-----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, CmQ8xYxgOg/UzhBxVVDvqdvnSZ3RfwGT+svlGtYY4yai0gSwiAbNNouu1EjAw1Vk 8hy3ihSXc9i30RXZfkvLiQ== 0000030697-07-000230.txt : 20070810 0000030697-07-000230.hdr.sgml : 20070810 20070810111428 ACCESSION NUMBER: 0000030697-07-000230 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 9 CONFORMED PERIOD OF REPORT: 20070810 ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20070810 DATE AS OF CHANGE: 20070810 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TRIARC COMPANIES INC CENTRAL INDEX KEY: 0000030697 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-EATING & DRINKING PLACES [5810] IRS NUMBER: 380471180 STATE OF INCORPORATION: DE FISCAL YEAR END: 1230 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-02207 FILM NUMBER: 071043547 BUSINESS ADDRESS: STREET 1: 280 PARK AVENUE STREET 2: 24TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10017 BUSINESS PHONE: 212-451-3000 MAIL ADDRESS: STREET 1: 280 PARK AVENUE STREET 2: 24TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10017 FORMER COMPANY: FORMER CONFORMED NAME: DWG CORP DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: DEISEL WEMMER GILBERT CORP DATE OF NAME CHANGE: 19680820 FORMER COMPANY: FORMER CONFORMED NAME: DWG CIGAR CORP DATE OF NAME CHANGE: 19680820 8-K 1 try8k.txt TRIARC 8-K AUGUST 10, 2007 UNITED STATES 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): August 10, 2007 TRIARC COMPANIES, INC. -------------------------------------------------- (Exact name of registrant as specified in its 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 N/A ------------------------------------------------------------------------------ (Former Name or Former Address, if Changed Since Last Report) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions: [ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) [ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) [ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) [ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) Item 9.01. Financial Statements and Exhibits. (d) Exhibits 10.1 Assignment and Assumption of Lease, dated as of June 30, 2007, between Triarc Companies, Inc. and Trian Fund Management, L.P., 10.2 Bill of Sale dated July 31, 2007 by Triarc Companies, Inc. to Trian Fund Management, L.P 10.3 Settlement Agreement and Mutual Release, dated as of July __, 2007, by and among Triarc Companies, Inc., Arby's Restaurant Group, Inc., Arby's Restaurant, LLC and Russell V. Umphenour, Jr., Dennis E. Cooper and J. Russell Welch, as the RTM Representatives 10.4 Agreement of Sublease between Triarc Companies, Inc. and Trian Fund Management, L.P. 10.5 Form of Aircraft Time Sharing Agreement between Triarc Companies, Inc. and each of Trian Fund Management, L.P., Nelson Peltz, Peter W. May and Edward P. Garden. 10.6 Form of Aircraft Time Sharing Agreement between 280 Holdings, LLC and each of Trian Fund Management, L.P., Nelson Peltz, Peter W. May and Edward P. Garden. 10.7 Letter Agreement dated August 6, 2007 between Triarc Companies, Inc. and Trian Fund Management, L.P. 10.8 Letter Agreement dated August 8, 2007 among Deerfield & Company, LLC, Deerfield Triarc Capital Corp., DFR Merger Company, LLC and Triarc Companies, Inc., as sellers' representative. 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. By:/s/STUART ROSEN ------------------------------------- Stuart I. Rosen Senior Vice President and Secretary Dated: August 10, 2007 EXHIBIT INDEX Exhibit Description 10.1 Assignment and Assumption of Lease, dated as of June 30, 2007, between Triarc Companies, Inc. and Trian Fund Management, L.P., 10.2 Bill of Sale dated July 31, 2007 by Triarc Companies, Inc. to Trian Fund Management, L.P 10.3 Settlement Agreement and Mutual Release, dated as of July __, 2007, by and among Triarc Companies, Inc., Arby's Restaurant Group, Inc., Arby's Restaurant, LLC and Russell V. Umphenour, Jr., Dennis E. Cooper and J. Russell Welch, as the RTM Representatives 10.4 Agreement of Sublease between Triarc Companies, Inc. and Trian Fund Management, L.P. 10.5 Form of Aircraft Time Sharing Agreement between Triarc Companies, Inc. and each of Trian Fund Management, L.P., Nelson Peltz, Peter W. May and Edward P. Garden. 10.6 Form of Aircraft Time Sharing Agreement between 280 Holdings, LLC and each of Trian Fund Management, L.P., Nelson Peltz, Peter W. May and Edward P. Garden. 10.7 Letter Agreement dated August 6, 2007 between Triarc Companies, Inc. and Trian Fund Management, L.P. 10.8 Letter Agreement dated August 8, 2007 among Deerfield & Company, LLC, Deerfield Triarc Capital Corp., DFR Merger Company, LLC and Triarc Companies, Inc., as sellers' representative. EX-10.1 2 exh101.txt ASSIGNMENT AND ASSUMPTION OF LEASE EXHIBIT 10.1 ASSIGNMENT AND ASSUMPTION OF LEASE THIS ASSIGNMENT OF LEASE (the "Assignment") is made as of the 30th day of June, 2007, by and between TRIARC COMPANIES, INC. a Delaware corporation, having an office at 280 Park Avenue, New York, New York ("Assignor") and TRIAN FUND MANAGEMENT, L.P., a Delaware limited partnership, having an office at 280 Park Avenue, New York, New York ("Assignee"). W I T N E S S E T H: WHEREAS, on November 22, 1993, Assignor entered into a Lease (the "Original Lease"), between Hilton Hotels Corporation, as owner ("Lessor"), and Assignor, as tenant, in respect of Apartment 28A at the building known as the Waldorf-Astoria Hotel, located at 301 Park Avenue, New York, New York; and WHEREAS, on July 20, 1999, Lessor and Tenant entered into an Amendment and Extension of Lease Agreement, pursuant to which (i) the term of the Original Lease was extended, (ii) Tenant leased Apartment 28J, and (iii) Owner agreed to the combination of Apartment 28A and Apartment 28J into one unit (the Original Lease, as theretofore and thereafter amended, being referred to herein as the "Lease"); and WHEREAS, a copy of the Lease has been delivered by Assignor to Assignee; and WHEREAS, pursuant to the Lease, Assignor has deposited with Lessor cash security (the "Security Deposit") in the amount of One Hundred Twelve Thousand Five Hundred Dollars ($112,500); and WHEREAS, Assignor has agreed to assign the Lease to Assignee upon the terms and conditions hereinafter set forth; and NOW, THEREFORE, for and in consideration of Ten Dollars ($10.00) and other good and valuable consideration paid by Assignee to Assignor, the receipt and sufficiency of which is hereby acknowledged, it is hereby agreed as follows: 1. Assignor does hereby grant, convey, assign, transfer and set over unto Assignee, its successors and assigns, the Lease for the consideration set forth hereinabove. 2. Assignee hereby assumes all of the obligations of Assignor under the Lease that shall accrue from and after July 1, 2007. Assignee hereby agrees to indemnify and hold Assignor harmless from and against any and all claims, losses, liabilities, and causes of action arising under the Lease from and after July 1, 2007. 3. Assignor shall remain liable for all of Assignor's obligations under the Lease that have accrued prior to July 1, 2007. Assignor hereby agrees to indemnify and hold Assignee harmless from and against any and all claims, losses, liabilities, and causes of action arising under the Lease prior to July 1, 2007. 4. Assignor hereby represents and warrants to Assignee that (i) Assignor has good and merchantable title to the Lease; (ii) the undersigned party executing this Assignment on behalf of Assignor is duly authorized to execute this Assignment on behalf of Assignor; (iii) the Lease is the binding obligation of Assignor; (iv) the Lease that was previously delivered by Assignor to Assignee is a true, correct, and complete copy of the Lease; (v) the Lease is in full force and effect, and (vi) Assignor has neither given nor received any notice of default by Assignor or Lessor under the terms of the Lease, and Assignor is not aware of any facts or circumstances constituting a default by Assignor or Lessor under the terms of the Lease. 5. Assignee shall, on the date hereof, pay to Assignor an amount equal to the Security Deposit, and the Security Deposit shall be held by Lessor for the account of Assignee. 6. Each party hereto represents and warrants that it has not retained or dealt with any broker, finder, or salesperson in connection with this Assignment of Lease. 7. This Assignment of Lease shall be binding upon and inure to the benefit of Assignor and Assignee and their respective heirs, executors, administrators, successors and assigns. 8. This Assignment of Lease may be executed by the parties hereto in several counterparts, all or any of which shall be regarded for all purposes as one original and shall constitute and be one and the same instrument. IN WITNESS WHEREOF, Assignor, Assignee, and Lessor have affixed their signatures hereunto to be effective as of the date first set forth above. ASSIGNOR: TRIARC COMPANIES, INC. By: /s/FRANCIS T. MCCARRON -------------------------- Name: Francis T. McCarron Title: Executive Vice President and Chief Financial Officer ASSIGNEE: TRIAN FUND MANAGEMENT, L.P. By: /s/PETER W. MAY --------------------------- Name: Peter W. May Title: Hilton Hotels Corporation, Lessor, hereby consents to the assignment of the Lease to Assignee, acknowledges that from and after the date hereof, the Security Deposit shall be held by Lessor for the account of Assignee as tenant under the Lease, and agrees that Assignor shall be released from any and all liability arising under the Lease from and after the date hereof. HILTON HOTELS CORPORATION By: /s/TED RATCLIFF ---------------------------------- Name: Ted Ratcliff Title: EX-10.2 3 exh102.txt BILL OF SALE EXHIBIT 10.2 [Execution Copy] BILL OF SALE THIS BILL OF SALE is made, executed and delivered this 31st day of July 2007 (this "Bill of Sale"), by Triarc Companies, Inc., a Delaware corporation ("Seller"), to Trian Fund Management, L.P., a Delaware limited partnership ("Buyer"). RECITALS WHEREAS, Seller and Buyer are parties to that certain Services Agreement dated as of April 30, 2007 and Seller is a party to those certain Separation Agreements, each dated April 30, 2007, with Nelson Peltz ("Peltz") and Peter W. May ("May"). WHEREAS, Seller will be relocating its headquarter operations outside of New York City and will no longer need various assets associated with its headquarter operations. WHEREAS, Seller desires to sell, convey, transfer and assign to Buyer the assets described on Schedule A attached hereto (the "Purchased Assets") and Buyer desires to purchase the Purchased Assets. NOW, THEREFORE, in consideration for the payment of $1,668,373.70 (the "Purchase Price") plus $139,726.30 of New York State and New York City sales taxes, the receipt and sufficiency of which are hereby acknowledged, Seller agrees as follows: 1. Effective as of July 31, 2007, Seller for itself and its successors and assigns, does hereby irrevocably sell, set over, convey, grant, transfer and assign to Buyer, its successors and assigns, forever, all its right, title and interest in and to the Purchased Assets "as is" and "as they stand" and without any representation or warranty whatsoever (whether express or implied) as to condition, title, fitness for use, merchantability or any other matter, and the Buyer further acknowledges that it is familiar with and has examined the Purchased Assets to its satisfaction. The Purchase price shall be paid by Buyer to Seller within three (3) business days by wire transfer to Seller's account, as designated in writing by Seller. 