor or renewal thereof. "Term B Loan" is defined in clause (b) of Section 2.1.1. "Term B Loan Commitment Amount" means $125,000,000. "Term B Note" means a joint and several promissory note of the Borrowers payable to the order of any Lender, in the form of Exhibit B-2 hereto (as such promissory note may be amended, endorsed or otherwise modified from time to time), evidencing the aggregate Indebtedness of the Borrowers to such Lender resulting from outstanding Term B Loans, and also means all other promissory notes accepted from time to time in substitution therefor or renewal thereof. "Term C Loan" is defined in clause (c) of Section 2.1.1. "Term C Loan Commitment Amount" means $305,000,000. "Term C Note" means a joint and several promissory note of the Borrowers payable to the order of any Lender, in the form of Exhibit B-3 hereto (as such promissory note may be amended, endorsed or otherwise modified from time to time), evidencing the aggregate Indebtedness of the Borrowers to such Lender resulting from outstanding Term C Loans, and also means all other promis- sory notes accepted from time to time in substitution therefor or renewal thereof. "Term Loans" means, collectively, the Term A Loans, the Term B Loans and the Term C Loans. "Term Loan Commitment" means, relative to any Lender, such Lender's obligation to make Term Loans pursuant to Section 2.1.1. "Termination Date" means the date on which all of the following shall have occurred on or before such date: (a) all monetary Obligations have been paid in full in cash, other than (i) indemnification obligations under Section 10.4 so long as no actions, causes of action or suits are pending or threatened against any Indemnified Party asserting any Indemnified Liabilities and (ii) any Letter of Credit Outstandings that have been terminated, expired or cash collateralized on terms reasonably satisfactory to the Agents, and (b) all Commitments and all Rate Protection Agreements have been terminated. "Total Exposure Amount" means, on any date of determination, the then outstanding principal amount of all Term Loans and the then effective Revolving Loan Commitment Amount. "Trademark Security Agreement" means any Trademark Security Agreement executed and delivered by an Obligor in substantially the form of Exhibit B to any Security Agreement, as amended, supplemented, amended and restated or otherwise modified from time to time. "Tranche" means, as the context may require, the Term A Loans, the Term B Loans, the Term C Loans or the Revolving Loan Commitments. "Transaction" is defined in the fourth recital. "Transaction Documents" means each of the Acquisition Agreement, the Indenture, the Acquisition Escrow Agreement, the RC/Arby's Notes Repayment Pledge Agreement and all other material agreements, documents, instruments, certificates, filings, consents, approvals, resolutions and opinions furnished to or in connection with the Subordinated Notes, the Triarc Dividend, the Refinancing, the Acquisition, the RC/Arby's Notes Repayment and the transactions contemplated thereby, each as amended, supplemented, amended and restated or otherwise modified from time to time as permitted in accordance with the terms hereof or any other Loan Document, but shall not include any of the foregoing entered into in connection with Triarc's proposed going-private transaction. "Triarc" is defined in the second recital and includes any suc- cessor thereto. "Triarc Beverage" is defined in the third recital and includes any successor thereto. "Triarc Beverage Stock Option Plan" means the Triarc Beverage Holdings Corp. 1997 Stock Option Plan providing for the granting of options to acquire shares of the Capital Stock of Triarc Beverage, as amended, supplemented, amended and restated or otherwise modified from time to time as permitted in accordance with the terms hereof. "Triarc Dividend" means the distributions by Holdco and Triarc Beverage to Triarc of (i) a portion of the gross proceeds of the Subordinated Notes Offering and (ii) all of Holdco's and its Subsidiaries' cash equivalents and cash on hand on the Closing Date in excess of $2,000,000 plus the amount held in escrow referenced in Item 7.2.3(b) ("Ongoing Liens") of the Disclosure Schedule (after the payment or accrual of all costs and expenses to be borne by Holdco and its Subsidiaries in connection with the Transaction; provided that any amount in excess of the amount so accrued may be distributed by Holdco and Triarc Beverage to Triarc, and such excess amount shall be deemed to constitute a portion of the Triarc Dividend and such distributions may be made, in whole or in part, at any time, including, without limitation, subsequent to the date of the RC/Arby's Notes Repayment), which distributions may be made, in whole or in part, at any time and from time to time, on or prior to the date of the RC/Arby's Notes Repayment. "type" means, relative to any Loan, the portion thereof, if any, being maintained as a Base Rate Loan or a LIBO Rate Loan. "UCC" means the Uniform Commercial Code as in effect from time to time in the State of New York or, with respect to Filing Statements, the Uniform Commercial Code as in effect from time to time in each applicable jurisdiction of the United States. "United States" or "U.S." means the United States of America, its fifty States and the District of Columbia. "U.S. Subsidiary" means any Subsidiary of any Borrower organized under the laws of the United States or any state, possession or commonwealth thereof. "Waiver" means any agreement in favor of the Administrative Agent for the benefit of the Lenders and each Issuer in form and substance reasonably satisfactory to the Administrative Agent. "Welfare Plan" means a "welfare plan", as such term is defined in section 3(1) of ERISA (other than a multi-employer plan as defined in Section 4001 (a)(3) of ERISA). "wholly-owned Subsidiary" means, with respect to any Person, any Subsidiary of such Person all of the Capital Stock (including all rights and options to purchase such Capital Stock) of which, other than directors' quali- fying shares (as applicable), are owned, beneficially and of record, by such Person and/or one or more wholly-owned Subsidiaries of such Person. SECTION 1.2. Use of Defined Terms. Unless otherwise defined or the context otherwise requires, terms for which meanings are provided in this Agreement shall have such meanings when used in the Disclosure Schedule and in each Borrowing Request, Issuance Request, Continuation/Conversion Notice, Loan Document, notice and other communication delivered from time to time in connection with this Agreement or any other Loan Document. SECTION 1.3. Cross-References. Unless otherwise specified, references in this Agreement and in each other Loan Document to any Article or Section are references to such Article or Section of this Agreement or such other Loan Document, as the case may be, and, unless otherwise specified, references in any Article, Section or definition to any clause are references to such clause of such Article, Section or definition. SECTION 1.4. Accounting and Financial Determinations. Unless otherwise specified, all accounting terms used herein or in any other Loan Document shall be interpreted, all accounting determinations and computations hereunder or thereunder (including under Section 7.2.4) shall be made, and all financial statements required to be delivered hereunder or thereunder shall be prepared in accordance with, those generally accepted accounting principles ("GAAP") as in effect on the Closing Date. ARTICLE II COMMITMENTS, BORROWING PROCEDURES AND NOTES SECTION 2.1. Loans and Commitments. On the terms and subject to the conditions of this Agreement (including Articles II and V), each Lender severally agrees as otherwise provided in this Section 2.1: SECTION 2.1.1. Term Loans. On the Closing Date, each Lender (a) will make loans (relative to such Lender, its "Term A Loans") to each applicable Borrower, on a joint and several basis for all the Borrowers, in an amount equal to such Lender's Percentage of the aggregate amount of the Borrowing or Borrowings of Term A Loans requested by such Borrower to be made on the Closing Date; (b) will make loans (relative to such Lender, its "Term B Loans") to each applicable Borrower, on a joint and several basis for all the Borrowers, in an amount equal to such Lender's Percentage of the aggregate amount of the Borrowing or Borrowings of Term B Loans requested by such Borrower to be made on the Closing Date; and (c) will make loans (relative to such Lender, its "Term C Loans") to each applicable Borrower, on a joint and several basis for all the Borrowers, in an amount equal to such Lender's Percentage of the aggregate amount of the Borrowing or Borrowings of Term C Loans requested by such Borrower to be made on the Closing Date. No amounts paid or prepaid with respect to Term A Loans, Term B Loans or Term C Loans may be reborrowed. In connection with the foregoing, on the Closing Date, Snapple will borrow $36,543,793.05 in aggregate principal amount of Term A Loans, $101,501,536.31 in aggregate principal amount of Term B Loans and $247,685,708.49 in aggregate principal amount of Term C Loans, of which $9,123,157.89 in aggregate principal amount of Term A Loans, $25,342,105.26 in aggregate principal amount of Term B Loans and $61,834,736.84 in aggregate principal amount of Term C Loans shall be deemed to have been borrowed on behalf of Royal Crown. Upon the consummation of the RC/Arby's Notes Repayment, the amounts of such Term Loans shall be allocated to Royal Crown's account as if Royal Crown had borrowed such amounts directly. SECTION 2.1.2. Revolving Loan Commitment and Swing Line Loan Commitment. (a) From time to time on any Business Day occurring prior to the Revolving Loan Commitment Termination Date, each Lender will make loans (relative to such Lender, its "Revolving Loans") to each applicable Borrower, on a joint and several basis for all the Borrowers, equal to such Lender's Percentage of the aggregate amount of the Borrowing of Revolving Loans requested by such Borrower to be made on such day. On the terms and subject to the conditions hereof, the Borrowers may from time to time borrow, prepay and reborrow Revolving Loans; and (b) From time to time on any Business Day occurring prior to the Revolving Loan Commitment Termination Date, the Swing Line Lender will make Loans (relative to the Swing Line Lender, its "Swing Line Loans") to each applicable Borrower, on a joint and several basis for all the Borrowers, equal to the principal amount of the Swing Line Loans requested by such Borrower to be made on such day. On the terms and subject to the conditions hereof, the Borrowers may from time to time borrow, prepay and reborrow such Swing Line Loans. SECTION 2.1.3. Letter of Credit Commitment. From time to time on any Business Day occurring prior to the Revolving Loan Commitment Termination Date, each Issuer will (a) issue one or more standby or documentary letters of credit (each referred to as a "Letter of Credit") for the account of each applicable Borrower, on a joint and several basis for all Borrowers, in the Stated Amount requested by such Borrower on such day; or (b) extend the Stated Expiry Date of an existing Letter of Credit previously issued hereunder to a date that is not later than the earlier of (x) five Business Days prior to the Revolving Loan Commitment Termination Date and (y) one year from the date of such extension. SECTION 2.1.4. Lenders Not Permitted or Required to Make Loans. No Lender shall be permitted or required to, and the Borrowers shall not request that any Lender, make (a) any Revolving Loan if, after giving effect thereto, the aggregate outstanding principal amount of all the Revolving Loans (i) of all the Lenders with Revolving Loan Commitments and the outstanding principal amount of all Swing Line Loans, together with the Letter of Credit Outstandings, would exceed the lesser of (x) the then existing Revolving Loan Commitment Amount and (y) the then existing Borrowing Base Amount, or (ii) of such Lender with a Revolving Loan Commitment, together with such Lender's Percentage of the Letter of Credit Outstandings and its Percentage of the outstanding principal amount of all Swing Line Loans, would exceed such Lender's Percentage of the lesser of (x) the then existing Revolving Loan Commitment Amount and (y) the then existing Borrowing Base Amount; or (b) any Swing Line Loan (i) if, after giving effect thereto, (x) the aggregate outstanding principal amount of all Swing Line Loans would exceed the then existing Swing Line Loan Commitment Amount, or (y) the sum of the Letter of Credit Outstandings plus the aggregate principal amount of all Swing Line Loans and Revolving Loans then outstanding would exceed the lesser of (A) the then existing Revolving Loan Commitment Amount and (B) the then existing Borrowing Base Amount, or (ii) unless otherwise agreed to by the Swing Line Lender, in its sole discretion, if the sum of all Swing Line Loans and Revolving Loans made by the Swing Line Lender plus the Swing Line Lender's Percentage of the Letter of Credit Outstandings would exceed the Swing Line Lender's Percentage of the lesser of (x) the then existing Revolving Loan Commitment Amount and (y) the then existing Borrowing Base Amount. SECTION 2.1.5. Issuer Not Permitted or Required to Issue Letters of Credit. No Issuer shall be permitted or required to issue any Letter of Credit if, after giving effect thereto, (i) the aggregate amount of all Letter of Credit Outstandings would exceed the Letter of Credit Commitment Amount or (ii) the sum of the Letter of Credit Outstandings plus the aggregate principal amount of all Swing Line Loans and Revolving Loans then outstanding would exceed the lesser of (x) the then existing Revolving Loan Commitment Amount and (y) the then existing Borrowing Base Amount. SECTION 2.1.6. RC/Arby's and Royal Crown. Notwithstanding anything herein to the contrary, the parties hereto acknowledge and agree that (a) RC/Arby's and Royal Crown shall not become "Borrowers" hereunder or under any other Loan Document and the Subsidiaries of RC/Arby's and Royal Crown that are expected to be Subsidiary Guarantors shall not become Subsidiary Guarantors hereunder, under the Subsidiary Guaranty or under any other Loan Document, with corresponding liabilities and entitlements pursuant hereto and thereto, until the consummation of the RC/Arby's Notes Repayment, (b) RC/Arby's shall be released as a Borrower and the Subsidiaries of RC/Arby's (to the extent provided in the definition of Arby's Securitization Residual Payment) shall be released as Subsidiary Guarantors in connection with the Arby's Securitization Residual Payment and (c) Royal Crown shall be released as a Borrower and the Subsidiaries of Royal Crown shall be released as Subsidiary Guarantors in connection with the Royal Crown Disposition. SECTION 2.2. Reduction of Commitment Amounts. The Commitment Amounts are subject to reduction from time to time pursuant to this Section 2.2. SECTION 2.2.1. Optional. The Borrowers may, from time to time on any Business Day, voluntarily reduce the amount of the Swing Line Loan Commitment Amount, the Revolving Loan Commitment Amount or the Letter of Credit Commitment Amount; provided, however, that all such reductions (i) shall be permanent and (ii) to the extent such reduction in the Commitment Amount requires a mandatory prepayment of Revolving Loans or Swing Line Loans pursuant to clause (k) of Section 3.1.1 (x) in the case of prepayments of Base Rate Loans (other than Swing Line Loans) shall require at least one Business Day's prior notice to the Administrative Agent, and any partial reduction of any Commitment Amount shall be in a minimum amount of $1,000,000 and in an integral multiple of $500,000 or (y) in the case of prepayments of LIBO Rate Loans, shall require at least three Business Days' prior notice to the Administrative Agent, and any partial reduction of any Commitment Amount shall be in a minimum amount of $5,000,000 and in an integral multiple of $1,000,000. Any reduction of the Revolving Loan Commitment Amount which reduces the Revolving Loan Commitment Amount below (i) the Swing Line Loan Commitment Amount or (ii) the Letter of Credit Commitment Amount shall result in an automatic and corresponding reduction of the Swing Line Loan Commitment Amount and/or Letter of Credit Commitment Amount (as directed by the Borrowers in a notice to the Administrative Agent delivered together with the notice of such voluntary reduction in the Revolving Loan Commitment Amount) to an aggregate amount not in excess of the Revolving Loan Commitment Amount, as so reduced, without any further action on the part of the Swing Line Lender or any Issuer. SECTION 2.2.2. Mandatory. The Revolving Loan Commitment Amount, the Swing Line Loan Commitment Amount and the Letter of Credit Commitment Amount shall be reduced as set forth below. (a) Following the prepayment or repayment in full of the Term Loans, the Revolving Loan Commitment Amount shall, without any further action, automatically and permanently be reduced on the date and in the amount the Term Loans, if then outstanding, would otherwise have been required to be prepaid with any Net Debt Proceeds, Net Disposition Proceeds, Net Casualty Proceeds, Net Equity Proceeds or Excess Cash Flow. (b) Any reduction of the Revolving Loan Commitment Amount which reduces the Revolving Loan Commitment Amount below (i) the Swing Line Loan Commitment Amount or (ii) the Letter of Credit Commitment Amount shall result in an automatic and corresponding reduction of the Swing Line Loan Commitment Amount and/or Letter of Credit Commitment Amount (as directed by the Borrowers in a notice to the Administrative Agent) to an aggregate amount not in excess of the Revolving Loan Commitment Amount, as so reduced, without any further action on the part of the Swing Line Lender or any Issuer. SECTION 2.3. Borrowing Procedures and Funding Maintenance. Loans shall be made by the Lenders in accordance with this Section. SECTION 2.3.1. Term Loans and Revolving Loans. By delivering a Borrowing Request to the Administrative Agent on or before 11:00 a.m., New York time, on a Business Day, any Borrower may from time to time irrevocably request, on not less than one (in the case of Base Rate Loans) or three (in the case of LIBO Rate Loans) nor more than five (in each case) Business Days' notice, that a Borrowing be made, in the case of LIBO Rate Loans, in a minimum amount of $5,000,000 and an integral multiple of $1,000,000, and in the case of Base Rate Loans, in a minimum amount of $1,000,000 and an integral multiple of $500,000, or, in either case, in the unused amount of the applicable Commitment. On the terms and subject to the conditions of this Agreement, each Borrowing shall be comprised of the type of Loans, and shall be made on the Business Day, specified in such Borrowing Request. On or before 1:00 p.m., New York time, on such Business Day each Lender shall deposit with the Administrative Agent same day funds in an amount equal to such Lender's Percentage of the requested Borrowing. Such deposit will be made to an account which the Administrative Agent shall specify from time to time by notice to the Lenders. To the extent funds are received from the Lenders, the Administrative Agent shall make such funds immediately available to the Borrower requesting the Loan by wire transfer or otherwise to the accounts such Borrower shall have specified in its Borrowing Request. No Lender's obligation to make any Loan shall be affected by any other Lender's failure to make any Loan. The Borrowing Request for the initial Credit Extension hereunder may be delivered prior to the Closing Date. SECTION 2.3.2. Swing Line Loans. (a) By telephonic notice, promptly followed (within three Business Days) by the facsimile delivery of a confirming Borrowing Request, to the Swing Line Lender on or before 11:00 a.m., New York time, on a Business Day, any Borrower may from time to time irrevocably request that Swing Line Loans be made by the Swing Line Lender in an aggregate minimum principal amount of $500,000 and an integral multiple of $100,000. Each request by any Borrower for a Swing Line Loan shall constitute a representation and warranty by the Borrowers that on the date of such request and (if different) the date of the making of the Swing Line Loan, both immediately before and after giving effect to such Swing Line Loan and the application of the proceeds thereof, the statements made in Section 5.2.1 are true and correct. All Swing Line Loans shall be made as Base Rate Loans and shall not be entitled to be converted into LIBO Rate Loans. The proceeds of each Swing Line Loan shall be made available by the Swing Line Lender, by its close of business, on the Business Day telephonic notice is received by it as provided in the preceding sentences in immediately available funds, to the Borrower requesting the Loan by wire transfer or otherwise to the accounts such Borrower shall have specified in its notice therefor. (b) The Swing Line Lender, at any time in its sole and absolute discretion, may request each Lender that has a Revolving Loan Commitment, and each such Lender, including the Swing Line Lender hereby agrees, to make a Revolving Loan (which shall always be initially funded as a Base Rate Loan) in an amount equal to such Lender's Percentage of the amount of the Swing Line Loans (the "Refunded Swing Line Loans") outstanding on the date such notice is given. On or before 11:00 a.m. (New York time) on the first Business Day following receipt by each Lender of a request to make Revolving Loans as provided in the preceding sentence, each such Lender (other than the Swing Line Lender) shall deposit in an account specified by the Administrative Agent to the Lenders from time to time the amount so requested in same day funds, whereupon such funds shall be immediately delivered to the Swing Line Lender (and not a Borrower) and applied to repay the Refunded Swing Line Loans. On the day such Revolving Loans are made, the Swing Line Lender's Percentage of the Refunded Swing Line Loans shall be deemed to be paid. Upon the making of any Revolving Loan pursuant to this clause, the amount so funded shall become due under such Lender's Revolving Note and shall no longer be owed under the Swing Line Note. Each Lender's obligation to make the Revolving Loans referred to in this clause shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Lender may have against the Swing Line Lender, any Borrower or any other Person for any reason whatsoever; (ii) the occurrence or continuance of any Default; (iii) any adverse change in the condition (financial or otherwise) of any Borrower or any other Obligor, including a reduction in the Borrowing Base Amount subsequent to the date of the making of any Swing Line Loan; (iv) the acceleration or maturity of any Loans or the termination of the Revolving Loan Commitment after the making of any Swing Line Loan; (v) any breach of this Agreement by any Borrower or any other Lender; or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. (c) In the event that (i) any of the Borrowers or any of their respective Subsidiaries are subject to any bankruptcy or insolvency proceedings as provided in Section 8.1.9 or (ii) the Swing Line Lender otherwise requests, each Lender with a Revolving Loan Commitment shall acquire without recourse or warranty an undivided participation interest equal to such Lender's Percentage of any Swing Line Loan otherwise required to be repaid by such Lender pursuant to the preceding clause by paying to the Swing Line Lender on the date on which such Lender would otherwise have been required to make a Revolving Loan in respect of such Swing Line Loan pursuant to the preceding clause, in same day funds, an amount equal to such Lender's Percentage of such Swing Line Loan, and no Revolving Loans shall be made by such Lender pursuant to the preceding clause. From and after the date on which any Lender purchases an undivided participation interest in a Swing Line Loan pursuant to this clause, the Swing Line Lender shall distribute to such Lender (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender's participation interest is outstanding and funded) its ratable amount of all payments of principal and interest in respect of such Swing Line Loan in like funds as received; provided, however, that in the event such payment received by the Swing Line Lender is required to be returned to any Borrower, such Lender shall return to the Swing Line Lender the portion of any amounts which such Lender had received from the Swing Line Lender in like funds. (d) Notwithstanding anything herein to the contrary, the Swing Line Lender shall not be obligated to make any Swing Line Loans if it has elected after the occurrence of a Default not to make Swing Line Loans and has notified the Borrowers in writing or by facsimile delivery of such election. The Swing Line Lender shall promptly give notice to the Lenders of such election not to make Swing Line Loans. SECTION 2.4. Continuation and Conversion Elections. By deliver- ing a Continuation/Conversion Notice to the Administrative Agent on or before 12:00 noon, New York time, on a Business Day, any Borrower may from time to time irrevocably elect, on not less than one (in the case of a conversion of LIBO Rate Loans to Base Rate Loans) and three (in the case of a continuation of LIBO Rate Loans or a conversion of Base Rate Loans into LIBO Rate Loans) nor more than five (in each case) Business Days' notice that all, or any portion in an aggregate minimum amount of $5,000,000 and an integral multiple of $1,000,000, in the case of the continuation of, or conversion into, LIBO Rate Loans, or an aggregate minimum amount of $1,000,000 and an integral multiple of $500,000 in the case of the conversion into Base Rate Loans (other than Swing Line Loans as provided in clause (a) of Section 2.3.2) be, in the case of Base Rate Loans, converted into LIBO Rate Loans or, in the case of LIBO Rate Loans, converted into a Base Rate Loan or continued as a LIBO Rate Loan (in the absence of delivery of a Continuation/Conversion Notice with respect to any LIBO Rate Loan at least three Business Days before the last day of the then current Interest Period with respect thereto, such LIBO Rate Loan shall, on such last day, automatically convert to a Base Rate Loan); provided, how- ever, that (x) each such conversion or continuation shall be pro rated among the applicable outstanding Loans of the relevant Lenders, and (y) no portion of the outstanding principal amount of anyLoans may be continued as, or be converted into, LIBO Rate Loans when any Default has occurred and is continuing. SECTION 2.5. Funding. Each Lender may, if it so elects, fulfill its obligation to make, continue or convert LIBO Rate Loans hereunder by causing one of its foreign branches or Affiliates (or an international banking facility created by such Lender) to make or maintain such LIBO Rate Loan, so long as such action does not result in increased costs to the Borrowers; provided, however, that such LIBO Rate Loan shall nonetheless be deemed to have been made and to be held by such Lender, and the obligation of the Borrowers to repay such LIBO Rate Loan shall nevertheless be to such Lender for the account of such foreign branch, Affiliate or international banking facility. In addition, the Borrowers hereby consent and agree that, for purposes of any determination to be made for purposes of Section 4.1, 4.2, 4.3 or 4.4, it shall be conclusively assumed that each Lender elected to fund all LIBO Rate Loans by purchasing Dollar deposits in its LIBOR Office's interbank eurodollar market. SECTION 2.6. Issuance Procedures. By delivering to the Administrative Agent an Issuance Request on or before 12:00 noon, New York time, on a Business Day, any Borrower may from time to time irrevocably request, on not less than three nor more than ten Business Days' notice (or such other notice period as may be acceptable to the Issuer in its sole discretion), in the case of an initial issuance of a Letter of Credit, and not less than three nor more than ten Business Days' notice prior to the then existing Stated Expiry Date of a Letter of Credit (or such other notice period as may be acceptable to the Issuer in its sole discretion), in the case of a request for the extension of the Stated Expiry Date of a Letter of Credit, that the Issuer issue, or extend the Stated Expiry Date of, or amend, as the case may be, an irrevocable Letter of Credit for such Borrower's account or for the account of any wholly-owned U.S. Subsidiary of such Borrower that is a signatory to the Subsidiary Guaranty and the Subsidiary Security Agreement and whose outstanding Capital Stock is pledged to the Administrative Agent for the benefit of the Lenders pursuant to the Subsidiary Pledge Agreement, in each case on a joint and several basis for all Borrowers, in such form as may be requested by such Bor- rower and approved by the Issuer, solely for the purposes described in Section 7.1.9. Notwithstanding anything to the contrary contained herein or in any separate application for any Letter of Credit, the Borrowers hereby acknowledge and agree that each of them shall be obligated, jointly and severally, to reim- burse the Issuer upon each Disbursement of any Letter of Credit, and they shall all be deemed to be Obligors for purposes of each such Letter of Credit issued hereunder (whether the account party on such Letter of Credit is a Borrower or a wholly-owned U.S. Subsidiary of a Borrower). Upon receipt of an Issuance Request, the Administrative Agent shall promptly notify the Issuer and each Lender thereof and the Issuer shall, subject to the terms and conditions hereof, including Article V, promptly (but in no event later than three Business Days after such notification) issue a Letter of Credit. Each Letter of Credit shall by its terms be stated to expire on a date (its "Stated Expiry Date") no later than the earlier to occur of (i) five Business Days prior to the Revolving Loan Commitment Termination Date and (ii) one year from the date of its issuance. The Issuer will make available to the beneficiary thereof the original of each Letter of Credit which it issues hereunder. SECTION 2.6.1. Other Lenders' Participation. Upon the issuance of each Letter of Credit issued by the Issuer pursuant hereto, and without further action, each Lender (other than the Issuer) that has a Revolving Loan Commitment shall be deemed to have irrevocably purchased from the Issuer, to the extent of its Percentage to make Revolving Loans, and the Issuer shall be deemed to have irrevocably granted and sold to such Lender a participation interest in such Letter of Credit (including the Contingent Liability and any Reimbursement Obligation and all rights with respect thereto), and such Lender shall, to the extent of its Revolving Loan Commitment Percentage, be responsible for reimbursing promptly (and in any event within one Business Day) the Issuer for Reimbursement Obligations which have not been reimbursed by the Borrowers in accordance with Section 2.6.3. In addition, such Lender shall, to the extent of its Percentage to make Revolving Loans, be entitled to receive a ratable portion of the Letter of Credit fees payable pursuant to Section 3.3.3 with respect to each Letter of Credit and of interest payable pursuant to Section 3.2 with respect to any Reimbursement Obligation. To the extent that any Lender has reimbursed the Issuer for a Disbursement as required by this Section, such Lender shall be entitled to receive its ratable portion of any amounts subsequently received (from the Borrowers or otherwise) in respect of such Disbursement. SECTION 2.6.2. Disbursements; Conversion to Revolving Loans. The Issuer will notify the Borrowers and the Administrative Agent promptly of the presentment for payment of any Letter of Credit issued by the Issuer, together with notice of the date (the "Disbursement Date") such payment shall be made (each such payment, a "Disbursement"). Subject to the terms and provisions of such Letter of Credit and this Agreement, the Issuer shall make such payment to the beneficiary (or its designee) of such Letter of Credit. Prior to 12:00 noon, New York time, on the first Business Day following the Disbursement Date (the "Disbursement Due Date"), the Borrowers shall be obligated, on a joint and several basis, to reimburse the Administrative Agent, for the account of the Issuer, for all amounts which the Issuer has disbursed under such Letter of Credit, together with interest thereon at the rate per annum otherwise applicable to Revolving Loans (made as Base Rate Loans) from and including the Disbursement Date to but excluding the Disbursement Due Date and, thereafter (unless such Disbursement is converted into a Base Rate Loan on the Disbursement Due Date), at a rate per annum equal to the rate per annum then in effect with respect to overdue Revolving Loans (made as Base Rate Loans) pursuant to Section 3.2.2 for the period from and including the Disbursement Due Date to but excluding the date of such reimbursement; provided, however, that, if no Default shall have then occurred and be continuing, unless any Borrower has notified the Administrative Agent no later than one Business Day prior to the Disbursement Due Date that it will reimburse the Issuer for the applicable Dis- bursement, then the amount of the Disbursement shall be deemed to be a Revolving Loan constituting a Base Rate Loan and following the giving of notice thereof by the Administrative Agent to the Lenders, each Lender with a Revolving Loan Commitment (other than the Issuer) will deliver to the Issuer on the Disburse- ment Due Date immediately available funds in an amount equal to such Lender's Percentage of such Revolving Loan. Each conversion of Disbursement amounts into Revolving Loans shall constitute a representation and warranty by the Borrowers that on the date of the making of such Revolving Loan all of the statements set forth in Section 5.2.1 are true and correct. SECTION 2.6.3. Reimbursement. The obligation (a "Reimbursement Obligation") of the Borrowers under Section 2.6.2 to reimburse the Issuer with respect to each Disbursement (including interest thereon) not converted into a Base Rate Loan pursuant to Section 2.6.2, and, upon the failure of the Borrowers to reimburse the Issuer and the giving of notice thereof by the Administrative Agent to the Lenders, each Lender's (to the extent it has a Revolving Loan Commitment) obligation under Section 2.6.1 to reimburse the Issuer or fund its Percentage of any Disbursement converted into a Base Rate Loan, shall be absolute and uncondi tional under any and all circumstances and irrespective of any setoff, counterclaim or defense to payment which the Borrowers or such Lender, as the case may be, may have or have had against the Issuer or any such Lender, including any defense based upon the failure of any Disbursement to conform to the terms of the applicable Letter of Credit (if, in the Issuer's good faith opinion, such Disbursement is determined to be appropriate) or any non-application or misapplication by the beneficiary of the proceeds of such Letter of Credit; provided, however, that after paying in full its Reimbursement Obligation hereunder, nothing herein shall adversely affect the right of the Borrowers or such Lender, as the case may be, to commence any proceeding against the Issuer for any wrongful Disbursement made by the Issuer under a Letter of Credit as a result of acts or omissions constituting gross negligence or willful misconduct on the part of the Issuer. SECTION 2.6.4. Deemed Disbursements. Upon the occurrence and during the continuation of any Event of Default of the type described in Section 8.1.9 or, with notice from the Administrative Agent acting at the direction of the Required Lenders, upon the occurrence and during the continuation of any other Event of Default, (a) an amount equal to that portion of all Letter of Credit Outstandings attributable to the then aggregate amount which is undrawn and available under all Letters of Credit issued and outstanding shall, without demand upon or notice to the Borrowers or any other Person, be deemed to have been paid or disbursed by the Issuer under such Letters of Credit (notwithstanding that such amount may not in fact have been so paid or disbursed); and (b) upon notification by the Administrative Agent to the