AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 8, 2000
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 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): November 8, 2000
Delaware 1-2207 38-0471180
---------- -------- ------------
(State or other jurisdiction of (Commission File (IRS Employer
incorporation) Number) Identification Number)
280 Park Avenue
New York, NY 10017
--------------------------- -----
(Address of principal executive offices) (Zip Code)
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Registrant's telephone number, including area code: (212) 451-3000
Item 7. EXHIBITS
EXHIBITS DESCRIPTION OF EXHIBIT
-------- ----------------------
4.1 Supplemental Indenture No. 1, dated as of October 25,
2000, by and among Triarc Companies, Inc., SBG
Holdings Inc. and The Bank of New York.
4.2 Supplemental Indenture No. 5, dated as of October 25,
2000, by and among Triarc Consumer Products Group,
LLC, Snapple Beverage Group, Inc., RCAC, LLC,
Promociones Holdings, LLC and The Bank of New York.
4.3 Supplemental Indenture No. 6, dated as of October 25,
2000, by and among Triarc Consumer Products Group,
LLC, Snapple Beverage Group, Inc., Arby's
Acquisition, LLC, RCAC, LLC and The Bank of New York.
4.4 Supplemental Indenture No. 7, dated as of October 25,
2000, by and among Triarc Consumer Products Group,
LLC, Snapple Beverage Group, Inc., SBG Holdings Inc.,
the Subsidiary Guarantors party thereto and The Bank
of New York.
10.1 Indemnity Agreement, dated as of October 25, 2000,
between Cadbury Schweppes plc and Triarc Companies,
Inc.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
TRIARC COMPANIES, INC.
Date: November 8, 2000 By: /s/ Stuart I. Rosen
----------------------------------
Stuart I. Rosen
Vice President and Secretary
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EXHIBIT INDEX
EXHIBITS DESCRIPTION OF EXHIBIT
-------- ----------------------
4.1 Supplemental Indenture No. 1, dated as of October 25,
2000, by and among Triarc Companies, Inc., SBG
Holdings Inc. and The Bank of New York.
4.2 Supplemental Indenture No. 5, dated as of October 25,
2000, by and among Triarc Consumer Products Group,
LLC, Snapple Beverage Group, Inc., RCAC, LLC,
Promociones Holdings, LLC and The Bank of New York.
4.3 Supplemental Indenture No. 6, dated as of October 25,
2000, by and among Triarc Consumer Products Group,
LLC, Snapple Beverage Group, Inc., Arby's
Acquisition, LLC, RCAC, LLC and The Bank of New York.
4.4 Supplemental Indenture No. 7, dated as of October 25,
2000, by and among Triarc Consumer Products Group,
LLC, Snapple Beverage Group, Inc., SBG Holdings Inc.,
the Subsidiary Guarantors party thereto and The Bank
of New York.
10.1 Indemnity Agreement, dated as of October 25, 2000,
between Cadbury Schweppes plc and Triarc Companies,
Inc.
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EXHIBIT 4.1
SUPPLEMENTAL INDENTURE NO. 1
dated as of October 25, 2000
among
TRIARC COMPANIES, INC.,
SBG HOLDINGS INC., as Successor,
and
THE BANK OF NEW YORK,
as Trustee
Zero Coupon Convertible Subordinated Debentures Due 2018
THIS SUPPLEMENTAL INDENTURE No. 1 (this "Supplemental Indenture"), dated as of October 25, 2000, among TRIARC COMPANIES, INC., a Delaware corporation (the "Company"), SBG HOLDINGS INC., a Delaware corporation (the "Successor"), and THE BANK OF NEW YORK, as Trustee (the "Trustee").
RECITALS
WHEREAS, the Company and the Trustee entered into the Indenture, dated as of February 9, 1998 (as amended, supplemented or otherwise modified from time to time, the "Indenture"), relating to the Company's Zero Coupon Convertible Subordinated Debentures Due 2018 (the "Securities");
WHEREAS, pursuant to the Agreement and Plan of Merger, dated as of September 15, 2000 (the "Merger Agreement"), by and among Cadbury Schweppes plc, CSN Acquisition Inc., CRC Acquisition Inc., the Company, Snapple Beverage Group, Inc., and Royal Crown Company, Inc., the Company is conveying and transferring, and the Successor is acquiring, the properties and assets of the Company substantially as an entirety (the "Transaction");
WHEREAS, Section 5.01 of the Indenture provides that a Person which acquires by conveyance or transfer the properties and assets of the Company substantially as an entirety (A) shall be a corporation, limited liability company, partnership or trust organized and validly existing under the laws of the United States or any state thereof or the District of Columbia and (B) shall expressly assume, by an indenture supplemental to the Indenture, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of and interest on the Securities according to their tenor and the due and punctual performance of all of the covenants and obligations of the Company under the Securities and the Indenture, including the obligation to deliver shares of common stock of the Company upon conversion of the Securities;
WHEREAS, Section 5.01 of the Indenture further provides that the successor Person to which such conveyance or transfer is made shall succeed to, and be substituted for, the Company, and may exercise every right and power of the Company under the Indenture with the same effect as if such successor had been named as the Company therein; and thereafter the Company shall be discharged from all obligations and covenants under the Securities and the Indenture;
WHEREAS, pursuant to the terms and conditions of Section 5.01 and Section 9.06 of the Indenture, the Trustee is authorized to sign this Supplemental Indenture to evidence the assumption by the Successor of the Company's obligations under the Securities and the Indenture and the release of the Company from its obligations under the Securities and the Indenture.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained and intending to be legally bound, the parties hereto hereby agree as follows:
Section 1. Capitalized terms used herein and not otherwise defined herein are used as defined in the Indenture.
