` Exhibit 4.1
SUPPLEMENTAL INDENTURE NO. 8
dated as of November 14, 2000
among
SBG HOLDINGS INC., and
SNAPPLE BEVERAGE GROUP, INC.,
as Issuers,
the SUBSIDIARY GUARANTORS party hereto,
and
THE BANK OF NEW YORK,
as Trustee
10-1/4% Senior Subordinated Notes due 2009
SUPPLEMENTAL INDENTURE No. 8 dated as of November 14, 2000 (this
"Supplemental Indenture"), among SBG Holdings Inc., a Delaware corporation,
(the "Company"), and Snapple Beverage Group, Inc., a Delaware corporation, as
issuers (collectively, the "Issuers"), the Subsidiary Guarantors parties hereto
and The Bank of New York, as trustee (the "Trustee").
RECITALS
WHERAS, 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 16, 1999, Supplemental Indenture No. 4 dated as of January
2, 2000, Supplemental Indenture No. 5 dated as of October 25, 2000, Supplemental
Indenture No. 6 dated as of October 25, 2000, Supplemental Indenture No. 7 dated
as of October 25, 2000, and as otherwise supplemented and amended from time to
time, the "Indenture"), relating to the Issuers' 10 1/4 % Senior Subordinated
Notes due 2009 (the "Notes"); and
WHEREAS, Section 9.02 of the Indenture provides, among other things,
that with the written consent of the Holders of not less than a majority in
aggregate principal amount of the outstanding Notes, the Issuers, the Trustee,
and the Subsidiary Guarantors may amend or supplement the Notes or the
Indenture; and
WHEREAS, the Notes constitute the only series of securities outstanding
under the Indenture; and
WHEREAS, all action on the part of the Company necessary to authorize
its execution, delivery and performance of the Indenture has been duly taken;
and
WHEREAS, the Company has solicited the consents of the Holders of the
Notes to certain amendments to the Indenture pursuant to that certain Consent
Solicitation Statement dated November 7, 2000; and
WHEREAS, Holders of not less than a majority in aggregate principal
amount of the outstanding Notes have consented to the amendments and instruments
evidencing such consent have been delivered to the Trustee; and
WHEREAS, the Company desires and has requested Snapple Beverage Group,
Inc, the Subsidiary Guarantors, and the Trustee to join in the execution and
delivery of this Supplemental Indenture for the purpose of amending the
Indenture;
AGREEMENT
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, it is mutually covenanted and agreed for the equal and
ratable benefit of all Holders of the Notes as follows:
Section 1. Capitalized terms used herein and not otherwise defined
herein are used as defined in the Indenture.
Section 2. When used herein, "Tender Offer Completion Event" shall mean
such time as each of the following events shall have occurred; (i) the Company
shall have completed a tender offer in accordance with the terms and conditions
set forth in the Company's Letter to Holders dated November 8, 2000, and (ii)
each Holder that has tendered its Notes pursuant to the tender offer shall have
received payment for any Notes purchased pursuant to the tender offer.
Section 3. Upon the occurrence of the Tender Offer Completion Event,
Section 1.01 of the Indenture shall be amended by deleting the definition of
each term that is used in the Indenture only in the Sections or subsections
thereof that are deleted pursuant to Section 4 and Section 5, hereof.
Section 4. Upon the occurrence of the Tender Offer Completion Event,
the following sections of the Indenture, together with all references to those
sections and definitions used exclusively in those sections, will be deleted in
their entirety, unless otherwise specified, and replaced with the words
"Intentionally Omitted":
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 4.14. (Limitation on the Sale or Issuance of Capital Stock of
Restricted Subsidiaries);
SECTION 4.17. (Maintenance of Properties and Insurance); and
SECTION 4.18. (Additional Subsidiary Guarantees).
Section 5. Upon the occurrence of the Tender Offer Completion Event,
the following sections of the Indenture, together with all references to those
sections and definitions used exclusively in those sections, will be amended as
follows:
SECTION 4.04. (SEC Reports) is hereby amended to state, in its
entirety, the following:
All obligors on the Notes will comply with Section 314(a) of
the TIA.
SECTION 5.01 (Consolidation, Merger or Sale of Assets by the Company)
is hereby amended to state, in its entirety, the following:
(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; and (iii) 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 any such transaction
shall not have as one of its purposes the evasion of the foregoing
limitations.
SECTION 5.03 (Consolidation, Merger or Sale of Assets by a Material
Subsidiary Obligor) is hereby amended to state, in its entirety, the
following:
(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; and
(ii) immediately after giving effect to such transaction, no
Default shall have occurred and be continuing.
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 clause (ii) 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, 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.
SECTION 6.01 (Events of Default) is hereby amended as follows:
The text of subsections 6.01(e), and 6.01(f) is deleted and
replaced with the text "Intentionally Omitted".
Subsection 6.01(c) is hereby amended to state, in its
entirety, the following:
(c) the failure by the Issuers to comply with their
obligations under Article 5 above and under Section 4.13.
SECTION 6.02 (Acceleration) is hereby amended to state, in its
entirety, the following:
(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 50% 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. If any provision of this Supplemental Indenture limits,
qualifies or conflicts with the duties imposed by operation of Section 318(c) of
the Trust Indenture Act of 1939, the imposed duties shall control.
Section 7. 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 or conflicts of laws to the extent that the application
of the law of another jurisdiction would be required thereby.
Section 8. All agreements of the Issuers and the Subsidiary Guarantors
in this Supplemental Indenture shall bind their respective successors. All
agreements of the Trustee in this Supplemental Indenture shall bind its
successor.
Section 9. This Supplemental Indenture may be signed in various
counterparts which together shall constitute one and the same instrument.