2. Notwithstanding paragraph 1 above, or the assets described on Schedule A attached hereto, the following assets are excluded from the Purchased Assets and are not subject to the terms and conditions of this Bill of Sale: (A) the furniture located in the office of Brian Schorr ("Schorr") and owned by him (including his desk, chairs, lamp, black rotary phone, computer table, built-in bookcase, sports memorabilia, artwork and photographs and a conference table); (B) the architectural desk owned by May and the architectural drawings and maps owned by May and located throughout the premises, (C) any furniture or other assets that are currently leased by Seller, and (D) the designated computer server containing certain data relating to Seller. 3. Seller does hereby covenant that, from time to time after the delivery of this instrument, at Buyer's reasonable request, it will do, execute, acknowledge and deliver, or will cause to be done, executed, acknowledged and delivered, such further acts, conveyances, transfers, assignments and assurances as Buyer may require to convey, transfer to and vest in Buyer, and to put Buyer in possession of, any of the Purchased Assets. 4. This Bill of Sale shall be binding on and inure to the benefit of and be enforceable by Seller and Buyer and their respective successors and assigns. Nothing in this instrument shall be deemed to create or imply any right or benefit in any person or entity other than Seller, Buyer and their respective successors and assigns. 5. This Bill of Sale shall be governed by, construed and enforced in accordance with the laws of the State of New York applicable to contracts made and performed entirely within such State and without giving effect to the conflict of laws rules thereof. IN WITNESS WHEREOF, the undersigned has caused this Bill of Sale to be duly executed as of the date first written above. TRIARC COMPANIES, INC. By:/s/FRANCIS T. MCCARRON ---------------------------------------------- Name: Francis T. McCarron Title: Executive Vice President and Chief Financial Officer TRIAN FUND MANAGEMENT, L.P. By: Trian Fund Management GP, LLC, its general partner By:/s/PETER W. MAY ------------------------------------------- Name: Peter W. May Title: Member Schedule A Purchased Assets 1. The furniture and other related items as described in Christies' Appraisal previously provided to the Seller (unless otherwise excluded hereunder). 2. All tangible personal property owned by Seller and used in conducting its business on the 24th, 28th and 41st Floor of the Seller's offices at 280 Park Avenue, New York, NY, including computers, furniture, office equipment and supplies, and including any such property Seller keeps in one or more storage facilities (unless otherwise excluded hereunder). 3. All laptops, printers, fax machines, cell phones and PDAs owned by Seller and used by Seller's employees, wherever such equipment may be located. 4. The corporate name and trade name "Triarc" subject to the fully paid up, royalty-free, worldwide, irrevocable and exclusive right and license of the Seller (i) to continue to use such name through the earlier of June 15, 2008 and the date on which it has taken the necessary corporate action to change its name and (ii) to continue to use the listing symbol "TRY" and any variation thereof, until a replacement listing is obtained. 5. Cadillac Escalade 2007 automobile, Vehicle Identification Number ("VIN") 1GYFK66887R184432, owned by Seller. 6. The Seller's rights to sports tickets. 7. Purchased Assets do not include the items described in paragraph 2 of this Bill of Sale. EX-10.3 4 exh103.txt SETTLEMENT AGREEMENT AND MUTUAL RELEASE EXHIBIT 10.3 SETTLEMENT AGREEMENT AND MUTUAL RELEASE This Settlement Agreement and Mutual Release (this "Agreement") is executed as of July __, 2007, by and among Triarc Companies, Inc., a Delaware corporation ("Triarc"); Arby's Restaurant Group, Inc., a Delaware corporation and an indirect wholly owned subsidiary of Triarc ("ARG"); Arby's Restaurant, LLC, a Delaware limited liability company and a direct wholly owned subsidiary of ARG ("Arby's"); and Russell V. Umphenour, Jr., Dennis E. Cooper and J. Russell Welch, as the RTM Representatives. RECITALS Disputes and differences have arisen among the parties with respect to the post-closing adjustments required by Section 2.09 of that certain Agreement and Plan of Merger (as amended, supplemented or otherwise modified from time to time, the "Merger Agreement"), dated as of May 27, 2005, by and among Triarc; Arby's Acquisition Co., a Georgia corporation; Arby's; RTM Restaurant Group, Inc., a Georgia corporation; and the RTM Representatives. The parties hereto have agreed to execute this Agreement in full and complete settlement of such disputes and differences. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Merger Agreement. SETTLEMENT AND RELEASE The parties hereto hereby agree as follows: In full settlement of all amounts owed by Triarc to the RTM Representatives for distribution by them pro rata to the RTMRG Shareholders pursuant to Section 2.09 of the Merger Agreement (including any and all interest thereon), simultaneously with the execution and delivery of this Agreement, Triarc shall cause ARG to deliver to the RTM Representatives, for distribution by them pro rata to the RTMRG Shareholders, as an increase to the Aggregate Cash Consideration, cash (by wire transfer of immediately available funds) in an amount equal to $1,600,000 (the "Adjustment Amount"). Effective upon the RTM Representatives' receipt of the Adjustment Amount, each of Triarc and ARG, on the one hand, and the RTM Representatives, in their capacities as such and in their capacities as RTMRG Shareholders and on behalf of all other RTMRG Shareholders, on the other hand, do hereby release and forever discharge each other of and from all manner of actions, causes of action, suits, debts, interest, expenses, liabilities, obligations, damages, judgments, claims and demands of any kind or nature, in law or in equity, known or unknown, existing or arising in the future, whether or not damages are now accrued or ascertainable which either ever had, now has or may have in the future against the other, for, upon, or by reason of any matter or cause whatsoever relating to or arising out of Section 2.09 of the Merger Agreement. This Agreement is binding upon and inures to the benefit of all parties hereto, their successors and assigns. This Agreement shall be construed and interpreted in accordance with the laws of New York. This Agreement sets forth the entire agreement among the parties with respect to the specific subject matter hereof, and supersedes all prior agreements and representations between them with respect to the specific subject matter hereof, whether written or oral. This Agreement may be changed only in writing, signed by authorized representatives of the parties hereto. This Agreement is executed and delivered by the RTM Representatives pursuant to Section 12.17 of the Merger Agreement. [Signatures appear on the following page.] IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date first above written. TRIARC COMPANIES, INC. By: /s/FRANCIS T. MCCARRON -------------------------------------- Name: Francis T. McCarron Title: Executive Vice President & CFO ARBY'S RESTAURANT, LLC By: /s/STUART ROSEN -------------------------------------- Name: Stuart I. Rosen Title: Senior Vice President and Secretary ARBY'S RESTAURANT GROUP, INC. By: /s/STUART ROSEN -------------------------------------- Name: Stuart I. Rosen Title: Senior Vice President and Secretary RTM REPRESENTATIVES: /s/ RUSSELL V. UMPHENOUR, JR. ------------------------------------------ Russell V. Umphenour, Jr. /s/DENNIS E. COOPER ------------------------------------------ Dennis E. Cooper /s/J. RUSSELL WELCH ------------------------------------------ J. Russell Welch EX-10.4 5 exh104.txt AGREEMENT OF SUBLEASE EXHIBIT 10.4 AGREEMENT OF SUBLEASE between TRIARC COMPANIES, INC. Sublandlord and TRIAN FUND MANAGEMENT, L.P. Subtenant Sublease Premises: 41st Floor 280 Park Avenue New York, New York 1. Definitions........................................................ 1 2. Subleasing of Sublease Premises..................................... 1 3. Term.................................................................1 4. Fixed Rent and Additional Rent.......................................1 5. Subordination to and Incorporation of the Lease......................5 6. Alterations..........................................................6 7. Covenants with Respect to the Lease..................................6 8. Services and Repairs.................................................7 9. Consents.............................................................7 10. Termination of Lease................................................ 8 11. Default..............................................................9 12. Sublease, Not Assignment............................................10 13. Damage, Destruction, Fire and other Casualty; Condemnation..........10 14. No Waivers..........................................................10 15. Notices.............................................................11 16. Indemnity.......................................................... 11 17. Broker..............................................................11 18. Condition of the Sublease Premises................................ .12 19. No Consent Required.................................................12 20. Assignment, Subletting and Mortgaging...............................12 21. Termination.........................................................13 22. Miscellaneous.......................................................13 AGREEMENT OF SUBLEASE, made as of the ____ day of July, 2007, between TRIARC COMPANIES, INC., a Delaware corporation , having an office at 280 Park Avenue, New York, New York ("Sublandlord"), and TRIAN FUND MANAGEMENT, L.P., a Delaware limited partnership, having an office at 280 Park Avenue, New York, New York ("Subtenant"). W I T N E S S E T H : - - - - - - - - - - WHEREAS, pursuant to an Agreement of Lease (the "Original Lease"), dated May 1, 1996, originally between Sablons Investors, Inc., a New York corporation, predecessor-in-interest to Istithmar Building 280 Park LLC, as landlord ("Prime Landlord"), and Sublandlord, as tenant, as such Original Lease was amended by Supplemental Lease and First Amendment to Lease Agreement, dated July __, 1996 (the "First Amendment") and by Second Amendment to Lease, dated October 13, 2000 (the "Second Amendment"; the Original Lease, as so amended by the First Amendment and the Second Amendment, being referred to herein as the "Lease"), Sublandlord leases from Prime Landlord certain Sublease Premises more particularly described in the Lease, including, without limitation, the entire forty-first (41st) floor of the building located at 280 Park Avenue, New York, New York (the "Building"; the entire forty-first (41st) floor of the Building being referred to herein as the "Sublease Premises"); and WHEREAS, Sublandlord desires to sublease to Subtenant the Sublease Premises, and Subtenant desires to hire the Sublease Premises from Sublandlord on the terms and conditions contained herein. NOW, THEREFORE, in consideration of the mutual covenants herein contained, it is mutually agreed as follows: 1. Definitions. All capitalized terms not otherwise defined herein shall have the meanings given them in the Lease. 2. Subleasing of Sublease Premises. Sublandlord hereby subleases to Subtenant, and Subtenant hereby hires from Sublandlord, the Sublease Premises, upon and subject to the terms and conditions hereinafter set forth. 3. Term. The term (the "Term") of this Sublease shall commence on July 1, 2007 (the "Sublease Commencement Date") and shall terminate on May 30, 2012 ("Expiration Date"), or on such earlier date upon which the Term shall expire or be cancelled or terminated pursuant to any of the conditions or covenants of this Sublease or pursuant to law. Notwithstanding the foregoing, if Subtenant intends to relocate its offices outside of Manhattan, as evidenced by a signed lease or sublease by Subtenant or its Affiliate, Subtenant may terminate this Sublease upon at least sixty (60) days prior written notice to Sublandlord. 4. Fixed Rent and Additional Rent. 4.1. Subtenant shall pay to Sublandlord, commencing on the Sublease Commencement Date, in currency which at the time of payment is legal tender for public and private debts in the United States of America, as fixed rent ("Fixed Rent") during the Term, three (3) business days prior to the first (1st) day of each month during the Term, for the period commencing on the Sublease Commencement Date and ending on the Expiration Date, the annual sum of One Million Two Hundred Seventeen Thousand Seven Hundred Ten Dollars and No Dollars ($1,217,710.00), payable in equal monthly installments of $101,475.83, except that the first monthly installment of Fixed Rent shall be payable on execution hereof. 4.2. (i) For each Tax Year during the Term, Subtenant shall pay to Sublandlord as and for additional rent an amount (the "Sublease Tax Payment") equal to the portion of the Tax Escalation Payment for such Tax Year, as computed by Prime Landlord pursuant to a statement delivered to Sublandlord in accordance with the Lease, which is attributed to the Sublease Premises. (ii) At any time during or after the Term, Sublandlord shall render to Subtenant a written statement or statements (a "Sublease Tax Statement"), together with a reproduced copy of the Statement received from Prime Landlord for the current or next succeeding Tax Year (if theretofore issued by Prime Landlord), showing the portion of the Tax Escalation Payment which is attributed to the Sublease Premises. Subtenant shall pay to Sublandlord, in twelve (12) equal installments, in advance, five (5) business days prior to the date upon which the corresponding payment is due and payable to Prime Landlord by Sublandlord, one-twelfth (1/12) of the Sublease Tax Payment shown on the Sublease Tax Statement, except that if at the time Sublandlord delivers a Sublease Tax Statement to Subtenant, the Sublease Tax Payment shall have accrued for a period prior to the delivery of the Sublease Tax Statement, Subtenant shall pay such accrued portion of the Sublease Tax Payment in full within fifteen (15) days after receipt of such Sublease Tax Statement. If Sublandlord shall be required to pay any Tax Escalation Payment on any other date or dates than as presently required by the Lease, then the due date of the installments of the Tax Payment shall be correspondingly accelerated or revised so that the Sublease Tax Payment (or the applicable installment thereof) is due three (3) business days prior to the date the corresponding payment is due to Prime Landlord. Sublandlord's failure to render a Sublease Tax Statement during or with respect to any Tax Year shall not prejudice Sublandlord's right to render a Sublease Tax Statement during or with respect to any subsequent Tax Year, and shall not eliminate or reduce Subtenant's obligation to make Sublease Tax Payments pursuant to this Section 4.2 for such Tax Year. (iii) The Sublease Tax Payment shall be prorated for any partial Tax Year in which the Term shall commence or end. If a Sublease Tax Statement is furnished to Subtenant after the commencement of the Tax Year in respect of which such Sublease Tax Statement is rendered, Subtenant shall, within fifteen (15) days thereafter, pay to Sublandlord an amount equal to the amount of any underpayment of the Sublease Tax Payment with respect to such Tax Year and, in the event of an overpayment, Sublandlord shall either pay to Subtenant or, at Sublandlord's election, credit against the next installments of Fixed Rent and payments of additional rent, the amount of Subtenant's overpayment. (iv) Only Prime Landlord shall be eligible to institute tax reduction or other proceedings to reduce the assessed valuation of the Building. If Prime Landlord shall be successful in any such reduction proceedings and obtain a rebate for any Tax Year for which Subtenant has paid installments of the Tax Payment, Sublandlord shall either pay to Subtenant, or at Subtenant's election, credit against the next installments of the Fixed Rent and payments of additional rent payable under this Sublease, an amount equal to the portion of any such rebate for which Sublandlord shall receive a credit from Prime Landlord which is attributed to the Sublease Premises. 4.3. (i) For each Comparison Year during the Term (a "Lease Year"), Subtenant shall pay to Sublandlord as and for additional rent an amount (the "Sublease Wage Payment") equal to the portion of the Wage Escalation Payment for such Comparison Year, as computed by Prime Landlord pursuant to a statement delivered to Sublandlord in accordance with the Lease, which is attributed to the Sublease Premises. (ii) At any time during or after the Term, Sublandlord shall render to Subtenant a written statement or statements (a "Sublease Wage Statement"), together with a reproduced copy of the statement received from Prime Landlord for the applicable Comparison Year, showing the portion of the Wage Escalation Payment which is attributed to the Sublease Premises. Subtenant shall pay to Sublandlord, in twelve (12) equal monthly installments, in advance, three (3) business days prior to the date upon which the corresponding payment is due and payable to Prime Landlord by Sublandlord, an amount equal to one-twelfth (1/12th) of the Sublease Wage Payment, except that if at the time Sublandlord delivers a Sublease Wage Statement to Subtenant, the Sublease Wage Payment shall have accrued for a period prior to the delivery of the Sublease Wage Statement, Subtenant shall pay such accrued portion of the Sublease Wage Payment (after crediting any Sublease Wage Payments theretofore made by Subtenant with respect to such period) within fifteen (15) days after receipt of such Sublease Wage Statement. If Sublandlord furnishes a Sublease Wage Statement for a Comparison Year subsequent to the commencement thereof, then (i) until three (3) business days prior to the first day of the month following the month in which the Sublease Wage Statement is furnished to Subtenant, Subtenant shall continue to pay to Sublandlord three (3)business days prior to the first day of each month an amount equal to the monthly sum payable by Subtenant to Sublandlord with respect to the next previous Lease Year; (ii) promptly after the Sublease Wage Statement is furnished to Subtenant, Sublandlord shall give notice to Subtenant stating whether the amount previously paid by Subtenant to Sublandlord for the current Lease Year was greater or less than the installments of the Sublease Operating Payment to be paid for the current Lease Year, and (a) if there shall be a deficiency, Subtenant shall pay the amount thereof within ten (10) business days after demand therefor, or (b) if there shall have been an overpayment, Sublandlord shall either pay to Subtenant or, at Subtenant's option, credit against the next installments of the Fixed Rent and payments of additional rent payable under this Sublease, the amount of Subtenant's overpayment; and (iii) three (3) business days prior to the first day of the month following the month in which the Sublease Wage Statement is furnished to Subtenant, and monthly thereafter throughout the remainder of the Lease Year, Subtenant shall pay to Sublandlord an amount equal to one-twelfth (1/12th) of the Sublease Wage Payment shown on the Sublease Wage Statement. (iii) Each Sublease Tax Statement and Sublease Wage Statement shall be conclusive and binding upon Subtenant unless, within sixty (60) days after receipt thereof, Subtenant shall notify Sublandlord that it disputes the correctness of the Sublease Tax Statement or Sublease Wage Statement, specifying in reasonable detail the manner in which the Sublease Tax Statement or the Sublease Wage Statement, as the case may be, is claimed to be incorrect. If such notice is sent, provided Subtenant shall pay to Sublandlord the amount shown to be due to Sublandlord on the disputed Sublease Wage Statement, Sublandlord agrees to use reasonable efforts to enforce its rights under the Lease to dispute the correctness of the applicable statement delivered by Prime Landlord to Sublandlord the cost of which dispute shall be borne by Subtenant. Subtenant agrees to indemnify and hold Sublandlord harmless from and against any and all claims, costs, expenses and liabilities in connection therewith, including, without limitation, reasonable attorneys fees and disbursements. If Prime Landlord shall revise the applicable payment disputed by Subtenant, Sublandlord shall deliver to Subtenant a revised Sublease Tax Statement or Sublease Wage Statement, as the case may be, and an appropriate payment or credit by Sublandlord, or payment by Subtenant, as the case may be, shall be made in accordance with the terms of Section 4.3(ii) hereof. 