Section 2. The Successor, by its execution of this Supplemental Indenture, hereby assumes all the obligations of the Company under the Securities and the Indenture and agrees to be bound by the terms of the Securities and the Indenture applicable to the Company, effective upon the completion of the Transaction.
Section 3. The Company is discharged from all obligations and covenants under the Securities and the Indenture, in accordance with Section 5.01 of the Indenture.
Section 4. THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS PRINCIPLES OF CONFLICTS OF LAW SHALL GOVERN THIS SUPPLEMENTAL INDENTURE.
Section 5. The form of Conversion Notice appended to the Securities is amended in its entirety to read as set forth on Exhibit A hereto.
Section 6. The recitals herein contained are made by the Company and the Successor, and the Trustee assumes no responsibility for the correctness thereof.
Section 7. This Supplemental Indenture may be signed in various counterparts which together shall constitute one and the same instrument.
Section 8. This Supplemental Indenture is an amendment supplemental to the Indenture and said Indenture and this Supplemental Indenture shall henceforth be read together.
IN WITNESS WHEREOF, the parties have duly executed and delivered this Supplemental Indenture or have caused this Supplemental Indenture to be duly executed on their respective behalf by their respective officers thereunder duly authorized, as of the day and year first above written.
TRIARC COMPANIES, INC.
By: /s/ John L. Barnes, Jr.
---------------------------------------
Name: John L. Barnes, Jr.
Title: Executive Vice President
|
SBG HOLDINGS INC.
By: /s/ Bruce Futterer
---------------------------------------
Name: Bruce Futterer
Title: Treasurer and Secretary
|
THE BANK OF NEW YORK, as Trustee
By: /s/ Julie Salovitch-Miller
---------------------------------------
Name: Julie Salovitch-Miller
Title: Vice President
|
EXHIBIT 4.2
SUPPLEMENTAL INDENTURE NO. 5
dated as of October 25, 2000
among
TRIARC CONSUMER PRODUCTS GROUP, LLC,
SNAPPLE BEVERAGE GROUP, INC.,
as Issuers,
RCAC, LLC,
PROMOCIONES HOLDINGS, LLC
as Subsidiary Guarantors
and
THE BANK OF NEW YORK,
as Trustee
10 1/4% Senior Subordinated Notes due 2009
THIS SUPPLEMENTAL INDENTURE No. 5 (this "Supplemental Indenture"), dated as of October 25, 2000, among TRIARC CONSUMER PRODUCTS GROUP, LLC, a Delaware limited liability company (the "Company"), SNAPPLE BEVERAGE GROUP, INC. a Delaware corporation formerly known as Triarc Beverage Holdings Corp. ("Snapple," and together with the Company, the "Issuers"), RCAC, LLC, a Delaware limited liability company and a wholly owned subsidiary of the Company ("RCAC"), PROMOCIONES HOLDINGS, LLC, a Delaware limited liability company and a wholly owned subsidiary of the Company ("PH"), and THE BANK OF NEW YORK, as Trustee (the "Trustee").
RECITALS
WHEREAS, the Issuers, the Subsidiary Guarantors party thereto, and the Trustee entered into the Indenture, dated as of February 25, 1999 (as supplemented by Supplemental Indenture No. 1 dated as of February 26, 1999, Supplemental Indenture No. 2 dated as of September 8, 1999, Supplemental Indenture No. 3 dated as of December 6, 1999, and Supplemental Indenture No. 4 dated as of January 2, 2000, and as otherwise amended, supplemented and modified from time to time, the "Indenture"), relating to the Issuers' 10 1/4% Senior Subordinated Notes due 2009 (the "Notes");
WHEREAS, each of RCAC and PH is a newly created Domestic Restricted Subsidiary of the Company, and Section 4.18 of the Indenture provides that any such created Domestic Restricted Subsidiary shall become a Subsidiary Guarantor by executing an indenture supplemental to the Indenture providing for the Subsidiary Guaranty;
WHEREAS, pursuant to an Agreement and Plan of Merger, dated as of the date hereof (the "Merger Agreement"), between RC/Arby's Corporation, a Delaware corporation and a Subsidiary Guarantor ("RC/Arby's"), and RCAC, RC/Arby's will merge (the "Merger") with and into RCAC, with RCAC surviving as a wholly owned subsidiary of the Company;
WHEREAS, RC/Arby's is a Material Subsidiary Obligor and
Section 5.03(a) of the Indenture provides that no Material Subsidiary Obligor
shall consolidate with or merge with or into any Person without complying with
Section 5.03(a)(i), (ii) and (iii), unless the surviving Person is a Person that
is or becomes a Subsidiary Guarantor concurrently with such transaction and is a
wholly Owned Subsidiary;
WHEREAS, RCAC is a Wholly Owned Subsidiary and by this Supplemental Indenture shall become a Subsidiary Guarantor.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained and intending to be legally bound, the parties hereto hereby agree as follows:
Section 1. Capitalized terms used herein and not otherwise defined herein are used as defined in the Indenture.