Borrowers of the obligations of the Borrowers under this Section, the Borrowers shall be immediately obligated, jointly and severally, to reimburse the Issuer for the amount deemed to have been so paid or disbursed by the Issuer. Any amounts so payable by the Borrowers pursuant to this Section shall be deposited in cash with the Administrative Agent and held as collateral security for the Obligations in connection with the Letters of Credit issued by the Issuer. At such time when the Events of Default giving rise to the deemed disbursements hereunder shall have been cured or waived, the Administrative Agent shall return to the Borrowers all amounts then on deposit with the Administrative Agent pursuant to this Section, together with accrued interest at the Federal Funds Rate, which have not been applied to the satisfaction of such Obligations. SECTION 2.6.5. Nature of Reimbursement Obligations. The Borrowers and, to the extent set forth in Section 2.6.1, each Lender with a Revolving Loan Commitment, shall assume all risks of the acts, omissions or misuse of any Letter of Credit by the beneficiary thereof. The Issuer (except to the extent of its own gross negligence or willful misconduct) shall not be responsible for: (a) the form, validity, sufficiency, accuracy, genuineness or legal effect of any Letter of Credit or any document submitted by any party in connection with the application for and issuance of a Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (b) the form, validity, sufficiency, accuracy, genuineness or legal effect of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or the proceeds thereof in whole or in part, which may prove to be invalid or ineffective for any reason; (c) failure of the beneficiary to comply fully with conditions required in order to demand payment under a Letter of Credit; (d) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise; or (e) any loss or delay in the transmission or otherwise of any document or draft required in order to make a Disbursement under a Letter of Credit. None of the foregoing shall affect, impair or prevent the vesting of any of the rights or powers granted to the Issuer or any Lender with a Revolving Loan Commitment hereunder. In furtherance and extension and not in limitation or derogation of any of the foregoing, any action taken or omitted to be taken by the Issuer in good faith (and not constituting gross negligence or willful misconduct) shall be binding upon the Borrowers, each Obligor and each such Lender, and shall not put the Issuer under any resulting liability to the Borrowers, any Obligor or any such Lender, as the case may be. SECTION 2.7. Register; Notes. (a) Each Lender may maintain in accordance with its usual practice an account or accounts evidencing the Indebtedness of the Borrowers to such Lender resulting from each Loan made by such Lender to each such Borrower, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder. In the case of a Lender that does not request, pursuant to clause (b)(ii) below, execution and delivery of a Note evidencing the Loans made by such Lender to each such Borrower, such account or accounts shall, to the extent not inconsistent with the notations made by the Administrative Agent in the Register (as defined below), be conclusive and binding on the Borrowers absent demonstrable error; provided, however, that the failure of any Lender to maintain such account or accounts shall not limit or otherwise affect any Obligations of any Borrower or any other Obligor. (b) (i) Each Borrower hereby designates the Administrative Agent to serve as its agent, solely for the purpose of this clause (b), to maintain a register (the "Register") on which the Administrative Agent will record each Lender's Commitment, the Loans made by each Lender to each Borrower and each repayment in respect of the principal amount of the Loans of each Lender to each Borrower and annexed to which the Administrative Agent shall retain a copy of each Lender Assignment Agreement delivered to the Administrative Agent pursuant to Section 10.11.1. Failure to make any recordation, or any error in such recordation, shall not affect the Borrowers' obligations in respect of such Loans. The entries in the Register shall be conclusive, in the absence of demonstrable error, and the Borrowers, the Administrative Agent and the Lenders shall treat each Person in whose name a Loan (and as provided in clause (ii) the Note evidencing such Loan, if any) is registered as the owner thereof for all purposes of this Agreement, notwithstanding notice or any provision herein to the contrary. A Lender's Commitment and the Loans made pursuant thereto may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer in the Register. Any assignment or transfer of a Lender's Commitment or the Loans made pursuant thereto shall be registered in the Register only upon delivery to the Administrative Agent of a Lender Assignment Agreement duly executed by the Assignor there- of. No assignment or transfer of a Lender's Commitment or the Loans made pursuant thereto shall be effective unless such assignment or transfer shall have been recorded in the Register by the Administrative Agent as provided in this Section 2.7. (ii) The Borrowers agree that, upon the request to the Administrative Agent by any Lender, the Borrowers will execute and deliver to such Lender, as applicable, a Note evidencing the Loans made by such Lender. The Borrowers hereby irrevocably authorize each Lender to make (or cause to be made) appropriate notations on the grid attached to such Lender's Notes (or on any continuation of such grid), which notations, if made, shall evidence, inter alia, the Borrower that has requested the Loan, the date of, the outstanding principal amount of, and the interest rate and Interest Period applicable to the Loans evidenced thereby. Such notations shall, to the extent not inconsistent with the notations made by the Administrative Agent in the Register, be conclusive and binding on the Borrowers absent demonstrable error; provided, however, that the failure of any Lender to make any such notations shall not limit or otherwise affect any Obligations of the Borrowers or any other Obligor. The Loans evidenced by any such Note and interest thereon shall at all times (including after assignment pursuant to Section 10.11.1) be payable to the order of the payee named therein and its registered assigns. Subject to the provisions of Section 10.11.1, a Note and the obligation evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Note and the obligation evidenced thereby in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of an obligation evidenced by a Note shall be registered in the Register only upon surrender for registration of assignment or transfer of the Note evidencing such obligation, accompanied by a Lender Assignment Agreement duly executed by the parties thereto and the compliance by the parties thereto with the other requirements of Section 10.11.1, and thereupon, if requested by the assignee, one or more new Notes shall be issued to the designated assignee and the old Note shall be returned by the Administrative Agent to the Borrowers marked "exchanged". No assignment of a Note and the obligation evidenced thereby shall be effective unless it shall have been recorded in the Register by the Administrative Agent as provided in this Section. ARTICLE III REPAYMENTS, PREPAYMENTS, INTEREST AND FEES SECTION 3.1. Repayments and Prepayments; Application. SECTION 3.1.1. Repayments and Prepayments. The Borrowers shall be jointly and severally obligated to repay in full the unpaid principal amount of each Loan upon the Stated Maturity Date therefor. Prior thereto, the Borrowers jointly and severally acknowledge, covenant and agree that any Borrower: (a) may, from time to time on any Business Day, make a voluntary prepayment, in whole or in part, of the outstanding principal amount of any (i) Loans (other than Swing Line Loans); provided, how- ever, that (A) (1) subject to clause (b) of Section 3.1.2, any such prepayment of Term A Loans, Term B Loans or Term C Loans shall be made pro rata, based on outstanding principal amount, among Term A Loans, Term B Loans and Term C Loans, as applicable, of the same type and, if applicable, having the same Interest Period of all Lenders that have made such Term A Loans, Term B Loans or Term C Loans, and (2) any such prepayment of Revolving Loans shall be made pro rata among the Revolving Loans of the same type and, if applicable, having the same Interest Period of all Lenders that have made such Revolving Loans; (B) with respect to Term B Loans and Term C Loans, there shall be a prepayment fee on the principal amount of Loans so prepaid, (1) with respect to Term B Loans, of (x) 2.0% of the principal amount of such Loans prepaid for any prepayment of such Loans made on or prior to the first anniversary of the Closing Date, (y) 1.0% of the principal amount of such Loans prepaid for any prepayment of such Loans made after the first anniversary but on or prior to the second anniversary of the Closing Date, and (z) 0% thereafter; and (2) with respect to Term C Loans, of (x) 3.0% of the principal amount of such Loans prepaid for any prepayment of such Loans made on or prior to the first anniversary of the Closing Date, (y) 1.5% of the principal amount of such Loans prepaid for any prepayment of such Loans made after the first anniversary but on or prior to the second anniversary of the Closing Date, and (z) 0% thereafter; (C) the Borrowers shall comply with Section 4.4 in the event that any LIBO Rate Loan is prepaid on any day other than the last day of the Interest Period for such Loan; (D) all such voluntary prepayments of LIBO Rate Loans shall require prior written notice to the Administrative Agent by 11:00 a.m. (New York Time) at least three Business Days prior to such prepayment; (E) all such voluntary prepayments of Base Rate Loans shall require (i) in the case of Term Loans at least two but no more than five Business Days' prior written notice to the Administrative Agent or (ii) in the case of Revolving Loans at least one but no more than five Business Days' prior written notice to the Administrative Agent; and (F) all such voluntary partial prepayments shall be, in the case of LIBO Rate Loans, in an aggregate minimum amount of $5,000,000 and an integral multiple of $1,000,000 and, in the case of Base Rate Loans, in an aggregate minimum amount of $1,000,000 and an integral multiple of $500,000; or (ii) Swing Line Loans, provided that (x) all such voluntary prepayments shall require prior telephonic notice to the Swing Line Lender on or before 1:00 p.m., New York time, on the day of such prepayment (such notice to be confirmed in writing within 24 hours thereafter) and (y) all such voluntary prepayments shall be in an aggregate minimum amount of $250,000 and an integral multiple of $100,000; (b) shall, on each date when any reduction in the then existing Borrowing Base Amount shall become effective, make a mandatory prepayment of Revolving Loans and (if necessary) Swing Line Loans and (if necessary) deposit with the Administrative Agent cash collateral for Letter of Credit Outstandings, in an aggregate amount equal to the excess, if any, of the aggregate, outstanding principal amount of all Revolving Loans, Swing Line Loans and Letter of Credit Outstandings over the then existing Borrowing Base Amount, to be applied as set forth in Section 3.1.2; (c) shall, no later than three Business Days following the receipt of any Net Disposition Proceeds or Net Debt Proceeds by Holdco or any of its Subsidiaries, deliver to the Administrative Agent a calculation of the amount of such Net Disposition Proceeds or Net Debt Proceeds, as the case may be, and make a mandatory prepayment of the Term Loans in an amount equal to 100% of such Net Disposition Proceeds or Net Debt Proceeds, as the case may be, to be applied as set forth in Section 3.1.2; provided, that no such mandatory prepayment of Net Disposition Proceeds received in connection with clauses (b) or (e) of Section 7.2.9 shall be required under this clause (c) if (i) such Person notifies the Agents no later than 15 days following the execution and delivery of a definitive agreement for the sale, transfer or other disposition of such assets that it is such Person's good faith intention to apply such Net Disposition Proceeds toward the acquisition of replacement assets or other assets or property used in the Business or the Capital Stock of a Person that becomes a Subsidiary and is engaged in the Business and (ii) such Person in fact so uses such Net Disposition Proceeds within 180 days following the receipt by such Person of Net Disposition Proceeds, or such Person executes and delivers a definitive agreement within such 180-day period to use such Net Disposition Proceeds within 270 days following the receipt by such Person of Net Disposition Proceeds, to acquire such replacement assets or other assets or property, or such Capital Stock, with the amount of Net Disposition Proceeds unused after such 180-day or 270-day period, as the case may be, being applied to prepay the Loans pursuant to Section 3.1.2; provided, however, that only the Net Disposition Proceeds from the first $350,000,000 (as such amount may be increased pursuant to clause (d)(iii) of Section 7.2.9) of gross cash proceeds received in connection with the Arby's Securitization shall be applied as a mandatory prepayment of the Term Loans, to be applied as set forth in Section 3.1.2; (d) shall, no later than five Business Days following the delivery of the annual audited financial reports required pursuant to clause (c) of Section 7.1.1 (beginning with the financial reports delivered in respect of the 1999 Fiscal Year), deliver to the Administrative Agent a calculation of the Excess Cash Flow for the prior Fiscal Year and, no later than five Business Days following the delivery of such calculation, make a mandatory prepayment of the Term Loans in an amount equal to 75% of Excess Cash Flow (if any) for such Fiscal Year (or in the case of the 1999 Fiscal Year, the portion of such Fiscal Year following the Closing Date, as determined in good faith by the chief financial officer of Holdco) to be applied as set forth in Section 3.1.2; provided, however, that the amount of such prepayment shall be reduced to 50% of Excess Cash Flow if the Leverage Ratio on the last day of such Fiscal Year is less than 4.0:1; (e) shall, concurrently with the receipt of any Net Equity Proceeds by Holdco or any of its Subsidiaries, deliver to the Administrative Agent a calculation of the amount of such Net Equity Proceeds, and no later than five Business Days following the delivery of such calculation, make a mandatory prepayment of the Term Loans in an amount equal to 50% of such Net Equity Proceeds, to be applied as set forth in Section 3.1.2; (f) shall, within 60 days following the receipt by Holdco or any of its Subsidiaries of any Net Casualty Proceeds in excess of $500,000 (individually or in the aggregate over the course of a Fiscal Year), make a mandatory prepayment of the Term Loans in an amount equal to 100% of such Net Casualty Proceeds, to be applied as set forth in Section 3.1.2; provided, that no mandatory prepayment of Net Casualty Proceeds shall be required under this clause (f) (i) if such Person notifies the Agents no later than 60 days following the receipt of such Net Casualty Proceeds of such Person's good faith intention to apply such Net Casualty Proceeds to the rebuilding or replacement of such damaged, destroyed or condemned assets or property and (ii) to the extent such Person in fact uses such Net Casualty Proceeds to begin rebuilding or replacing the damaged, destroyed or condemned assets or property within 180 days following the receipt of such Net Casualty Proceeds and continues diligently to complete such rebuilding or replacement of such damaged, destroyed or condemned assets or property within the time reasonably required therefore (the "Rebuilding and Replacement Work"), with the amount of Net Casualty Proceeds unused after the completion of such Rebuilding and Replacement Work being applied to the Loans pursuant to Section 3.1.2; (g) shall, to the extent the Acquisition shall not have been consummated on or prior to the Consummation Date, not later than one Business Day after the Consummation Date, use the cash proceeds that have been deposited in the Acquisition Escrow Account to make a mandatory prepayment of the Term C Loans in an amount equal to the amount of the cash proceeds deposited in the Acquisition Escrow Account, to be applied as set forth in clause (c) of Section 3.1.2; (h) shall, on the Stated Maturity Date and on each Quarterly Payment Date occurring during any period set forth below, make a scheduled repayment of the aggregate outstanding principal amount, if any, of all Term A Loans in an amount equal to the amount set forth below opposite the Stated Maturity Date or such period, as applicable (as such amounts may have otherwise been reduced pursuant to this Agreement): Scheduled Term A Principal Quarterly Payment Date Repayment ---------------------- --------- June 15, 1999 to March 15, 2000 $562,500 June 15, 2000 to March 15, 2001 $1,125,000 June 15, 2001 to March 15, 2002 $1,687,500 June 15, 2002 to March 15, 2003 $2,250,000 June 15, 2003 to Stated Maturity Date $2,812,500 TOTAL: $45,000,000 (i) shall, on the Stated Maturity Date and on each Quarterly Payment Date occurring during any period set forth below, make a scheduled repayment of the aggregate outstanding principal amount, if any, of all Term B Loans in an amount equal to the amount set forth below opposite the Stated Maturity Date or such period, as applicable (as such amounts may have otherwise been reduced pursuant to this Agreement): Scheduled Term B Principal Quarterly Payment Date Repayment ---------------------- --------- June 15, 1999 to March 15, 2005 $312,500 June 15, 2005 to Stated Maturity Date $29,375,000 TOTAL: $125,000,000 (j) shall, on the Stated Maturity Date and on each Quarterly Payment Date occurring during any period set forth below, make a scheduled repayment of the aggregate outstanding principal amount, if any, of all Term C Loans in an amount equal to the amount set forth below opposite the Stated Maturity Date or such period, as applicable (as such amounts may have otherwise been reduced pursuant to this Agreement): Scheduled Term C Principal Quarterly Payment Date Repayment ---------------------- --------- June 15, 1999 to March 15, 2006 $762,500 June 15, 2006 to Stated Maturity Date $70,912,500 TOTAL $305,000,000 (k) shall, on each date when a reduction in the Revolving Loan Commitment Amount or the Swing Line Loan Commitment Amount shall become effective pursuant to Section 2.2, make a mandatory prepayment of Revolving Loans or Swing Line Loans (as the case may be) and (if necessary) deposit with the Administrative Agent cash collateral for Letter of Credit Outstandings in an aggregate amount equal to the excess, if any, of the aggregate outstanding principal amount of all Revolving Loans, Swing Line Loans and Letter of Credit Outstandings over the Revolving Loan Commitment Amount or Swing Line Loan Commitment Amount as so reduced; and (l) shall, immediately upon any acceleration of the Stated Maturity Date of any Loans or Obligations pursuant to Section 8.2 or Section 8.3, repay all Loans and provide the Administrative Agent with cash collateral in an amount equal to the Letter of Credit Outstandings, unless, pursuant to Section 8.3, only a portion of all Loans and Obligations are so accelerated (in which case the portion so accelerated shall be so prepaid or cash collateralized with the Administrative Agent). Each prepayment of any Loans made pursuant to this Section shall be without premium or penalty, except as may be required by clause (a)(i)(B) of this Section or Section 4.4. SECTION 3.1.2. Application. (a) Subject to clauses (b) and (c) below, each prepayment or repayment of the principal of the Loans shall be applied, to the extent of such prepayment or repayment, first, to the principal amount thereof being maintained as Base Rate Loans, and second, to the principal amount thereof being maintained as LIBO Rate Loans. (b) (i) Each voluntary prepayment of Term Loans and each mandatory prepayment of Term Loans made pursuant to clauses (c) (other than with respect to any prepayment resulting from the Arby's Securitization or the Royal Crown Disposition), (d), (e), and (f) of Section 3.1.1 shall be applied pro rata to the prepayment of the outstanding principal amount of all Term Loans, until paid in full, and (ii) each mandatory prepayment of Term Loans made pursuant to clause (c) of Section 3.1.1 with respect to the Arby's Securitization or the Royal Crown Disposition shall be applied to the prepayment of the outstanding principal amount of all Term A Loans, until paid in full, then applied pro rata to the mandatory prepayment of the outstanding principal amount of all Term B Loans and Term C Loans, with, in the case of each of clauses (i) and (ii), the amount of such prepayment of the Term Loans being applied to the applicable remaining Term Loan amortization payments required pursuant to clauses (h), (i) and (j) of Section 3.1.1, in each case pro rata in accordance with the amount of each such remaining Term Loan amortization payment, until all such Term Loans have been paid in full; provided, however, that (A) during the first two years following the Closing Date, voluntary prepayments of Term Loans may, at the Borrowers' discretion, be applied to the outstanding principal amount of Term A Loans only, and (B) with respect to any mandatory prepayment of Term Loans made pursuant to clauses (c) (other than with respect to any prepayment resulting from the Arby's Securitization or the Royal Crown Disposition), (d), (e), and (f) of Section 3.1.1, any Lender that has Term B Loans or Term C Loans outstanding may, by delivering a notice to the Administrative Agent by 11:00 a.m. (New York time), at least three Business Days prior to the date that such mandatory prepayment is to be made in the case of Term B Loans or Term C Loans that are LIBO Rate Loans or at least two Business Days prior to the date that such mandatory prepayment is to be made in the case of Term B Loans or Term C Loans that are Base Rate Loans, elect not to have its pro rata share of such Term Loans prepaid, and upon any such election the Administrative Agent shall apply the amount that otherwise would have prepaid such Lender's Term Loans to the prepayment of Term A Loans, until paid in full, and then to the prepayment of outstanding Revolving Loans, if any (without any corresponding reduction of the Revolving Loan Commitment Amount), and then return any unused amounts to the Borrowers. The Administrative Agent shall, no later than two Business Days prior to the prepayment of a Term B Loan or Term C Loan that is a LIBO Rate Loan or one Business Day prior to the prepayment of a Term B Loan or Term C Loan that is a Base Rate Loan, send a notice to each Lender detailing the amounts each Lender is to receive on the date of such prepayment and to which Loans such amounts shall apply. (c) The prepayment of Term C Loans made pursuant to clause (g) of Section 3.1.1 shall be applied to a mandatory prepayment of the outstanding principal amount of all Term C Loans (with the amount of such prepayment of the Term C Loans being applied to the remaining Term C Loan amortization payments required pursuant to clause (j) of Section 3.1.1, pro rata in accordance with the amount of each such remaining Term C Loan amortization payment). SECTION 3.1.3. Cash Collateral. In the event the amount of any prepayment of Loans required to be made under clauses (c), (d), (e) or (f) of Section 3.1.1 shall exceed the aggregate principal amount of such Loans which are Base Rate Loans (the amount of any such excess being called the "Excess Amount"), the Borrowers shall have the right, in lieu of making such prepayment in full, to prepay all such outstanding Base Rate Loans when due and to deposit on the date of the required prepayment an amount equal to the Excess Amount with the Administrative Agent in a cash collateral account maintained by and in the sole dominion and control of the Administrative Agent. Any amounts so deposited shall be held by the Administrative Agent as collateral security for the Obligations and applied to the prepayment of the applicable LIBO Rate Loans on the earlier of 45 days from such deposit and the end of the current Interest Periods applicable thereto. On any Business Day on which (a) collected amounts remain on deposit in or to the credit of such cash collateral account after giving effect to the payments made on such day pursuant to this Section 3.1.3 and (b) the Borrowers shall have delivered to the Administrative Agent a written request or a telephonic request (which shall be promptly confirmed in writing) that such remaining collected amounts be invested in the Cash Equivalent Investments specified in such request, the Administrative Agent shall invest such remaining collected amounts in such Cash Equivalent Investments on an overnight basis; provided, however, that the Administrative Agent shall have continuous dominion and full control over any such investments (and over any interest that accrues thereon) to the same extent that it has dominion and control over such cash collateral account. SECTION 3.2. Interest Provisions. Interest on the outstanding principal amount of Loans shall accrue and be payable in accordance with this Section 3.2. SECTION 3.2.1. Rates. Pursuant to an appropriately delivered Borrowing Request or Continuation/Conversion Notice, the Borrowers may elect that Loans comprising a Borrowing accrue interest at a rate per annum: (a) on that portion maintained from time to time as a Base Rate Loan, equal to the sum of the Alternate Base Rate from time to time in effect plus the Applicable Margin for Base Rate Loans; (b) on that portion maintained as a LIBO Rate Loan, during each Interest Period applicable thereto, equal to the sum of the LIBO Rate (Reserve Adjusted) for such Interest Period plus the Applicable Margin for LIBO Rate Loans; and (c) with respect to Swing Line Loans, equal to the sum of the Alternate Base Rate from time to time in effect plus the Applicable Margin for Revolving Loans. SECTION 3.2.2. Post-Maturity Rates. After the date any principal amount of any Loan is due and payable (whether on the Stated Maturity Date, upon acceleration or otherwise), or after any other monetary Obligation (other than overdue Reimbursement Obligations, which shall bear interest as provided in Section 2.6.2) of the Borrowers shall have become due and payable, the Borrowers shall be obligated, on a joint and several basis, to pay, but only to the extent permitted by law, interest (after as well as before judgment) on such amounts at a rate per annum equal to the Alternate Base Rate plus a margin of 2%. SECTION 3.2.3. Payment Dates. Interest accrued on each Loan shall be payable, without duplication: (a) on the Stated Maturity Date therefor; (b) on the date of any payment or prepayment, in whole or in part, of principal outstanding on such Loan; (c) with respect to Base Rate Loans, on each Quarterly Payment Date occurring after the date of the initial Borrowing hereunder; (d) with respect to LIBO Rate Loans, on the last day of each applicable Interest Period (and, if such Interest Period shall exceed three months, on the third month anniversary of such Interest Period); (e) with respect to any Base Rate Loans converted into LIBO Rate Loans on a day when interest would not otherwise have been payable pursuant to clause (c), on the date of such conversion; and (f) on that portion of any Loans the Stated Maturity Date of which is accelerated pursuant to Section 8.2 or Section 8.3, immediately upon such acceleration. Interest accrued on Loans, Reimbursement Obligations or other monetary Obligations arising under this Agreement or any other Loan Document after the date such amount is due and payable (whether on the Stated Maturity Date, upon acceleration or otherwise) shall be payable upon demand. SECTION 3.3. Fees. The Borrowers, jointly and severally, agree to pay the fees set forth in this Section 3.3. All such fees shall be non- refundable. SECTION 3.3.1. Commitment Fee. The Borrowers, jointly and severally, agree to pay to the Administrative Agent for the account of each Lender that has a Revolving Loan Commitment, for the period (including any portion thereof when any of its Commitments are suspended by reason of the Borrowers' inability to satisfy any condition of Article V) commencing on the Closing Date and continuing through the Revolving Loan Commitment Termination Date, a commitment fee at the rate of the Applicable Commitment Fee on such Lender's Percentage of the sum of the average daily unused portion of the Revolving Loan Commitment Amount, whether or not then available. Such commitment fees shall be payable in arrears on each Quarterly Payment Date and on the Revolving Loan Commitment Termination Date. The making of Swing Line Loans by the Swing Line Lender shall not constitute usage under the Revolving Loan Commitment for the purpose of calculation of the commitment fees to be paid by the Borrowers to the Lenders pursuant to this Section 3.3.1. SECTION 3.3.2. Agents' and Arrangers' Fees. The Borrowers, jointly and severally, agree to pay to each of the Agents and each Arranger for their own respective accounts, the non-refundable fees in the amounts and on the dates set forth in the Fee Letters. SECTION 3.3.3. Letter of Credit Fees. The Borrowers, jointly and severally, agree to pay to the Administrative Agent, for the pro rata account of the Issuer and each Lender that has a Revolving Loan Commitment, a Letter of Credit fee for each day on which there shall be any Letters of Credit outstanding on the aggregate undrawn amount of all Letters of Credit outstanding on such day, at a rate per annum equal to the Applicable Margin for such day for Revolving Loans that are maintained as LIBO Rate Loans. The Borrowers further, jointly and severally, agree to pay to the Issuer for its own account, for each day on which there shall be any Letters of Credit outstanding, an issuance fee in an amount equal to 1/4 of 1% per annum of the Stated Amount of such Letters of Credit. All such fees shall be payable in arrears on each Quarterly Payment Date and on the Revolving Loan Commitment Termination Date for any period then ending for which such fee shall not theretofore have been paid, commencing on the first such date after the issuance of such Letter of Credit. ARTICLE IV CERTAIN LIBO RATE AND OTHER PROVISIONS SECTION 4.1. LIBO Rate Lending Unlawful. If any Lender shall in good faith determine (which determination shall, upon notice thereof to the Borrowers and the Lenders, be conclusive and binding on the Borrowers) that the introduction of or any change in or in the interpretation of any law makes it unlawful, or any central bank or other governmental authority asserts that it is unlawful, for such Lender to make, continue or maintain any Loan as, or to convert any Loan into, a LIBO Rate Loan of a certain type, the obligation of such Lender to make, continue, maintain or convert into any such Loans shall, upon such determination, forthwith be suspended until such Lender shall notify the Administrative Agent that the circumstances causing such suspension no longer exist, and all LIBO Rate Loans of such type shall automatically convert into Base Rate Loans at the end of the then current Interest Periods with respect thereto or sooner, if required by such law or assertion. SECTION 4.2. Deposits Unavailable. If the Administrative Agent shall have reasonably determined that (a) Dollar certificates of deposit or Dollar deposits, as the case may be, in the relevant amount and for the relevant Interest Period are not available to the Administrative Agent in its relevant market; or (b) by reason of circumstances affecting the Administrative Agent's relevant market, adequate means do not exist for ascertaining the interest rate applicable hereunder to LIBO Rate Loans of such type, then, upon notice from the Administrative Agent to the Borrowers and the Lenders, the obligations of all Lenders under Section 2.3 and Section 2.4 to make or continue any Loans as, or to convert any Loans into, LIBO Rate Loans of such type shall forthwith be suspended until the Administrative Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist. The Administrative Agent agrees to withdraw any such notice as soon as reasonably practicable after there is a change in circumstances which makes such notice inapplicable. SECTION 4.3. Increased LIBO Rate Loan Costs, etc. The Borrowers, jointly and severally, agree to reimburse each Lender for any increase in the cost to such Lender of, or any reduction in the amount of any sum receivable by such Lender in respect of, making, continuing or maintaining (or of its obligation to make, continue or maintain) any Loans as, or of converting (or of its obligation to convert) any Loans into, LIBO Rate Loans. Such Lender shall promptly notify the Administrative Agent and the Borrowers in writing of the occurrence of any such event, such notice to state, in reasonable detail, the reasons therefor and the additional amount required fully to compensate such Lender for such increased cost or reduced amount. Such additional amounts shall be payable by the Borrowers, and the Borrowers hereby acknowledge and agree that they are jointly and severally liable to pay such additional amounts, directly to such Lender within five days of its receipt of such notice, and such notice shall, in the absence of demonstrable error, be conclusive and binding on the Borrowers. SECTION 4.4. Funding Losses. In the event any Lender shall incur any loss or expense (including any loss or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to make, continue or maintain any portion of the principal amount of any Loan as, or to convert any portion of the principal amount of any Loan into, a LIBO Rate Loan) as a result of (a) any conversion or repayment or prepayment of the principal amount of any LIBO Rate Loans on a date other than the scheduled last day of the Interest Period applicable thereto, whether pursuant to Section 3.1 or otherwise; (b) any Loans not being made as LIBO Rate Loans in accordance with the Borrowing Request therefor; or (c) any Loans not being continued as, or converted into, LIBO Rate Loans in accordance with the Continuation/Conversion Notice therefor, then, upon the written notice of such Lender to the Borrowers (with a copy to the Administrative Agent), the Borrowers shall, and the Borrowers hereby acknowledge and agree that they are jointly and severally liable to pay, within five days of its receipt thereof, directly to such Lender such amount as will (in the reasonable determination of such Lender) reimburse such Lender for such loss or expense. Such written notice (which shall include calculations in reasonable detail) shall, in the absence of demonstrable error, be conclusive and binding on the Borrowers. SECTION 4.5. Increased Capital Costs. If any change in, or the introduction, adoption, effectiveness, interpretation, reinterpretation or phase-in of, any law or regulation, directive, guideline, decision or request (whether or not having the force of law) of any court, central bank, regulator or other governmental authority affects or would affect the amount of capital required or expected to be maintained by any Lender (including as Issuer) or any Person controlling such Lender, and such Lender determines (in its reasonable business judgement) that the rate of return on its or such controlling Person's capital as a consequence of its Commitments, issuance of or participation in Letters of Credit or the Loans made by such Lender is reduced to a level below that which such Lender or such controlling Person could have achieved but for the occurrence of any such circumstance, then, in any such case upon notice from time to time by such Lender to the Borrowers, the Borrowers shall be jointly and severally obligated to immediately pay directly to such Lender additional amounts sufficient to compensate such Lender or such controlling Person for such reduction in rate of return. A statement of such Lender as to any such additional amount or amounts (including calculations thereof in reasonable detail) shall, in