4.4. If Subtenant shall fail to pay when due any installment of Fixed Rent or additional rent, Subtenant shall pay to Sublandlord, in addition to such installment of Fixed Rent or additional rent, as the case may be, as a late charge and as additional rent, a sum equal to interest at the Applicable Rate (hereinafter defined) per annum on the amount unpaid, commencing from the date such payment was due to and including the date of payment. The "Applicable Rate" shall be the rate equal to the lesser of (a) two (2) percentage points above the then current rate publicly announced by JPMorgan Chase Bank or its successor as its "base rate" (or such other term as may be used by JPMorgan Chase Bank. from time to time for the rate presently referred to as its "base rate") or (b) the maximum rate permitted by applicable law, 4.5. All Fixed Rent, additional rent, and all other costs, charges and sums payable by Subtenant hereunder (collectively, "Rental"), shall constitute rent under this Sublease, and shall be payable to Sublandlord at its address as set forth in Article 15 hereof, unless Sublandlord shall otherwise so direct in writing. 4.6. Subtenant shall promptly pay the Rental as and when the same shall become due and payable without set-off, offset or deduction of any kind whatsoever, except as expressly set forth herein, and, in the event of Subtenant's failure to pay the same when due (subject to grace periods provided herein), Sublandlord shall have all of the rights and remedies provided for herein or at law or in equity, in the case of non-payment of rent. 4.7. Sublandlord's failure during the Term to prepare and deliver any statements or bills required to be delivered to Subtenant hereunder, or Sublandlord's failure to make a demand under this Article 4 or under any other provisions of this Sublease shall not in any way be deemed to be a waiver of, or cause Sublandlord to forfeit or surrender its rights to collect any additional rent which may have become due pursuant to this Article 4 during the Term. Subtenant's liability for Fixed Rent and additional rent due under this Article 4 accruing during the Term, and Sublandlord's obligation to refund overpayments of or adjustments to Fixed Rent or additional rent paid to it by Subtenant, shall survive the expiration or sooner termination of this Sublease. 4.8. Except as otherwise provided herein, in no event shall any adjustment of any payments payable by Subtenant result in a decrease in Fixed Rent, nor shall any adjustment of any item of additional rent payable by Subtenant result in a decrease in any other item of additional rent payable by Subtenant, it being understood and agreed that the payment of any item of additional rent under this Article 4 is an obligation supplemental to Subtenant's obligations to pay Fixed Rent and any other item of additional rent. 4.9. If a Tax Year or Comparison Year shall end after the expiration of this Sublease, the additional rent payable by Subtenant in respect thereof shall be prorated to correspond to that portion of such Tax Year or Comparison Year occurring within the Term. 5. Subordination to and Incorporation of the Lease. 5.1. This Sublease is in all respects subject and subordinate to the terms and conditions of the Lease, and to all matters to which the Lease is subject and subordinate. Subtenant shall indemnify Sublandlord for, and shall hold it harmless from and against, any and all losses, damages, penalties, liabilities, costs and expenses, including, without limitation, reasonable attorneys' fees and disbursements, which may be sustained or incurred by Sublandlord by reason of Subtenant's failure to keep, observe or perform any of the terms, provisions, covenants, conditions and obligations on Sublandlord's part to be kept, observed or performed under the Lease to the extent same shall have been incorporated herein, or otherwise arising out of or with respect to Subtenant's use and occupancy of the Sublease Premises from and after the Sublease Commencement Date. 5.2. Except as otherwise expressly provided in, or otherwise inconsistent with, this Sublease, or to the extent not applicable to the Sublease Premises, the terms, provisions, covenants, stipulations, conditions, rights, obligations, remedies and agreements contained in the Lease are incorporated in this Sublease by reference, and are made a part hereof as if herein set forth at length, (i) Sublandlord shall be substituted for all references to Landlord under the Lease, and (ii) Subtenant shall be substituted for the "Tenant" under the Lease, except that any terms of the Lease that are inapplicable, inconsistent with, or specifically modified by, the terms of this Sublease shall be deemed deleted from the Lease and shall have no force and effect as between Sublandlord and Subtenant. 5.3. Notwithstanding the foregoing, the following provisions of the Lease shall not be incorporated in this Sublease: (i) the First Amendment (other than Paragraph 7 thereof), (ii) the Second Amendment, and (iii) Articles 21, 28, 32 and 47 of the Original Lease. 5.4. Sublandlord covenants and agrees that it will not voluntarily cancel or surrender the Lease, except for a termination thereof permitted under the Lease as a result of casualty or condemnation, or consent to any modification, amendment or supplement to the Lease which will deprive Subtenant of its rights or increase Subtenant's obligations under the Sublease to more than a de minimis extent, in each case without the prior written consent of Subtenant, which consent shall not be unreasonably withheld or delayed. Sublandlord shall promptly forward to Subtenant any default or termination notice with respect to the Lease received by Sublandlord. Sublandlord shall indemnify Subtenant for, and shall hold it harmless from and against, any and all losses, damages, penalties, liabilities, costs and expenses, including, without limitation, reasonable attorneys' fees and disbursements, which may be sustained or incurred by Subtenant by reason of Sublandlord's failure to keep, observe or perform any of the terms, provisions, covenants, conditions and obligations on Sublandlord's part to be kept, observed or performed under the Lease to the extent that any such failure results in the termination of the Lease. 5.5. Sublandlord represents that: (i) the Lease is in full force and effect in accordance with its terms; (ii) the copy of the Lease previously given by Sublandlord to Subtenant is true and correct and except for the letter dated June 6, 2006 from BP 280 Park Avenue LLC to Triarc Companies, Inc., the Lease has not been modified, amended or supplemented; (iii) Sublandlord has not received any notice of default by Sublandlord as tenant under the Lease, which default remains uncured; (iv) Sublandlord holds the entire tenant's interest in the Premises under the Lease, free and clear of any liens, claims, mortgages, charges or encumbrances, subleases and occupancies (other than this Sublease and the Lease), other than matters to which the tenant of Sublandlord as tenant under the Lease is or may be subordinate; and (v) the Expiration Date of the Lease is May 31, 2012. 5.6. Subtenant acknowledges that Sublandlord has deposited a letter of credit as security under the Lease and Sublandlord agrees to maintain said security with Prime Landlord during the term of this Sublease. In the event Prime Landlord draws on said security as a result of a default of Subtenant under this Sublease which is a default of Sublandlord under the Lease, Subtenant agrees to indemnify, defend and save Sublandlord harmless from any and all loss or damage which Sublandlord may suffer as a result of Prime Landlord's drawing on such letter of credit. 6. Alterations. Subtenant shall not make any alterations, installations, improvements, additions or other physical changes (other than decorative modifications) in or about the Sublease Premises ("Subtenant Alterations") without first obtaining the consent of Prime Landlord with respect thereto. Sublandlord agrees to cooperate with Subtenant, at no cost to Sublandlord, in order to obtain such consent. Any Subtenant Alterations shall be performed by Subtenant, at Subtenant's sole cost and expense, in accordance with the applicable provisions of the Lease. 7. Covenants with Respect to the Lease. 7.1. Subtenant shall not do anything that would constitute a default under the Lease or omit to do anything that Subtenant is obligated to do under the terms of this Sublease so as to cause there to be a default under the Lease. 7.2. The time limits set forth in the Lease for the giving of notices, making demands, performance of any act, condition or covenant, or the exercise of any right, remedy or option, are changed for the purpose of this Sublease, by lengthening or shortening the same in each instance, as appropriate, so that notices may be given, demands made, or any act, condition or covenant performed, or any right, remedy or option hereunder exercised, by Sublandlord or Subtenant, as the case may be, (and each party covenants that it will do so) within three (3) days prior to the expiration of the time limit, taking into account the maximum grace period, if any, relating thereto contained in the Lease. Each party shall promptly deliver to the other party copies of all notices, requests or demands which relate to the Sublease Premises or the use or occupancy thereof after receipt of same from Prime Landlord. 8. Services and Repairs. 