Section 2. Each of RCAC and PH, by its execution of this Supplemental Indenture, hereby agrees to be a Subsidiary Guarantor under the Indenture and to be bound by the terms of the Indenture applicable to Subsidiary Guarantors including, but not limited to, Article 13.
Section 3. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY PRINCIPLES OF CONFLICTS OF LAWS TO THE EXTENT THAT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 4. The recitals herein contained are made by the Issuers, and the Trustee assumes no responsibility for the correctness thereof.
Section 5. This Supplemental Indenture may be signed in various counterparts which together shall constitute one and the same instrument.
Section 6. This Supplemental Indenture is an amendment supplemental to the Indenture and said Indenture and this Supplemental Indenture shall henceforth be read together.
IN WITNESS WHEREOF, the parties have duly executed and delivered this Supplemental Indenture or have caused this Supplemental Indenture to be duly executed on their respective behalf by their respective officers thereunder duly authorized, as of the day and year first above written.
TRIARC CONSUMER PRODUCTS
GROUP, LLC, as Issuer
By: /s/ John L. Barnes, Jr.
---------------------------------------
Name: John L. Barnes, Jr.
Title: Executive Vice President
|
SNAPPLE BEVERAGE GROUP, INC.,
as Issuer
By: /s/ John L. Barnes, Jr.
---------------------------------------
Name: John L. Barnes, Jr.
Title: Executive Vice President
|
RCAC, LLC,
as a Subsidiary Guarantor
By: /s/ Brian L. Schorr
---------------------------------------
Name: Brian L. Schorr
Title: Executive Vice President
|
PROMOCIONES HOLDINGS, LLC
as a Subsidiary Guarantor
By: /s/ Brian L. Schorr
---------------------------------------
Name: Brian L. Schorr
Title: Executive Vice President
|
THE BANK OF NEW YORK, as Trustee
By: /s/ Julie Salovitch-Miller
---------------------------------------
Name: Julie Salovitch-Miller
Title: Vice President
|
EXHIBIT 4.3
SUPPLEMENTAL INDENTURE NO. 6
dated as of October 25, 2000
among
TRIARC CONSUMER PRODUCTS GROUP, LLC,
SNAPPLE BEVERAGE GROUP, INC.,
as Issuers,
ARBY'S ACQUISITION, LLC,
RCAC, LLC,
as Subsidiary Guarantors
and
THE BANK OF NEW YORK,
as Trustee
10 1/4% Senior Subordinated Notes due 2009
THIS SUPPLEMENTAL INDENTURE No. 6 (this "Supplemental Indenture"), dated as of October 25, 2000, among TRIARC CONSUMER PRODUCTS GROUP, LLC, a Delaware limited liability company (the "Company"), SNAPPLE BEVERAGE GROUP, INC. a Delaware corporation formerly known as Triarc Beverage Holdings Corp. ("Snapple," and together with the Company, the "Issuers"), ARBY'S ACQUISITION, LLC, a Delaware limited liability company, as Subsidiary Guarantor (the "Purchaser"), RCAC, LLC, a Delaware limited liability company, as Subsidiary Guarantor ("RCAC"), and THE BANK OF NEW YORK, as Trustee (the "Trustee").