the absence of demonstrable error, be conclusive and binding on the Borrowers. In determining such amount, such Lender may use any method of averaging and attribution that it (in its reasonable business judgement) shall deem applicable. SECTION 4.6. Taxes. (a) All payments by a Borrower of principal of, and interest on, the Loans and all other amounts payable hereunder shall be made free and clear of and without deduction for any present or future income, excise, stamp or franchise taxes and other taxes, fees, duties, withholdings or other charges of any nature whatsoever imposed by any taxing authority, but excluding franchise taxes and taxes imposed on or measured by any Lender's net income or receipts, in the case of each such exclusion as a result of a connection between such Lender and the relevant taxing jurisdiction other than solely by reason of such Lender having performed its obligations under this Agreement or any Note (not including by having a lending or similar office in the rele- vant taxing jurisdiction) (such non-excluded items being called "Taxes"). In the event that any withholding or deduction from any payment to be made by a Borrower hereunder is required in respect of any Taxes pursuant to any applicable law, rule or regulation, then the Borrowers shall be jointly and severally obligated to (i) pay directly to the relevant authority the full amount required to be so withheld or deducted; (ii) promptly forward to the Administrative Agent an official receipt or other documentation satisfactory to the Administrative Agent evidencing such payment to such authority; and (iii) pay to the Administrative Agent for the account of the Lenders such additional amount or amounts as is necessary to ensure that the net amount actually received by each Lender will equal the full amount such Lender would have received had no such withholding or deduction been required. Moreover, if any Taxes are directly asserted against any Agent or any Lender with respect to any payment received by any such Agent or such Lender hereunder, such Agent or such Lender may pay such Taxes and the Borrowers shall be jointly and severally obligated to promptly pay such additional amounts (including any penalties, interest or expenses) as is necessary in order that the net amount received by such Person after the payment of such Taxes (including any Taxes on such additional amount) shall equal the amount such Person would have received had not such Taxes been asserted. (b) Notwithstanding any other provision of this Section 4.6, (i) the Borrowers shall not be required to pay any amounts pursuant to this Section 4.6 in respect of U.S. federal withholding taxes (other than to the extent imposed as a result of a change in law enacted after the date hereof) and (ii) the Borrowers shall have no obligation to make any greater payment under this Section 4.6 to or with respect to any Assignee Lender than the Borrowers would have been obligated to make to or with respect to the relevant assignor or transferor Lender with respect to the rights assigned or transferred (other than as a result of a change in law enacted after the time of the assignment or transfer). (c) If any Borrower fails to pay any Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent, for the account of the respective Lenders, the required receipts or other required documentary evidence, the Borrowers shall, jointly and severally, indemnify the Lenders for any incremental Taxes, interest or penalties that may become payable by any Lender as a result of any such failure. For purposes of this Section 4.6, a distribution hereunder by the Administrative Agent or any Lender to or for the account of any Lender shall be deemed a payment by the Borrowers. (d) Each Lender shall, prior to the due date of any payments in respect of the Loans, execute and deliver to the Borrowers and the Administrative Agent, one or more (as the Borrowers or the Administrative Agent may reasonably request) (i) either (x) if such Lender is organized under the laws of a jurisdiction other than the United States or a State thereof, then (x) if such Lender is a "bank" within the meaning of Section 881(c)(3)(A) of the Code, (A) United States Internal Revenue Service Form 1001 or 4224, or successor applicable form, as the case may be, and (B) United States Internal Revenue Service Form W-8, or successor applicable form, as the case may be or, if such Lender is not a "bank" within the meaning of Section 881(c)(3)(A) of the Code and is claiming exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of "portfolio interest", a Form W-8, or any subsequent versions thereof or successors thereto (and, if such Lender delivers a Form W-8, a certificate representing that such Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of any Borrower and is not a controlled foreign corporation related to any Borrower (within the meaning of Section 864(d)(4) of the Code)), properly completed and duly executed by such Lender claiming complete exemption from, or a reduced rate of, U.S. Federal withholding tax on payments of interest by any Borrower under this Agreement and the other Loan Documents; or (y) if such Lender is organized under the laws of the United States or a State thereof, then United States Internal Revenue Service Form W-9, or successor applicable form, as the case may be, and (ii) copies of replacements of any such forms on or before the date that any such forms expire or after the occurrence of any event requiring a change in the most recent form previously delivered by it hereunder. Each Person that shall become a Lender shall, upon the effectiveness of the related transfer, be required to provide all of the forms required pursuant to this Section 4.6. (e) To the extent that any Borrower pays any indemnity payment or additional amount pursuant to Section 4.6(a) and any Lender receives a refund of the Tax that such Lender determines, in its good faith judgment, is allocable to any or all such sums, then such Lender shall promptly pay over all such refunded sums to such Borrower. Nothing in this Section 4.6 shall require a Lender to disclose or detail the basis of its determination of the amount of any such refund that is allocable to an indemnity payment or additional amount paid by any Borrower hereunder, or otherwise to disclose to any Borrower its tax returns or other confidential or proprietary fiscal information. (f) Any Lender claiming any indemnity payment or additional amounts payable pursuant to this Section 4.6 shall use reasonable efforts (consistent with legal and regulatory restrictions) to file any certificate or document reasonably requested in writing by the Borrowers or to change the jurisdiction of its applicable lending office if the making of such a filing or change would avoid the need for or reduce the amount of any such indemnity payment or additional amounts that may thereafter accrue and would not, in the sole determination of such Lender, be otherwise disadvantageous to such Lender. SECTION 4.7. Payments, Computations, etc. Unless otherwise expressly provided, all payments by or on behalf of each Borrower pursuant to this Agreement or any other Loan Document shall be made by such Borrower to the Administrative Agent for the pro rata account of the Lenders entitled to receive such payment. All such payments required to be made to the Administrative Agent shall be made, without setoff, deduction or counterclaim, not later than 11:00 a.m., New York time, on the date due, in same day or immediately available funds, to such account as the Administrative Agent shall specify from time to time by notice to the Borrowers. Funds received after that time shall be deemed to have been received by the Administrative Agent on the next succeeding Business Day. The Administrative Agent shall promptly remit in same day funds to each Lender its share, if any, of such payments received by the Administrative Agent for the account of such Lender. All interest and fees shall be computed on the basis of the actual number of days (including the first day but excluding the last day) occurring during the period for which such interest or fee is payable over a year comprised of 360 days (or, in the case of interest on a Base Rate Loan (other than when calculated with respect to the Federal Funds Rate), 365 days or, if appropriate, 366 days). Whenever any payment to be made shall otherwise be due on a day which is not a Business Day, such payment shall (except as otherwise required by clause (c) of the definition of the term "Interest Period") be made on the next succeeding Business Day and such extension of time shall be included in computing interest and fees, if any, in connection with such payment. SECTION 4.8. Sharing of Payments. If any Lender shall obtain any payment or other recovery (whether voluntary, involuntary, by application of setoff or otherwise) on account of any Loan (other than pursuant to the terms of Sections 4.3, 4.4 and 4.5) or Letter of Credit in excess of its pro rata share of payments then or therewith obtained by all Lenders, such Lender shall purchase from the other Lenders such participation in Loans made by them and/or Letters of Credit as shall be necessary to cause such purchasing Lender to share the excess payment or other recovery ratably with each of them; provided, however, that if all or any portion of the excess payment or other recovery is thereafter recovered from such purchasing Lender, the purchase shall be rescinded and each Lender which has sold a participation to the purchasing Lender shall repay to the purchasing Lender the purchase price to the ratable extent of such recovery together with an amount equal to such selling Lender's ratable share (according to the proportion of (a) the amount of such selling Lender's required repayment to the purchasing Lender to - -- (b) the total amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered. Each Borrower agrees that any Lender so purchasing a participation from another Lender pursuant to this Section may, to the fullest extent permitted by law, exercise all its rights of payment (including pursuant to Section 4.9) with respect to such participation as fully as if such Lender were the direct creditor of such Borrower in the amount of such participation. If under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section to share in the benefits of any recovery on such secured claim. SECTION 4.9. Setoff. Each Lender shall, upon the occurrence of any Default described in clauses (a) through (d) of Section 8.1.9 or, with the consent of the Required Lenders, upon the occurrence and during the continuation of any other Event of Default, have the right to appropriate and apply to the payment of the Obligations owing to it (whether or not then due), and (as security for such Obligations) such Borrower hereby grants to each Lender a continuing security interest in, any and all balances, credits, deposits, accounts or moneys of each Borrower then or thereafter maintained with or otherwise held by such Lender; provided, however, that any such appropriation and application shall be subject to the provisions of Section 4.8. Each Lender agrees promptly to notify the Borrowers and the Administrative Agent after any such setoff and application made by such Lender; provided, however, that the failure to give such notice shall not affect the validity of such setoff and application. The rights of each Lender under this Section are in addition to other rights and remedies (including other rights of setoff under applicable law or otherwise) which such Lender may have. SECTION 4.10. Change of Lending Office. Each Lender agrees that, if it makes any demand for payment under Section 4.3, 4.4, 4.5 or 4.6, or if any adoption or change of the type described in Section 4.1 shall occur with respect to it, it will, if requested by the Borrowers, use its reasonable efforts (consistent with its internal policy and economic, legal and regulatory restrictions and so long as such efforts would not be disadvantageous to it, as determined in its sole discretion) to designate a different lending office if the making of such a designation would reduce the need for the Borrowers to make payments under Section 4.3, 4.4, 4.5 or 4.6, or would eliminate or reduce the effect of any adoption or change of the type described in Section 4.1. SECTION 4.11. Replacement of Lenders. If any Lender (a "Subject Lender") makes demand upon the Borrowers for (or if the Borrowers are otherwise required to pay) amounts pursuant to Section 4.3, 4.5 or 4.6, or gives notice pursuant to Section 4.1 requiring conversion of such Subject Lender's LIBO Rate Loans to Base Rate Loans or suspending such Subject Lender's obligation to make Loans as, or to convert Loans into, LIBO Rate Loans, the Borrowers may, within 30 days of receipt by the Borrowers of such demand or notice (or the occurrence of such other event causing the Borrowers to be required to pay such compensation), as the case may be, give notice (a "Replacement Notice") in writing to the Agents and such Subject Lender of its intention to replace such Subject Lender with a financial institution (a "Replacement Lender") designated in such Replacement Notice. If the Agents shall, in the exercise of their reasonable discretion and within 30 days of their receipt of such Replacement Notice, notify the Borrowers and such Subject Lender in writing that the Replacement Lender is satisfactory to the Agents (such consent not being required where the Replacement Lender is already a Lender), then such Subject Lender shall, subject to the payment of any amounts due pursuant to Section 4.4, assign, in accordance with Section 10.11.1, all of its Commitments, Loans, Notes and other rights and obligations under this Agreement and all other Loan Documents (including, without limitation, Reimbursement Obligations) to such Replacement Lender; provided, however, that (i) such assignment shall be without recourse, representation or warranty and shall be on terms and conditions reasonably satisfactory to such Subject Lender and such Replacement Lender and (ii) the purchase price paid by such Replacement Lender shall be in the amount of such Subject Lender's Loans and its Percentage of outstanding Reimbursement Obligations, together with all accrued and unpaid interest and fees in respect thereof, plus all other amounts (including the amounts demanded and unreimbursed under Section 4.3, 4.5 and 4.6), owing to such Subject Lender hereunder. Upon the effective date of an assignment described above, the Borrowers shall issue replacement Note(s) (to the extent such Replacement Lender shall have requested replacement Note(s) pursuant to Sections 2.7 and 10.11.1) to such Replacement Lender and such institution shall become a "Lender" for all purposes under this Agreement and the other Loan Documents. ARTICLE V CONDITIONS PRECEDENT SECTION 5.1. Initial Credit Extension. The obligations of the Lenders to make the initial Credit Extension shall be subject to the prior or concurrent satisfaction of each of the conditions precedent set forth in this Section 5.1. SECTION 5.1.1. Resolutions, etc. The Arrangers shall have received from each Obligor (other than RC/Arby's and its Subsidiaries) a certificate, dated the Closing Date, of its Secretary, Assistant Secretary, general partner or member or manager, as applicable, as to (i) resolutions of its board of directors (or other managing body, in the case of an entity other than a corporation) or committee of such board of directors or managing body then in full force and effect authorizing the execution, delivery and per- formance of this Agreement and each other Loan Document to be executed by it, and (ii) the incumbency and signatures of those of its officers or members authorized to act with respect to this Agreement and each other Loan Document executed by it, upon which certificate each Arranger, each Agent, each Lender and each Issuer may conclusively rely until it shall have received a further certificate of the Secretary, Assistant Secretary, general partner, member or manager, as applicable, of an Obligor canceling or amending such prior certificate with respect to such Obligor. SECTION 5.1.2. Delivery of Notes. The Arrangers shall have received, for the account of each Lender that shall have requested a Note or Notes not less than three Business Days prior to the Closing Date, such Lender's Notes duly executed and delivered by the Borrowers. SECTION 5.1.3. Transaction Consummated. The Arrangers shall have received evidence satisfactory to each of them that all actions necessary to (i) consummate the Refinancing, (ii) establish and fund, in full, the RC/Arby's Notes Repayment Pledge Account and the Acquisition Escrow Account, (iii) consummate the Subordinated Notes Offering from which Holdco and Triarc Beverage shall receive gross proceeds of at least $300,000,000 and (iv) make the Triarc Dividend (to the extent to be made on the Closing Date) shall have been taken or completed in accordance with applicable law and the applicable Transaction Documents. SECTION 5.1.4. Closing Date Certificate. The Arrangers shall have received, with counterparts for each Lender, the Closing Date Certificate, dated the Closing Date and duly executed and delivered by the president, the chief executive, financial or accounting (or equivalent) Authorized Officer of each Borrower, in which certificate each Borrower shall agree and acknowledge that the statements made therein shall be deemed to be true and correct representations and warranties of the Borrowers made as of such date, and, at the time of delivery of such certificate, such statements shall in fact be true and correct in all material respects, together with all documents required to be attached thereto. SECTION 5.1.5. Transaction Documents, etc. The Arrangers shall have received fully executed copies of the Transaction Documents executed before or as of the Closing Date and drafts of the Transaction Documents to be executed after the Closing Date (together with certified executed copies as soon as available, which shall in each case not be materially different than such drafts), and, with respect to executed Transaction Documents, certified to be true and complete by an Authorized Officer of each Borrower. As of the Closing Date, the executed Transaction Documents shall have been in full force and effect and shall not have been modified or waived in any material respect, nor shall there have been any forbearance to exercise any material rights with respect to any of the terms or provisions relating to the conditions to the consummation of the Transaction set forth in the Transaction Documents unless otherwise agreed to by the Arrangers. SECTION 5.1.6. Payment of Outstanding Indebtedness, etc. All Indebtedness identified in Item 7.2.2(b) ("Indebtedness to be Paid") of the Disclosure Schedule, together with all interest, all prepayment premiums and other amounts due and payable with respect thereto, shall have been paid in full (including, to the extent necessary, from proceeds of the initial Credit Extension); and all Liens securing payment of any such Indebtedness have been released and the Arrangers shall have received all UCC Form UCC-3 termination statements or other instruments as may be suitable or appropriate in connection therewith. SECTION 5.1.7. Subsidiary Guaranty. The Arrangers shall have received executed counterparts of the Subsidiary Guaranty, dated as of the Closing Date, duly executed by an Authorized Officer of each Subsidiary Guarantor (other than Subsidiaries of RC/Arby's) in existence on the Closing Date (after giving effect to the Transaction). SECTION 5.1.8. Pledge Agreements. The Arrangers shall have re- ceived executed counterparts of (a) the Holdco/Triarc Beverage Guaranty and Pledge Agreement, dated as of the Closing Date, duly executed by an Authorized Officer of each of Holdco and Triarc Beverage, together with (i) certificates evidencing all of the issued and outstanding shares of Capital Stock of Triarc Beverage, Snapple, Mistic and Cable Car, which certificates shall in each case be accompanied by undated stock powers duly executed in blank; and (ii) all Pledged Notes (as defined in such Pledge Agreement), if any, evidencing Indebtedness payable to Holdco and Triarc Beverage, accompanied by undated note powers duly executed in blank, together with UCC financing statements (Form UCC-1) (or similar instruments) in respect of such Pledged Notes executed by each payee of a Pledged Note to be filed in such jurisdictions as the Agents may reasonably request; (b) the Borrower Pledge Agreement, dated as of the Closing Date, duly executed by an Authorized Officer of each Borrower, together with (i) certificates evidencing (A) all of the issued and outstanding shares of Capital Stock of each direct U.S. Subsidiary of each Borrower (other than Subsidiaries of RC/Arby's) and (B) 65% of the total combined voting power of all classes of Capital Stock entitled to vote of each direct non-U.S. Subsidiary of each Borrower, in each case accompanied by undated stock powers duly executed in blank; and (ii) all Pledged Notes (as defined in such Pledge Agreement), if any, evidencing Indebtedness payable to the Borrowers, accompanied by undated note powers duly executed in blank, together with UCC financing statements (Form UCC-1) (or similar instruments) in respect of such Pledged Notes executed by each payee of a Pledged Note to be filed in such jurisdictions as the Agents may reasonably request; (c) the Subsidiary Pledge Agreement, dated as of the Closing Date, duly executed by an Authorized Officer of each Subsidiary Guarantor (other than Subsidiaries of RC/Arby's) in existence on the Closing Date (after giving effect to the Transaction) which in turn has any Subsidiary or Subsidiaries, together with (i) certificates evidencing (A) all of the issued and outstanding shares of Capital Stock of each direct U.S. Subsidiary of each Subsidiary Guarantor and (B) 65% of the total combined voting power of all classes of Capital Stock entitled to vote of each direct non-U.S. Subsidiary of each Subsidiary Guarantor, in each case accompanied by undated stock powers duly executed in blank; and (ii) all Pledged Notes (as defined in such Pledge Agreement), if any, evidencing Indebtedness payable to such Subsidiary Guarantors, accompanied by undated note powers duly executed in blank, together with UCC financing statements (Form UCC-1) (or similar instruments) in respect of such Pledged Notes executed by each payee of a Pledged Note to be filed in such jurisdictions as the Agents may reasonably request; provided, however, that if any securities pledged pursuant to a Pledge Agreement are uncertificated securities, the Arrangers shall have received confirmation and evidence satisfactory to each of them that appropriate book entries have been made in the relevant books or records of a financial intermediary or the issuer of such securities, as the case may be, or other appropriate steps have been taken under applicable law resulting in the perfection of the security interest granted in favor of the Administrative Agent in such securities pursuant to the terms of the applicable Pledge Agreement. SECTION 5.1.9. Security Agreements. The Arrangers shall have received executed counterparts of the Borrower Security Agreement and the Sub- sidiary Security Agreement, each dated as of the Closing Date, duly executed by the applicable Obligors, together with (a) acknowledgment copies of properly filed UCC financing statements (Form UCC-1) or such other evidence of filing as may be acceptable to the Arrangers, naming such Obligors as the debtors and the Administrative Agent (on behalf of the Secured Parties) as the secured party, or other similar instruments or documents, filed under the UCC of all jurisdictions as may be necessary or, in the opinion of the Arrangers, desirable to perfect the security interest of the Administrative Agent pursuant to the Security Agreements; (b) executed copies of proper UCC termination statements (Form UCC-3), if any, necessary to release all Liens (other than Liens permitted to exist under the Loan Documents) of any Person (i) in any collateral described in the Security Agree- ments previously granted by any Person, and (ii) securing any of the Indebtedness identified in Item 7.2.2(b) ("Indebtedness to be Paid") of the Disclosure Schedule, together with such other UCC termination statements (Form UCC-3) as the Arrangers may reasonably request from such Obligors; and (c) certified copies of UCC Requests for Information or Copies (Form UCC-11), or a similar search report certified by a party acceptable to the Arrangers, dated a date reasonably near to the Closing Date, listing all effective financing statements which name such Obligors (under their present names and any previous names) as the debtors and which are filed in the jurisdictions in which filings were made pursuant to clause (a) above, together with copies of such financing statements. SECTION 5.1.10. UCC Filing Service. All UCC financing statements (Form UCC-1), termination statements (Form UCC-3) or other similar financing statements required pursuant to the Loan Documents (collectively, the "Filing Statements") shall have been delivered to CT Corporation System or another similar filing service company reasonably acceptable to the Arrangers (the "Filing Agent"). The Filing Agent shall have acknowledged in writing reasonably satisfactory to the Arrangers and their counsel (i) the Filing Agent's receipt of all such Filing Statements, (ii) that such Filing Statements have either been submitted for filing with appropriate filing offices therefor or will be submitted for filing in such appropriate offices within 10 days of the Closing Date and (iii) that the Filing Agent will notify the Arrangers and their counsel of the result of such submissions within 30 days of the Closing Date. SECTION 5.1.11. Financial Information, etc. The Arrangers shall have received, with counterparts for each Lender, (a) (i) the audited consolidated income and cash flow statements and balance sheets of RC/Arby's for the fiscal years ended December 31, 1995 (with respect to the income and cash flow statements only), December 31, 1996 and December 28, 1997, and of Triarc Beverage for the fiscal year ended December 28, 1997; (ii) the audited combined income and cash flow statements and balance sheets of Holdco, RC/Arby's, Triarc Beverage and Cable Car and their respective Subsidiaries for the fiscal years ended December 31, 1995 (with respect to the income and cash flow statements only), December 31, 1996 and December 28, 1997; (iii) the unaudited combined income and cash flow statements and balance sheet of Holdco, RC/Arby's, Triarc Beverage and Cable Car and their respective Subsidiaries for the nine month period ended September 27, 1998; (iv) the unaudited consolidated income and cash flow statements and balance sheets of each of RC/Arby's, Triarc Beverage and Cable Car for the nine month period ended September 27, 1998; and (v) the unaudited internal consolidated income statements and balance sheets of each of Arby's and Royal Crown for the nine month period ended September 27, 1998; (b) a pro forma combined balance sheet of Holdco and its Subsidiaries as of November 22, 1998 (the "Pro Forma Balance Sheet"), certified by the chief financial Authorized Officer of Holdco, giving effect to the consummation of the Transaction and reflecting the proposed legal and capital structures of Holdco and its Subsidiaries, which legal and capital structures shall be satisfactory in all respects to the Arrangers; and (c) a Borrowing Base Certificate calculated as of January 31, 1999. SECTION 5.1.12. Solvency, etc. The Arrangers shall have received (a) an opinion letter from Valuation Research Corporation or another independent valuation firm reasonably satisfactory to the Arrangers, addressed to the Arrangers, the Agents and the Lenders and dated the Closing Date, as to the solvency of each of Holdco and its Subsidiaries, taken as a whole, and the Beverage Companies and their respective Subsidiaries, taken as a whole, immediately after giving effect to the Transaction and the initial Credit Extension, which opinion letter shall be in form, substance and scope reasonably satisfactory to the Arrangers; and (b) a Solvency Certificate, dated the Closing Date, in form and substance reasonably satisfactory to the Arrangers, duly executed by the president, the chief executive or the chief financial Authorized Officer of Holdco. SECTION 5.1.13. Opinions of Counsel. The Arrangers shall have received opinions, addressed to the Arrangers, the Agents and the Lenders, from (a) Paul, Weiss, Rifkind, Wharton & Garrison, counsel to the Obligors, in form and substance reasonably satisfactory to the Arrangers; (b) Fish & Neave, intellectual property counsel to the Obligors, in form and substance reasonably satisfactory to the Arrangers; and (c) Sonnenschein, Nath & Rosenthal, California counsel to the Obligors, in form and substance reasonably satisfactory to the Arrangers; (d) Holland & Knight, Florida counsel to the Obligors, in form and substance reasonably satisfactory to the Arrangers; (e) Piper & Marbury, Maryland counsel to the Obligors, in form and substance reasonably satisfactory to the Arrangers; (f) Kirkpatrick, Lockhart, Johnson and Hutchinson, Pennsylvania counsel to the Obligors, in form and substance reasonably satisfactory to the Arrangers; (g) Honigman Miller Schwartz, Michigan counsel to the Obligors, in form and substance reasonably satisfactory to the Arrangers; (h) Riker, Danzig, Scherer, Hyland & Perretti LLP, New Jersey counsel to the Obligors, in form and substance reasonably satisfactory to the Arrangers; and (i) Gary Lyons, General Counsel to certain of the Obligors, in form and substance reasonably satisfactory to the Arrangers. SECTION 5.1.14. Reliance Letters. The Arrangers shall have received reliance letters, each dated the Closing Date and addressed to the Arrangers, the Agents and the Lenders, in respect of each of the legal opinions delivered by issuers' counsel in connection with the Subordinated Notes Offering. SECTION 5.1.15. Insurance. The Arrangers shall have received evidence satisfactory to each of them of the existence of insurance maintained in compliance with Section 7.1.4 (including all endorsements included therein), and the Administrative Agent shall be named additional insured or loss payee, on behalf of the Secured Parties, in respect of all proceeds payable in respect of such insurance, pursuant to documentation reasonably satisfactory to the Arrangers. SECTION 5.1.16. RC/Arby's Notes Repayment. The Arrangers shall have received evidence satisfactory to each of them that, in connection with the RC/Arby's Notes Repayment, (i) notice thereof has been properly delivered to the trustee on behalf of the holders of the RC/Arby's Notes, (ii) sufficient funds therefor have been placed in the RC/Arby's Notes Repayment Pledge Account in accordance with the terms of the RC/Arby's Notes Repayment Pledge Agreement, (iii) the date of the RC/Arby's Notes Repayment in such notice is a date occurring no later than 35 days subsequent to the Closing Date, and (iv) the Administrative Agent, on behalf of the Secured Parties, shall have received a first priority, perfected security interest in the amounts held in the RC/Arby's Notes Repayment Pledge Account. SECTION 5.1.17. Closing Fees, Expenses, etc. The Arrangers shall have received for their own accounts, or for the account of each Lender, as the case may be, all fees, costs and expenses due and payable under the Fee Letters or pursuant to Sections 3.3 and 10.3, if then invoiced. SECTION 5.2. All Credit Extensions. The obligation of each Lender to make any Credit Extension (including the initial Credit Extension) shall be subject to the satisfaction of each of the conditions precedent set forth in this Section 5.2. SECTION 5.2.1. Compliance with Warranties, No Default, etc. Both before and after giving effect to any Credit Extension, the following statements shall be true and correct: (a) the representations and warranties set forth in Article VI (excluding, however, those contained in Section 6.7) and in each other Loan Document shall be true and correct in all material respects with the same effect as if then made (unless stated to relate solely to an early date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date); (b) (i) except as disclosed by the Borrowers to the Agents and the Lenders pursuant to Section 6.7(i), no labor controversy, litigation, arbitration, action or governmental investigation or proceeding shall be pending or, to the knowledge of any Borrower, overtly threatened against any Borrower or any of its Subsidiaries, or any of their respective properties, which could reasonably be expected to have a Material Adverse Effect, and (ii) no development shall have occurred in any labor controversy, litigation, arbitration, action or governmental investigation or proceeding disclosed pursuant to Section 6.7 which could reasonably be expected to have a Material Adverse Effect; (c) the sum of (x) the aggregate outstanding principal amount of all Revolving Loans and Swing Line Loans and (y) the Letter of Credit Outstandings does not exceed the lesser of the Revolving Loan Commitment Amount (as then in effect) or the then existing Borrowing Base Amount; and (d) no Default shall have then occurred and be continuing, and no Borrower or any other Material Obligor is in material violation of any material law or governmental regulation or court order or decree. SECTION 5.2.2. Credit Extension Request. The Administrative Agent shall have received a Borrowing Request or an Issuance Request, as the case may be, for such Credit Extension. Each of the delivery of a Borrowing Request or an Issuance Request and the acceptance by the applicable Borrower of the proceeds of the Borrowing or the issuance of the Letter of Credit, as applicable, shall constitute a representation and warranty by the Borrowers that on the date of such Borrowing (both immediately before and after giving effect to such Borrowing and the application of the proceeds thereof) or the issuance of the Letter of Credit, as applicable, the statements made in Section 5.2.1 are true and correct. SECTION 5.2.3. Satisfactory Legal Form. All documents executed or submitted pursuant hereto by or on behalf of the Borrowers or any of their Subsidiaries or any other Obligors shall be satisfactory in form and substance to the Arrangers and their counsel; and the Arrangers and their counsel shall have received all information, approvals, opinions, documents or instruments as the Arrangers or their counsel may reasonably request. ARTICLE VI REPRESENTATIONS AND WARRANTIES In order to induce the Lenders, the Issuers and the Agents to enter into this Agreement and to make Loans and issue Letters of Credit hereunder, the Borrowers jointly and severally represent and warrant unto the Agents, each Issuer, and each Lender as set forth in this Article VI. SECTION 6.1. Organization, etc. Each Borrower and each of its Subsidiaries is validly organized and existing and in good standing under the laws of the jurisdiction of its organization (except no representation is made as to the good standing of any Subsidiary organized under the laws of any jurisdiction in which there is no concept of good standing), is duly qualified to do business and is in good standing as a foreign entity in each jurisdiction where the nature of its business requires such qualification, except where the failure to be so qualified could not reasonably be expected to have a Material Adverse Effect, and has full power and authority and holds all requisite governmental licenses, permits and other approvals to enter into and perform its Obligations under this Agreement and each other Loan Document to which it is a party and to own and hold under lease its property and to conduct its business substantially as currently conducted by it, except where the failure to hold such governmental licenses, permits and approvals could not reasonably be expected to have a Material Adverse Effect. SECTION 6.2. Due Authorization, Non-Contravention, etc. The execution, delivery and performance by each Borrower of this Agreement and each other Loan Document executed or to be executed by it, and the execution, delivery and performance by each other Obligor of each Loan Document executed or to be executed by it and each such other Obligor's