8.1. Notwithstanding anything to the contrary contained in this Sublease or in the Lease, Sublandlord shall not be required to provide any of the services that Prime Landlord has agreed to provide, whether or not specified in Article 26 of the Lease (or required by law), or furnish the electricity to the Sublease Premises that Prime Landlord has agreed to furnish pursuant to the Lease (or required by law), or make any of the repairs or restorations that Prime Landlord has agreed to make pursuant to the Lease (or required by law), or comply with any laws or requirements of any governmental authorities, or take any other action that Prime Landlord has agreed to provide, furnish, make, comply with, or take, or cause to be provided, furnished, made, complied with or taken under the Lease, but Sublandlord agrees to use diligent efforts, at Subtenant's sole cost and expense, to obtain the same from Prime Landlord (provided, however, that Sublandlord shall not be obligated to use such efforts or take any action which might give rise to a default under the Lease), and Subtenant shall rely upon, and look solely to, Prime Landlord for the provision, furnishing or making thereof or compliance therewith. If Prime Landlord shall default in the performance of any of its obligations under the Lease, Sublandlord shall, upon request and at the expense of Subtenant, timely institute and diligently prosecute any action or proceeding which Subtenant, in its reasonable judgment, deems meritorious, in order to have Prime Landlord make such repairs, furnish such electricity, provide such services or comply with any other obligation of Prime Landlord under the Lease or as required by law. Subtenant shall indemnify and hold harmless Sublandlord from and against any and all such claims arising from or in connection with such request, action or proceeding. This indemnity and hold harmless agreement shall include indemnity from and against any and all liability, fines, suits, demands, costs and expenses of any kind or nature, including, without limitation, reasonable attorneys' fees and disbursements, incurred in connection with any such claim, action or proceeding brought thereon. Subtenant shall not make any claim against Sublandlord for any damage which may arise, nor shall Subtenant's obligations hereunder be diminished, by reason of (i) the failure of Prime Landlord to keep, observe or perform any of its obligations pursuant to the Lease, unless such failure is due to Sublandlord's negligence or misconduct, or (ii) the acts or omissions of Prime Landlord, its agents, contractors, servants, employees, invitees or licensees. Subtenant shall not be liable to Sublandlord, nor shall Subtenant be required to cure, any violation or condition in the Premises existing as of the Commencement Date or for any matter arising after the expiration of the term hereof. The provisions of this Article 8 shall survive the expiration or earlier termination of the Term hereof. 8.2. It is expressly understood and agreed that Subtenant shall obtain electricity from Prime Landlord on a submetered basis as provided in Article 26 of Lease. 9. Consents. 9.1. Sublandlord agrees that whenever its consent or approval is required hereunder, or where something must be done to Sublandlord's satisfaction, it shall not unreasonably withhold or delay such consent or approval; provided, however, that whenever the consent or approval of Prime Landlord, the lessor under a superior lease, or the mortgagee under a mortgage, as the case may be, is also required pursuant to the terms of the Lease, if Prime Landlord, the lessor under a superior lease, or the mortgagee under a mortgage shall withhold its consent or approval for any reason whatsoever, Sublandlord shall not be deemed to be acting unreasonably if it shall also withhold its consent or approval. If Prime Landlord shall withhold its consent or approval in connection with this Sublease or the Sublease Premises in any instance where, under the Lease, the consent or approval of Prime Landlord may not be unreasonably withheld, Sublandlord, upon the request and at the expense of Subtenant, shall either (i) timely institute and diligently prosecute any action or proceeding which Subtenant, in its reasonable judgment, deems meritorious, in order to dispute such action by Prime Landlord, or (ii) permit Subtenant, to the extent allowable under the Lease, to institute and prosecute such action or proceeding in the name of Prime Landlord, provided that Subtenant shall keep Sublandlord informed of its actions and shall not take any action which might give rise to a default under the Lease. 9.2. If Subtenant shall request Sublandlord's consent and Sublandlord has agreed, under the terms of this Sublease, that neither its consent nor its approval shall be unreasonably withheld, and Sublandlord shall fail or refuse to give such consent or approval, and Subtenant shall dispute the reasonableness of Sublandlord's refusal to give its consent or approval, such dispute shall be submitted to an Expedited Arbitration Proceeding (hereinafter defined). If the determination shall be adverse to Sublandlord, Sublandlord, nevertheless, shall not be liable to Subtenant for a breach of Sublandlord's covenant not to unreasonably withhold such consent or approval, and Subtenant's sole remedy in such event shall be the granting of consent or approval by Sublandlord with respect to such request under this Sublease. 9.3. As used herein, the term "Expedited Arbitration Proceeding" shall mean a binding arbitration proceeding before a single arbitrator, conducted in The City of New York under the Commercial Arbitration Rules of the American Arbitration Association (or its successor) and administered pursuant to the Expedited Procedures provisions thereof; provided, however, that with respect to any such arbitration, (i) the list of arbitrators referred to in Section E-4(b) shall be returned within five (5) Business Days from the date of mailing; (ii) the parties shall notify the American Arbitration Association (or its successor) by telephone, within four (4) Business Days, of any objections to the arbitrator appointed and, subject to clause (vii) below, shall have no right to object if the arbitrator so appointed was on the list submitted by the American Arbitration Association (or its successor) and was not objected to in accordance with Section E-4(b) as modified by clause (i) above; (iii) the notification of the hearing referred to in Section E-7 shall be four (4) Business Days in advance of the hearing; (iv) the hearing shall be held within seven (7) Business Days after the appointment of the arbitrator; (v) the arbitrator shall have no right to award damages or vary, modify or waive any provision of this Sublease; (vi) the decision of the arbitrator shall be final and binding on the parties; and (vii) the arbitrator shall not have been employed by either party (or their respective Affiliates) during the period of three (3) years prior to the date of the Expedited Arbitration Proceeding. The arbitrator shall have at least ten (10) years experience in New York City in the relevant area for the matter being arbitrated. The costs and fees for such arbitrator shall be divided equally between Sublandlord and Subtenant. 10. Termination of Lease. If the Lease is terminated by Prime Landlord pursuant to the terms thereof with respect to all or any portion of the Sublease Premises prior to the Expiration Date for any reason whatsoever, including, without limitation, by reason of casualty or condemnation, this Sublease shall thereupon terminate with respect to any corresponding portion of the Sublease Premises, and (unless such termination of the Lease shall be as a result of Sublandlord's default thereunder or a voluntary surrender of the Sublease Premises, other than a surrender of the Sublease Premises permitted under the Lease with respect to a termination of the Lease by reason of casualty to or condemnation of the Sublease Premises or the Building) Sublandlord shall not be liable to Subtenant by reason thereof. In the event of such termination, Sublandlord shall return to Subtenant that portion of the Rental paid in advance by Subtenant with respect to such portion of the Sublease Premises, if any, prorated as of the date of such termination. 11. Default. 11.1. This Sublease and the Term and estate hereby granted are subject to the following limitations (each an "Event of Default"): (i) if Subtenant shall fail to pay any installment of Rental as and when same is due and payable under this Sublease and such failure shall continue for five (5) days after Sublandlord shall have given to Subtenant a notice specifying the same, or (ii) if Subtenant shall fail to comply with any other term, provision or covenant of this Sublease or any applicable term, provision or covenant of the Lease and the same shall not be remedied by Subtenant within twenty (20) days after Sublandlord shall have given to Subtenant a notice specifying the same, except that if (i) such failure cannot be remedied with reasonable diligence during such period of twenty (20) days, (ii) Subtenant takes reasonable steps during such period to commence Tenant's remedying such failure, and (iii) Subtenant prosecutes diligently Subtenant's remedying of such failure to completion, then an Event of Default shall not occur by reason of such failure; or (iii) if (a) Subtenant shall make an assignment of the property of Subtenant for the benefit of creditors or shall file a voluntary petition under any bankruptcy or insolvency law, or (b) any involuntary petition alleging an act of bankruptcy or insolvency shall be filed against Subtenant under any bankruptcy or insolvency law, or (c) a petition shall be filed by or against Subtenant under the United States Bankruptcy Act or under the provisions of any law of like import, or (d) a receiver of Subtenant or of or for the property of Subtenant shall be appointed without the acquiescence of Subtenant, at any time, and such receiver is not dismissed within ninety (90) days thereafter, or (iv) if any event shall occur or any contingency shall arise whereby this Sublease or the estate hereby granted or the unexpired balance of the Term would, by operation of law or otherwise, devolve upon or pass to any person, firm or corporation other than Subtenant, except as expressly permitted by Paragraph 20 hereof, then upon the occurrence of any one or more of such Events of Default, Sublandlord shall be entitled to exercise any and all of the rights and remedies to which it is entitled by law or in equity, including without limitation any and all of the rights and remedies provided for in the Lease in the event that there is an event of default thereunder by Sublandlord, all of which are hereby incorporated herein and made part hereof with the same force and effect as if herein specifically set forth in full, and including without limitation the right to give to Subtenant a notice terminating this Sublease on a date which shall not be less than three (3) days from the date of the service of such notice and, upon the date so fixed, this Sublease and the Term and estate hereby granted, whether or not the Term shall theretofore have commenced, shall terminate with the same effect as if that day were the Expiration Date, but Subtenant shall remain liable for damages as provided in the Lease. 