RECITALS
WHEREAS, the Issuers, the Subsidiary Guarantors party thereto, and the Trustee entered into the Indenture, dated as of February 25, 1999 (as supplemented by Supplemental Indenture No. 1 dated as of February 26, 1999, Supplemental Indenture No. 2 dated as of September 8, 1999, Supplemental Indenture No. 3 dated as of December 6, 1999, Supplemental Indenture No. 4 dated as of January 2, 2000, and Supplemental Indenture No. 5 dated as of the date hereof, and as otherwise amended, supplemented and modified from time to time, the "Indenture"), relating to the Issuers' 10 1/4% Senior Subordinated Notes due 2009 (the "Notes");
WHEREAS, pursuant to a Stock Purchase Agreement, dated as of the date hereof (the "Stock Purchase Agreement"), between RCAC and the Purchaser, RCAC has agreed to sell to the Purchaser, and the Purchaser has agreed to acquire, all of the shares of capital stock of Arby's, Inc., a Delaware corporation ("Arbys"), for $[420 million] in cash (the "Transaction");
WHEREAS, pursuant to an Agreement and Plan of Merger, dated as of September 15, 2000 (as amended, the "Merger Agreement"), by and among Cadbury Schweppes plc, an English public company ("CS"), CSN Acquisition Inc., a Delaware corporation, CRC Acquisition Inc., a Delaware corporation ("Merger Sub RC"), Triarc Companies, Inc., a Delaware corporation ("Triarc Parent"), Snapple, and Royal Crown Company, Inc., a Delaware corporation and a wholly owned subsidiary of RCAC ("RC"), an affiliate of CS will acquire all of the capital stock of RC through the merger of Merger Sub RC with and into RC (the "RC Disposition");
WHEREAS, RCAC is a Material Subsidiary Obligor and the
Transaction may constitute (and, together with the RC Disposition will
constitute) a sale of substantially all of the assets of RCAC for purposes of
Section 5.03(a) of the Indenture;
WHEREAS, Purchaser is an indirect, wholly owned subsidiary of Triarc Parent and an Affiliate of the Company;
WHEREAS, Section 5.03(a) of the Indenture provides that a Person which acquires, in one transaction or series of transactions, all or substantially all of the assets of a Material Subsidiary Obligor shall expressly assume, by an indenture
supplemental to the Indenture, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all the obligations of such Material Subsidiary Obligor under its Subsidiary Guaranty and the Indenture;
WHEREAS, Arby's is a Material Subsidiary Obligor and the second sentence of Section 5.03(b)(i) provides that upon delivery by the Issuers to the Trustee of an Officer's Certificate and 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 the Indenture, including without limitation Section 4.09 thereof, the Trustee shall execute any documents reasonably required to evidence the release of such Material Subsidiary Obligor from its obligations under the Notes or its Subsidiary Guaranty, as the case may be, and the Indenture;
WHEREAS, the Issuers have delivered to Trustee an Officer's Certificate and Opinion of Counsel to the effect that the sale by RCAC to Purchaser of all of the capital stock of Arby's complies with the applicable provisions of the Indenture.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained and intending to be legally bound, the parties hereto hereby agree as follows:
Section 1. Capitalized terms used herein and not otherwise defined herein are used as defined in the Indenture.
Section 2. The Purchaser, by its execution of this Supplemental Indenture, hereby agrees to be a Subsidiary Guarantor under the Indenture and to be bound by the terms of the Indenture applicable to Subsidiary Guarantors including, but not limited to, Article 13, effective upon the completion of the Transaction.
Section 3. RCAC acknowledges and reaffirms its obligations under its Subsidiary Guaranty and the Indenture.
Section 4. Arby's and each of its Subsidiaries (which are set forth on Schedule I hereto) are released from all obligations and covenants under their Subsidiary Guaranties and the Indenture.
Section 5. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAWS TO THE EXTENT THAT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 6. The recitals herein contained are made by the Issuers, and the Trustee assumes no responsibility for the correctness thereof.
Section 7. This Supplemental Indenture may be signed in various counterparts which together shall constitute one and the same instrument.
Section 8. This Supplemental Indenture is an amendment supplemental to the Indenture and said Indenture and this Supplemental Indenture shall henceforth be read together.
IN WITNESS WHEREOF, the parties have duly executed and delivered this Supplemental Indenture or have caused this Supplemental Indenture to be duly executed on their respective behalf by their respective officers thereunder duly authorized, as of the day and year first above written.
TRIARC CONSUMER PRODUCTS
GROUP, LLC, as Issuer
By: /s/ John L. Barnes, Jr.
---------------------------------------
Name: John L. Barnes, Jr.
Title: Executive Vice President
|
SNAPPLE BEVERAGE GROUP, INC.,
as Issuer
By: /s/ John L. Barnes, Jr.
---------------------------------------
Name: John L. Barnes, Jr.
Title: Executive Vice President
|
ARBY'S ACQUISITION, LLC
as a Subsidiary Guarantor
By: /s/ Brian L. Schorr
---------------------------------------
Name: Brian L. Schorr
Title: Executive Vice President
|
RCAC, LLC
as a Subsidiary Guarantor
By: /s/ Brian L. Schorr
---------------------------------------
Name: Brian L. Schorr
Title: Executive Vice President
|
THE BANK OF NEW YORK, as Trustee
By: /s/ Julie Salovitch-Miller
---------------------------------------
Name: Julie Salovitch-Miller
Title: Vice President
|
SCHEDULE I - ARBY'S SUBSIDIARIES
Arby's Building and Construction Co.
TJ Holding Company, Inc.
ARHC, LLC Arby's of Canada Inc.