participation in the consummation of the Transaction are within each such Borrower's and each such Obligor's powers, have been duly authorized by all necessary corporate or limited liability company action, and do not (a) contravene such Borrower's or any such Obligor's Or- ganic Documents; (b) contravene any material contractual restriction, law or governmental regulation or court decree or order binding on or affecting such Borrower or any such Obligor; or (c) result in, or require the creation or imposition of, any Lien (other than Liens permitted under the Loan Documents) on any of such Borrower's or any other Obligor's properties. SECTION 6.3. Government Approval, Regulation, etc. No material authorization or approval or other action by, and no material notice to or filing with, any governmental authority or regulatory body or other Person is required for the due execution, delivery or performance by any Borrower or any other Obligor of this Agreement or any other Loan Document to which it is a party, or for such Borrower's and each such other Obligor's participation in the consummation of the Transaction (and, on the Closing Date, only with respect to the parts of the Transaction to be completed on or prior to the Closing Date), except as have been duly obtained or made and are in full force and effect. None of the Borrowers nor any of their Subsidiaries is an "investment company" within the meaning of the Investment Company Act of 1940, as amended, or a "holding company", or a "subsidiary company" of a "holding company", or an "affiliate" of a "holding company" or of a "subsidiary company" of a "holding company", within the meaning of the Public Utility Holding Company Act of 1935, as amended. SECTION 6.4. Validity, etc. This Agreement constitutes, and each Loan Document executed by each Borrower will, on the due execution and delivery thereof, constitute the legal, valid and binding obligations of such Borrower enforceable in accordance with their respective terms; and each Loan Document executed pursuant hereto by each other Obligor will, on the due execution and delivery thereof by such Obligor, be the legal, valid and binding obligation of such Obligor enforceable in accordance with its terms, in each case subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing. SECTION 6.5. Financial Information. Each of the financial statements delivered pursuant to clauses (a) and (b) of Section 5.1.11 has been prepared in accordance with GAAP consistently applied (other than clause (a)(v) of Section 5.1.11), and presents fairly the consolidated financial condition of the Persons covered thereby as at the date thereof or the results of their operations for the periods then ended, subject in the case of interim financial statements to the lack of footnotes and to normal year end audit adjustments. SECTION 6.6. No Material Adverse Effect. Since December 31, 1997, there has been no event, circumstance or condition which could reasonably be expected to have a Material Adverse Effect. SECTION 6.7. Litigation, Labor Controversies, etc. There is no pending or, to the knowledge of any Borrower, overtly threatened labor controversy, litigation, arbitration, action or governmental investigation or proceeding affecting any Borrower or any of its Subsidiaries, or any of their respective properties, businesses, assets or revenues which (i) would contest the consummation of the Transaction or (ii) could reasonably be expected to have a Material Adverse Effect, except as disclosed in Item 6.7 ("Litigation") of the Disclosure Schedule. No materially adverse development has occurred in any labor controversy, litigation, arbitration, action or governmental investigation or proceeding disclosed in Item 6.7 ("Litigation") of the Disclosure Schedule. SECTION 6.8. Subsidiaries. The Borrowers have no Subsidiaries, except those Subsidiaries (i) which are identified in Item 6.8 ("Existing Subsidiaries") of the Disclosure Schedule, or (ii) which are created or permitted to have been acquired in accordance with Section 7.2.5. SECTION 6.9. Ownership of Properties. Each Borrower and each of its Subsidiaries owns good and marketable title to all of its properties and assets, real and personal, tangible and intangible, of any nature whatsoever (including patents, trademarks, trade names, service marks and copyrights), free and clear of all Liens, charges or claims (including infringement claims with respect to patents, trademarks, copyrights and the like) other than any Lien, charge or claim (i) which is permitted under Section 7.2.3 or (ii) which individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. SECTION 6.10. Taxes. Each Borrower and each of its Subsidiaries has filed all material tax returns and reports required by law to have been filed by it and has paid all taxes and governmental charges thereby shown to be owing, except any such taxes or charges which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books. SECTION 6.11. Pension and Welfare Plans. Except as disclosed in Item 6.11 ("Employee Benefit Plans") of the Disclosure Schedule, during the twelve-consecutive-month period prior to the date of the execution and delivery of this Agreement, no steps have been taken to terminate any Pension Plan, and no contribution failure has occurred with respect to any Pension Plan sufficient to give rise to a Lien under section 302(f) of ERISA. No condition exists or event or transaction has occurred with respect to any Pension Plan which might result in the incurrence by any Borrower or any member of the Controlled Group of any liability, fine or penalty which could reasonably be expected to have a Material Adverse Effect. Except as disclosed in Item 6.11 ("Employee Benefit Plans") of the Disclosure Schedule, neither the Borrowers nor any member of the Controlled Group has any contingent liability with respect to any post-retirement medical benefits under a Welfare Plan, other than liability for continuation coverage described in Part 6 of Subtitle B of Title I of ERISA or other applicable continuation of coverage laws. SECTION 6.12. Environmental Warranties. Except as set forth in Item 6.12 ("Environmental Matters") of the Disclosure Schedule: (a) all facilities and property (including underlying groundwater) owned or leased by any Borrower or any of its Subsidiaries have been, and continue to be, owned or leased by such Borrower or its Subsidiaries in material compliance with all Environmental Laws; (b) there have been no past, and there are no pending or, to the knowledge of any Borrower, threatened (i) claims, complaints, notices or requests for information received by any Borrower or any of its Subsidiaries with respect to any alleged material violation of any Environmental Law, or (ii) complaints, notices or inquiries to any Borrower or any of its Subsidiaries regarding potential material liability under any Environmental Law, in each case which have not been disclosed in writing and in reasonable detail to the Arrangers; (c) there have been no Releases of Hazardous Materials at, on or under any property now or previously owned or leased by any Borrower or any of its Subsidiaries that, singly or in the aggregate, have, or may reasonably be expected to have, a Material Adverse Effect; (d) the Borrowers and their Subsidiaries have been issued and are in material compliance with all material permits, certificates, approvals, licenses and other authorizations relating to environmental matters and necessary for their businesses; (e) no property now or previously owned or leased by any Borrower or any of its Subsidiaries is listed or proposed for listing (with respect to owned property only) on (x) the National Priorities List pursuant to CERCLA, or (y) on the CERCLIS or on any similar state list of sites requiring investigation or clean-up to the extent, in the case of this clause (y), such listing or proposed listing could reasonably be expected to have a Material Adverse Effect; (f) there are no underground storage tanks, active or abandoned, including petroleum storage tanks, on or under any property now or previously owned or leased by any Borrower or any of its Subsidiaries that, singly or in the aggregate, have, or may reasonably be expected to have, a Material Adverse Effect; (g) no Subsidiary of any Borrower has directly transported or directly arranged for the transportation of any Hazardous Material to any location which is listed or proposed for listing on the National Priorities List pursuant to CERCLA, on the CERCLIS or on any similar state list or which is the subject of federal, state or local enforcement actions or other investigations which may lead to material claims against such Borrower or such Subsidiary thereof for any remedial work, damage to natural resources or personal injury, including claims under CERCLA; (h) there are no polychlorinated biphenyls or friable asbestos present at any property now or previously owned or leased by any Borrower or any Subsidiary of any Borrower that, singly or in the aggregate, have, or may reasonably be expected to have, a Material Adverse Effect; and (i) no conditions exist at, on or under any property now or previously owned or leased by any Borrower or any of its Subsidiaries which, with the passage of time, or the giving of notice or both, would give rise to liability under any Environmental Law which, singly or in the aggregate, have, or may reasonably be expected to have, a Material Adverse Effect. SECTION 6.13. Regulations U and X. None of the Borrowers is engaged in the business of extending credit for the purpose of purchasing or carrying margin stock, and no proceeds of any Loans will be used for a purpose which violates, or would be inconsistent with, F.R.S. Board Regulation U or X. Terms for which meanings are provided in F.R.S. Board Regulation U or X or any regulations substituted therefor, as from time to time in effect, are used in this Section with such meanings. SECTION 6.14. Accuracy of Information. All factual information heretofore or contemporaneously furnished by or on behalf of any Borrower in writing to the Arrangers or any Lender for purposes of or in connection with this Agreement or any transaction contemplated hereby or with respect to the Transaction is, and all other such factual information hereafter furnished by or on behalf of any Borrower to the Arrangers or any Lender will be true and accurate in every material respect on the date as of which such information is dated or certified, and such information is not, or shall not be, as the case may be, incomplete by omitting to state any material fact necessary to make such information in light of the circumstances when made not materially mislead- ing. SECTION 6.15. Solvency. The Transaction (including the incurrence of the initial Credit Extension hereunder, the execution and delivery by the Subsidiary Guarantors of the Subsidiary Guaranty and the application of the proceeds of the Credit Extensions), will not involve or result in any fraudulent transfer or fraudulent conveyance under the provisions of Section 548 of the Bankruptcy Code (11 U.S.C. ss. 101 et seq., as from time to time hereafter amended, and any successor or similar statute) or any applicable state law respecting fraudulent transfers or fraudulent conveyances. On the Closing Date, after giving effect to the Transaction, each Borrower and each Subsidiary Guarantor is Solvent. SECTION 6.16. Year 2000. Each Borrower has reviewed the areas within its business and operations which could be adversely affected by, and has developed or is developing a program (which program is expected to be completed and in place by January 1, 2000) to address on a timely basis, the "Year 2000 Problem" (that is, the risk that computer applications used by such Borrower or its Subsidiaries may be unable to recognize and properly perform date-sensitive functions involving certain dates prior to and any date after December 31, 1999). Based on such review and program, the Year 2000 Problem could not reasonably be expected to have a Material Adverse Effect. ARTICLE VII COVENANTS SECTION 7.1. Affirmative Covenants. The Borrowers jointly and severally agree with each of the Agents, each Arranger, each Issuer and each Lender that, until all Commitments have terminated and all Obligations have been paid and performed in full, each Borrower will perform the obligations set forth in this Section 7.1. SECTION 7.1.1. Financial Information, Reports, Notices, etc. The Borrowers will furnish, or will cause to be furnished, to each Lender and the Agents copies of the following financial statements, reports, notices and information: (a) as soon as available and in any event within 20 days after the end of each Fiscal Month of each Fiscal Year of Holdco, (i) with respect to each of the Beverage Companies, case sales and revenues for such Fiscal Month, and (ii) with respect to Arby's and its Subsidiaries, revenues and total units open (including the number of units opened and closed for each brand) for such Fiscal Month, in each case certified by the chief financial or chief accounting Authorized Officer of Holdco; (b) as soon as available and in any event within 55 days after the end of the first three Fiscal Quarters of each Fiscal Year of Holdco, consolidated (and consolidating, but only with respect to (i) Triarc Beverage, Snapple, Mistic, Cable Car and each of their Subsidiaries, taken as a whole, (ii) Royal Crown and its Subsidiaries, taken as a whole, and (iii) Arby's and its Subsidiaries, taken as a whole) balance sheets of Holdco and its Subsidiaries as at the end of such Fiscal Quarter and consolidated (and consolidating, but only with respect to (i) Triarc Beverage, Snapple, Mistic, Cable Car and each of their Subsidiaries, taken as a whole, (ii) Royal Crown and its Subsidiaries, taken as a whole, and (iii) Arby's and its Subsidiaries, taken as a whole) statements of earnings and cash flow of Holdco and its Subsidiaries for such Fiscal Quarter and for the period commencing at the end of the previous Fiscal Year and ending with the end of such Fiscal Quarter, certified by the chief financial or chief accounting Authorized Officer of Holdco; (c) as soon as available and in any event within 110 days after the end of each Fiscal Year of Holdco, a copy of the annual audit report for such Fiscal Year for Holdco and its Subsidiaries, including therein consolidated balance sheets of Holdco and its Subsidiaries as of the end of such Fiscal Year and consolidated statements of earnings and cash flow of Holdco and its Subsidiaries for such Fiscal Year, in each case certified (without any Impermissible Qualification) in a manner reasonably acceptable to the Arrangers and the Required Lenders by Deloitte & Touche LLP or other independent public accountants reasonably acceptable to the Arrangers and the Required Lenders, together with a report from such accountants containing a computation of, and showing compliance with, each of the financial ratios and restrictions contained in Section 7.2.4 and to the effect that, in making the examination necessary for the signing of such annual report by such accountants, they have not become aware of any Default that has occurred and is continuing, or, if they have become aware of such Default, describing such Default and the steps, if any, being taken to cure it, together with copies of unaudited consolidating balance sheets and consolidating statements of earnings and cash flows for such Fiscal Year of (i) Triarc Beverage, Snapple, Mistic, Cable Car and each of their Subsidiaries, taken as a whole, (ii) Royal Crown and its Subsidiaries, taken as a whole, and (iii) Arby's and its Subsidiaries, taken as a whole; (d) together with the delivery of the financial information required pursuant to clause (b) or clause (c), a Compliance Certificate, executed by the chief financial or chief accounting Authorized Officer of Holdco, showing (in reasonable detail and with appropriate calculations and computations in all respects satisfactory to the Arrangers) compliance with the financial covenants set forth in Section 7.2.4; (e) as soon as possible and in any event within three Business Days after any Borrower has knowledge (or could reasonably be expected to have knowledge) of the occurrence of any Default, a statement of the chief financial Authorized Officer of such Borrower setting forth details of such Default and the action which such Borrower has taken and proposes to take with respect thereto; (f) as soon as possible and in any event within three Business Days after (x) the occurrence of any materially adverse development with respect to any litigation, action, proceeding, or labor controversy described in Section 6.7 or (y) the commencement of any labor controversy, litigation, action or proceeding of the type described in Section 6.7, notice thereof and copies of all documentation relating thereto; (g) promptly after the sending or filing thereof, copies of all reports which any Borrower, Triarc Beverage or Holdco sends to any of the holders of any class of its debt securities or public equity securities, and all reports and registration statements which any Borrower, Triarc Beverage or Holdco or any of their respective Subsidiaries files with the Securities and Exchange Commission or any national securities exchange; (h) promptly upon becoming aware of the institution of any steps by any Borrower, Triarc Beverage, Holdco or any other Person to terminate any Pension Plan, or the failure to make a required contribution to any Pension Plan if such failure is sufficient to give rise to a Lien under section 302(f) of ERISA, or the taking of any action with respect to a Pension Plan which could reasonably be expected to result in the requirement that any Borrower, Triarc Beverage or Holdco furnish a bond or other security to the PBGC or such Pension Plan, or the occurrence of any event with respect to any Pension Plan which could reasonably be expected to result in the incurrence by any Borrower, Triarc Beverage or Holdco of any material liability, fine or penalty, or any material increase in the contingent liability of any Borrower, Triarc Beverage or Holdco with respect to any post-retirement Welfare Plan benefit, notice thereof and copies of all documentation relating thereto; (i) promptly when available and in any event within 60 days following the last day of each Fiscal Year of Holdco, quarterly financial projections for Holdco and its Subsidiaries (including case sales for each of the Beverage Companies), on a consolidated (and consolidating, but only with respect to (i) Triarc Beverage, Snapple, Mistic, Cable Car and each of their Subsidiaries, taken as a whole, (ii) Royal Crown and its Subsidiaries, taken as a whole, and (iii) Arby's and its Subsidiaries, taken as a whole) basis (including an operating budget), for the current Fiscal Year, prepared in reasonable detail by the chief accounting, financial or operating officer of Holdco; (j) within 20 days after the end of each Fiscal Month, a Borrowing Base Certificate that is calculated as of the last day of such Fiscal Month; and (k) such other information respecting the condition or operations, financial or otherwise, of Holdco, Triarc Beverage, any Borrower or any of its Subsidiaries as any Lender through any Agent may from time to time reasonably request. SECTION 7.1.2. Compliance with Laws, etc. Each Borrower will, and will cause each of its Subsidiaries to, comply in all material respects with all applicable laws, rules, regulations and orders, such compliance to include (without limitation) (i) the maintenance and preservation of its legal existence and qualification as a foreign entity, except where the failure to so qualify could not reasonably be expected to have a Material Adverse Effect, and (ii) the payment, before the same become delinquent, of all taxes, assessments and governmental charges imposed upon it or upon its property except to the extent being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books. SECTION 7.1.3. Maintenance of Properties. Each Borrower will, and will cause each of its Subsidiaries to, maintain, preserve, protect and keep its properties necessary and useful in the conduct of its business in good repair, working order and condition (subject to normal wear and tear), and make necessary and proper repairs, renewals and replacements so that its business carried on in connection therewith may be properly conducted at all times unless such Borrower determines in good faith that the continued maintenance of any of its properties is no longer economically desirable, except when the failure to maintain, preserve, protect and keep its properties could not reasonably be expected to have a Material Adverse Effect. SECTION 7.1.4. Insurance. Each Borrower will, and will cause each of its Subsidiaries to, maintain or cause to be maintained with responsible insurance companies insurance with respect to its properties and business against such casualties and contingencies and of such types and in such amounts as is customary in the case of similar businesses and will, upon written request of the Agents, furnish to each Lender at reasonable intervals a certificate of an Authorized Officer of such Borrower setting forth the nature and extent of all insurance maintained by such Borrower and its Subsidiaries in accordance with this Section. SECTION 7.1.5. Books and Records. Each Borrower will, and will cause each of its Subsidiaries to, keep books and records which accurately reflect in all material respects all of its business affairs and transactions and permit the Agents and each Lender or any of their respective representatives, at reasonable times and intervals, during normal business hours to visit all of its offices, to discuss its financial matters with its officers and independent public accountant (and each Borrower hereby authorizes such in- dependent public accountant, upon the occurrence and during the continuance of any Default or Event of Default, to discuss such Borrower's financial matters with each Lender or its representatives whether or not any representative of such Borrower is present, and if no Default or Event of Default has occurred and is continuing, only if a representative of such Borrower is present) and to examine (and, at the expense of such Borrower, photocopy extracts from) any of its books or other records. The Borrowers shall pay any fees of such indepen- dent public accountant incurred in connection with any Agent's or any Lender's exercise of its rights pursuant to this Section. The Agents and the Lenders agree that they shall use reasonable efforts to minimize interference with the business of any Borrower or any of its Subsidiaries. SECTION 7.1.6. Environmental Covenant. Each Borrower will, and will cause each of its Subsidiaries to, (a) use and operate all of its facilities and properties in material compliance with all Environmental Laws, keep all necessary permits, approvals, certificates, licenses and other authorizations relating to environmental matters in effect and remain in material compliance therewith, and handle all Hazardous Materials in material compliance with all applicable Environmental Laws; (b) promptly notify the Agents and provide copies upon receipt of all written claims, complaints, notices or inquiries relating to the condition of its facilities and properties or compliance with Environmental Laws which could reasonably be expected to have a Material Adverse Effect; and (c) provide such information and certifications which the Agents may reasonably request from time to time to evidence compliance with this Section 7.1.6. SECTION 7.1.7. Future Subsidiaries. Upon any Person becoming, after the Closing Date, a Subsidiary of any Borrower or Triarc Beverage, or upon any Obligor acquiring additional Capital Stock of any existing Subsidiary of any Borrower or Triarc Beverage, the Borrowers shall notify the Agents of such acquisition, and (a) the Borrowers shall promptly cause such Subsidiary to execute and deliver to the Agents, with counterparts for each Lender, a supplement to the Subsidiary Guaranty and a supplement to the Subsidiary Security Agreement (and, if such Subsidiary owns any real property with a fair market value in excess of $1,500,000, a Mortgage), together with acknowledgment copies of UCC financing statements (Form UCC-1) executed and delivered by the Subsidiary naming the Subsidiary as the debtor and the Administrative Agent as the secured party, or other similar instruments or documents, filed under the UCC and any other applicable recording statutes, in the case of real property, of all jurisdictions as may be necessary or, in the reasonable opinion of the Agents, desirable to perfect the security interest of the Administrative Agent pursuant to the Subsidiary Security Agreement or a Mortgage, as the case may be (other than the perfection of security interests in motor vehicles owned as of the date such entity becomes a Subsidiary); provided, however, that, subject to clause (l) of Section 7.2.2, in the event that any newly-acquired Subsidiary has any outstanding Indebtedness which is secured by a Lien or is subject to a negative pledge ("Assumed Restricted Debt") which Indebtedness, Lien or negative pledge, as the case may be, was in existence prior to the time such Person became a Subsidiary (and which was not created in contemplation of this Section), no such security interest or other Lien shall be required hereunder in respect of such Subsidiary's assets subject to such negative pledge; and (b) the Borrowers shall promptly deliver, or cause to be delivered, to the Administrative Agent under a Pledge Agreement (or a supplement thereto) certificates (if any) representing all of the issued and outstanding shares of Capital Stock of such Subsidiary owned by Holdco, Triarc Beverage, such Borrower or any Subsidiary of Holdco, as the case may be, along with undated stock powers for such certificates, executed in blank, or, if any securities subject thereto are uncertificated securities, confirmation and evidence satisfactory to the Agents that appropriate book entries have been made in the relevant books or records of a financial intermediary or the issuer of such securities, as the case may be, or other appropriate steps shall have been taken under applicable law resulting in the perfection of the security interest granted in favor of the Administrative Agent pursuant to the terms of a Pledge Agreement; together, in each case, with such opinions, in form and substance and from counsel reasonably satisfactory to the Agents, as the Agents may reasonably require; provided, however, that notwithstanding the foregoing, no Non-U.S. Subsidiary shall be required to execute and deliver a Mortgage, a supplement to the Subsidiary Guaranty or a supplement to the Subsidiary Security Agreement, nor will Holdco, Triarc Beverage, such Borrower or any Subsidiary of Holdco be required to deliver in pledge pursuant to a Pledge Agreement in excess of 65% of the total combined voting power of all classes of Capital Stock of a first tier Non-U.S. Subsidiary entitled to vote. SECTION 7.1.8. Future Leased Property and Future Acquisitions of Real Property; Future Acquisition of Other Property. (a) Prior to entering into any new lease (as lessee) of real property or renewing any existing lease as lessee of real property following the Closing Date, each Borrower shall, and shall cause each of its U.S. Subsidiaries to, use all commercially reasonable efforts (which shall not require the expenditure of cash or the making of any material concessions under the relevant lease) to deliver to the Administrative Agent a Waiver executed by the lessor of any real property that is to be leased by such Borrower or such U.S. Subsidiary for a term in excess of one year in any state which by statute grants such lessor a "landlord's" (or similar) Lien which is superior to the Administrative Agent's, to the extent the value of any personal property of such Borrower or its U.S. Subsidiaries to be held at such leased property exceeds (or it is anticipated that the value of such personal property will, at any point in time during the term of such leasehold term, exceed) $1,500,000. (b) In the event that any Borrower or any of their U.S. Subsidiaries shall acquire any real property having a value as determined in good faith by the Agents in excess of $1,500,000 in the aggregate, such Borrower or the applicable U.S. Subsidiary shall, promptly after such acquisition, execute a Mortgage and provide the Agents with (i) evidence of the completion (or satisfactory arrangements for the completion) of all recordings and filings of such Mortgage as may be necessary or, in the reasonable opinion of the Agents, desirable effectively to create a valid, perfected first priority Lien, subject to Liens permitted by Section 7.2.3, against the properties purported to be covered thereby; (ii) mortgagee's title insurance policies in favor of the Administrative Agent and the Lenders in amounts and in form and substance and issued by insurers, reasonably satisfactory to the Agents, with respect to the property purported to be covered by such Mortgage, insuring that title to such property is marketable and that the interests created by the Mortgage constitute valid first Liens thereon free and clear of all defects and encumbrances other than as permitted under Section 7.2.3 or as approved by the Agents, and such policies shall also include a revolving credit endorsement and such other endorsements as the Agents shall request and shall be accompanied by evidence of the payment in full of all premiums thereon; and (iii) such other approvals, opinions, or documents as the Agents may reasonably request; and (c) In accordance with the terms and provisions of this Agreement and the other Loan Documents, provide the Agents with evidence of all recordings and filings as may be necessary or, in the reasonable opinion of the Agents, desirable to create a valid, perfected first priority Lien, subject to the Liens permitted by Section 7.2.3, against all property acquired after the Closing Date (including motor vehicles but excluding leases of real property). SECTION 7.1.9. Use of Proceeds, etc. The Borrowers shall apply the proceeds of (a) the Term Loans (i) in connection with the Refinancing and concurrently with the initial Credit Extension hereunder, to make payment, together with the funds made available from the proceeds of the Subordinated Notes Offering, in full of all Indebtedness identified in Item 7.2.2(b) ("Indebtedness to be Paid") of the Disclosure Schedule; (ii) in connection with the Acquisition, to make payment in full of the Borrowers' obligations under the Acquisition Agreement; provided, however, that, to the extent the Acquisition is not consummated on or prior to the Closing Date, a portion (which shall not exceed $17,250,000) of the Term C Loans otherwise allocable to the Borrowers for use in connection with the Acquisition shall be funded into the Acquisition Escrow Account to be used by the Borrowers in accordance with Section 7.1.12; (iii) to fund a portion of the Triarc Dividend; (iv) in connection with the RC/Arby's Notes Repayment, together with funds made available from the proceeds of the Subordinated Notes Offering, to fund the RC/Arby's Notes Repayment Pledge Account to be used to redeem the RC/Arby's Notes; (v) to pay reasonable costs, fees and expenses related to the Transaction (provided, that the aggregate amount of such costs, fees and expenses shall not exceed $35,000,000); and (b) the Revolving Loans, Swing Line Loans, Letters of Credit and any immaterial excess proceeds of the Term Loans not otherwise used in accordance with clause (a) above, for general corporate and working capital purposes of the Borrowers and their Subsidiaries. SECTION 7.1.10. Hedging Obligations. Within six months following the Closing Date, the Borrowers shall provide the Arrangers with evidence reasonably satisfactory to them that the Borrowers have entered into interest rate swap, cap, collar or similar arrangements designed to protect such Borrowers against fluctuations in interest rates with respect to at least 50% of the then outstanding aggregate principal amount of the Term Loans for a minimum period of three years with terms reasonably satisfactory to such Borrowers and the Arrangers. SECTION 7.1.11. RC/Arby's Notes Repayment; Execution and De- livery of Loan Documents. (a) Within 35 days of the Closing Date, the Borrowers shall consummate the RC/Arby's Notes Repayment. (b) Upon the consummation of the RC/Arby's Notes Repayment, each Borrower shall, and shall cause RC/Arby's and each of its Subsidiaries to, (i) execute and deliver all appropriate Loan Documents and (ii) take all other necessary and appropriate actions, in each case in accordance with Sections 7.1.7 and 7.1.8, as if RC/Arby's and each such Subsidiary were a newly-acquired Subsidiary, including the delivery of legal opinions in form and substance reasonably satisfactory to the Arrangers. SECTION 7.1.12. Consummation of Acquisition; Prepayment of Term C Loans. If the Acquisition is not completed on or prior to the Closing Date, within 45 days of the Closing Date (the "Consummation Date"), the Borrowers shall, in accordance with the terms hereof and of the Acquisition Agreement and the Acquisition Escrow Agreement, use the amounts deposited in the Acquisition Escrow Account to consummate the Acquisition; provided, however, that, to the extent the Borrowers shall not have consummated the Acquisition on or prior to the Consummation Date, the Borrowers shall use the amounts deposited in the Acquisition Escrow Account to prepay the Term C Loans pursuant to clause (g) of Section 3.1.1. SECTION 7.1.13. Additional Post-Closing Items. Within 45 days of the Closing Date, the Borrowers shall deliver or shall caused to be delivered to the Agents a Mortgage on the concentrate manufacturing facility owned by Royal Crown located in Columbus, Georgia, together with legal opinions and other documentation reasonably requested by the Agents in connection therewith. SECTION 7.2. Negative Covenants. The Borrowers jointly and severally agree with each of the Agents, each Arranger, each Issuer and each Lender that, until all Commitments have terminated and all Obligations have been paid and performed in full, each of Borrowers will perform the obligations set forth in this Section 7.2. SECTION 7.2.1. Business Activities. The Borrowers will not, and will not permit any of their Subsidiaries to, engage in any business activity, except for the Business. SECTION 7.2.2. Indebtedness. The Borrowers will not, and will not permit any of their Subsidiaries to, create, incur, assume or suffer to exist or otherwise become or be liable in respect of any Indebtedness, other than, without duplication, the following: (a) Indebtedness in respect of the Loans and other Obliga- tions; (b) until the Closing Date, Indebtedness identified in Item 7.2.2(b) ("Indebtedness to be Paid") of the Disclosure Schedule; (c) Indebtedness existing as of the Closing Date which is identified in Item 7.2.2(c) ("Ongoing Indebtedness") of the Disclosure Schedule; (d) Indebtedness existing as of the Closing Date arising pursuant to the take-or-pay contracts identified in Item 7.2.2(d) ("Take-or-Pay Liabilities") of the Disclosure Schedule and arising from future take-or-pay contracts; provided that the aggregate amount in respect of such Indebtedness at any time outstanding shall not exceed $5,000,000; (e) Indebtedness in respect of (i) the senior subordinated guarantees provided in connection with the Subordinated Notes; provided that the aggregate principal amount in respect of such Indebtedness at any time outstanding shall not exceed $300,000,000 and (ii) subordinated intercompany loans made by Holdco and Triarc Beverage in an aggregate principal amount not to exceed the gross proceeds of the Subordinated Notes; (f) Hedging Obligations of the Borrowers or any of their Subsidiaries in respect of the Loans; (g) Indebtedness in an aggregate principal amount not to exceed $10,000,000 at any time outstanding which is incurred by the Borrowers or any of their Subsidiaries (i) to finance the acquisition of any assets permitted to be acquired pursuant to Section 7.2.7, (ii) in respect of Capitalized Lease Liabilities (but only to the extent otherwise permitted by Section 7.2.7) or (iii) in respect of purchase money obligations; (h) unsecured Indebtedness incurred in the ordinary course of business (including open accounts