11.2. If Subtenant fails to cure a default under this Sublease, Sublandlord shall have the right, but not the obligation, to seek to remedy any such default on behalf of and at the expense of Subtenant, provided, however, that in case of (i) an emergency or (ii) a default that must be cured within a time frame set forth in the Lease that does not allow sufficient time for prior notice to be given to Subtenant, Sublandlord shall be entitled to seek to remedy any such default without being required first to give notice to Subtenant. Any reasonable cost and expense (including without limitation reasonable attorneys' fees and disbursements) so incurred shall be recoverable by Sublandlord from Subtenant as Additional Rent and shall be due and payable within ten (10) days after Notice thereof from Sublandlord. If Sublandlord shall reimburse Prime Landlord for expenditures made because of a breach by Subtenant of any of Sublandlord's obligations under the Lease which are assumed by Subtenant hereunder, Subtenant shall, upon Notice, reimburse Sublandlord, as Additional Rent, in full for the sum so paid by Sublandlord, together with reasonable attorneys' fees and disbursements incurred by Sublandlord. 12. Sublease, Not Assignment. Notwithstanding anything contained herein, this Sublease shall be deemed to be a sublease of the Sublease Premises and not an assignment, in whole or in part, of Sublandlord's interest in the Lease. 13. Damage, Destruction, Fire and other Casualty; Condemnation. Notwithstanding any contrary provision of this Sublease or the provisions of the Lease herein incorporated by reference, Subtenant shall not have the right to terminate this Sublease as to all or any part of the Sublease Premises, or be entitled to an abatement of Rent, additional rent or any other item of Rental, by reason of a casualty or condemnation affecting the Sublease Premises unless Sublandlord is entitled to terminate the Lease or is entitled to a corresponding abatement with respect to its corresponding obligation under the Lease. If Sublandlord is entitled to terminate the Lease for all or any portion of the Sublease Premises by reason of casualty or condemnation, Subtenant may terminate this Sublease as to any corresponding part of the Sublease Premises by written notice to Sublandlord given at least five (5) business days prior to the date(s) Sublandlord is required to give notice to Prime Landlord of such termination under the terms of the Lease. 14. No Waivers. Failure by Sublandlord in any instance to insist upon the strict performance of any one or more of the obligations of Subtenant under this Sublease, or to exercise any election herein contained, shall in no manner be or be deemed to be a waiver by Sublandlord of any of Subtenant's defaults or breaches hereunder or of any of Sublandlord's rights and remedies by reason of such defaults or breaches, or a waiver or relinquishment for the future of the requirement of strict performance of any and all of Subtenant's obligations hereunder. Further, no payment by Subtenant or receipt by Sublandlord of a lesser amount than the correct amount or manner of payment of Rental due hereunder shall be deemed to be other than a payment on account, nor shall any endorsement or statement on any check or any letter accompanying any check or payment be deemed to effect or evidence an accord and satisfaction, and Sublandlord may accept any checks or payments as made without prejudice to Sublandlord's right to recover the balance or pursue any other remedy in this Sublease or otherwise provided at law or equity. 15. Notices. Any notice, statement, demand, consent, approval, advice or other communication required or permitted to be given, rendered or made by either party to the other, pursuant to this Sublease or pursuant to any applicable law or requirement of public authority (collectively, "Communications") shall be in writing and shall be deemed to have been properly given, rendered or made only if sent by (i) personal delivery, receipted by the party to whom addressed, or (ii) registered or certified mail, return receipt requested, posted in a United States post office station in the continental United States, (iii) reputable overnight courier such as, without limitation, Federal Express Corporation, in all cases addressed (i) to Subtenant at its address first above written, Attention: General Counsel, and (ii) to Sublandlord at its address first above written, Attention: General Counsel. All such communications shall be deemed to have been given, rendered or made when delivered and receipted by the party to whom addressed, in the case of personal delivery, or three (3) days after the day so mailed or the next business day, if sent by overnight courier. Either party may, by notice as aforesaid actually received, designate a different address or addresses for communications intended for it. 16. Indemnity. 16.1. Subtenant shall not do or permit any act or thing to be done upon the Sublease Premises which may subject Sublandlord to any liability or responsibility for injury, damages to persons or property or to any liability by reason of any violation of any requirement of law, and shall exercise such control over the Sublease Premises as to fully protect Sublandlord against any such liability. Subtenant shall indemnify and save harmless Sublandlord, the Parties (hereinafter defined) and the employees, agents and contractors of any of the foregoing (collectively, the "Indemnitees") from and against (a) all claims of whatever nature against the Indemnitees arising from any act, omission or negligence of Subtenant, its contractors, licensees, agents, servants, employees, invitees or visitors, (b) all claims against the Indemnitees arising from any accident, injury or damage whatsoever caused to any person or to the property of any person and occurring during the Term in the Sublease Premises, and (c) all claims against the Indemnitees arising from any accident, injury or damage occurring outside of the Sublease Premises but anywhere within or about the Real Property, where such accident, injury or damage results or is claimed to have resulted from an act, omission or negligence of Subtenant or Subtenant's contractors, licensees, agents, servants or employees. This indemnity and hold harmless agreement shall include indemnity from and against any and all liability, fines, suits, demands, costs and expenses of any kind or nature (including, without limitation, attorneys' fees and disbursements) incurred in or in connection with any such claim or proceeding brought thereon, and the defense thereof. 16.2. If any claim, action or proceeding is made or brought against Sublandlord, which claim, action or proceeding Subtenant shall be obligated to indemnify Sublandlord against pursuant to the terms of this Sublease, then, upon demand by the Sublandlord, Subtenant, at its sole cost and expense, shall resist or defend such claim, action or proceeding in the Sublandlord's name, if necessary, by such attorneys as Sublandlord shall approve, which approval shall not be unreasonably withheld. Attorneys for Subtenant's insurer are hereby deemed approved for purposes of this Section 16.2. 17. Broker. Each party hereto covenants, warrants and represents to the other party that it has had no dealings, conversations or negotiations with any broker concerning the execution and delivery of this Sublease. Each party hereto agrees to indemnify and hold harmless the other party against and from any claims for any brokerage commissions and all costs, expenses and liabilities in connection therewith, including, without limitation, reasonable attorneys' fees and disbursements, arising out of its respective representations and warranties contained in this Article 17 being untrue. The provisions of this Article 17 shall survive the expiration or earlier termination of the Term hereof. 18. Condition of the Sublease Premises. Subtenant agrees to accept the Sublease Premises in its "as is" condition on the Sublease Commencement Date. Sublandlord has not made and does not make any representations or warranties as to the physical condition of the Sublease Premises, the use to which the Sublease Premises may be put, or any other matter or thing affecting or relating to the Sublease Premises, except as specifically set forth in this Sublease. Sublandlord shall have no obligations whatsoever to alter, improve, decorate or otherwise prepare the Sublease Premises for Subtenant's occupancy. 19. No Consent Required. Sublandlord and Subtenant hereby acknowledge and agree that Subtenant is an Affiliate of Sublandlord, and accordingly, in accordance with the provisions of Section 11.6 of the Original Lease the consent of Prime Landlord is not required. Sublandlord shall deliver the Affiliate Notice to Prime Landlord in accordance with the provisions of such Section 11.6, and Sublandlord and Subtenant shall cooperate in good faith with each other to provide to Prime Landlord the items required pursuant to such Section 11.6. 20. Assignment, Subletting and Mortgaging. 20.1. Subtenant shall not assign, sell, transfer (whether by operation or law or otherwise), pledge, mortgage or otherwise encumber this Sublease or any portion of its interest in the Sublease Premises, nor sublet all or any portion of the Sublease Premises or permit any other person or entity to use or occupy all or any portion of the Sublease Premises, without the prior written consent of Sublandlord and Prime Landlord. Provided that Subtenant shall comply with the provisions of the Lease (including, without limitation, Article 11 thereof) and this Sublease with respect to subletting, Sublandlord agrees that it shall not withhold or delay its consent to a subletting of all or any portion of the Sublease Premises provided that Prime Landlord shall consent to such subletting. Notwithstanding the foregoing, Subtenant may assign this Sublease, or sublease the Sublease Premises and Sublandlord's consent to such assignment or subletting shall not be required if, pursuant to the terms of the Lease (including, without limitation, Article 11 thereof), the consent of Prime Landlord to such assignment or subletting would not be required if such assignment or subletting were made by Sublandlord, including, without limitation, the assignment of this Sublease, or the transfer of all or any interest in Subtenant, to any Affiliate of Subtenant. Upon the request of Subtenant, Sublandlord, at Subtenant's sole cost and expense, shall request the consent of Prime Landlord and cooperate with Subtenant in obtaining any required consent. 20.2. If this Sublease be assigned, or if the Sublease Premises or any part thereof be sublet (whether or not Sublandlord and Prime Landlord shall have consented thereto), Sublandlord, after default by Subtenant in its obligations hereunder, may collect rent from the assignee or subtenant and apply the net amount collected to the Rental herein reserved, but no such assignment or subletting shall be deemed a waiver of the covenant set forth in this Article 20, or the acceptance of the assignee or subtenant as a tenant, or a release of Subtenant from the further performance and observance by Subtenant of the covenants, obligations and agreements on the part of Subtenant to be performed or observed herein. The consent by Sublandlord or Prime Landlord to an assignment, sale, pledge, transfer, mortgage or subletting shall not in any way be construed to relieve Subtenant from obtaining the express consent in writing, to the extent required by this Sublease or the Lease, of Sublandlord and Prime Landlord to any further assignment, sale, pledge, transfer, mortgage or subletting. 