EXHIBIT 4.4
SUPPLEMENTAL INDENTURE NO. 7
dated as of October 25, 2000
among
TRIARC CONSUMER PRODUCTS GROUP, LLC,
SNAPPLE BEVERAGE GROUP, INC.,
as Issuers,
SBG HOLDINGS INC., as Successor Issuer
the SUBSIDIARY GUARANTORS party hereto,
and
THE BANK OF NEW YORK,
as Trustee
10 1/4% Senior Subordinated Notes due 2009
THIS SUPPLEMENTAL INDENTURE No. 7 (this "Supplemental Indenture"), dated as of October 25, 2000, among TRIARC CONSUMER PRODUCTS GROUP, LLC, a Delaware limited liability company (the "Company"), SNAPPLE BEVERAGE GROUP, INC. a Delaware corporation formerly known as Triarc Beverage Holdings Corp. ("Snapple," and together with the Company, the "Issuers"), SBG HOLDINGS INC., a Delaware corporation (the "Successor"), the Subsidiary Guarantors party hereto, as guarantors, and THE BANK OF NEW YORK, as Trustee (the "Trustee").
RECITALS
WHEREAS, the Issuers, the Subsidiary Guarantors, and the Trustee entered into the Indenture, dated as of February 25, 1999 (as supplemented by Supplemental Indenture No. 1 dated as of February 26, 1999, Supplemental Indenture No. 2 dated as of September 8, 1999, Supplemental Indenture No. 3 dated as of December 6, 1999, Supplemental Indenture No. 4 dated as of January 2, 2000, Supplemental Indenture No. 5 dated as of the date hereof and Supplemental Indenture No. 6 dated as of the date hereof, and as otherwise amended, supplemented and modified from time to time, the "Indenture"), relating to the Issuers' 10 1/4% Senior Subordinated Notes due 2009 (the "Notes");
WHEREAS, pursuant to an Agreement and Plan of Merger, dated as of September 15, 2000 (the "Merger Agreement"), by and among Cadbury Schweppes plc, CSN Acquisition Inc. ("Merger Sub SB"), CRC Acquisition Inc. ("Merger Sub RC"), Triarc Companies, Inc., a Delaware corporation ("Triarc Parent"), Snapple and Royal Crown Company, Inc., a Delaware corporation ("RC"), the Company is conveying and transferring, and the Successor is acquiring, substantially all of the assets of the Company through the merger of Merger Sub SB with and into Snapple and the merger of Merger Sub RC with and into RC (the "Transaction");
WHEREAS, Section 5.01(a)(i) of the Indenture provides that a Person which acquires by conveyance, transfer or lease substantially all the assets of the 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 shall expressly assume, by an indenture supplemental to the Indenture, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all of the obligations of the Company under the Notes and the Indenture;
WHEREAS, Section 5.02 of the Indenture provides that upon the 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 of the Indenture, the successor corporation to which such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted for the Company under the Indenture, and the predecessor Company shall be released from all of its obligations under the Indenture and the Notes.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained and intending to be legally bound, the parties hereto hereby agree as follows:
Section 1. Capitalized terms used herein and not otherwise defined herein are used as defined in the Indenture.
Section 2. The Successor, by its execution of this Supplemental Indenture, hereby agrees to assume all of the Company's obligations under the Notes and the Indenture and to be bound by the terms of the Notes and the Indenture applicable to the Company, upon the completion of the Transaction.
Section 3. The Company is released from all of its obligations under the Indenture and under the Notes, in accordance with Section 5.02 of the Indenture.
Section 4. Snapple, as the surviving Person in the merger with Merger Sub SB, acknowledges and reaffirms its obligations as an Issuer of the Notes under the Indenture, and RC, as the surviving Person in the merger with Merger Sub RC, acknowledges and reaffirms its obligations under its Subsidiary Guaranty and the Indenture.
Section 5. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY PRINCIPLES OF CONFLICTS OF LAWS TO THE EXTENT THAT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 6. The recitals herein contained are made by the Issuers and the Successor, and the Trustee assumes no responsibility for the correctness thereof.
Section 7. This Supplemental Indenture may be signed in various counterparts which together shall constitute one and the same instrument.
Section 8. This Supplemental Indenture is an amendment supplemental to the Indenture and said Indenture and this Supplemental Indenture shall henceforth be read together.
IN WITNESS WHEREOF, the parties have duly executed and delivered this Supplemental Indenture or have caused this Supplemental Indenture to be duly executed on their respective behalf by their respective officers thereunder duly authorized, as of the day and year first above written.
TRIARC CONSUMER PRODUCTS
GROUP, LLC, as Issuer
By: /s/ John L. Barnes, Jr.
---------------------------------------
Name: John L. Barnes, Jr.
Title: Executive Vice President
|
SNAPPLE BEVERAGE GROUP, INC.,
as Issuer
By: /s/ John L. Barnes, Jr.
---------------------------------------
Name: John L. Barnes, Jr.