extended by suppliers on normal trade terms in connection with purchases of goods and services, but excluding Indebtedness incurred through the borrowing of money or Contingent Liabilities); (i) unsecured intercompany Indebtedness of any Borrower owing to any other Borrower or to any Subsidiary Guarantor, or Indebtedness of any wholly-owned U.S. Subsidiary of any Borrower or, so long as the Arby's Securitization Residual Payment has not been made, Arby's or any of its wholly-owned U.S. Subsidiaries, owing to any Borrower or any Subsidiary Guarantor; provided, that any Indebtedness of Arby's and its Subsidiaries or Royal Crown and its Subsidiaries, as the case may be, to any Borrower or any such Subsidiary Guarantor incurred after the Closing Date shall, upon consummation of the Arby's Securitization Residual Payment or the Royal Crown Disposition, as applicable, be either (x) re- paid in full or (y) to the extent not so repaid be deemed an In- vestment in such entities if such Investment would be permit- ted under Section 7.2.5; (j) other Indebtedness of the Borrowers and their Subsidiaries in an aggregate amount at any time outstanding not to exceed (x) $15,000,000 during the first four full Fiscal Quarters following the Closing Date and (y) without duplication, $30,000,000 thereafter; (k) unsecured obligations of Arby's in respect of amounts due and owing from Arby's to holders of stock options issued pursuant to the Arby's Stock Option Plan; and (l) Indebtedness representing Assumed Restricted Debt and assumed unsecured Indebtedness of a newly-acquired Subsidiary that was in existence prior to the time such Person became a Subsidiary; provided that the aggregate principal amount in respect of such Indebtedness at any time outstanding shall not exceed $10,000,000; provided, however, that in any such case (i) no Indebtedness otherwise permitted by clauses (g), (h), (i), (j) or (l) shall be permitted if, after giving effect to the incurrence thereof, any Default shall have occurred and be continuing and (ii) any Indebtedness permitted by clauses (c) and (e) may be refinanced, refunded, renewed or extended, provided that, in either such case, (A) the principal amount of outstanding Indebtedness is not increased, (B) neither the tenor nor the average life thereof is reduced, (C) the respective primary obligor(s) shall be the same on the refinancing Indebtedness as on the Indebtedness being refinanced, (D) the security, if any, for the refinancing Indebtedness shall be the same as that for the Indebtedness being refinanced (except to the extent that less security is granted to holders of such refinancing Indebtedness), (E) the refinancing Indebtedness is subordinated to the same degree (including any defaults or conditions to an event of default relating to any subordination provisions therein), if any, as the Indebtedness being refinanced and (F) the holders of such refinancing Indebtedness are not afforded other covenants, defaults, rights or remedies, taken as a whole, more burdensome to the obligor or obligors than those contained in the Indebtedness being refinanced. SECTION 7.2.3. Liens. The Borrowers will not, and will not permit any of their Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any of its property, revenues or assets, whether now owned or hereafter acquired, except for the following: (a) Liens securing payment of the Obligations or any Hedging Obligations in respect of the Loans owed to any Lender or any Affiliate of any Lender, granted pursuant to any Loan Document; (b) (i) until the Closing Date, Liens securing payment of Indebtedness of the type permitted and described in clause (b) of Section 7.2.2, and (ii) Liens existing as of the Closing Date which are identified in Item 7.2.3(b) ("Ongoing Liens") of the Disclosure Schedule; (c) Liens securing payment of Indebtedness of the type permitted and described in clause (c) of Section 7.2.2 and identified in Item 7.2.3(c) ("Additional Liens") of the Disclosure Schedule, and replacement Liens securing any Indebtedness refinanced as permitted by clause (ii) of the proviso to Section 7.2.2 (provided that no such replacement Lien shall cover any property in addition to the property covered by the original Lien); (d) Liens granted to secure payment of Indebtedness of the type permitted and described in clause (g) of Section 7.2.2 and covering only those assets acquired with the proceeds of such Indebtedness; (e) Liens for taxes, assessments or other governmental charges or levies not at the time delinquent or thereafter payable without penalty or being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on the books of such Person; (f) Liens of suppliers, carriers, warehousemen, mechanics, materialmen, repairmen and landlords incurred in the ordinary course of business for sums not overdue for more than 30 days or being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on the books of such Person; (g) Liens incurred in the ordinary course of business in connection with workmen's compensation, unemployment insurance or other forms of governmental insurance or benefits, or to secure performance of tenders, statutory obligations, leases and contracts (other than for borrowed money) entered into in the ordinary course of business or to secure obligations on surety or appeal bonds; (h) attachment or judgment Liens in existence less than 15 days after the entry thereof or with respect to which execution has been stayed or the payment of which is covered in full (subject to a customary deductible) by insurance maintained with responsible insurance companies; (i) Liens with respect to leases, subleases, easements, rights-of-way, restrictions and other similar encumbrances which, individually or in the aggregate, do not materially interfere with the occupation, use and enjoyment by any Borrower or any of its Subsidiaries of the properties encumbered thereby in the or- dinary course of their business; and (j) Liens in respect of any Assumed Restricted Debt permitted pursuant to clause (l) of Section 7.2.2. SECTION 7.2.4. Financial Covenants. (a) Minimum Net Worth. The Borrowers will not permit Net Worth at any time to be less than an aggregate amount equal to negative $189,000,000, plus an amount equal to 50% of cumulative Net Income from the Closing Date to the date of determination, less the amount by which stockholders equity of Holdco is reduced in accordance with GAAP as a result of the Arby's Securitization Residual Payment, if made. (b) Leverage Ratio. The Borrowers will not permit the Leverage Ratio as of the end of any Fiscal Quarter occurring during any period set forth below to be greater than the ratio set forth opposite such period: Period Leverage Ratio ------ -------------- 1st Fiscal Quarter of 1999 Fiscal Year 6.00:1 2nd Fiscal Quarter of 5.85:1 1999 Fiscal Year 3rd Fiscal Quarter of 5.75:1 1999 Fiscal Year 4th Fiscal Quarter of 1999 Fiscal Year through 3rd Fiscal Quarter 5.60:1 of 2000 Fiscal Year 4th Fiscal Quarter of 2000 Fiscal Year through 5.00:1 3rd Fiscal Quarter of 2001 Fiscal Year 4th Fiscal Quarter of 2001 Fiscal Year through 3rd Fiscal Quarter 4.25:1 of 2002 Fiscal Year 4th Fiscal Quarter of 2002 Fiscal Year through 3rd Fiscal Quarter 3.75:1 of 2003 Fiscal Year 4th Fiscal Quarter of 2003 Fiscal Year through 3rd Fiscal Quarter 3.25:1 of 2004 Fiscal Year 4th Fiscal Quarter of 2004 Fiscal Year and each 3.00:1 Fiscal Quarter thereafter (c) Interest Coverage Ratio. The Borrowers will not permit the Interest Coverage Ratio as of the end of any Fiscal Quarter occurring during any period set forth below to be less than the ratio set forth opposite such period: Interest Coverage Period Ratio ------ ----------------- 1st Fiscal Quarter of 1999 Fiscal Year through 3rd Fiscal Quarter of 1999 Fiscal Year 1.80:1 4th Fiscal Quarter of 1999 Fiscal Year through 3rd Fiscal Quarter of 2000 Fiscal Year 1.85:1 4th Fiscal Quarter of 2000 Fiscal Year through 3rd Fiscal Quarter of 2001 Fiscal Year 2.10:1 4th Fiscal Quarter of 2001 Fiscal Year through 3rd Fiscal Quarter of 2002 Fiscal Year 2.40:1 4th Fiscal Quarter of 2002 Fiscal Year through 3rd Fiscal Quarter of 2003 Fiscal Year 2.75:1 4th Fiscal Quarter of 2003 Fiscal Year through 3rd Fiscal Quarter of 2004 Fiscal Year 3.25:1 4th Fiscal Quarter of 2004 Fiscal Year and each Fiscal Quarter thereafter 3.50:1 (d) Fixed Charge Coverage Ratio. The Borrowers will not permit the Fixed Charge Coverage Ratio as of the end of any Fiscal Quarter occurring during any period set forth below to be less than the ratio set forth opposite such period: Fixed Charge Coverage Period Ratio ------ --------------------- 1st Fiscal Quarter of 1999 Fiscal Year through 3rd Fiscal Quarter of 1999 Fiscal Year 1.00:1 4th Fiscal Quarter of 1999 Fiscal Year through 3rd Fiscal Quarter of 2000 Fiscal Year 1.05:1 4th Fiscal Quarter of 2000 Fiscal Year through 3rd Fiscal Quarter of 2001 Fiscal Year 1.10:1 4th Fiscal Quarter of 2001 Fiscal Year and each Fiscal Quarter thereafter 1.15:1 SECTION 7.2.5. Investments. The Borrowers will not, and will not permit any of their Subsidiaries to, make, incur, assume or suffer to exist any Invest- ment in any other Person, except: (a) Investments existing on the Closing Date and identified in Item 7.2.5(a) ("Ongoing Investments") of the Disclosure Schedule; (b) Cash Equivalent Investments; (c) Investments by any Borrower in any other Borrower, in any wholly-owned U.S. Subsidiary of any Borrower or, so long as the Arby's Securitization Residual Payment has not been made, in Arby's or any of its wholly-owned U.S. Subsidiaries, or by any Subsidiary Guarantor in any Borrower or in any wholly-owned U.S. Subsidiary of any Borrower (including, in each case, Investments made for purposes of creating newly formed wholly-owned U.S. Subsidiaries); provided, that any Investments in Arby's and its Subsidiaries or Royal Crown and its Subsidiaries incurred after the Closing Date shall, upon consummation of the Arby's Securitization Residual Payment or the Royal Crown Disposition, as applicable, be either (x) repaid in full or (y) to the extent not so repaid be deemed an Investment in such entities if such Investment would be otherwise permitted under this Section 7.2.5; (d) other Investments, together with the amount of any purchases made pursuant to clause (b)(ii) of Section 7.2.8, in an aggregate principal amount not to exceed $20,000,000 at any time outstanding; (e) Investments in the form of advances or loans to employees in an aggregate principal amount not to exceed $2,000,000 at any time outstanding; (f) the Acquisition; (g) (i) Investments by Arby's or any of its Subsidiaries in one or more Arby's Securitization Entities (including the creation of such Arby's Securitization Entities) on or prior to the consummation of the Arby's Securitization in an amount that, together with all other Investments made pursuant to this clause (g)(i) from the Effective Date, does not exceed $15,000,000 in the aggregate; and (ii) non-cash Investments by Arby's or any of its Subsidiaries in any Arby's Securitization Residual Note and any contribution by Arby's or any of its Subsidiaries of Arby's Securitization Assets to any Arby's Securitization Entity; (h) Investments in any Person with any Net Disposition Proceeds permitted to be so invested pursuant to clause (c) of Section 3.1.1 and Investments in any Person with any Net Casualty Proceeds permitted to be so invested pursuant to clause (f) of Section 3.1.1; (i) stock, obligations or securities received in settlement of Indebtedness created in the ordinary course of business of up to $500,000 in aggregate principal amount in any Fiscal Year and owing to a Borrower or any Subsidiary of any Borrower or in satisfaction of judgments relating to such Indebtedness; (j) Investments in any Person to the extent such Investment represents the non-cash portion of the consideration received pursuant to clause (b) of Section 7.2.9; provided, however, that (i) any Investment which when made complies with the requirements of the definition of the term "Cash Equivalent Investment" may continue to be held notwithstanding that such Investment if made thereafter would not comply with such requirements, and (ii) no Investment otherwise permitted by clause (c), (d), (e), (g), (h), (i) or (j) shall be permitted to be made if, immediately before or after giving effect thereto, any Default shall have occurred and be continuing. SECTION 7.2.6. Restricted Payments, etc. On and at all times after the Effective Date: (a) no Borrower will declare, pay or make any payment, dividend or distribution (in cash, property or obligations) on any shares of any class of its Capital Stock (now or hereafter outstanding) or on or in respect of any warrants, options or other rights with respect to any shares of any class of its Capital Stock (now or hereafter outstanding) (other than dividends or distributions (i) payable in its Capital Stock or warrants to purchase its Capital Stock or splitups or reclassifications of its Capital Stock into additional or other shares of its Capital Stock or (ii) declared, payable or made to another Borrower) or apply, or permit any of its Subsidiaries to apply, any of its funds, property or assets to the purchase, redemption, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase or redeem, any shares of any class of its Capital Stock (now or hereafter outstanding), or warrants, options or other rights with respect to any shares of any class of its Capital Stock (now or hereafter outstanding); (b) no Borrowers will, nor will it permit any of its Subsidiaries to, (i) make any payment or prepayment of principal of, or make any payment of interest on, any Subordinated Debt on any day other than the stated, scheduled date for such payment or prepayment set forth in the documents and instruments memorializing such Subordinated Debt, or which would violate the subordination provisions of such Subordinated Debt, or (ii) redeem, purchase or defease, any Subordinated Debt; and (c) no Borrower will, nor will it permit any of its Subsidiaries to, make any deposit for any of the foregoing purposes; provided, however, that notwithstanding the foregoing, (d) (x) the Borrowers may make payments to Triarc Beverage to allow Triarc Beverage to make payments in respect of stock options or in respect of the Capital Stock of Triarc Beverage issued upon the exercise of such stock options to the holders thereof pursuant to the Triarc Beverage Stock Option Plan and (y) Arby's may make payments in respect of stock options or in respect of the Capital Stock of Arby's issued upon the exercise of such stock options to the holders thereof pursuant to the Arby's Stock Option Plan, in each case if (i) the aggregate amount of all payments made pursuant to this clause (d) would not exceed (A) $5,000,000 in the twelve month period beginning on the Closing Date, (B) $7,500,000 in the twelve month period beginning on the first anniversary of the Closing Date and (C) $10,000,000 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 amount of all such payments on and after the Closing Date shall not exceed $25,000,000 plus an amount equal to the net proceeds received by Triarc Beverage or Arby's after the Closing Date from the sale of Capital Stock (other than disqualified stock) pursuant to the Arby's Stock Option Plan or the Triarc Beverage Stock Option Plan; and (ii) no Default has occurred and is continuing or would occur as a result of any such payment; (e) the Borrowers may make payments to Triarc directly, or through Holdco and/or Triarc Beverage, which will forward such payments to Triarc, in such amounts as may be required pursuant to the Tax Sharing Agreement; (f) so long as no Default has occurred and is continuing or would occur after giving effect thereto, the Borrowers may make the Arby's Securitization Residual Payment to Triarc; (g) so long as no Default has occurred and is continuing or would occur after giving effect thereto, the Borrowers may declare and pay cash dividends to (i) Holdco and/or Triarc Beverage to the extent necessary to allow Holdco and/or Triarc Beverage to make scheduled interest payments on the Subordinated Notes (provided that any portion of the amounts required to pay such scheduled interest payments may be paid by the Borrowers to Holdco and/or Triarc Beverage as payments of interest on subordinated intercompany Indebtedness owed to Holdco and/or Triarc Beverage permitted pursuant to clause (e)(ii) of Section 7.2.2; and provided, further, that Holdco and/or Triarc Beverage promptly (and in any event within three Business Days following the payment of such cash dividend) applies any such cash dividend to such scheduled interest payment on the Subordinated Notes), and (ii) Holdco and Triarc Beverage, in an amount not to exceed $250,000 in any Fiscal Year, to the extent necessary to allow Holdco and Triarc Beverage to pay accounting and audit expenses, franchise taxes and other expenses (provided that any portion of the amount required to pay such expenses may be paid by the Borrowers to Holdco and/or Triarc Beverage on or prior to the date of such payment as payments of interest on subordinated intercompany Indebtedness owed to Holdco and/or Triarc Beverage); (h) so long as no Default has occurred or is continuing or would occur after giving effect thereto, the Borrowers and their Subsidiaries may make any and all payments, dividends or distributions contemplated in the Transaction including, without limitation, to Holdco (through Triarc Beverage if necessary) to allow Holdco to make the Triarc Dividend; and (i) Arby's may make non-cash repurchases of Capital Stock under the Arby's Stock Option Plan deemed to occur upon exercise of stock options under the Arby's Stock Option Plan to the extent that such Capital Stock represents a portion of the exercise price of such options. SECTION 7.2.7. Capital Expenditures, etc. The Borrowers will not, and will not permit any of their Subsidiaries to, make or commit to make Capital Expenditures in any fiscal period set forth below, except Capital Expenditures which do not aggregate in excess of the amount set forth below opposite such fiscal period: Closing Date through 1999 Fiscal Year $9,500,000 2000 Fiscal Year through 2001 Fiscal Year $10,000,000 ($9,500,000 if the Arby's Securitization Residual Payment has been made) 2002 Fiscal Year and each Fiscal Year thereafter $11,000,000 ($10,500,000 if the Arby's Securitization Residual Payment has been made); provided, however, that to the extent the amount of Capital Expenditures permitted to be made in any Fiscal Year pursuant to this Section exceeds the aggregate amount of Capital Expenditures actually made during such Fiscal Year, such excess amount (up to 50% of the total amount of Capital Expenditures permitted to be made in such Fiscal Year, without giving effect to any carry-forward) may be carried forward to (but only to) the next succeeding Fiscal Year (any such amount to be certified by the Borrowers to the Agents in the Compliance Certificate delivered for the last Fiscal Quarter of such Fiscal Year, and any such amount carried forward to a succeeding Fiscal Year shall be deemed to be used prior to the Borrowers and their Subsidiaries using the amount of Capital Expenditures permitted by this Section in such succeeding Fiscal Year without giving effect to such carry-forward). SECTION 7.2.8. Consolidation, Merger, Acquisitions, etc. The Borrowers will not, and will not permit any of their Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other Person, or purchase or otherwise acquire all or substantially all of the assets of any Person (or of any division thereof) except (a) any such Subsidiary may liquidate or dissolve voluntarily into, and may consolidate with or merge with and into, any Borrower, any wholly-owned U.S. Subsidiary of any Borrower or, so long as the Arby's Securitization Residual Payment has not been made, Arby's or any of its wholly-owned U.S. Subsidiaries, and the assets or stock of any such Subsidiary may be purchased or otherwise acquired by any Borrower, any wholly-owned U.S. Subsidiary of any Borrower or, so long as the Arby's Securitization Residual Payment has not been made, Arby's or any of its wholly-owned U.S. Subsidiaries; (b) so long as no Default has occurred and is continuing or would occur after giving effect thereto, the Borrowers or any of their Subsidiaries may purchase all or substantially all of the assets of any Person, or acquire such Person by merger, if (i) permitted (without duplication) by Section 7.2.7 to be made as a Capital Expenditure, or if permitted (without duplication) by Section 7.2.5 to be made as an Investment, (ii) such purchase, together with any Investments made pursuant to clause (d) of Section 7.2.5, shall not at any one time outstanding exceed $20,000,000, or (iii) such purchase is made with Net Disposition Proceeds permitted pursuant to clause (c) of Section 3.1.1 or Net Casualty Proceeds permitted pursuant to clause (f) of Section 3.1.1; and (c) as permitted pursuant to Section 7.2.9. SECTION 7.2.9. Asset Dispositions, etc. The Borrowers will not, and will not permit any of their Subsidiaries to, sell, transfer, lease, contribute or otherwise convey, or grant options, warrants or other rights with respect to, any of their assets (including accounts receivable and Capital Stock of Subsidiaries (other than directors' qualifying shares)) to any Person, except for any such sale, transfer, lease, contribution or conveyance that is: (a) (i) in the ordinary course of its business, (ii) of obsolete or worn-out property, (iii) permitted by Section 7.2.8 or (iv) to another Borrower or a wholly-owned U.S. Subsidiary of any Borrower; (b) for fair market value and the consideration consists of no less than 80% in cash, cash equivalents or the assumption by the purchaser of Indebtedness of such Borrower or Subsidiary; provided that (i) the net book value of such assets, together with the net book value of all other assets sold, transferred, leased, contributed or conveyed pursuant to this clause (b) does not exceed (individually or in the aggregate) $30,000,000 over the term of this Agreement and (ii) the Net Disposition Proceeds generated from such sale, transfer, lease, contribution or conveyance are applied as a mandatory prepayment of the Loans to the extent required pursuant to clause (c) of Section 3.1.1; (c) (i) the issuance of Capital Stock and options pursuant to the Arby's Stock Option Plan or (ii) a payment on or in respect of stock options issued pursuant to the Arby's Stock Option Plan and is of the type described in clause (k) of Section 7.2.2 or is permitted pursuant to clause (d) of Section 7.2.6; (d) so long as no Default has occurred or is continuing or would occur after giving effect thereto, in connection with the consummation of the Arby's Securitization; provided that (i) the Arby's Securitization is consummated within nine months of the Closing Date; (ii) the Borrowers receive Net Disposition Proceeds of at least $300,000,000 (provided that such amount shall be increased, Dollar for Dollar, by the amount of Investments in excess of $5,000,000 made pursuant to clause (g)(i) of Section 7.2.5), by from the Arby's Securitization; (iii) all Net Disposition Proceeds from the first $350,000,000 (provided that such amount shall be increased, Dollar for Dollar, by the amount of Investments in excess of $5,000,000 made pursuant to clause (g)(i) of Section 7.2.5) of gross cash proceeds from the Arby's Securitization are applied as a mandatory prepayment of the Loans pursuant to clause (c) of Section 3.1.1; (iv) after giving effect to the Arby's Securitization including the use of proceeds thereunder, the Borrowers shall be in pro forma compliance with the covenants set forth in Section 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date of the consummation of the Arby's Securitization for which the relevant financial information has been delivered pursuant to clause (b) or clause (c) of Section 7.1.1; (v) an Authorized Officer of Holdco shall have delivered a certificate to the Agents in form and substance satisfactory to the Agents (including a calculation of the Borrowers' compliance with the covenants set forth in Section 7.2.4 in reasonable detail) certifying as to the accuracy of clause (iv) above; (vi) the aggregate consideration received in such sale is at least equal to the aggregate fair market value of the assets sold, as determined by Holdco's board of directors in good faith; (vii) (A) neither Holdco nor any Subsidiary of Holdco 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 make any addi- tional 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, financial condition, level of income or results of operations thereof and (B) no property of Holdco or any Subsidiary of Holdco 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); and (viii) if the Arby's Securitization Residual Payment is not made, Arby's shall retain the right to license, on a non-exclusive royalty free basis, the trademarks included in the Arby's Securitization Assets, together with all rights listed in the definition of "Arby's Securitization Assets" with respect to such trademarks (other than ownership of such trademarks) in connection with franchise agreements not owned by any Arby's Securitization Entity; (e) of any of the assets identified in Item 7.2.9(e) ("Specified Assets") of the Disclosure Schedule for fair market value; provided, however, that if the Net Disposition Proceeds generated from the sale, transfer, lease, contribution or conveyance of any individual asset identified therein does not exceed $250,000, such Net Disposition Proceeds shall not be applied as a mandatory prepayment of the Loans pursuant to clause (c) of Section 3.1.1; or (f) so long as no Default has occurred or is continuing or would occur after giving effect thereto, (i) of the Capital Stock of Royal Crown to Triarc Beverage or (ii) the Royal Crown Disposition; provided that, in the case of this clause (ii), (A) the Net Disposition Proceeds generated thereby exceed $120,000,000 and such Net Disposition Proceeds are applied as a mandatory prepayment of the Loans to the extent required pursuant to clause (c) of Section 3.1.1, (B) after giving effect thereto, the Borrowers shall be in pro forma compliance with the covenants set forth in Section 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date thereof for which the relevant financial information has been delivered pursuant to clause (b) or clause (c) of Section 7.1.1, (C) an Authorized Officer of Holdco shall have delivered a certificate to the Agents in form and substance satisfactory to the Agents (including a calculation of the Borrowers' compliance with the covenants set forth in Section 7.2.4 in reasonable detail) certifying as to the accuracy of clause (B) above, (D) the aggregate consideration received in such sale is at least equal to the aggregate fair market value of the Capital Stock or assets sold, as determined by Holdco's board of directors in good faith, (E) (1) neither Holdco nor any Subsidiary of Holdco retains any obligation (contingent or otherwise) (x) with respect to the assets so sold or (y) for the Indebtedness or other liabilities (contingent or otherwise) of any Person purchasing such assets and (2) no property of Holdco or any Subsidiary of Holdco is subject, directly or indirectly, to the satisfaction therefor (other than, in each case, any such obligations or subjecting of property of Holdco or any Subsidiary of Holdco (x) pursuant to customary representations, warranties, covenants and indemnities made in connection with the sale of such assets and (y) arising by operation of law or pursuant to any statutory requirements). SECTION 7.2.10. Modification of Certain Agreements. The Borrowers will not, and will not permit any of their Subsidiaries to, consent to any amendment, supplement, amendment and restatement, waiver or other modification of any of the terms or provisions contained in, or applicable to, any of the Transaction Documents, the Tax Sharing Agreement, the Arby's Stock Option Plan, the Triarc Beverage Stock Option Plan or any document or instrument evidencing or applicable to any Subordinated Debt, in each case which would (a) materially adversely affect the rights or remedies of the Secured Parties, or materially increase the financial obligations of Holdco or any of its Subsidiaries thereunder, or any other Obligor's ability to perform its obligations hereunder or under any Loan Document, or (b) with respect to any Subordinated Debt, (i) increase the principal amount thereof, or increase the interest rate on, or add or increase any fee with respect thereto, (ii) reduce either the tenor or the average life thereof, (iii) change the respective primary obligor(s) thereto, (iv) change the security, if any, therefor (except to the extent that less security is granted to holders of such Subordinated Debt), (v) modify the subordination provisions, if any, thereof (including any defaults or conditions to an event of default relating thereto) in such a manner that, after giving effect to any such modification, such Subordinated Debt would not be subordinated to the same degree as it was prior to any such modifications, or (vi) modify any of the covenants, defaults, rights or remedies contained therein which would make such covenants, defaults, rights or remedies, taken as a whole, more burdensome to the obligor or obligors thereto. SECTION 7.2.11. Transactions with Affiliates. The Borrowers will not, and will not permit any of their Subsidiaries to, enter into, or cause, suffer or permit to exist any arrangement or contract with any of their Affiliates (other than any Borrower or any Subsidiary Guarantor) unless such arrangement or contract is fair and equitable to such Borrower or such Subsidiary and is an arrangement or contract of the kind which would be entered into by a prudent Person in the position of such Borrower or such Subsidiary with a Person which is not one of its Affiliates; provided, however, that (a) as to the first three Fiscal Quarters of any Fiscal Year, after delivery of the financial statements and Compliance Certificate for the end of any Fiscal Quarter pursuant to Section 7.1.1 and, as to the fourth Fiscal Quarter of any Fiscal Year, after delivery of a certificate of the chief financial Authorized Officer of Holdco certifying that no Default or Event of Default has occurred or is continuing or would result from the making of such payment, together with a draft of the Compliance Certificate to be delivered with respect to such Fiscal Quarter, the Borrowers may pay management fees to Triarc for management services rendered during such Fiscal Quarter in an amount, subject to the provisos below, not in excess of (i) $1,125,000 for the first Fiscal Quarter of the 1999 Fiscal Year and (ii) $2,625,000 for any Fiscal Quarter thereafter (provided that if the Arby's Securitization Residual Payment has been made, such management fees shall not exceed $1,675,000 for any such Fiscal Quarter thereafter); provided that to the extent the amount of management fees permitted to be paid in any Fiscal Quarter pursuant to this clause (a) exceeds the aggregate amount of management fees actually paid during such Fiscal Quarter, such excess amount may be carried forward to (but only to) the next succeeding Fiscal Quarter (any such amount carried forward to a succeeding Fiscal Quarter shall be deemed to be paid to Triarc prior to the Borrowers paying the amount of management fees permitted by this clause (a) in such succeeding Fiscal Quarter without giving effect to such carry-forward), in each case as such amounts may be increased, but not decreased, to account for increases in the Consumer Price Index; provided, further, that (x) no Default shall have occurred and be continuing on the date any such payment is made or would result from the making of any such payment, (y) after giving effect to any such payment the Borrowers would be in pro forma compliance with the covenants set forth in Section 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date of such payment, and (z) an Authorized Officer of each Borrower shall have delivered a certificate to the Agents in form and substance satisfactory to the Agents (including a calculation of the compliance with the covenants set forth in Section 7.2.4) certifying as to the accuracy of clauses (x) and (y) above; provided, further, that. with respect to any management fees paid for the fourth Fiscal Quarter of any Fiscal Year, if the Compliance Certificate delivered in respect of such Fiscal Quarter reflects any Default of any of the covenants set forth in Section 7.2.4 that were not reflected on the draft Compliance Certificate delivered in respect of such Fiscal Quarter, such management fees shall be refunded to the Borrowers; (b) the Borrowers and their Subsidiaries may make any payments or distributions permitted under Section 7.2.6 and in connection with the Tax Sharing Agreement; and (c) in any event, (i) the issuance of Capital Stock and options pursuant to the Arby's Stock Option Plan, (ii) the Transaction and (iii) the Arby's Securitization made on the terms set forth in this Agreement shall each be permitted. SECTION 7.2.12. Negative Pledges, Restrictive Agreements, etc. The Borrowers will not, and will not permit any of their Subsidiaries to, enter into any agreement (excluding this Agreement, any other Loan Document, the Indenture, any agreement governing any Indebtedness permitted by clause (c) of Section 7.2.2 as in effect on the Closing Date or by clause (g) of Section 7.2.2 as to the assets financed with the proceeds of such Indebtedness and any agreement in respect of any Assumed Restricted Debt permitted pursuant to clause (l) of Section 7.2.2) prohibiting (i) the creation or assumption of any Lien upon its properties, revenues or assets, whether now owned or hereafter acquired, or the ability of any Borrower or any other Obligor to amend or otherwise modify this Agreement or any other Loan Document, or (ii) the ability of any Subsidiary to make any payments, directly or indirectly, to any Borrower by way of dividends, advances, repayments of loans or advances, reimbursements of management and other intercompany charges, expenses and accruals or other returns on investments, or any other agreement or arrangement which restricts the ability of any such Subsidiary to make any payment, directly or indirectly, to any Borrower. SECTION 7.2.13. Sale and Leaseback. The Borrowers will not, and will not permit any of their Subsidiaries to, enter into any agreement or arrangement with any other Person providing for the leasing by any Borrower or any of its Subsidiaries of real or personal property having a fair market value of more than $7,500,000 in the aggregate at any time outstanding which has been or is to be sold or transferred by any Borrower or any of its Subsidiaries to such other Person or to any other Person to whom funds have been or are to be advanced by such Person on the security of such property or rental obligations of any Borrower or any of its Subsidiaries. ARTICLE VIII EVENTS OF DEFAULT SECTION 8.1. Listing of Events of Default. Each of the following events or occurrences described in this Section 8.1 shall constitute an "Event of De- fault". SECTION 8.1.1. Non-Payment of Obligations. (a) Any Borrower shall default in the payment or prepayment when due of any principal of any Loan, (b) any Borrower shall default (and such default shall continue unremedied for a period of five days) in the payment when due of any interest on any Loan, (c) any Borrower shall default in the payment when due of any Reimbursement Obligation, or (d) any Borrower shall default (and such default shall continue unremedied for a period of five days) in the payment when due of any fee or the payment of any other Obligation. SECTION 8.1.2. Breach of Warranty. Any representation or warranty of any Borrower or any other Obligor made or deemed to be made hereunder or in any other Loan Document executed by it or any other writing or certificate furnished by or on behalf of any Borrower or any other Obligor to the Agents or any Lender for the purposes of or in connection with this Agreement or any such other Loan Document (including any certificates delivered pursuant to Article V) is or shall be incorrect when made in any material respect. SECTION 8.1.3. Non-Performance of Certain Covenants and Obligations. Any Borrower shall default in the due performance and observance of any of its obligations