20.3. Subject to the provisions of Section 20.1 above, a transfer (including the issuance of treasury stock or the creation and issuance of new stock) of a controlling interest in the shares of Subtenant (if Subtenant is a corporation, other than a professional corporation, or trust) or a transfer of a majority of the total interest in Subtenant (if Subtenant is a partnership, including a limited liability partnership, or a limited liability company) at any one time or over a period of time through a series of transfers, shall be deemed an assignment of this Sublease and shall be subject to all of the provisions of this Agreement, including, without limitation, the requirements that Subtenant obtain Sublandlord's prior consent thereto to the extent required hereunder. The transfer of shares of Subtenant (if Subtenant is a corporation or trust) for purposes of this Section shall not include the sale of shares by persons other than those deemed "insiders" within the meaning of the Securities Exchange Act of 1934, as amended, which sale is effected through the "over-the-counter market" or through any recognized stock exchange. 21. Termination. Either Sublandlord or Subtenant shall have the right to terminate this Sublease upon not less than sixty (60) days prior written notice to the other party, provided if the Sublandlord elects to terminate this Sublease pursuant to the foregoing Sublandlord shall deliver to Subtenant a secretary's certification of resolutions of the Board acting at a meeting at which a quorum of the Directors were present, authorizing such termination. 22. Miscellaneous. 22.1. This Sublease contains the entire agreement between the parties and all prior negotiations and agreements are merged in this Sublease. Any agreement hereafter made shall be ineffective to change, modify or discharge this Sublease in whole or in part unless such agreement is in writing and signed by the parties hereto. No provision of this Sublease shall be deemed to have been waived by Sublandlord or Subtenant unless such waiver be in writing and signed by Sublandlord or Subtenant, as the case may be. The covenants and agreements contained in this Sublease shall bind and inure to the benefit of Sublandlord and Subtenant and their respective permitted successors and assigns. Each of Sublandlord and Subtenant hereby represent to the other that it has the full right, power and authority to consummate the transaction contemplated hereby, and that the individual executing and delivering this Sublease on behalf of Sublandlord and Subtenant, as the case may be, has been duly authorized to do so. 22.2. In the event that any provision of this Sublease shall be held to be invalid or unenforceable in any respect, the validity, legality or enforceability of the remaining provisions of this Sublease shall be unaffected thereby. 22.3. The paragraph headings appearing herein are for purposes of convenience only and are not deemed to be a part of this Sublease. 22.4. Capitalized terms used herein shall have the same meanings as are ascribed to them in the Lease, unless otherwise expressly defined herein. 22.5. This Sublease is offered to Subtenant for signature with the express understanding and agreement that this Sublease shall not be binding upon Sublandlord unless and until Sublandlord shall have executed and delivered a fully executed copy of this Sublease to Subtenant. 22.6. (i) The shareholders, partners, directors or officers of Sublandlord or any of the foregoing (collectively, the "Parties") shall not be liable for the performance of Sublandlord's obligations under this Sublease. Subtenant shall look solely to Sublandlord to enforce Sublandlord's obligations hereunder and shall not seek damages against any of the Parties. Subtenant shall look only to the assets of Sublandlord for the satisfaction of Subtenant's remedies for the collection of a judgment (or other judicial process) requiring the payment of money by Sublandlord in the event of any default by Sublandlord hereunder, and no property or assets of the Parties shall be subject to levy, execution or other enforcement procedure for the satisfaction of Subtenant's remedies under or with respect to this Sublease, the relationship of Sublandlord and Subtenant hereunder or Subtenant's use or occupancy of the Sublease Premises. (ii) The shareholders, partners, members, directors or officers of Subtenant or any of the foregoing (collectively, the " Subtenant Parties") shall not be liable for the performance of Subtenant's obligations under this Sublease. Sublandlord shall look solely to Subtenant to enforce Subtenant's obligations hereunder and shall not seek damages against any of the Subtenant Parties. Sublandlord shall look only to the assets of Subtenant for the satisfaction of Sublandlord's remedies for the collection of a judgment (or other judicial process) requiring the payment of money by Subtenant in the event of any default by Subtenant hereunder, and no property or assets of the Subtenant Parties shall be subject to levy, execution or other enforcement procedure for the satisfaction of Sublandlord's remedies under or with respect to this Sublease, the relationship of Subtenant and Sublandlord hereunder or Sublandlord's use or occupancy of the Sublease Premises. 22.7. This Sublease shall be governed by, and construed in accordance with, the laws of the State of New York. 22.8. Sublandlord and Subtenant expressly acknowledge and agree that, notwithstanding the delivery of possession of the Sublease Premises to Subtenant in accordance herewith, up to five professional employees of Deerfield Management Corp. and one administrative assistant (collectively, the "Deerfield Employees") shall have the right to continue to use and occupy and have unencumbered access to their three offices in the Sublease Premises and the use of a secretary, if available (the "Retained Offices") for the period commencing on the Sublease Commencement Date and ending on the date set forth in a notice from either Sublandlord or Subtenant to the other party, which date shall be not less than thirty (30) days after the delivery of such notice. Sublandlord shall pay to Subtenant (or, at Subtenant's option, credit the following amount against the Fixed Rent and Additional Rent payable hereunder), on a month to month basis for each month in which the Deerfield Executives remain in occupancy of their Retained Offices, an amount equal to the proportionate share of Fixed Rent and Additional Rent payable with respect to the Retained Offices used and occupied by the Deerfield Executives. In addition, Sublandlord and Subtenant expressly acknowledge and agree that, notwithstanding the delivery of possession of the Sublease Premises to Subtenant in accordance herewith, Frank McCarron and Stuart Rosen shall have the right to continue to use and occupy and have unencumbered access to their two offices in the Sublease Premises and the use of a secretary, if available, at no additional Fixed Rent or Additional Rent. IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement of Sublease as of the day and year first above written. TRIARC COMPANIES, INC., Sublandlord By: /s/FRANCIS T. MCCARRON ----------------------------------- Name: Francis T. McCarron Title: Executive Vice President and Chief Financial Officer TRIAN FUND MANAGEMENT, L.P., Subtenant By: Trian Fund Management GP, LLC, Its general partner By: /s/PETER W. MAY ------------------------------------ Name: Peter W. May Title: Member EX-10.5 6 exh105.txt FORM OF AIRCRAFT TIME SHARING AGREEMENT EXHIBIT 10.5 AIRCRAFT TIME SHARING AGREEMENT This AIRCRAFT TIME SHARING AGREEMENT ("Agreement"), dated as of the 6th day of August 2007, is by and between Triarc Companies, Inc. with its principal address at 280 Park Avenue, New York, New York 10017 ("Owner") and __________________("Lessee"). RECITALS WHEREAS, Owner owns a Gulfstream Aerospace G-IV aircraft bearing U.S. Registration No. N394TR and Manufacturer's Serial No. 1252 (the "Aircraft"); WHEREAS, Lessee desires to lease the Aircraft from Owner and Owner is willing to lease the Aircraft to Lessee; WHEREAS, Owner and Lessee have agreed on the lease of the Aircraft under a time sharing arrangement the terms and conditions of which are set forth herein; WHEREAS, this Agreement is entered into in recognition of and in compliance with the applicable provisions of U.S. Code of Federal Regulations 14 C.F.R. ss.91.501(b)(6). NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto agree as follows: ARTICLE 1: LEASE OF AIRCRAFT; TERM 1.1 Lease of Aircraft. Subject to the terms and conditions herein, Owner shall lease the Aircraft to Lessee from time to time with a flight crew for the operation thereof, as and when required by Lessee so long as the Aircraft is not otherwise employed on behalf of Owner. Lessee's use of the Aircraft shall constitute a non-exclusive lease. 1.2 Term. The lease of the Aircraft under the terms and provisions of this Agreement shall become effective upon execution of this Agreement and the Aircraft shall at such time, without further deed of lease or transfer, pass under and become subject to the terms and conditions of this Agreement. Such lease shall terminate on June 30, 2008; provided that the term of this Agreement shall be automatically extended for successive one-year periods unless not later than 60 days preceding any termination date either party shall give written notice to the other that it does not wish to further extend the term and provided further that, at any time subsequent to June 30, 2008, Owner shall have the right to terminate this Agreement upon not less than 60 days prior written notice to Lessee, provided if Owner elects to terminate this Agreement pursuant to the foregoing, Owner shall deliver to Lessee a secretary's certification of resolutions of the Owner's Board of Directors acting at a meeting at which a quorum of the Directors were present, authorizing such termination. ARTICLE 2: PERMISSIBLE CHARGES; TAXES 2.1 Fees and Charges. As consideration for the lease of the Aircraft, Lessee shall pay the following charges to Owner on a flight-by-flight basis following the completion of each flight with the Aircraft: (a) Fuel, oil, lubricants and other additives; (b) Travel expenses of the crew, including fuel, lodging, and ground transportation; (c) Hangar and tie-down costs away from the aircraft's base of operation; (d) Insurance obtained for the specific flight; (e) Landing fees, airport taxes, and similar assessments; (f) Customs, foreign permit, and similar fees directly related to the flight, if applicable; (g) In-flight food and beverages; (h) Passenger ground transportation; and (i) Flight planning and weather contract services. Under no circumstances shall the compensation paid by the Lessee to the Owner under this agreement exceed the amounts permissible under 14 C.F.R. ss.91.501(d). 