Title: Executive Vice President
|
SBG HOLDINGS INC.
as Successor Issuer
By: /s/ Bruce Futterer
---------------------------------------
Name: Bruce Futterer
Title: Secretary and Treasurer
|
RCAC, LLC
as a Subsidiary Guarantor
By: /s/ John L. Barnes, Jr.
---------------------------------------
Name: John L. Barnes, Jr.
Title: Executive Vice President
|
ARBY'S ACQUISITION, LLC
as a Subsidiary Guarantor
By: /s/ John L. Barnes, Jr.
---------------------------------------
Name: John L. Barnes, Jr.
Title: Executive Vice President
|
PROMOCIONES HOLDINGS, LLC
as a Subsidiary Guarantor
By: /s/ Brian L. Schorr
---------------------------------------
Name: Brian L. Schorr
Title: Executive Vice President
|
MISTIC BRANDS, INC.
as a Subsidiary Guarantor
By: /s/ Brian L. Schorr
---------------------------------------
Name: Brian L. Schorr
Title: Executive Vice President
|
STEWART'S BEVERAGES, INC.
as a Subsidiary Guarantor
By: /s/ Brian L. Schorr
---------------------------------------
Name: Brian L. Schorr
Title: Executive Vice President
|
OLD SAN FRANCISCO SELTZER, INC.
as a Subsidiary Guarantor
By: /s/ Brian L. Schorr
---------------------------------------
Name: Brian L. Schorr
Title: Executive Vice President
|
FOUNTAIN CLASSICS, INC.
as a Subsidiary Guarantor
By: /s/ Brian L. Schorr
---------------------------------------
Name: Brian L. Schorr
Title: Executive Vice President
|
SNAPPLE BEVERAGE CORP.
as a Subsidiary Guarantor
By: /s/ Stuart I. Rosen
---------------------------------------
Name: Stuart I. Rosen
Title: Vice President
|
SNAPPLE INTERNATIONAL CORP.
as a Subsidiary Guarantor
By: /s/ Stuart I. Rosen
---------------------------------------
Name: Stuart I. Rosen
Title: Vice President
|
SNAPPLE CARIBBEAN CORP.
as a Subsidiary Guarantor
By: /s/ Stuart I. Rosen
---------------------------------------
Name: Stuart I. Rosen
Title: Vice President
|
SNAPPLE WORLDWIDE CORP.
as a Subsidiary Guarantor
By: /s/ Stuart I. Rosen
---------------------------------------
Name: Stuart I. Rosen
Title: Vice President
|
SNAPPLE FINANCE CORP.
as a Subsidiary Guarantor
By: /s/ Stuart I. Rosen
---------------------------------------
Name: Stuart I. Rosen
Title: Vice President
|
PACIFIC SNAPPLE DISTRIBUTORS, INC.
as a Subsidiary Guarantor
By: /s/ Stuart I. Rosen
---------------------------------------
Name: Stuart I. Rosen
Title: Vice President
|
MR. NATURAL, INC.
as a Subsidiary Guarantor
By: /s/ Stuart I. Rosen
---------------------------------------
Name: Stuart I. Rosen
Title: Vice President
|
MILLROSE DISTRIBUTORS, INC.
as a Subsidiary Guarantor
By: /s/ Stuart I. Rosen
---------------------------------------
Name: Stuart I. Rosen
Title: Vice President
|
MPAS HOLDINGS, INC.
as a Subsidiary Guarantor
By: /s/ Stuart I. Rosen
---------------------------------------
Name: Stuart I. Rosen
Title: Vice President
|
MILLROSE, L.P.
as a Subsidiary Guarantor
By: MILLROSE DISTRIBUTORS, INC., as
general partner
By: /s/ Stuart I. Rosen
-----------------------------
Name: Stuart I. Rosen
Title: Vice President
|
SNAPPLE DISTRIBUTORS OF LONG ISLAND,
INC.
as a Subsidiary Guarantor
By: /s/ Stuart I. Rosen
---------------------------------------
Name: Stuart I. Rosen
Title: Vice President
|
KELRAE, INC.
as a Subsidiary Guarantor
By: /s/ Stuart I. Rosen
---------------------------------------
Name: Stuart I. Rosen
Title: Vice President
|
RC LEASING, INC.
as a Subsidiary Guarantor
By: /s/ Stuart I. Rosen
---------------------------------------
Name: Stuart I. Rosen
Title: Vice President
|
ROYAL CROWN BOTTLING COMPANY OF
TEXAS
as a Subsidiary Guarantor
By: /s/ Stuart I. Rosen
---------------------------------------
Name: Stuart I. Rosen
Title: Vice President
|
ROYAL CROWN COMPANY, INC.
as a Subsidiary Guarantor
By: /s/ Stuart I. Rosen
---------------------------------------
Name: Stuart I. Rosen
Title: Vice President
|
RETAILER CONCENTRATE PRODUCTS, INC.