under Sections 7.1.1, 7.1.9, 7.1.11, 7.1.12, 7.1.13 or 7.2. SECTION 8.1.4. Non-Performance of Other Covenants and Obligations. Any Borrower or any other Obligor shall default in the due performance and observance of any other agreement contained herein or in any other Loan Document executed by it, and such default shall continue unremedied for a period of 30 days after notice thereof shall have been given to any Borrower by the Administrative Agent or any Lender. SECTION 8.1.5. Default on Other Indebtedness. A default shall occur in the payment when due (subject to any applicable grace period), whether by acceleration or otherwise, of any Indebtedbess (other than Indebtedness described in Section 8.1.1) of any Borrower or any of its Subsidiaries or any other Obligor having a principal amount, individually or in the aggregate, in excess of $10,000,000, or a default shall occur in the performance or observance of any obligation or condition with respect to such Indebtedness if the effect of such default is to accelerate the maturity of any such Indebtedness or such default shall continue unremedied for any applicable period of time sufficient to permit the holder or holders of such Indebtedness, or any trustee or agent for such holders, to cause such Indebtedness to become due and payable prior to its expressed maturity. SECTION 8.1.6. Judgments. Any judgment or order for the payment of money in excess of $7,500,000 shall be rendered against any Borrower or any of its Subsidiaries or any other Obligor and either (i) enforcement proceedings shall have been commenced by any creditor upon such judgment or order, or (ii) there shall be any period of 30 consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect. SECTION 8.1.7. Pension Plans. Any of the following events shall occur with respect to any Pension Plan: (i) the institution of any steps by any Borrower, any member of its Controlled Group or any other Person to terminate a Pension Plan if, as a result of such termination, such Borrower or any such member could reasonably be expected to be required to make a contribution to such Pension Plan, or could reasonably expect to incur a liability or obligation to such Pension Plan, in excess of $7,500,000, or (ii) a contribution failure with respect to any Pension Plan sufficient to give rise to a Lien under Section 302(f) of ERISA. SECTION 8.1.8. Change in Control. Any Change in Control shall occur. SECTION 8.1.9. Bankruptcy, Insolvency, etc. Any Material Obligor shall (a) become insolvent or generally fail to pay, or admit in writing its inability or unwillingness to pay, debts as they become due; (b) apply for, consent to, or acquiesce in, the appointment of a trustee, receiver, sequestrator or other custodian for such Material Obligor any property of any thereof, or make a general assignment for the benefit of creditors; (c) in the absence of such application, consent or acquiescence, permit or suffer to exist the appointment of a trustee, receiver, sequestrator or other custodian for such Material Obligor or for a substantial part of the property of any thereof, and such trustee, receiver, sequestrator or other custodian shall not be discharged within 60 days, provided that each Material Obligor hereby expressly authorizes the Administrative Agent and each Lender to appear in any court conducting any relevant proceeding during such 60- day period to preserve, protect and defend their rights under the Loan Documents; (d) permit or suffer to exist the commencement of any bankruptcy, reorganization, debt arrangement or other case or proceeding under any bankruptcy or insolvency law, or any dissolution, winding up or liquidation proceeding, in respect of such Material Obligor, and, if any such case or proceeding is not commenced by such Material Obligor, such case or proceeding shall be consented to or acquiesced in by such Person or shall result in the entry of an order for relief or shall remain for 60 days undismissed, provided that each Material Obligor hereby expressly authorizes the Administrative Agent and each Lender to appear in any court conducting any such case or proceeding during such 60-day period to preserve, protect and defend their rights under the Loan Documents; or (e) take any action authorizing, or in furtherance of, any of the foregoing; provided, however, that for purposes of this Section 8.1.9 only, Material Obligor shall also include direct and indirect Subsidiaries of Holdco that are not otherwise Material Obligors which, in the aggregate, (a) accounted for 15% or more of the EBITDA of Holdco and its Subsidiaries on a consolidated basis or (b) have assets which represent 15% or more of the consolidated gross assets of Holdco and its Subsidiaries, in each case as determined in accordance with the definition of "Material Subsidiary". SECTION 8.1.10. Impairment of Security, etc. (a) Any Loan Document, or any Lien granted thereunder, shall (except in accordance with its terms), in whole or in part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of any Obligor party thereto; (b) any Borrower, any other Obligor or any other party shall, directly or indirectly, contest in any manner such effectiveness, validity, binding nature or enforceability; or (c) any Lien securing any Obligation shall, in whole or in part, cease to be a perfected first priority Lien, subject only to those exceptions expressly permitted by this Agreement or such Loan Document. SECTION 8.2. Action if Bankruptcy. If any Event of Default described in clauses (a) through (d) of Section 8.1.9 shall occur, the Commitments (if not theretofore terminated) shall automatically terminate and the outstanding principal amount of all outstanding Loans and all other Obligations shall automatically be and become immediately due and payable, without notice or demand. SECTION 8.3. Action if Other Event of Default. If any Event of Default (other than any Event of Default described in clauses (a) through (d) of Section 8.1.9) shall occur for any reason, whether voluntary or involuntary, and be continuing, the Administrative Agent, upon the direction of the Required Lenders, shall by notice to the Borrowers declare all or any portion of the outstanding principal amount of the Loans and other Obligations to be due and payable, require the Borrowers to provide cash collateral to be deposited with the Administrative Agent in an amount equal to the Letter of Credit Outstandings and/or declare the Commitments (if not theretofore terminated) to be terminated, whereupon the full unpaid amount of such Loans and other Obligations which shall be so declared due and payable shall be and become immediately due and payable, without further notice, demand or presentment, the Borrowers shall deposit with the Administrative Agent cash collateral in an amount equal to the Letter of Credit Outstandings and/or, as the case may be, the Commitments shall ter- minate. ARTICLE IX THE AGENTS SECTION 9.1. Actions. Each Lender hereby appoints DLJ as its Syndication Agent, Morgan Stanley as its Documentation Agent and BNY as its Administrative Agent under and for purposes of this Agreement and each other Loan Document. Each Lender authorizes the Agents to act on behalf of such Lender under this Agreement and each other Loan Document and, in the absence of other written instructions from the Required Lenders received from time to time by the Agents (with respect to which each of the Agents agrees that it will comply, except as otherwise provided in this Section or as otherwise advised by counsel), to exercise such powers hereunder and thereunder as are specifically delegated to or required of the Agents by the terms hereof and thereof, together with such powers as may be reasonably incidental thereto. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. No Agent nor any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by any other Agent or any Lender of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by any Lender, any other Agent or any Borrower of any of their respective obligations hereunder or under any other Loan Document or in connection herewith or therewith. Each Lender hereby indemnifies (which indemnity shall survive any termination of this Agreement) the Agents, pro rata according to such Lender's percentage of the Total Exposure Amount, from and against any and all liabilities, obligations, losses, damages, claims, costs or expenses of any kind or nature whatsoever which may at any time be imposed on, incurred by, or asserted against, any of the Agents in any way relating to or arising out of this Agreement and any other Loan Document, including reasonable attorneys' fees, and as to which any Agent is not reimbursed by the Borrowers; provided, however, that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, claims, costs or expenses to the extent determined by a court of competent jurisdiction in a final proceeding to have resulted solely from such Agent's gross negligence or wilful misconduct. The Agents shall not be required to take any action hereunder or under any other Loan Document, or to prosecute or defend any suit in respect of this Agreement or any other Loan Document, unless each Agent is indemnified hereunder to its satisfaction. If any indemnity in favor of any of the Agents shall be or become, in such Agent's determination, inadequate, such Agent may call for additional indemnification from the Lenders and cease to do the acts indemnified against hereunder until such additional indemnity is given. Each Agent may execute any and all duties hereunder by or through agents, attorneys-in-fact or employees and shall be entitled to rely upon the advice of legal counsel, accountants or experts selected by each of them in good faith and with reasonable care with respect to all matters arising hereunder. The Lenders and the Agents hereby acknowledge that no Agent shall be under any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. The Issuer shall act on behalf of the Secured Parties with respect to all Letters of Credit and the documents associated therewith until such time and except for so long as the Administrative Agent may agree at the request of the Lenders to act for the Issuer with respect thereto. SECTION 9.2. Funding Reliance, etc. Unless the Administrative Agent shall have been notified by telephone, confirmed in writing, by any Lender by 5:00 p.m., New York time, on the day prior to a Borrowing that such Lender will not make available the amount which would constitute its Percentage of such Borrowing on the date specified therefor, the Administrative Agent may assume that such Lender has made such amount available to the Administrative Agent and, in reliance upon such assumption, make available to the Borrowers a corresponding amount. If and to the extent that such Lender shall not have made such amount available to the Administrative Agent, such Lender and each Borrower severally agree to repay the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date the Administrative Agent made such amount available to the Borrowers to the date such amount is repaid to the Administrative Agent, (i) if from a Lender, at the Federal Funds Rate for the first three days and thereafter at the Alternate Base Rate, and (ii) if from the Borrowers, at the interest rate applicable at the time to Loans comprising such Borrowing. SECTION 9.3. Exculpation. Neither the Agents, the Arrangers nor any of their respective directors, officers, employees or agents shall be liable to any Lender for any action taken or omitted to be taken by it under this Agreement or any other Loan Document, or in connection herewith or therewith, except for its own wilful misconduct or gross negligence, nor responsible for any recitals or warranties herein or therein, nor for the effectiveness, enforceability, validity or due execution of this Agreement or any other Loan Document, nor for the creation, perfection or priority of any Liens purported to be created by any of the Loan Documents, or the validity, genuineness, enforceability, existence, value or sufficiency of any collateral security, nor to make any inquiry respecting the performance by the Borrowers or any Obligor of its obligations hereunder or under any other Loan Document. Any such inquiry which may be made by any Agent shall not obligate it to make any further inquiry or to take any action. The Issuer shall have all the benefits and immunities (i) provided to the Agents in this Article IX with respect to any acts taken or omissions suffered by the Issuer in connection with Letters of Credit issued or proposed to be issued by it and the Letter of Credit applications and related documents as fully as if the term "Agents", as used in this Article IX, included the Issuer with respect to such acts or omissions and (ii) as additionally provided in this Agreement with respect to the Issuer. The Agents shall be entitled to rely upon advice of counsel concerning legal matters and upon any notice, con- sent, certificate, statement or writing which each Agent believes to be genuine and to have been presented by a proper Person. SECTION 9.4. Successor. The Syndication Agent may resign as such upon one Business Day's notice to the Borrowers and the Administrative Agent. The Documentation Agent may resign as such upon one Business Day's notice to the Borrowers, the Syndication Agent and the Administrative Agent. The Administrative Agent may resign as such at any time upon at least 30 days' prior notice to the Borrowers, the Syndication Agent, the Documentation Agent and all Lenders. If the Administrative Agent at any time shall resign, the Required Lenders may, with the prior consent of the Borrowers (which consent shall not be unreasonably withheld or delayed), appoint another Lender as a successor Administrative Agent which shall thereupon become the Administrative Agent hereunder. If no successor Administrative Agent shall have been so appointed, and shall have accepted such appointment, within 30 days after the retiring Administrative Agent's giving notice of resignation, then the retiring Administrative Agent may, on behalf of the Secured Parties, appoint a successor Administrative Agent, which shall be one of the Lenders or a commercial banking institution organized under the laws of the U.S. (or any State thereof) or a U.S. branch or agency of a commercial banking institution, and having a combined capital and surplus of at least $500,000,000. Upon the acceptance of any appointment as Administrative Agent hereunder by a successor Administrative Agent, such successor Administrative Agent shall be entitled to receive from the retiring Administrative Agent such documents of transfer and assignment as such successor Administrative Agent may reasonably request, and shall thereupon succeed to and become vested with all rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations under this Agreement. After any retiring Agent's resignation hereunder as an Agent, the provisions of (a) this Article IX shall inure to its benefit as to any actions taken or omitted to be taken by it while it was an Agent under this Agreement; and (b) Section 10.3 and Section 10.4 shall continue to inure to its benefit. SECTION 9.5. Loans or Letters of Credit Issued by the Agents. Each Agent shall have the same rights and powers with respect to (x) the Loans made by it or any of its Affiliates, (y) the Notes held by it or any of its Affiliates, and (z) its participating interests in the Letters of Credit as any other Lender and may exercise the same as if it were not an Agent. Each Agent and each of their respective Affiliates may accept deposits from, lend money to, and generally engage in any kind of business with the Borrowers or any Subsidiary or Affiliate of the Borrowers as if such Agent were not an Agent hereunder. SECTION 9.6. Credit Decisions. Each Lender acknowledges that it has, independently of the Agents, the Arrangers and each other Lender, and based on such Lender's review of the financial information of Holdco and each of the Borrowers, this Agreement, the other Loan Documents (the terms and provisions of which being satisfactory to such Lender) and such other docu- ments, information and investigations as such Lender has deemed appropriate, made its own credit decision to extend its Commitments. Each Lender also acknowledges that it will, independently of the Agents, the Arrangers and each other Lender, and based on such other documents, information and investigations as it shall deem appropriate at any time, continue to make its own credit decisions as to exercising or not exercising from time to time any rights and privileges available to it under this Agreement or any other Loan Document. SECTION 9.7. Copies, etc. The Administrative Agent shall give prompt notice to each Lender of each notice or request required or permitted to be given to the Administrative Agent by the Borrowers pursuant to the terms of this Agreement (unless concurrently required to be delivered to the Lenders by the Borrowers). The Administrative Agent will distribute to each Lender each document or instrument received for its account and copies of all other communications received by the Administrative Agent from the Borrowers for distribution to the Lenders by the Administrative Agent in accordance with the terms of this Agreement. ARTICLE X MISCELLANEOUS PROVISIONS SECTION 10.1. Waivers, Amendments, etc. The provisions of this Agreement and of each other Loan Document may from time to time be amended, modified or waived, if such amendment, modification or waiver is in writing and consented to by the Borrowers and the Required Lenders; provided, however, that no such amendment, modification or waiver which would: (a) modify any requirement hereunder that any particular action be taken by all the Lenders or by the Required Lenders shall be effective unless consented to by each Lender; (b) modify this Section 10.1, change the definition of "Required Lenders", increase any Commitment Amount or the Percentage of any Lender, reduce any fees described in Article III other than in Section 3.3.2, release Holdco, Triarc Beverage or any Subsidiary Guarantor from its guaranty obligations under any Loan Document or release all or substantially all of the collateral security, except as otherwise specifically provided in this Agreement or in any other Loan Document (it being understood that no consent of any Lender shall be required in connection with the release of any Subsidiary Guarantor from its obligations under the Subsidiary Guaranty or any release of any collateral security, in each case, in connection with the Arby's Securitization, the Arby's Securitization Residual Payment and the Royal Crown Disposition), or extend the Revolving Loan Commitment Termination Date shall be made without the consent of each Lender adversely affected thereby; (c) extend the due date for, or reduce the amount of, any scheduled repayment or prepayment of principal of or interest on any Loan or any Reimbursement Obligation (or reduce the principal amount of or rate of interest on any Loan or any Reimbursement Obligation) shall be made without the consent of the holder of such Loan or, in the case of a Reimbursement Obligation, the Issuer owed, and those Lenders participating in, such Reimbursement Obligation; (d) affect adversely the interests, rights or obligations of the Issuer qua the Issuer shall be made without the consent of the Issuer; (e) affect adversely the interests, rights or obligations of any Agent or Arranger (in its capacity as such) shall be made without consent of such Agent or such Arranger, as the case may be; (f) (i) amend, modify or waive the provisions of clause (a)(i) of Section 3.1.1 or clause (b) of Section 3.1.2 or (ii) by its terms, adversely affect the rights of Lenders participating in any Tranche differently from those of Lenders participating in other Tranches, in either case shall be made without the consent of Lenders holding more than 50% of the aggregate amount of Loans outstanding under the Tranche or Tranches affected by such modification, or, in the case of a modification affecting the Revolving Loan Commitment Amount, the Lenders holding more than 50% of the Revolving Loan Commitments; (g) (i) change the definition of "Borrowing Base Amount", "Eligible Account", "Eligible Inventory" or "Net Asset Value", in each case if the effect of such change would be to require a Lender to make or participate in a Credit Extension in an amount that is greater than such Lender would have had to make or participate in immediately prior to such change, shall be made without the consent of Lenders holding more than 50% of the Revolving Loan Commitments; (ii) waive any Default that has occurred and is continuing shall be made without the consent of Lenders holding more than 50% of the Revolving Loan Commitments; (iii) amend, modify or waive any of the provisions of Section 7.2.4 in any manner shall be made without the consent of Lenders holding more than 50% of the Revolving Loan Commitments unless each of the following conditions is satisfied: (A) immediately prior to the effective date of such amendment, modification or waiver, no Default shall have occurred and be continuing and (B) the effect of any such amendment, modification or waiver does not by itself enable the Borrowers to satisfy the conditions precedent set forth in Section 5.2.1 to the making of a Revolving Loan or the issuance of a Letter of Credit either immediately or at any time within three months following the earlier of (x) three weeks from the date the request for such amendment, modification or waiver is delivered to the Administrative Agent and (y) the effective date of such amendment, modification or waiver; or (iv) amend, modify or waive any of the provisions of Section 7.2.4 to permit the Borrowers to take (or cause to be taken) any action (including, without limitation, any acquisition or disposition of any Person or any properties or assets) which is reasonably expected to result in the Borrowers' failure to comply with any provision of Section 7.2.4 (a "Contemplated Transaction") shall be made without the consent of Lenders holding more than 50% of the Revolving Loan Commitments unless each of the following conditions is satisfied: (A) immediately prior to the effective date of any such amendment, modification or waiver, no Default shall have occurred and be continuing and (B) the Contemplated Transaction is to be consummated after three months following the earlier of (x) three weeks from the date the request for such amendment, modification or waiver is delivered to the Administrative Agent and (y) the effective date of such amendment, modification or waiver. No failure or delay on the part of any Agent, the Issuer, any Lender or the holder of any Note in exercising any power or right under this Agreement or any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power or right preclude any other or further exercise thereof or the exercise of any other power or right. No notice to or demand on any Borrower in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by any Agent, the Issuer, any Lender or the holder of any Note under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. For purposes of this Section 10.1, the Syndication Agent, in coordination with the Administrative Agent, shall have primary responsibility, together with the Borrowers, in the negotiation, preparation, and documentation relating to any amendment, modification or waiver of this Agreement, any other Loan Document or any other agreement or document related hereto or thereto contemplated pursuant to this Section. SECTION 10.2. Notices. All notices and other communications provided to any party under this Agreement or any other Loan Document shall be in writing or by facsimile and addressed, delivered or transmitted to such party (a) in the case of any Lender, at its address or facsimile number set forth opposite its name on Schedule II hereto under the applicable column heading or as set forth in the Lender Assignment Agreement, (b) in the case of any Agent, at its address or facsimile number set forth below its signature hereto, and (c) in the case of Holdco, Triarc Beverage, any Borrower or any other Subsidiary of Holdco, to such Person in care of Triarc Companies, Inc., 280 Park Avenue -- 41st Floor, New York, NY 10017, Attention: General Counsel, Facsimile: (212) 451-3216, or, in any case, at such address or facsimile number as may be designated by such party in a notice to the other parties. Any notice, if mailed and properly addressed with postage prepaid or if properly addressed and sent by pre-paid courier service, shall be deemed given when received; any notice, if transmit- ted by facsimile, shall be deemed given when transmitted (receipt acknowledged). SECTION 10.3. Payment of Costs and Expenses. The Borrowers hereby jointly and severally agree to pay on demand all expenses of each of the Agents (includ- ing the reasonable fees and out-of-pocket expenses of counsel to the Agents) in connection with (a) the syndication by the Syndication Agent, the Arrangers of the Loans, the negotiation, preparation, execution and delivery of this Agreement and of each other Loan Document, including schedules and exhibits, and any amendments, waivers, consents, supplements or other modifications to this Agreement or any other Loan Document as may from time to time hereafter be required, whether or not the transactions contemplated hereby are consummated; (b) the filing, recording, refiling or rerecording of each Mortgage, each Pledge Agreement and each Security Agreement and/or any UCC financing statements relating thereto and all amendments, supplements and modifications to any thereof and any and all other documents or instruments of further assurance required to be filed or recorded or refiled or rerecorded by the terms hereof or of any Mortgage, Pledge Agreement or Security Agreement; and (c) the preparation and review of the form of any document or instrument relevant to this Agreement or any other Loan Document. The Borrowers further jointly and severally agree to pay, and to save the Agents and the Lenders harmless from all liability for, any stamp or other taxes which may be payable in connection with the execution or delivery of this Agreement, the Borrowings hereunder, the issuance of the Notes, the issuance of the Letters of Credit, or any other Loan Documents. The Borrowers jointly and severally agree to reimburse each Agent and each Lender upon demand for all reasonable out-of-pocket expenses (including reasonable attorneys' fees and legal expenses) incurred by such Agent or such Lender in connection with (x) the negotiation of any restructuring or "work-out", whether or not consummated, of any Obligations and (y) the enforcement of any Obligations. SECTION 10.4. Indemnification. In consideration of the execution and delivery of this Agreement by each Lender and the extension of the Commitments, the Borrowers hereby jointly and severally indemnify, exonerate and hold each Agent, the Arrangers, the Issuer and each Lender and each of their respective partners, trustees, officers, directors, employees and agents (collectively, the "Indemnified Parties") free and harmless from and against any and all actions, causes of action, suits, losses, costs, liabilities and damages, and expenses incurred in connection therewith (irrespective of whether any such Indemnified Party is a party to the action for which indemnification hereunder is sought), including reasonable attorneys' fees and disbursements (collectively, the "Indemnified Liabilities"), incurred by the Indemnified Parties or any of them as a result of, or arising out of, or relating to (a) any transaction financed or to be financed in whole or in part, directly or indirectly, with the proceeds of any Loan or the use of any Letter of Credit; (b) the entering into and performance of this Agreement and any other Loan Document by any of the Indemnified Parties (including any action brought by or on behalf of any Borrower as the result of any determination by the Required Lenders pursuant to Article V not to make any Credit Extension); (c) any investigation, litigation or proceeding related to any acquisition or proposed acquisition by any Borrower or any of its Subsidiaries of all or any portion of the stock or assets of any Person, whether or not such Agent, such Arranger, the Issuer or such Lender is party thereto; (d) any investigation, litigation or proceeding related to any environmental cleanup, audit, compliance or other matter relating to the protection of the environment or the Release by any Borrower or any of its Subsidiaries of any Hazardous Material; or (e) the presence on or under, or the escape, seepage, leakage, spillage, discharge, emission, discharging or releases from, any real property owned or operated by any Borrower or any Subsidiary thereof of any Hazardous Material (including any losses, liabilities, damages, injuries, costs, expenses or claims asserted or arising under any Environmental Law), regardless of whether caused by, or within the control of, such Borrower or such Subsidiary, except for any such Indemnified Liabilities arising for the account of a particular Indemnified Party by reason of the relevant Indemnified Party's gross negligence or wilful misconduct. Each Obligor and its permitted successors and assigns hereby waive, release and agree not to make any claim, or bring any cost recovery action against, any Agent, any Arranger or any Lender under CERCLA or any state equivalent, or any similar law now existing or hereafter enacted, except to the extent arising out of the gross negligence or wilful misconduct of any Indemnified Party. It is expressly understood and agreed that to the extent that any of such Persons is strictly liable under any Environmental Laws, such Obligor's obligation to such Person under this indemnity shall likewise be without regard to fault on the part of such Obligor, to the extent permitted under applicable law, with respect to the violation or condition which results in liability of such Person. If and to the extent that the foregoing undertaking may be unenforceable for any reason, such Obligor hereby agrees to make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities which is permissible under applicable law. SECTION 10.5. Survival. The obligations of the Borrowers under Sections 4.3, 4.4, 4.5, 4.6, 10.3 and 10.4, and the obligations of the Lenders under Section 4.6, Section 4.8, Section 9.1 and Section 10.12, shall in each case survive any termination of this Agreement, the payment in full of all Obligations and the termination of all Commitments. The representations and warranties made by each Borrower and each other Obligor in this Agreement and in each other Loan Document shall survive the execution and delivery of this Agreement and each such other Loan Document. SECTION 10.6. Severability. Any provision of this Agreement or any other Loan Document which is prohibited or unenforceable in any jurisdiction shall, as to such provision and such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions of this Agreement or such Loan Document or affecting the validity or enforceability of such provision in any other jurisdiction. SECTION 10.7. Headings. The various headings of this Agreement and of each other Loan Document are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement or such other Loan Document or any provisions hereof or thereof. SECTION 10.8. Execution in Counterparts, Effectiveness, etc. This Agreement may be executed by the parties hereto in several counterparts, each of which shall be deemed to be an original and all of which shall constitute together but one and the same agreement. This Agreement shall become effective when counterparts hereof executed on behalf of the Borrowers and each Lender (or notice thereof satisfactory to the Agents) shall have been received by the Syndication Agent and notice thereof shall have been given by the Administrative Agent to the Borrowers and each Lender. SECTION 10.9. Governing Law; Entire Agreement. THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT SHALL EACH BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK. This Agreement and the other Loan Documents constitute the entire understanding among the parties hereto with respect to the subject matter hereof and supersede any prior agreements, written or oral, with respect thereto. SECTION 10.10. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns; provided, however, that: (a) no Borrower may assign or transfer its rights or obligations hereunder without the prior written consent of the Agents and all Lenders, except as otherwise specifically provided in this Agreement or in any other Loan Document; and (b) the rights of sale, assignment and transfer of the Lenders are subject to Section 10.11. SECTION 10.11. Sale and Transfer of Loans and Notes; Participation in Loans and Notes. Each Lender may assign, or sell participation in, its Loans and Commitments to one or more other Persons in accordance with this Section 10.11. SECTION 10.11.1. Assignments. Any Lender, (a) with the prior written consents of the Borrowers, the Agents and (in the case of any assignment of participations in Letters of Credit or Revolving Loan Commitments) each Issuer (which consents shall not be unreasonably delayed or withheld and which consents of the Agents and each Issuer shall not be required in the case of assignments made by or to DLJ, Morgan Stanley, the Administrative Agent or any of their Affiliates and which consent of the Borrowers shall not be required if an Event of Default under Section 8.1.1 or Section 8.1.9 shall have occurred and be continuing) may at any time assign and delegate to one or more commercial banks, other financial institutions, or funds which are primarily engaged in making, purchasing or investing in loans of the type made pursuant to this Agreement, and (b) with notice to the Borrowers, the Agents and (in the case of any assignment of participations in Letters of Credit or Revolving Loan Commitments) each Issuer, but without the consent of the Borrowers, the Agents or any Issuer, may assign and delegate to any of its Affiliates or to any other Lender or to any Person whose investment manager or investment advisor is the investment manager or investment advisor of such Lender (a "Related Fund") (each Person described in either of the foregoing clauses as being the Person to whom such assignment and delegation is to be made, being hereinafter referred to as an "Assignee Lender"), all or any fraction of such Lender's total Loans, participations in Letters of Credit and Letter of Credit Outstandings with respect thereto and Commitments (which assignment and delegation shall be, as among Revolving Loan Commitments, Revolving Loans and participations in Letters of Credit, of a constant, and not a varying, percentage), in a minimum aggregate amount of (i) $1,000,000 (if such assignment and delegation is to a then existing Lender or Affiliate or Related Fund of any Lender) and (ii) $2,000,000 (if such assignment and delegation is to a Person not then a Lender or Affiliate or Related Fund of any Lender) or the then remaining amount of a Lender's Loans and Commitments; provided, however, that any such Assignee Lender will comply, if applicable, with the provisions contained in Section 4.6; provided, further, however, that concurrent assignments to a Person and one or more of its Affiliates or Related Funds shall be treated as one assignment for purposes of the minimum aggregate amount set forth in clause (ii) above; and provided, further, however, that the Borrowers, each other Obligor and the Agents shall be entitled to continue to deal solely and directly with such Lender in connection with the interests so assigned and delegated to an Assignee Lender until (i) written notice of such assignment and delegation, together with payment instructions, addresses and related information with respect to such Assignee Lender, shall have been given to the Borrowers and the Agents by such Lender and such Assignee Lender, (ii) such Assignee Lender shall have executed and delivered to the Borrowers and the Agents a Lender Assignment Agreement, accepted by the Agents (if required), (iii) the processing fees described below shall have been paid (if required), and (iv) such assignment and delegation shall have been delivered to the Administrative Agent for registration in the Register pursuant to clause (b) of Section 2.7. From and after the date that the Agents accept such Lender Assignment Agreement and such assignment and delegation is registered in the Register pursuant to clause (b) of Section 2.7, (x) the Assignee Lender thereunder shall be deemed automatically to have become a party hereto and to the extent that rights and obligations hereunder have been assigned and delegated to such Assignee Lender in connection with such Lender Assignment Agreement, shall have the rights and obligations of a Lender hereunder and under the other Loan Documents, and (y) the assignor Lender, to the extent that rights and obligations hereunder have been assigned and delegated by it in connection with such Lender Assignment Agreement, shall be released from its obligations hereunder and under the other Loan Documents. Any assignor Lender that shall have previously requested and received any Note or Notes to which such assignment applies shall, upon accep- tance by the Administrative Agent of the applicable Lender Assignment Agreement, mark such predecessor Note or Notes "exchanged" and deliver them to the Borrow- ers (against, if the assignor Lender has retained Loans or Commitments and has requested replacement Notes pursuant to clause (b)(ii) of Section 2.7, its re- ceipt of replacement Notes in the principal amount of the Loans and Commitments retained by it). The Borrowers shall execute and deliver to the Administrative Agent (for delivery to the relevant Assignee Lender) new Notes evidencing such Assignee Lender's assigned Loans and Commitments and, if the assignor Lender has retained Loans and Commitments hereunder, replacement Notes in the principal amount of the Loans and Commitments retained by the assignor Lender hereunder (such Notes to be in exchange for, but not in payment of, those Notes then held by such assignor Lender). Each such Note shall be dated the date of the prede- cessor Notes. Accrued interest on that part of the predecessor Notes evidenced by the new Notes, and accrued fees, shall be paid as provided in the Lender Assignment Agreement. Accrued interest on that part of the predecessor Notes evidenced by the replacement Notes shall be paid to the assignor Lender. Ac- crued interest and accrued fees shall be paid at the same time or times provided provided in the predecessor Notes and in this Agreement. Such assignor Lender or such Assignee Lender must also pay a processing fee to the Administrative Agent upon delivery of any Lender Assignment Agreement in the amount of $3,500, unless such assignment and delegation by such assignor Lender is to its Affiliate or Related Fund or if such assignment and delegation consists of a pledge by such assignor Lender to a Federal Reserve Bank (or, in the case of an assignor Lender who is an investment fund, to the trustee under the indenture to which such fund is a party), as provided below or as otherwise consented to by the Administra- tive Agent. Any attempted assignment and delegation not made in accordance with this Section 10.11.1 shall be null and void. Nothing contained in this Section 10.11.1 shall prevent or prohibit any Lender from pledging its rights (but not its obligations to make Loans) under this Agreement and/or its Loans and/or its Notes hereunder (i) to a Federal Reserve Bank in support of borrow- ings made by such Lender from such Federal Reserve Bank or (ii) in the case of a Lender that is an investment fund, to the trustee under the indenture to which such fund is a party in support of its obligations to such trustee, in either case without notice to or consent of the Borrowers or the Agents; provided, how- ever, that (A) such Lender shall remain a "Lender" under this Agreement and shall continue to be bound by the terms and conditions set forth in this Agree- ment and the other Loan Documents, and (B) any assignment by such trustee shall be subject to the provisions of clause (a) of this Section 10.11.1. In the event that S&P, Moody's or Thompson's BankWatch (or InsuranceWatch Ratings Service, in the case of Lenders that are insurance companies (or Best's Insurance Watch Ratings Service)) shall, after the date that any Lender with a Com- mitment to make Revolving Loans or participate in Letters of Credit becomes a Lender, downgrade the long-term certificate of deposit rating or long-term senior unsecured debt rating of such Lender, and the resulting rating shall be below BBB-, Baa3 or C (or BB, in the case of Lender that is an insurance company (or B, in the case of an insurance company not rated by InsuranceWatch Ratings Service)), then the Issuer shall have the right, but not the obligation, upon notice to such Lender and the Administrative Agent, to replace such Lender with an Assignee Lender in accordance with and subject to the restrictions contained in this Section, and such Lender hereby agrees to transfer and assign without recourse (in accordance with and subject to the restrictions contained in this Section) all its interests, rights and obligations in respect of its Revolving Loan Commitment under this Agreement to such Assignee Lender; pro- vided, however, that (i) no such assignment shall conflict with any law, rule and regulation or order of any governmental authority and (ii) such Assignee Lender shall pay to such Lender in immediately available funds on the date of such assignment the principal of and interest and fees (if any) accrued to the date of payment on the Loans made, and Letters of Credit participated in, by such Lender hereunder and all other amounts accrued for such Lender's account or owed to it hereunder. SECTION 10.11.2. Participations. Any Lender may at any time sell to one or more commercial banks, other financial institutions or funds which are primarily engaged in making, purchasing or investing in loans of the type made pursuant to this Agreement (each of such commercial banks, financial institutions or funds being herein called a "Participant") participating interests (or a sub-participating interest, in the case of a Lender's participating interest in a Letter of Credit) in any of the Loans, Commitments, or other interests of such Lender hereunder; provided, however, that (a) no participation or sub-participation contemplated in this Section 10.11.2 shall relieve such Lender from its Commitments or its other obligations hereunder or under any other Loan Document, (b) such Lender shall remain solely responsible for the performance of its Commitments and such other obligations, (c) the Borrowers and each other Obligor and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and each of the other Loan Documents, (d) no Participant, unless such Participant is an Affiliate or Related Fund of such Lender, or is itself a Lender, shall be entitled to require such Lender to take or refrain from taking any action hereunder or under any other Loan Document, except that such Lender may agree with any Participant that such Lender will not, without such Participant's consent, agree to (i) any reduction in the interest rate or in the amount of fees that such Participant is otherwise entitled to, (ii) a decrease in the principal amount, or an extension of the Stated Maturity Date, of any Loan in which such Participant has purchased a participating interest or (iii) release all or substantially all of the collateral security under the Loan Documents or any Guarantor from its obligations under its Guaranty, in each case except as otherwise specifically provided in a Loan Document, and (e) no Borrower shall be required to pay any amount under Sections 4.3, 4.4, 4.5, 4.6, 10.3 and 10.4 that is greater than the amount which it would have been required to pay had no participating interest been sold. The Borrowers acknowledge and agree, subject to clause (e) above, that each Participant, for purposes of Sections 4.3, 4.4, 4.5, 4.6, 4.8, 4.9, 10.3, 10.4 and 10.12, shall be considered a Lender. SECTION 10.12. Confidentiality. The Lenders shall hold all non-public information obtained pursuant to the requirements of this Agreement in accordance with their customary procedures for handling confidential information of this nature and in accordance with safe and sound banking or investment practices (as applicable) and in any event may make disclosure to any of their examiners, Affiliates, outside auditors, counsel and other professional advisors in connection with this Agreement or as reasonably required by any bona fide transferee, participant or assignee or to any direct or indirect contractual counterparties in swap agreements or such contractual counterparties' professional advisors provided that such transferee, participant, assignee, contractual counterparty or professional advisor to such contractual counterparty agrees in writing to keep such information confidential to the same extent required of the Lenders hereunder, or as required or requested by any governmental agency, bank regulator or insurance company regulator or representative thereof or pursuant to legal process; provided, however, that (a) unless specifically prohibited by applicable law or court order, each Lender shall notify the Borrowers of any request by any governmental agency or representative thereof (other than any such request in connection with an examination of such Lender by such governmental agency) for disclosure of any such non-public information prior to disclosure of such information; (b) prior to any such disclosure pursuant to this Section 10.12, each Lender shall require any such bona fide transferee, participant and assignee receiving a disclosure of non-public information to agree in writing (i) to be bound by this Section 10.12; and (ii) to require such Person to require any other Person to whom such Person discloses such non-public information to be similarly bound by this Section 10.12; and (c) except as may be required by an order of a court of competent jurisdiction and to the extent set forth therein, no Lender shall be obligated or required to return any materials furnished by the Borrowers or any Subsidiary. SECTION 10.13. Other Transactions. Nothing contained herein shall preclude the Agents, the Arrangers or any other Lender from engaging in any transaction, in addition to those contemplated by this Agreement or any other Loan Document, with any Borrower or any of its Affiliates in which such Borrower or such Affiliate is not restricted hereby from engaging with any other Person. SECTION 10.14. Forum Selection and Consent to Jurisdiction. ANY LITIGA- TION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREE- MENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE AGENTS, THE ISSUER, THE ARRANGERS, THE LENDERS OR THE BORROWERS SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES DIS- TRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE ADMINISTRATIVE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. THE BORROWERS HEREBY EX- PRESSLY AND IRREVOCABLY SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND IR- REVOCABLY AGREE TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION. THE BORROWERS FURTHER IRREVOCABLY CONSENT TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK AND EXPRESSLY AND IRREVOCABLY APPOINT TRIARC AS THEIR AGENT FOR SERVICE OF PROCESS FOR PURPOSES OF ANY ACTION AS TO WHICH THEY HAVE SUBMITTED TO JURISDICTION AS SET FORTH IN THIS SECTION 10.14, AND AGREE THAT SERVICE UPON SUCH AUTHORIZED AGENT SHALL BE DEEMED IN EVERY RESPECT SERVICE OF PROCESS UPON THE BORROWERS OR THEIR SUCCESSORS AND ASSIGNS, AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, SHALL BE TAKEN AND HELD TO BE VALID PERSONAL SERVICE UPON THEM. THE BORROWERS HEREBY EXPRESSLY AND IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT ANY BORROWER HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, SUCH BORROWER HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS. SECTION 10.15. Waiver of Jury Trial. THE AGENTS, THE ISSUER, THE ARRANGERS, THE LENDERS AND THE BORROWERS HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE AGENTS, THE ISSUER, THE ARRANGERS, THE LENDERS OR THE BORROWERS. THE BORROWERS ACKNOWLEDGE AND AGREE THAT THEY HAVE RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH ANY BORROWER IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENTS, THE ISSUER, THE ARRANGERS AND THE LENDERS ENTERING INTO THIS AGREEMENT AND EACH SUCH OTHER LOAN DOCUMENT. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized as of the day and year first above written. MISTIC BRANDS, INC. By: BRIAN L. SCHORR Title: Executive Vice President SNAPPLE BEVERAGE CORP. By: BRIAN L. SCHORR Title: Executive Vice President CABLE CAR BEVERAGE CORPORATION By: STUART I. ROSEN Title: Vice President and Secretary RC/ARBY'S CORPORATION By: CURTIS S. GIMSON Title: Senior Vice President and Secretary ROYAL CROWN COMPANY, INC. By: STUART I. ROSEN Title: Vice President and Secretary DLJ CAPITAL FUNDING, INC., as Syndication Agent and as a Lender By: HAROLD PHILIPPS Title: Managing Director Address: 277 Park Avenue New York, NY 10172 Facsimile No.: 212-892-7542 Attention: Harold Philipps MORGAN STANLEY SENIOR FUNDING, INC., as Documentation Agent and as a Lender By: MICHAEL HART Title: Principal Address: 1585 Broadway New York, NY 10036 Facsimile No.: 212-761-0260 Attention: Michael Hart THE BANK OF NEW YORK, as Administrative Agent, as Issuer and as a Lender By: JAMES J. DUCEY Title: Vice President Address: One Wall Street New York, NY 10286 Facsimile No.: 212-635-1480 Attention: James Ducey List of Omitted Schedules and Exhibits SCHEDULE I - Disclosure Schedule SCHEDULE II - Percentages and Administrative Information EXHIBIT A-1 - Form of Revolving Note EXHIBIT A-2 - Form of Swing Line Note EXHIBIT B-1 - Form of Term A Note EXHIBIT B-2 - Form of Term B Note EXHIBIT B-3 - Form of Term C Note EXHIBIT C - Form of Borrowing Request EXHIBIT D - Form of Issuance Request EXHIBIT E - Form of Borrowing Base Certificate EXHIBIT F - Form of Continuation/Conversion Notice EXHIBIT G - Form of Closing Date Certificate EXHIBIT H - Form of Compliance Certificate EXHIBIT I - Form of Subsidiary Guaranty EXHIBIT J-1 - Form of Holdco/Triarc Beverage Guaranty and Pledge Agreement EXHIBIT J-2 - Form of Borrower Pledge Agreement EXHIBIT J-3 - Form of Subsidiary Pledge Agreement EXHIBIT K-1 - Form of Borrower Security Agreement EXHIBIT K-2 - Form of Subsidiary Security Agreement EXHIBIT L - Form of Lender Assignment Agreement EXHIBIT M - Form of Solvency Certificate The Registrant hereby agrees to furnish supplementally a copy of any omitted schedule or exhibit to the Securities and Exchange Commission upon its request. EX-4.2 3 INDENTURE 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 -------------- INDENTURE DATED AS OF FEBRUARY 25, 1999 -------------- 10-1/4% SENIOR SUBORDINATED NOTES DUE 2009 TABLE OF CONTENTS ------------------ PAGE ---- 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. EX-4.3 4 REGISTRATION RIGHTS AGMT Exhibit 4.3 - ------------------------------------------------------------------------------- REGISTRATION RIGHTS AGREEMENT Dated February 18, 1999 among TRIARC CONSUMER PRODUCTS GROUP, LLC TRIARC BEVERAGE HOLDINGS CORP., the GUARANTORS party hereto and MORGAN STANLEY & CO. INCORPORATED DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION WASSERSTEIN PERELLA SECURITIES, INC. - ------------------------------------------------------------------------------- REGISTRATION RIGHTS AGREEMENT THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered into February 18, 1999, among TRIARC CONSUMER PRODUCTS GROUP LLC, a Delaware limited liability company ("Triarc"), TRIARC BEVERAGE HOLDINGS CORP., a Delaware corporation (the "Co-Issuer" and, together with Triarc, the "Issuers"), each of the GUARANTORS party hereto (the "Guarantors") and MORGAN STANLEY & CO. INCORPORATED, DONALDSON LUFKIN & JENRETTE SECURITIES CORPORATION and WASSERSTEIN PERELLA SECURITIES, INC. (the "Placement Agents"). This Agreement is made pursuant to the Placement Agreement dated February 18, 1999, among the Issuers, the Guarantors party thereto and the Placement Agents (the "Placement Agreement"), which provides for the sale by the Issuers to the Placement Agents of an aggregate of $300,000,000 principal amount of 10 1/4% Senior Subordinated Notes Due 2009 (the "Notes"). The Issuers are jointly and severally liable for all payments on the Notes. The Notes will be unconditionally and irrevocably guaranteed on a senior subordinated basis (the "Guarantees") as to payment of principal, premium, if any, and interest by the Guarantors; provided that (i) the amount guaranteed by RC/Arby's Corporation and each of its direct and indirect subsidiaries will be equal to zero until the date of redemption (the "Redemption Date") of RC/Arby's Corporation's existing 9 3/4% senior secured notes due 2000 and (ii) the obligations of RC/Arby's Corporation and its direct and indirect subsidiaries under this Agreement shall not become operative until the Redemption Date. In order to induce the Placement Agents to enter into the Placement Agreement, the Issuers and the Guarantors have agreed to provide to the Placement Agents and their direct and indirect transferees the registration rights set forth in this Agreement. The execution of this Agreement by the Issuers and the Guarantors is a condition to the closing under the Placement Agreement. In consideration of the foregoing, the parties hereto agree as follows: 1. Definitions. As used in this Agreement, the following capitalized defined terms shall have the following meanings: "1933 Act" shall mean the Securities Act of 1933, as amended from time to time. "1934 Act" shall mean the Securities Exchange Act of 1934, as amended from time to time. "Blockage Notice" shall have the meaning set forth in Section 3 hereof. "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. "Closing Date" shall mean the Closing Date as defined in the Placement Agreement. "Co-Issuer" shall have the meaning set forth in the preamble. "Exchange Notes" shall mean any securities (including the related guarantees) of the Issuers issued under the Indenture containing terms identical to the Notes (except that (i) interest thereon shall accrue from the last date on which interest was paid on the Notes or, if no such interest has been paid, from February 25, 1999, (ii) the Exchange Notes will not provide for additional interest accruing thereon following a failure to register such Exchange Notes under the 1933 Act and (iii) the Exchange Notes will not contain restrictions on transfer) and to be offered to Holders of Notes in exchange for Notes pursuant to the Exchange Offer. "Exchange Offer" shall mean the exchange offer by the Issuers and the Guarantors of Exchange Notes for Registrable Notes pursuant to Section 2(a) hereof. "Exchange Offer Registration" shall mean a registration under the 1933 Act effected pursuant to Section 2(a) hereof. "Exchange Offer Registration Statement" shall mean an exchange offer registration statement on Form S-4 (or, if applicable, on another appropriate form) and all amendments and supplements to such registration statement, in each case including the Prospectus contained therein, all exhibits thereto and all material incorporated by reference therein. "Guarantors" shall mean the Guarantors listed on the signature pages hereof, and shall also include any successor to a Guarantor. "Holder" shall mean the Placement Agents, for so long as they own any Registrable Notes, and each of their successors, assigns and direct and indirect transferees who become registered owners of Registrable Notes under the Indenture; provided that for purposes of Sections 4 and 5 of this Agreement, the term "Holder" shall include Participating Broker-Dealers (as defined in Section 4(a) hereof). "Indenture" shall mean the Indenture relating to the Notes dated as of February 25, 1999 among the Issuers, the Guarantors and The Bank of New York, as trustee, and as the same may be amended from time to time in accordance with the terms thereof. "Issuers" shall have the meaning set forth in the preamble and shall also include any successor to an Issuer. "Majority Holders" shall mean the Holders of a majority of the aggregate principal amount of outstanding Registrable Notes; provided that whenever the consent or approval of Holders of a specified percentage of Registrable Notes is required hereunder, Registrable Notes held by the Issuers, the Guarantors or any of their affiliates (as such term is defined in Rule 405 under the 1933 Act) shall not be counted in determining whether such consent or approval was given by the Holders of such required percentage or amount. "Participating Broker-Dealer" shall have the meaning set forth in Section 4(a). "Person" shall mean an individual, partnership, limited liability company, corporation, trust or unincorporated organization, or a government or agency or political subdivision thereof. "Placement Agents" shall have the meaning set forth in the preamble. "Placement Agreement" shall have the meaning set forth in the preamble. "Prospectus" shall mean the prospectus included in a Registration Statement, including any preliminary prospectus, and any such prospectus as amended or supplemented by any prospectus supplement, including a prospectus supplement with respect to the terms of the offering of any portion of the Registrable Notes covered by a Shelf Registration Statement, and by all other amendments and supplements to such prospectus, including post-effective amendments, and in each case including all material incorporated by reference therein. "Registrable Notes" shall mean the Notes (including the Guarantees); provided, however, that the Notes shall cease to be Registrable Notes upon the earliest of (i) when a Registration Statement with respect to such Notes shall have been declared effective under the 1933 Act and such Notes shall have been disposed of pursuant to such Registration Statement, (ii) when such Notes are eligible for sale to the public pursuant to Rule 144(k) (or any similar provision then in force, but not Rule 144A) under the 1933 Act, (iii) when such Notes shall have ceased to be outstanding or (iv) such Notes have been exchanged (other than by a Participating Broker-Dealer) for Exchange Notes upon consummation of the Exchange Offer. "Registration Expenses" shall mean any and all expenses incident to performance of or compliance by the Issuers and the Guarantors with this Agreement, including without limitation: (i) all SEC, stock exchange or National Association of Securities Dealers, Inc. registration and filing fees, (ii) all fees and expenses incurred in connection with compliance with state securities or blue sky laws (including reasonable fees and disbursements of counsel for any underwriters or Holders in connection with blue sky qualification of any of the Exchange Notes or Registrable Notes), (iii) all expenses of any Persons in preparing or assisting in preparing, word processing, printing and distributing any Registration Statement, any Prospectus, any amendments or supplements thereto, any underwriting agreements, securities sales agreements and other documents relating to the performance of and compliance with this Agreement, (iv) all rating agency fees, (v) all fees and disbursements relating to the qualification of the Indenture under applicable securities laws, (vi) the fees and disbursements of the Trustee and its counsel, (vii) the fees and disbursements of counsel for the Issuers and the Guarantors and, in the case of a Shelf Registration Statement, the reasonable fees and disbursements of one counsel for the Holders (which counsel shall be selected by the Majority Holders and which counsel may also be counsel for the Placement Agents) and (viii) the fees and disbursements of the independent public accountants of the Issuers and the Guarantors, including the expenses of any special audits or "cold comfort" letters required by or incident to such performance and compliance, but excluding fees and expenses of counsel to the underwriters (other than fees and expenses set forth in clause (ii) above) or the Holders (other than fees and expenses set forth in clause (vii) above) and underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of Registrable Notes by a Holder. "Registration Statement" shall mean any registration statement of the Issuers and the Guarantors that covers any of the Exchange Notes or Registrable Notes pursuant to the provisions of this Agreement and all amendments and supplements to any such Registration Statement, including post-effective amendments, in each case including the Prospectus contained therein, all exhibits thereto and all material incorporated by reference therein. "SEC" shall mean the Securities and Exchange Commission. "Shelf Registration" shall mean a registration effected pursuant to Section 2(b) hereof. "Shelf Registration Statement" shall mean a "shelf" registration statement of the Issuers and the Guarantors pursuant to the provisions of Section 2(b) of this Agreement which covers all of the Registrable Notes on an appropriate form under Rule 415 under the 1933 Act, or any similar rule that may be adopted by the SEC, and all amendments and supplements to such registration statement, including post-effective amendments, in each case including the Prospectus contained therein, all exhibits thereto and all material incorporated by reference therein. "Triarc" shall have the meaning set forth in the preamble. "Trustee" shall mean the trustee with respect to the Notes under the Indenture. "Underwriter" shall have the meaning set forth in Section 3 hereof. "Underwritten Registration" or "Underwritten Offering" shall mean a registration in which Registrable Notes are sold to an Underwriter for reoffering to the public. 2. Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuers and the Guarantors shall use their best efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Issuers and the Guarantors to the Holders to exchange all of the Registrable Notes for Exchange Notes and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Issuers and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC. The Issuers and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law: (i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Notes validly tendered will be accepted for exchange; (ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is mailed) (the "Exchange Dates"); (iii) that any Registrable Note not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement; (iv) that Holders electing to have a Registrable Note exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Note, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Man- hattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date; and (v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Man- hattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Notes delivered for exchange and a statement that such Holder is withdrawing his election to have such Notes exchanged. As soon as practicable after the last Exchange Date, the Issuers and the Guarantors shall: (i) accept for exchange Registrable Notes or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and (ii) deliver, or cause to be delivered, to the Trustee for cancel- lation all Registrable Notes or portions thereof so accepted for ex- change by the Issuers and the Guarantors and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Note equal in principal amount to the principal amount of the Registrable Notes surrendered by such Holder. Each of the Issuers and the Guarantors shall use its best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than (i) that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC and (ii) the tendering of Registrable Notes in accordance with the Exchange Offer and (iii) that there is no injunction, order or decree by any court or any governmental agency that would prohibit, prevent or otherwise materially impair the ability of the Issuers or the Guarantors to proceed with the Exchange Offer. Each Holder of Registrable Notes (other than Participating Broker- Dealers) who wishes to exchange such Registrable Notes for Exchange Notes in the Exchange Offer (a) shall have represented (or by tendering its Regis- trable Notes, be deemed to have represented) that (i) it is not an affiliate (as defined in Rule 405 under the 1933 Act) of any Issuer or Guarantor, (ii) any Exchange Notes to be received by it were acquired in the ordinary course of its business and (iii) at the time of the commencement of the Exchange Offer, it has no arrangement with any person to participate in the distribution (within the meaning of the 1933 Act) of the Exchange Notes and (b) shall have made such other representations as may reasonably be necessary under appli- cable SEC rules, regulations or interpretations to render the use of Form S-4 or another appropriate form under the 1933 Act available. The Issuers and the Guarantors shall inform the Placement Agents of the names and addresses of the Holders to whom the Exchange Offer is made, and the Placement Agents shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Notes in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2, the registration provisions of this Agreement will continue to apply solely with respect to the Registrable Notes referred to in Section 2(b)(iii) and any Registrable Notes held by a Participating Broker-Dealer, and no Issuer or Guarantor shall have any further obligations to register any other Registrable Notes pursuant to this Agreement. (b) In the event that (i) the Issuers and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason consummated by September 23, 1999 or (iii) in the opinion of counsel for the Placement Agents a Registration Statement must be filed and a Prospectus must be delivered by the Placement Agents in connection with any offering or sale of Registrable Notes, the Issuers and the Guarantors shall use their best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Issuers, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Notes and to have such Shelf Registration Statement declared effective by the SEC; provided, that no Holder (other than a Placement Agent) shall be entitled to have the Registrable Notes held by it covered by such Shelf Registration Statement unless such Holder agrees to be bound by all of the provisions of this Agreement applicable to such Holder and furnishes to the Issuers in writing the information specified in Items 507 and Item 508 of Regulation S-K (or any successor provision), as appli- cable. No such Holder shall be entitled to any additional amounts under Section 2(d) until such Holder shall have provided all such information which is required by SEC rules to be included in the Shelf Registration Statement prior to the time it is declared effective. In the event the Issuers and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Issuers and the Guarantors shall use their best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Notes and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Notes held by the Placement Agents after completion of the Exchange Offer. The Issuers and the Guarantors agree to use their best efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to the Registrable Notes or such shorter period that will terminate when all of the Registrable Notes covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or otherwise cease to be Regis- trable Notes. The Issuers and the Guarantors further agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by them for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuers and the Guarantors agree to furnish to the Holders of Registrable Notes copies of any such supplement or amendment promptly after its being used or filed with the SEC. (c) The Issuers and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Notes pursuant to the Shelf Registration Statement. (d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Notes pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Notes pursuant to such Regis- tration Statement may legally resume. In the event that neither the Ex- change Offer Registration Statement nor the Shelf Registration Statement is declared effective on or prior to August 24, 1999 (the "Effectiveness Dead- line"), the interest rate on the Notes will be increased by a per annum rate of 0.5% until the Exchange Offer Registration Statement or the Shelf Registration Statement is declared effective by the SEC. In the event that the Exchange Offer Registration Statement is declared effective but the Exchange Offer is not consummated on or prior to the earlier to occur of the date that is thirty Business Days after the date of effectiveness of the Exchange Offer Registration Statement or the date that is thirty days after the Effectiveness Deadline, the annual interest rate borne by the Notes will be increased by a per annum rate of 0.5% from such time until the Exchange Offer is consummated. The interest rate borne by the Notes will not be subject to increase of more than 0.5% per annum notwithstanding the failure by the Issuers and the Guarantors to meet more than one of such registration requirements or the duration of any such failures. (e) Without limiting the remedies available to the Placement Agents and the Holders, each of the Issuers and the Guarantors acknowledges that any failure by it to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Placement Agents or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Placement Agents or any Holder may obtain such relief as may be required to specifically enforce such Issuer's or Guarantor's obligations under Section 2(a) and Section 2(b) hereof; provided that, in the case of any terms of this Agreement for which additional interest pursuant to Section 2(d) is expressly provided as a remedy of a violation of such terms, such additional interest shall be the sole monetary damages for such violation. 