Section 10. The recitals herein contained are made by the Company and
the Successor, and the Trustee assumes no responsibility for the correctness
thereof.
Section 11. This Supplemental Indenture is an amendment supplemental to
the Indenture and the said Indenture and Supplemental Indenture shall henceforth
be read together.
Section 12. In case any one or more of the provisions in this
Supplemental Indenture shall be held invalid, illegal or unenforceable, in any
respect for any reason, the validity, legality, enforceability, of any such
provision in every other respect and of the remaining provisions shall not in
any way be affected or impaired thereby, it being intended that all of the
provisions hereof shall be enforceable to the full extent permitted by law.
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 written.
SNAPPLE BEVERAGE GROUP, INC.,
as Issuer
By: BRUCE FUTTERER
-------------------------------
Name: Bruce Futterer
Title:Treasurer and Secretary
SBG HOLDINGS INC.,
as Issuer
By: BRUCE FUTTERER
-------------------------------
Name: Bruce Futterer
Title:Treasurer and Secretary
RCAC, LLC
as a Subsidiary Guarantor
By: STUART I. ROSEN
-------------------------------
Name: Stuart I. Rosen
Title:Senior Vice President
ARBY'S ACQUISITION, LLC
as a Subsidiary Guarantor
By: STUART I. ROSEN
-------------------------------
Name: Stuart I. Rosen
Title:Senior Vice President
MISTIC BRANDS, INC.
as a Subsidiary Guarantor
By: GARY G. LYONS
------------------------------
Name: Gary G. Lyons
Title: Senior Vice President
STEWART'S BEVERAGES, INC.
as a Subsidiary Guarantor
By: GARY G. LYONS
------------------------------
Name: Gary G. Lyons
Title: Vice President
OLD SAN FRANCISCO SELTZER, INC.
as a Subsidiary Guarantor
By: GARY G. LYONS
------------------------------
Name: Gary G. Lyons
Title: Vice President
FOUNTAIN CLASSICS, INC.
as a Subsidiary Guarantor
By: GARY G. LYONS
------------------------------
Name: Gary G. Lyons
Title: Vice President
SNAPPLE BEVERAGE CORP.
as a Subsidiary Guarantor
By: GARY G. LYONS
------------------------------
Name: Gary G. Lyons
Title: Senior Vice President
SNAPPLE INTERNATIONAL CORP.
as a Subsidiary Guarantor
By: GARY G. LYONS
------------------------------
Name: Gary G. Lyons
Title: Senior Vice President
SNAPPLE CARIBBEAN CORP.
as a Subsidiary Guarantor
By: GARY G. LYONS
------------------------------
Name: Gary G. Lyons
Title: Senior Vice President
SNAPPLE WORLDWIDE CORP.
as a Subsidiary Guarantor
By: GARY G. LYONS
------------------------------
Name: Gary G. Lyons
Title: Senior Vice President
SNAPPLE FINANCE CORP.
as a Subsidiary Guarantor
By: GARY G. LYONS
------------------------------
Name: Gary G. Lyons
Title: Senior Vice President
PACIFIC SNAPPLE DISTRIBUTORS, INC.
as a Subsidiary Guarantor
By: GARY G. LYONS
------------------------------
Name: Gary G. Lyons
Title: Senior Vice President
MR. NATURAL, INC.
as a Subsidiary Guarantor
By: GARY G. LYONS
------------------------------
Name: Gary G. Lyons
Title: Senior Vice President
MILLROSE DISTRIBUTORS, INC.
as a Subsidiary Guarantor
By: GARY G. LYONS
------------------------------
Name: Gary G. Lyons
Title: Senior Vice President
MPAS HOLDINGS, INC.
as a Subsidiary Guarantor
By: GARY G. LYONS
------------------------------
Name: Gary G. Lyons
Title: Senior Vice President
MILLROSE, L.P.
as a Subsidiary Guarantor
By: MILLROSE DISTRIBUTORS, INC.,
as general partner
By: GARY G. LYONS
------------------------------
Name: Gary G. Lyons
Title: Senior Vice President
PROMOCIONES HOLDINGS, LLC
as a Subsidiary Guarantor
By: GARY G. LYONS
------------------------------
Name: Gary G. Lyons
Title: Authorized Signatory
SNAPPLE DISTRIBUTORS OF
LONG ISLAND, INC.
as a Subsidiary Guarantor
By: GARY G. LYONS
------------------------------
Name: Gary G. Lyons
Title: Senior Vice President
KELRAE, INC.
as a Subsidiary Guarantor
By: GARY G. LYONS
------------------------------
Name: Gary G. Lyons
Title: Authorized Signatory
RC LEASING, INC.
as a Subsidiary Guarantor
By: GARY G. LYONS
------------------------------
Name: Gary G. Lyons
Title: Senior Vice President
ROYAL CROWN BOTTLING
COMPANY OF TEXAS
as a Subsidiary Guarantor
By: GARY G. LYONS
------------------------------
Name: Gary G. Lyons
Title: Senior Vice President
ROYAL CROWN COMPANY, INC.
as a Subsidiary Guarantor
By: GARY G. LYONS
------------------------------
Name: Gary G. Lyons
Title: Senior Vice President
RETAILER CONCENTRATE PRODUCTS, INC.
as a Subsidiary Guarantor
By: GARY G. LYONS
------------------------------
Name: Gary G. Lyons
Title: Senior Vice President
TRIBEV CORPORATION
as a Subsidiary Guarantor
By: GARY G. LYONS
------------------------------
Name: Gary G. Lyons
Title: Senior Vice President
THE BANK OF NEW YORK, as Trustee
By: JULIE SALOVITCH-MILLER
-----------------------------
Name: Julie Salovitch-Miller
Title: Vice President