as a Subsidiary Guarantor
By: /s/ Stuart I. Rosen
---------------------------------------
Name: Stuart I. Rosen
Title: Vice President
|
TRIBEV CORPORATION
as a Subsidiary Guarantor
By: /s/ Stuart I. Rosen
---------------------------------------
Name: Stuart I. Rosen
Title: Vice President
|
THE BANK OF NEW YORK, as Trustee
By: /s/ Julie Salovitch-Miller
---------------------------------------
Name: Julie Salovitch-Miller
Title: Vice President
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EXHIBIT 10.1
INDEMNITY AGREEMENT, dated as of October 25, 2000 (this "AGREEMENT"), by and between CADBURY SCHWEPPES PLC, an English public limited company ("CS"), and TRIARC COMPANIES, INC., a Delaware corporation (the "PARENT"),
Pursuant to an Agreement and Plan of Merger, dated as of September 15, 2000, among CS, CSN Acquisition Inc., CRC Acquisition Inc., Snapple Beverage Group, Inc., Royal Crown Company, Inc. and Parent (including any amendments thereto, the "MERGER AGREEMENT"), CS has agreed to assume all of the Merging Companies' and TCPG's obligations under the 10-1/4% Indenture, including, without limitation, all obligations with respect to the 10-1/4% Notes and to assume all of the Parent's obligations under the Parent Indenture, including, without limitation, all obligations with respect to the 2018 Debentures (collectively, the "ASSUMED DEBT");
Capitalized terms used herein but not defined herein shall have the meaning assigned to such terms in the Merger Agreement;
It is a condition to the obligations of Parent and the Merging Companies to consummate the transactions contemplated by the Merger Agreement that CS execute and deliver this Agreement.
Accordingly, the parties agree as follows:
1. INDEMNIFICATION BY CS.
1.1. CS'S INDEMNIFICATION OBLIGATIONS. CS shall be liable to and indemnify, defend and hold harmless Parent and its directors, officers, employees, subsidiaries (including, without limitation, New LLC), affiliates, successors and assigns (each, an "INDEMNIFIED PARTY") from and against any and all damages, losses, claims, charges, actions, suits, proceeding, deficiencies, taxes, interest, penalties, liabilities, payments of any nature and costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) (each a "LOSS" and collectively the "LOSSES") based upon, arising out of or otherwise in respect of the Assumed Debt, except to the extent CS or its affiliates are entitled to indemnification under Section 5.11.11, 5.12.7 or 7.3 of the Merger Agreement.
2. THIRD PARTY CLAIMS.
2.1. NOTICE OF ASSERTED LIABILITY. Promptly after receipt by an Indemnified Party of notice of any demand, claim or circumstances by a third party which, with the lapse of time, would or might give rise to a claim or the commencement (or threatened commencement) of any action, audit, proceeding or investigation (an "ASSERTED LIABILITY") that may result in a Loss in respect of which indemnification may be sought from CS under this Agreement such Indemnified Party shall give written notice thereof (the "INDEMNIFICATION NOTICE") to CS. The Indemnification Notice shall describe the Asserted Liability in reasonable detail, and shall indicate the amount (estimated, if necessary and to the extent it is feasible) of the Loss that has been or may be suffered by such Indemnified Party. The failure to give the Indemnification Notice promptly shall not bar indemnification hereunder except and only to the extent such failure materially prejudiced the party against whom indemnification is sought.
2.2. OPPORTUNITY TO DEFEND. CS shall be entitled to assume the defense of any Asserted Liability for which it has an obligation to indemnify an Indemnified Party pursuant to Section 1.1 hereof at its own expense, with counsel reasonably satisfactory to such Indemnified Party; PROVIDED, HOWEVER, that any Indemnified Party may, at its own expense, retain separate counsel to participate in such defense. Notwithstanding the foregoing, in any action, claim or proceeding in which the defendants include both an Indemnified Party and CS, if, in the reasonable opinion of counsel to such Indemnified Party, (i) there are or may be legal defenses available to such Indemnified Party or to other Indemnified Persons that are different from or additional to those available to CS or (ii) a conflict or potential conflict exists between CS, on the one hand, and such Indemnified Party, on the other hand, that would make separate representation advisable, such Indemnified Party shall have the right to employ separate counsel reasonably satisfactory to CS at the expense of CS and to control its own defense of such action, claim or proceeding; PROVIDED, HOWEVER, that CS shall not be liable for the fees and expenses of more than one counsel to all Indemnified Parties in any one legal action or group of related legal actions. If CS does not assume the defense of any Asserted Liability within thirty (30) days (or less if the nature of the Asserted Liability requires its receipt of the Indemnification Notice), the Indemnified Party shall control the investigation, defense and settlement thereof at the reasonable cost of CS, and CS shall make or cause to be made available to the Indemnified Party any books, records or other documents within its control that are reasonably requested by the Indemnified Party for such defense. CS shall not be liable for any settlement of any claim, action or proceeding effected against an Indemnified Party without its written consent, which consent shall not be unreasonably withheld or delayed.