3. Registration Procedures. In connection with the obligations of the Issuers and the Guarantors with respect to the Registration Statements pursuant to Section 2(a) and Section 2(b) hereof, the Issuers and the Guarantors shall as expeditiously as practicable: (a) prepare and file with the SEC a Registration Statement on the appropriate form under the 1933 Act, which form (x) shall be select- ed by the Issuers and the Guarantors and (y) shall, in the case of a Shelf Registration, be available for the sale of the Registrable Notes by the selling Holders thereof and (z) shall comply as to form in all material respects with the requirements of the applicable form and include all financial statements required by the SEC to be filed there- with, and use their best efforts to cause such Registration State- ment to become effective and remain effective in accordance with Section 2 hereof; (b) subject to their ability to issue a Blockage Notice, prepare and file with the SEC such amendments and post-effective amendments to each Registration Statement as may be necessary to keep such Regis- tration Statement effective for the applicable period and cause each Prospectus to be supplemented by any required prospectus supplement and, as so supplemented, to be filed pursuant to Rule 424 under the 1933 Act; and to keep each Prospectus current during the period described under Section 4(3) and Rule 174 under the 1933 Act that is applicable to transactions by brokers or dealers with respect to the Registrable Notes or Exchange Notes; (c) in the case of a Shelf Registration, furnish to each Holder of Registrable Notes, to counsel for the Placement Agents, to counsel for the Holders and to each Underwriter of an Underwritten Offering of Registrable Notes, if any, without charge, as many copies of each Prospectus, including each preliminary Prospectus, and any amendment or supplement thereto and such other documents as such Holder or Underwriter may reasonably request, in order to facilitate the public sale or other disposition of the Registrable Notes; and, subject to the penultimate paragraph of this Section 3, the Issuers and the Guarantors consent to the use of such Prospectus and any amendment or supplement thereto in accordance with applicable law by each of the selling Holders of Registrable Notes and any such Underwriters in connection with the offering and sale of the Registrable Notes covered by and in the manner described in such Prospectus or any amendment or supplement thereto in accordance with applicable law; (d) use their best efforts to register or qualify the Registrable Notes under all applicable state securities or "blue sky" laws of such jurisdictions in the United States as any Holder of Registrable Notes covered by a Registration Statement shall reasonably request in writing, to cooperate with such Holders in connection with any filings required to be made with the National Association of Securities Dealers, Inc. and do any and all other acts and things which may be reasonably necessary or advisable to enable such Holder to consummate the disposition in each such jurisdiction of such Registrable Notes owned by such Holder; provided, however, that no Issuer or Guarantor shall be required to (i) qualify as a foreign corporation or as a dealer in securities in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (ii) file any general consent to service of process or (iii) subject itself to taxation in any such jurisdiction if it is not so subject; (e) in the case of a Shelf Registration, notify each Holder of Registrable Notes, counsel for the Holders and counsel for the Placement Agents promptly and, if requested by any such Holder or counsel, confirm such advice in writing (i) when a Registration Statement has been filed becomes effective and when any post-effective amendment thereto has been filed and becomes effective, (ii) of any request by the SEC or any state securities authority for amendments and supplements to a Registration Statement and Prospectus or for additional information after the Registration Statement has become effective, (iii) of the issuance by the SEC or any state securities authority of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose, (iv) if, between the effective date of a Registration Statement and the closing of any sale of Registrable Notes covered thereby, the representations and warranties of any Issuer or Guarantor contained in any underwriting agreement, securities sales agreement or other similar agreement, if any, relating to the offering cease to be true and correct in all material respects or if any Issuer or Guarantor receives any notification with respect to the suspension of the qualification of the Registrable Notes for sale in any jurisdiction or the initiation of any proceeding for such purpose, (v) of the happening of any event during the period a Shelf Registration Statement is effective which makes any statement of material fact made in such Registration Statement or the related Prospectus untrue in any material respect or which requires the making of any changes in such Registration Statement or Prospectus in order to make the statements therein not misleading and (vi) of any determination by an Issuer or Guarantor that a post-effective amendment to a Registration Statement would be appropriate; (f) use its reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement at the earliest possible moment and provide immediate notice to each Holder of the withdrawal of any such order; (g) in the case of a Shelf Registration, furnish to each Holder of Registrable Notes, without charge, at least one conformed copy of each Registration Statement and any post-effective amendment thereto (without documents incorporated therein by reference or exhibits thereto, unless requested); (h) in the case of a Shelf Registration, cooperate with the selling Holders of Registrable Notes to facilitate the timely preparation and delivery of certificates representing Registrable Notes to be sold and not bearing any restrictive legends and enable such Registrable Notes to be in such denominations (consistent with the provisions of the Indenture) and registered in such names as the selling Holders may reasonably request at least one business day prior to the closing of any sale of Registrable Notes; (i) in the case of a Shelf Registration, upon the occurrence of any event contemplated by Section 3(e)(v) hereof, subject to the ability of the Issuers and the Guarantors to issue a Blockage Notice, use their best efforts to prepare and file with the SEC a supplement or post- effective amendment to a Registration Statement or the related Prospec- tus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Notes, such Prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. The Issuers and the Guarantors agree to notify the Holders to suspend use of the Prospectus as promptly as practicable after the occurrence of such an event, and the Holders hereby agree to suspend use of the Prospectus until the Issuers and the Guarantors have amended or supplemented the Prospectus to correct such misstatement or omission; (j) a reasonable time prior to the filing of any Registration State- ment, any Prospectus, any amendment to a Registration Statement or amendment or supplement to a Prospectus or any document which is to be incorporated by reference into a Registration Statement or a Prospectus after initial filing of a Registration Statement, provide copies of such document to the Placement Agents and their counsel (and, in the case of a Shelf Registration Statement, the Holders and their counsel) and make such of the representatives of the Issuers and the Guarantors as shall be reasonably requested by the Placement Agents or their counsel (and, in the case of a Shelf Registration Statement, the Holders or their counsel) available for discussion of such document, and shall not at any time file or make any amendment to the Registration Statement, any Prospectus or any amendment of or supplement to a Registration Statement or a Prospectus or any document which is to be incorporated by reference into a Registration Statement or a Prospectus, of which the Placement Agents and their counsel (and, in the case of a Shelf Registration Statement, the Holders and their counsel) shall not have previously been advised and furnished a copy or to which the Placement Agents or their counsel (and, in the case of a Shelf Registration Statement, the Majori- ty Holders or their counsel) shall reasonably object; (k) obtain a CUSIP number for all Exchange Notes or Registrable Notes, as the case may be, not later than the effective date of a Registration Statement and provide the Trustee under the Indenture with printed certificates for the Exchange Notes or Registrable Notes in a form eligible for deposit with The Depository Trust Company; (l) cause the Indenture to be qualified under the Trust Indenture Act of 1939, as amended (the "TIA"), in connection with the registration of the Exchange Notes or Registrable Notes, as the case may be, co- operate with the Trustee and the Holders to effect such changes to the Indenture as may be required for the Indenture to be so qualified in accordance with the terms of the TIA and execute, and use their best efforts to cause the Trustee to execute, all documents as may be re- quired to effect such changes and all other forms and documents required to be filed with the SEC to enable the Indenture to be so qualified in a timely manner; (m) in the case of a Shelf Registration, make available for inspec- tion by a representative of the Holders of the Registrable Notes, any Underwriter participating in any disposition pursuant to such Shelf Registration Statement, and attorneys and accountants designated by the Holders, at reasonable times and in a reasonable manner, all financial and other records, pertinent documents and properties of the Issuers and the Guarantors, and cause the respective officers, directors and employees of the Issuers and the Guarantors to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with a Shelf Registration Statement; provided that such persons shall first agree in writing with the Issuers that any information that is reasonably and in good faith designated by the Issuers in writing as confidential at the time of delivery of such information shall be kept confidential by such persons unless (i) disclosure of such information is required by court or administrative order is necessary to respond to inquiries of regulatory authorities, (ii) disclosure of such information is required by law (including any disclosure requirements pursuant to Federal securities laws in connection with the filing of the Shelf Registration Statement or the use of any Prospectus) (iii) such information becomes generally available to the public other than as a result of disclosure or failure to safeguard by any such person or (iv) such information becomes available to any such person from a source other than the Issuers and such source is not bound by a confidentiality agreement or other obligation not to disclose such information; (n) use their best efforts to cause the Exchange Notes or Registra- ble Notes, as the case may be, to be rated by two nationally recognized statistical rating organizations (as such term is defined in Rule 436(g)(2) under the 1933 Act); (o) if reasonably requested by any Holder of Registrable Notes cov- ered by a Registration Statement, (i) promptly incorporate in a Prospectus supplement or post-effective amendment such information with respect to such Holder as such Holder reasonably requests to be included therein and (ii) make all required filings of such Prospectus supplement or such post-effective amendment as soon as any Issuer or Guarantor has received notification of the matters to be incorporated in such filing; provided that they shall not required to take any such action that is not, in the opinion of counsel for the Issuers and the Guarantors, in compliance with applicable law; and (p) in the case of a Shelf Registration, enter into such customary agreements and take all such other customary and appropriate actions in connection therewith (including those requested by the Holders of a majority of the Registrable Notes being sold) in order to expedite or facilitate the disposition of such Registrable Notes including, but not limited to, an Underwritten Offering and in such connection, (i) to the extent possible, make such representations and warranties to the Holders and any Underwriters of such Registrable Notes with respect to the business of the Issuers, the Guarantors and their respective subsidiaries, the Registration Statement, Prospectus and documents incorporated by reference or deemed incorporated by reference, if any, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings and confirm the same if and when requested, (ii) obtain opinions of counsel to the Issuers and the Guarantors (which counsel and opinions, in form, scope and substance, shall be reasonably satisfactory to the Holders of a majority of the Registrable Notes being sold and such Underwriters and their respective counsel) addressed to each selling Holder and Underwriter, if any, of Registrable Notes, covering the matters customarily covered in opinions requested in underwritten offerings, (iii) obtain "cold comfort" letters from the independent certified public accountants of the Issuers and the Guarantors (and, if necessary, any other certified public accountant of any subsidiary of any Issuer or Guarantor, or of any business acquired by any Issuer or Guarantor for which financial statements and financial data are or are required to be included in the Registration Statement) addressed to each selling Holder and Underwriter of Registrable Notes, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings, and (iv) deliver such documents and certificates as may be reasonably requested by the Holders of a majority in principal amount of the Registrable Notes being sold or the Underwriters, and which are customarily delivered in underwritten offerings, to evidence the continued validity of the representations and warranties of the Issuers and the Guarantors made pursuant to clause (i) above and to evidence compliance with any customary conditions contained in an underwriting agreement. In the case of a Shelf Registration Statement, the Issuers and the Guarantors (as a condition to such Holder's participation in the Shelf Registration Statement) may require each Holder of Registrable Notes to furnish to them such information regarding the Holder and the proposed distribution by such Holder of such Registrable Notes as they may from time to time reasonably request in writing. In the case of a Shelf Registration Statement, each Holder agrees that, upon receipt of any notice from an Issuer or Guarantor of the happening of any event of the kind described in Section 3(e)(v) hereof (a "Blockage Notice"), such Holder will forthwith discontinue disposition of Registrable Notes pursuant to a Registration Statement until such Holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 3(i) hereof, and, if so directed by such Issuer or Guarantor, such Holder will deliver to such Issuer or Guarantor (at its expense) all copies in its possession, other than permanent file copies then in such Holder's possession, of the Prospectus covering such Registrable Notes current at the time of receipt of such notice. Each Holder agrees to keep confidential the cause of any such notice of suspension or other information provided to them by an Issuer or Guarantor with respect thereto. If an Issuer or Guarantor shall give any such notice to suspend the disposition of Registrable Notes pursuant to a Registration Statement, the Issuers and the Guarantors shall extend the period during which the Registration Statement shall be maintained effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such notice to and including the date when the Holders shall have received copies of the supplemented or amended Prospectus necessary to resume such dispositions. Such notice may be given only twice during any 365 day period and any such suspensions may not exceed 30 days for each suspension and there may not be more than two suspensions in effect during any 365 day period. The Holders of Registrable Notes covered by a Shelf Registration Statement who desire to do so may sell such Registrable Notes in an Underwritten Offering. In any such Underwritten Offering, the investment banker or investment bankers and manager or managers (the "Underwriters") that will administer the offering will be selected by the Majority Holders of the Registrable Notes included in such offering with the prior written consent of the Issuers, which consent shall not be unreasonably withheld. No Holder of Registrable Notes may participate in any Underwritten Offering hereunder unless such Holder (a) agrees to sell such Holder's Registrable Notes on the basis provided in any underwriting agreements approved by the Majority Holders of the Registrable Notes included in such offering and (b) completes and executes all customary and appropriate questionnaires, powers of attorney, indemnities, underwriting agreements and other documents required under the terms of such underwriting agreements. 4. Participation of Broker-Dealers in Exchange Offer. (a) The Staff of the SEC has taken the position that any broker-dealer that receives Exchange Notes for its own account in the Exchange Offer in exchange for Notes that were acquired by such broker-dealer as a result of market-making or other trading activities and not directly from an Issuer or Guarantor (a "Participating Broker-Dealer"), may be deemed to be an "underwriter" within the meaning of the 1933 Act and must deliver a prospectus meeting the requirements of the 1933 Act in connection with any resale of such Exchange Notes. The Issuers and the Guarantors understand that it is the Staff's position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligation under the 1933 Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the 1933 Act. (b) In light of the above, notwithstanding the other provisions of this Agreement, the Issuers and the Guarantors agree that the provisions of this Agreement as they relate to a Shelf Registration shall also apply to an Exchange Offer Registration to the extent, and with such reasonable modifications thereto as may be, reasonably requested by the Placement Agents or by one or more Participating Broker-Dealers, in each case as provided in clause (ii) below, in order to expedite or facilitate the disposition of any Exchange Notes by Participating Broker-Dealers consistent with the positions of the Staff recited in Section 4(a) above; provided that: (i) the Issuers and the Guarantors shall not be required to amend or supplement the Prospectus contained in the Exchange Offer Registration Statement, as would otherwise be contemplated by Section 3(i), for a period exceeding 180 days after the last Exchange Date (as such period may be extended pursuant to the penultimate paragraph of Section 3 of this Agreement) and Participating Broker-Dealers shall not be authorized by the Issuers and the Guarantors to deliver and shall not deliver such Prospectus after such period in connection with the resales contemplated by this Section 4; and (ii) the application of the Shelf Registration procedures set forth in Section 3 of this Agreement to an Exchange Offer Registration, to the extent not required by the positions of the Staff of the SEC or the 1933 Act and the rules and regulations thereunder, will be in conformity with the reasonable request to the Issuers and the Guarantors by the Placement Agents or with the reasonable request in writing to the Issuers and the Guarantors by one or more broker-dealers who certify to the Placement Agents, the Issuers and the Guarantors in writing that they anticipate that they will be Participating Broker-Dealers; and provided further that, in connection with such application of the Shelf Registration procedures set forth in Section 3 to an Exchange Offer Registration, the Issuers and the Guarantors shall be obligated (x) to deal only with one entity representing the Participating Broker-Dealers, which shall be Morgan Stanley & Co. Incorporated unless it elects not to act as such representative, (y) to pay the fees and expenses of only one counsel representing the Participating Broker-Dealers, which shall be counsel to the Placement Agents unless such counsel elects not to so act and (z) to cause to be delivered only one, if any, "cold comfort" letter with respect to the Prospectus in the form existing on the last Exchange Date and with respect to each subsequent amendment or supplement, if any, effected during the period specified in clause (i) above. (c) The Placement Agents shall have no liability to the Issuers, the Guarantors or any Holder with respect to any request that they may make pursuant to Section 4(b) above. 5. Indemnification and Contribution. (a) The Issuers and the Guarantors, jointly and severally, agree to indemnify and hold harmless the Placement Agents, each Holder and each Person, if any, who controls any Placement Agent or any Holder within the meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act, or is under common control with, or is controlled by, any Placement Agent or any Holder, from and against all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred by any Placement Agent, any Holder or any such controlling or affiliated Person in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement (or any amendment thereto) pursuant to which Exchange Notes or Registrable Notes were registered under the 1933 Act, including all documents incorporated therein by reference, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or caused by any untrue statement or alleged untrue statement of a material fact contained in any Prospectus (as amended or supplemented if an Issuer or Guarantor shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact necessary to make the statements therein in light of the circumstances under which they were made not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to the Placement Agents or any Holder furnished to the Issuers in writing through Morgan Stanley & Co. Incorporated or any selling Holder expressly for use therein; provided that the Issuers and the Guarantors shall not be liable to any Placement Agent, any Holder or any such controlling or affiliated Person to the extent that any such losses, claims, damages or liabilities (the "Losses") arise out of or are based upon an untrue statement or alleged untrue statement of material fact or omission or alleged omission if either (A)(i) such Placement Agent or Holder was required by law to send or deliver, and failed to send or deliver, a copy of the Prospectus with or prior to delivery of written confirmation of the sale by such Placement Agent or Holder to the person asserting the claims from which such Losses arise and (ii) the Prospectus would have corrected such untrue statement or alleged untrue statement or omission or alleged omission, (B)(x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment to the Prospectus and (y) having been previously furnished by or on behalf of the Issuers and the Guarantors with copies of the Prospectus as so amended or supplemented, such Placement Agent or Holder failed to send or deliver a copy of such amendment to the Prospectus with or prior to the delivery of written confirmation of the sale of a Registrable Note to the person asserting the claim from which such Losses arise or (C)(i) such Holder disposed of Registrable Notes to the person asserting the claim from which such Losses arise pursuant to a Registration Statement and sent or delivered, or was required by law to send or deliver, a Prospectus to such person in connection with such disposition, (ii) such Holder received a Blockage Notice in writing at least four Business Days prior to the date of such disposition and (iii) such untrue statement or alleged untrue statement or omission or alleged omission was the reason for the Blockage Notice. In connection with any Underwritten Offer- ing permitted by Section 3, the Issuers and the Guarantors will also indemnify the Underwriters, if any, selling brokers, dealers and similar securities industry professionals participating in the distribution, their officers and directors and each Person who controls such Persons (within the meaning of the 1933 Act and the 1934 Act) to the same extent as provided above with respect to the indemnification of the Holders, if requested in connection with any Registration Statement. (b) (i) Each Holder agrees, severally and not jointly, to indemnify and hold harmless the Issuers and the Guarantors, the Placement Agents and the other selling Holders, and each of their respective directors, officers who sign the Registration Statement and each Person, if any, who controls any Issuer or Guarantor, any Placement Agent and any other selling Holder within the meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act to the same extent as the foregoing indemnity from the Issuers and the Guarantors to the Placement Agents and the Holders, but only (i) with reference to information relating to such Holder furnished to the Issuers in writing by such Holder expressly for use in any Registration Statement (or any amendment thereto) or any Prospectus (or any amendment or supplement thereto) and (ii) with respect to any Losses that may arise as a result of the disposition by such Holder of Registrable Notes to the person asserting the claim from which such Losses arise pursuant to a Registration Statement if such Holder sent or delivered, or was required by law to send or deliver, a Prospectus in connection with such disposition, such Holder received a Blockage Notice with respect to such Prospectus in writing at least four Business Days prior to the date of such disposition and the untrue statement or alleged untrue statement or omission or alleged omission was the reason for the Blockage Notice. (c) In case any proceeding (including any governmental investigation) shall be instituted involving any Person in respect of which indemnity may be sought pursuant to either paragraph (a) or paragraph (b) above, such Person or Persons (the "imdemnified party") shall promptly notify the Person or Persons against whom such indemnity may be sought (the "indemnifying party") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (a) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Placement Agents and all Persons, if any, who control any Placement Agent within the meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act, (b) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Issuers and the Guarantors, its directors, its officers who sign the Registration Statement and each Person, if any, who con- trols any Issuer or Guarantor within the meaning of either such Section and (c) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Holders and all Persons, if any, who control any Holders within the meaning of either such Section, and that all such fees and expenses shall be reimbursed as they are incurred. In such case involving the Placement Agents and Persons who control the Placement Agents, such firm shall be designated in writing by Morgan Stanley & Co. Incorporated. In such case involving the Holders and such Persons who control Holders, such firm shall be designated in writing by the Majority Holders. In all other cases, such firm shall be designated by the Issuers. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent but, if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which such indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding. (d) If the indemnification provided for in paragraph (a) or paragraph (b) of this Section 5 is unavailable to an indemnified party or insufficient in respect of any losses, claims, damages or liabilities, then each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative fault of the Issuers and the Guarantors, on the one hand, and the Holders, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to in- formation supplied by an Issuer or Guarantor or by the Holders and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Holders' respective obligations to contribute pursuant to this Section 5(d) are several in proportion to the re- spective principal amount of Registrable Notes of such Holder that were registered pursuant to a Registration Statement. (e) Each Issuer, Guarantor and Holder agrees that it would not be just or equitable if contribution pursuant to this Section 5 were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in paragraph (d) above. The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 5, no Holder shall be required to indemnify or contribute any amount in excess of the amount by which the total price at which Registrable Notes were sold by such Holder exceeds the amount of any damages that such Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 5 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity. The indemnity and contribution provisions contained in this Section 5 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of the Placement Agents, any Holder or any Person controlling any Placement Agent or any Holder, or by or on behalf of the Issuers and the Guarantors, their officers or directors or any Person controlling an Issuer or Guarantor, (iii) acceptance of any of the Exchange Notes and (iv) any sale of Registrable Notes pursuant to a Shelf Registration Statement. 6. Miscellaneous. (a) No Inconsistent Agreements. None of the Issuers or the Guarantors has entered into, and on or after the date of this Agreement will not enter into, any agreement which is inconsistent with the rights granted to the Holders of Registrable Notes in this Agreement or otherwise conflicts with the provisions hereof. The rights granted to the Holders hereunder do not in any way conflict with and are not inconsistent with the rights granted to the holders of other issued and outstanding securities of any Issuer or Guarantor under any such agreements. (b) Amendments and Waivers. The provisions of this Agreement, including the provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given unless the Issuers and the Guarantors have obtained the written consent of Holders of at least a majority in aggregate principal amount of the outstanding Registrable Notes affected by such amendment, modification, supplement, waiver or consent; provided, however, that no amendment, modification, supplement, waiver or consent to any departure from the provisions of Section 5 hereof shall be effective as against any Holder of Registrable Notes unless consented to in writing by such Holder. (c) Notices. All notices and other communications provided for or permitted hereunder shall be made in writing by hand-delivery, registered first-class mail, telex, telecopier, or any courier guaranteeing overnight delivery (i) if to a Holder, at the most current address given by such Holder to the Issuers by means of a notice given in accordance with the provisions of this Section 6(c), which address initially is, with respect to the Placement Agents, the address set forth in the Placement Agreement; and (ii) if to the Issuers and the Guarantors, initially at the address of the Issuers set forth in the Placement Agreement and thereafter at such other address, notice of which is given in accordance with the provisions of this Section 6(c). All such notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five business days after being deposited in the mail, postage prepaid, if mailed; when answered back, if telexed; when receipt is acknowledged, if telecopied; and on the next business day if timely delivered to an air courier guaranteeing overnight delivery. Copies of all such notices, demands, or other communications shall be concurrently delivered by the Person giving the same to the Trustee, at the address specified in the Indenture. (d) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors, assigns and transferees of each of the parties, including, without limitation and without the need for an express assignment, subsequent Holders; provided that nothing herein shall be deemed to permit any assignment, transfer or other disposition of Registrable Notes in violation of the terms of the Placement Agreement. If any transferee of any Holder shall acquire Registrable Notes, in any manner, whether by operation of law or otherwise, such Registrable Notes shall be held subject to all of the terms of this Agreement, and by taking and holding such Registrable Notes such Person shall be conclusively deemed to have agreed to be bound by and to per- form all of the terms and provisions of this Agreement and such Person shall be entitled to receive the benefits hereof. The Placement Agents (in their capacity as Placement Agents) shall have no liability or obligation to the Issuers and the Guarantors with respect to any failure by a Holder to comply with, or any breach by any Holder of, any of the obligations of such Holder under this Agreement. (e) Purchases and Sales of Notes. The Issuers and the Guarantors shall not, and shall use their best efforts to cause their respective affiliates (as defined in Rule 405 under the 1933 Act) not to, purchase and then resell or otherwise transfer any Notes; provided that (i) Nelson Peltz and Peter May (or any entity that they wholly own) may purchase Notes from the Placement Agents on the Closing Date as contemplated in the Placement Agreement and resell or otherwise transfer such Notes in compliance with the transfer restrictions applicable thereto and (ii) the Issuers, the Guarantors and their respective affiliates may resell any of the Notes purchased by them pursuant to an effective registration statement so long as the two-year period referred to in Rule 144(k) under the Securities Act with respect to all Notes other than those being sold under such registration statement shall have expired prior to the date of such sale. (f) Third Party Beneficiary. The Holders shall be third party beneficiaries to the agreements made hereunder between the Issuers and the Guarantors, on the one hand, and the Placement Agents, on the other hand, and shall have the right to enforce such agreements directly to the extent it deems such enforcement necessary or advisable to protect its rights or the rights of Holders hereunder. (g) Counterparts. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. (h) Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof. (i) Governing Law. This Agreement shall be governed by the laws of the State of New York. (j) Severability. In the event that any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions contained herein shall not be affected or impaired thereby. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. TRIARC CONSUMER PRODUCTS GROUP, LLC By: BRIAN L. SCHORR Title: Executive Vice President TRIARC BEVERAGE HOLDINGS CORP. 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: STUART I. ROSEN Title: Vice President and Secretary RCAC ASSET MANAGEMENT, INC., as a Subsidiary Guarantor By: STUART I. ROSEN Title: Vice President and Secretary 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 HOLDINGS 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 Confirmed and accepted as of the date first above written: MORGAN STANLEY & CO. INCORPORATED DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION WASSERSTEIN PERELLA SECURITIES, INC. By: MORGAN STANLEY & CO. INCORPORATED By: KARL N. BEINKAMPEN Title: Vice President EX-99.1 5 PRESS RELEASE EXHIBIT 99.1 FOR IMMEDIATE RELEASE CONTACT: ANNE A. TARBELL Triarc Companies, Inc. 212/451-3030 www.triarc.com PELTZ AND MAY WITHDRAW GOING-PRIVATE PROPOSAL BOARD APPROVES "DUTCH AUCTION" SELF-TENDER FOR UP TO 5.5 MILLION SHARES NEW YORK, NY, MARCH 10, 1999 - Triarc Companies, Inc. (NYSE: TRY) announced today that it has been advised by Nelson Peltz and Peter W. May, the Chairman and Chief Executive Officer and the President and Chief Operating Officer, respectively, of Triarc that they have withdrawn their $18 per share going-private proposal, effective immediately. Triarc also announced that its Board of Directors unanimously approved a tender offer for up to 5.5 million shares of the Company's Common Stock at a price of not less than $16 1/4 and not more than $18 1/4 per share, pursuant to a "Dutch Auction." Commenting on today's announcements, Nelson Peltz, said: "We are withdrawing our offer because we believe it is not in the best interests of shareholders at this time. Our recently completed debt financings, coupled with the tender offer, support the Company's goal of maximizing shareholder value. Our beverage and restaurant franchising businesses continue to grow and we are confident about the future." Triarc has approximately 29.3 million shares of Common Stock currently outstanding. The offer to purchase up to 5.5 million shares of Common Stock from existing shareholders equates to approximately 18.8% of the number of shares currently outstanding. The closing price of the Company's stock on March 9, 1999 was $15 7/8. The exact price of the tender offer will be determined by a procedure commonly referred to as a Dutch Auction (See Editor's Note). The tender offer is expected to commence on March 12, 1999. The tender offer, proration period and withdrawal rights will expire at 12:00 midnight, New York City time on April 13, 1999, unless the tender offer is extended. The Company stated that neither the Company nor its Board of Directors makes any recommendation to stockholders to tender shares of Common Stock. It is not anticipated that any directors, executive officers or affiliates of the Company will tender shares pursuant to the offer. The tender offer will be subject to various terms and conditions described in offering materials to be mailed on or about March 12, 1999 to Triarc shareholders of record as of March 10, 1999. The tender offer is conditioned on 3,500,000 shares of Common Stock being tendered, unless such condition is waived by the Company. Wasserstein Perella & Co., Inc. will act as Dealer Manager for the offer and Georgeson & Company Inc. will serve as Information Agent. Questions or requests for assistance or for copies of the Offer to Purchase may be directed to either the Dealer Manager or Information Agent at their respective addresses and telephone numbers listed below. Triarc is a leading premium beverage company (Snapple(R), Mistic(R) and Stewart's(R)), a restaurant franchisor (Arby's(R), T.J. Cinnamons(R) and Pasta Connection(TM)) and a producer of soft drink concentrates (Royal Crown(R), Diet Rite(R) and Nehi(R)). DEALER MANAGER: INFORMATION AGENT: Wasserstein Perella & Co., Inc. Georgeson & Company Inc. 31 West 52nd Street Wall Street Plaza New York, NY 10019 New York, NY 10005 (212) 969-2700 (800) 223-2064 EDITOR'S NOTE: Under this tender offer, the price to be paid per share will be set by "Dutch Auction," meaning the Company will pay only that amount per share which is necessary, within the stated range, in order to secure the needed number of shares to complete the offer. Once the price per share is determined, all shareholders will be paid the same amount for each share of stock sold. -----END PRIVACY-ENHANCED MESSAGE-----