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/ Xxxx X. Xxxxxx, Xx.
---------------------------------------
Name: Xxxx X. Xxxxxx, Xx.
Title: Executive Vice President
SNAPPLE BEVERAGE GROUP, INC.,
as Issuer
By: /s/ Xxxx X. Xxxxxx, Xx.
---------------------------------------
Name: Xxxx X. Xxxxxx, Xx.
Title: Executive Vice President
ARBY'S ACQUISITION, LLC
as a Subsidiary Guarantor
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
RCAC, LLC
as a Subsidiary Guarantor
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
THE BANK OF NEW YORK, as Trustee
By: /s/ Xxxxx Xxxxxxxxx-Xxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxxxx-Xxxxxx
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.