2.3. AUTHORITY OF CS. In the event an Indemnification Notice is delivered to CS in respect of an Asserted Claim, and CS assumes the defense thereof, CS shall have the discretion to make all decisions and determinations permitted or required to be made by CS under Section 2.2 above with respect to such Asserted Claim, and Parent shall make or cause to be made available to CS any books, records or other documents within its control that are reasonably requested by CS for such defense. CS agrees that it will not, without the prior written consent of the Indemnified Party, which shall not be unreasonable withheld or delayed, settle, compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding unless such settlement, compromise or consent includes a full and unconditional release of all Indemnified Parties from all liability arising or that may arise out of such claim, action or proceeding.
3. CONSENT TO JURISDICTION AND SERVICE OF PROCESS. Any legal action, suit or proceeding arising out of or relating to this agreement shall be instituted in the United States District Court for the Southern District of New York, and each party agrees not to assert, by way of motion, as a defense, or otherwise, in any such action, suit or proceeding, any claim that it is not subject personally to the jurisdiction of any such Court, that the action, suit or proceeding is brought in an inconvenient forum, that the venue of the action, suit or proceeding is improper or that this Indemnification Agreement or the subject matter hereof may not be enforced in or by any such Court. Each party irrevocably submits to the jurisdiction of any such Court in any such action, suit or proceeding. Any and all service of process and any other notice in any such action, suit or proceeding shall be effective against any party if given personally or by registered or certified mail, return receipt requested, or by any other means of mail that requires a signed receipt, postage prepaid, mailed to such party as herein provided. Nothing herein contained shall be deemed to affect the rights of any party to serve process in any manner permitted by law.
4. MISCELLANEOUS.
4.1. NOTICES. Any notice or other communication required or permitted hereunder shall be in writing and shall be deemed to have been delivered when delivered by hand or sent by telecopier (with receipt confirmed), or if delivered by courier shall be deemed given on the close of business on the second Business Day following the day when deposited with an overnight courier or the close of business on the fifth (5th) Business Day when deposited in the United States mail, postage prepaid, certified or registered addressed to the party at the address set forth below, with copies sent to the persons indicated:
(a) if to the Sellers, to:
Triarc Companies, Inc. 280 Park Avenue New York, NY, 10017 Fax: 212-451-3216 Attn.: Brian L. Schorr, Esq.
with a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, NY 10019
Fax: 212-757-3990
Attn: Neale M. Albert, Esq.
Paul D. Ginsberg, Esq.
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if to CS, to (or such other address as it shall have furnished to the other parties in writing):
Cadbury Schweppes plc 25 Berkeley Square London, England W1X 6HT Fax: (011) 44-207-830-5221 Attn: Company Secretary
with a copy to:
Morgan, Lewis & Bockius LLP 101 Park Avenue New York, NY 10178 Fax: 212-309-6636 Attn.: Charles E. Engros, Esq.
4.2. ENTIRE AGREEMENT. This Agreement is entered into and delivered pursuant to the Merger Agreement and as such contains the entire agreement among the parties with respect to the subject matter hereof and supersedes all prior agreements, written or oral, with respect thereto (other than the Merger Agreement). In the event of any conflict or inconsistency between the terms of this Agreement and the provisions of the Merger Agreement, the parties agree that the provisions of this Agreement shall prevail.
4.3. WAIVERS AND AMENDMENTS. This Agreement may be amended, superseded, canceled, renewed or extended, and the terms and conditions hereof may be waived, only by a written instrument signed by CS and Parent, or, in the case of a waiver, by the party waiving compliance. No delay on the part of any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of any party of any such right, power or privilege, nor any single or partial exercise of any such right, power or privilege preclude any further exercise thereof or the exercise of any other such right, power or privilege.
4.4. GOVERNING LAW. This Indemnification Agreement shall be governed and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed entirely within such State.
4.5. ASSIGNMENT. CS may not assign any of its rights, interests or obligations under this Agreement without the prior written consent of Parent, which may be given or withheld in its sole discretion. This Indemnification Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
4.6. FURTHER ASSURANCES. Each of the parties shall execute such documents and other papers and take such further actions as may be reasonably required or desirable to carry out the provisions hereof and the transactions contemplated hereby.
4.7. COUNTERPARTS. This Indemnification Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute one and the same instrument.
4.8. HEADINGS. The headings in this Indemnification Agreement are for reference only and shall not affect the interpretation of this Indemnification Agreement.
IN WITNESS WHEREOF, the parties have executed this Indemnification Agreement as of the date first above written.
CADBURY SCHWEPPES PLC
By: /s/ Mike Clark
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Name: Mike Clark
Title: Secretary
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TRIARC COMPANIES, INC.
By: /s/ John L. Barnes, Jr.
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Name: John L. Barnes, Jr.
Title: Executive Vice President
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