2.2 Invoice and Payment. Within thirty (30) business days following the completion of each flight of the Aircraft on behalf of Lessee, Owner shall invoice Lessee for the charges specified in Section 2.1. Lessee shall pay the amount stated in the invoice within ten (10) business days following its receipt. 2.3 Taxes. The payment of any compensation in connection with the flights conducted on behalf of Lessee under this agreement is subject to federal transportation excise tax as provided under 26 U.S.C. ss.4261. Owner shall be responsible for the payment of any and all federal transportation excise taxes in connection with this Agreement. All other federal, state, or local taxes, duties or assessments imposed on the charges specified in Section 2.1 shall be the responsibility of Lessee. ARTICLE 3: DELIVERY AND REDELIVERY OF AIRCRAFT 3.1 Scheduling of Aircraft. Lessee shall request use of the Aircraft no less than three (3) hours prior to the requested departure time. All requests for the use of the Aircraft shall be submitted to such employee of Owner as shall be designated by Owner. Each such request shall specify the name of the Lessee, the date of departure, the date of return, the point of origin and the destination, the number and name of all passengers and emergency contact information for each passenger which shall not be another passenger on the same flight. Owner shall have final and exclusive authority over the scheduling of the Aircraft. 3.2 Delivery and Redelivery of Aircraft. Delivery and redelivery of the Aircraft by one party to the other party shall ordinarily be made at Stewart International Airport in New Windsor, New York; provided, however, that delivery and/or redelivery of the Aircraft may be made at such other airport as shall be agreed upon by the parties. ARTICLE 4: FLIGHT CREWS AND FLIGHT OPERATIONS 4.1 Flight Crews. Owner shall provide a complete flight crew for the operation of the Aircraft during the lease of the Aircraft to Lessee under this Agreement. Each member of such flight crew shall be duly licensed and qualified to operate the Aircraft in accordance with the regulations and requirements of the Federal Aviation Administration ("FAA"). 4.2 Operational Control. Owner shall at all times have operational control over all flights performed under this Agreement and shall be solely responsible for compliance with all applicable FAA regulations. The Lessee shall have the right to determine the schedules and destination of a flight while the Aircraft is being operated on behalf of Lessee, provided however that the pilot-in-command shall have sole authority to determine whether a flight may be safely operated and to initiate and terminate flights. Lessee undertakes to accept all decisions of the pilot-in-command regarding the operation of the Aircraft. 4.3 Operation of Aircraft. Owner shall operate the Aircraft in a safe and reasonable manner and at all times in compliance with all applicable laws and regulations, including, without limitation, the rules and regulations of the FAA. ARTICLE 5: MAINTENANCE 5.1 Aircraft Maintenance. During the term of this Agreement, Owner shall service and repair the Aircraft so as to: (a) maintain the Aircraft in good operating condition; (b) keep the Aircraft duly certified as airworthy at all times under the regulations of the FAA; (c) maintain the Aircraft in accordance with the standards prescribed by applicable law as the same may be in effect from time to time; and (d) maintain all records, logs and other documents required to be maintained with respect to the Aircraft. 5.2 Maintenance Scheduling. All maintenance and inspections of the Aircraft shall have priority in scheduling the operation of the Aircraft on behalf of Lessee, unless such maintenance and inspections may be deferred in accordance with applicable FAA regulations and recommended manufacturer maintenance procedures. ARTICLE 6: REPRESENTATIONS AND WARRANTIES 6.1 Owner Representations and Warranties. Owner represents and warrants to Lessee as follows: (a) Owner has title to the Aircraft and has all necessary authority to enter into this Agreement for the lease of the Aircraft to Lessee; and (b) Owner has not entered into this Agreement for the purpose of engaging in the sale of air transportation services for compensation or hire in contravention of the rules and regulations of the FAA. 6.2 Lessee Representations and Warranties. Lessee represents and warrants to Owner as follows: (a) Lessee has all necessary authority to enter into this Agreement for the lease of the Aircraft from Owner; and (b) Lessee has not entered into this Agreement for the purpose of engaging in the sale of air transportation services or for compensation or hire in contravention of the rules and regulations of the FAA. ARTICLE 7: INSURANCE 7.1 Insurance. Owner shall provide and maintain Aircraft third party aviation legal liability insurance in an amount not less than $500 million Such insurance shall include the following provisions: (a) Lessee shall be named as an additional insured; (b) Such insurance shall be primary without any right of contribution from any insurance carried by the Lessee; (c) The underwriter of such insurance shall waive any right of subrogation with respect to potential claims against Lessee. 7.2 Indemnification. Owner hereby indemnifies and agrees to hold Lessee harmless from and against any and all liabilities, claims, demands, suits, judgments, damages, losses, costs and expenses (including reasonable legal expenses and attorneys' fees) for or on account of or in any way connected with injury to or death of any persons whomsoever or loss of or damage to property arising out of (i) the use or operation of the Aircraft under this Agreement or in any way connected with this Agreement including but not limited to the Aircraft and related equipment or (ii) the performance or nonperformance by Owner of its responsibilities under this Agreement, unless such loss or damage results from the gross negligence or willful misconduct of Lessee. ARTICLE 8: TERMINATION 8.1 Termination by Owner. This Agreement shall automatically terminate upon the cessation of [Lessee's services as a director](1) [Lessee being an affiliate](2) of Owner. ARTICLE 9: MISCELLANEOUS 9.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to any conflict of laws rules thereof that might indicate the application of the laws of any other jurisdiction. 9.2 Severability. If any provision of this Agreement becomes invalid, illegal or unenforceable in any respect under any law, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. 9.3 Counterparts. This Agreement may be executed in any number of counterparts, each such counterpart constituting an original hereof. ARTICLE 10: TRUTH-IN-LEASING 10.1 Truth-in-Leasing. THE AIRCRAFT SUBJECT TO THIS TIME SHARING AGREEMENT HAS BEEN MAINTAINED AND INSPECTED IN ACCORDANCE WITH PART 91 OF THE FEDERAL AVIATION REGULATIONS DURING THE TWELVE (12) MONTHS PRECEDING THE EFFECTIVE DATE HEREOF AND THE PARTIES HERETO CERTIFY THAT FOR THE PURPOSES OF THE OPERATION TO BE CONDUCTED PURSUANT TO THIS AGREEMENT THE AIRCRAFT IS IN FULL COMPLIANCE WITH THE APPLICABLE MAINTENANCE AND INSPECTON REQUIREMENTS OF SAID PART 91. THE NAME AND ADDRESS OF THE PARTY RESPONSIBLE FOR THE OPERATIONAL CONTROL OF THE AIRCRAFT FOR THE TERM OF THIS AGREEMENT IS TRIARC COMPANIES, INC., 280 PARK AVENUE, NEW YORK, NEW YORK 10017, AND SAID PARTY HEREBY CERTIFIES THAT IT UNDERSTANDS ITS RESPONSIBILITY TO COMPLY WITH APPLICABLE FEDERAL AVIATION REGULATIONS. AN EXPLANATION OF THE FACTORS BEARING ON OPERATIONAL CONTROL AND PERTINENT FEDERAL AVIATION REGULATIONS CAN BE OBTAINED FROM THE NEAREST FEDERAL AVIATION ADMINISTRATION FLIGHT STANDARDS DISTRICT OFFICE. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. TRIARC COMPANIES, INC. [LESSEE] By: ___________________________ ____________________________ Name: Title: _______________________________________ (1) For individual agreements only. (2) For Trian Fund Management, L.P. agreement only. EX-10.6 7 exh106.txt FORM OF AIRCRAFT TIME SHARING AGREEMENT EXHIBIT 10.6 AIRCRAFT TIME SHARING AGREEMENT This AIRCRAFT TIME SHARING AGREEMENT ("Agreement"), dated as of the 6th day of August 2007, is by and between 280 Holdings, LLC, with its principal address at 280 Park Avenue, New York, New York 10017 ("Owner") and __________________("Lessee"). RECITALS WHEREAS, Owner owns a Boeing 727, Registration No. N31TR, Serial No. 21948 (the "Aircraft"); WHEREAS, Lessee desires to lease the Aircraft from Owner and Owner is willing to lease the Aircraft to Lessee; WHEREAS, Owner and Lessee have agreed on the lease of the Aircraft under a time sharing arrangement the terms and conditions of which are set forth herein; WHEREAS, this Agreement is entered into in recognition of and in compliance with the applicable provisions of U.S. Code of Federal Regulations 14 C.F.R. ss.91.501(b)(6). NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto agree as follows: ARTICLE 1: LEASE OF AIRCRAFT; TERM 1.1 Lease of Aircraft. Subject to the terms and conditions herein, Owner shall lease the Aircraft to Lessee from time to time with a flight crew for the operation thereof, as and when required by Lessee so long as the Aircraft is not otherwise employed on behalf of Owner or its parent company, Triarc Companies, Inc. ("Triarc"), or any of its subsidiaries. Lessee's use of the Aircraft shall constitute a non-exclusive lease. 1.2 Term. The lease of the Aircraft under the terms and provisions of this Agreement shall become effective upon execution of this Agreement and the Aircraft shall at such time, without further deed of lease or transfer, pass under and become subject to the terms and conditions of this Agreement. Such lease shall terminate on June 30, 2008; provided that the term of this Agreement shall be automatically extended for successive one-year periods unless not later than 60 days preceding any termination date either party shall give written notice to the other that it does not wish to further extend the term. ARTICLE 2: PERMISSIBLE CHARGES; TAXES 2.1 Fees and Charges. As consideration for the lease of the Aircraft, Lessee shall pay the following charges to Owner on a flight-by-flight basis following the completion of each flight with the Aircraft: (a) Fuel, oil, lubricants and other additives; (b) Travel expenses of the crew, including fuel, lodging, and ground transportation; (c) Hangar and tie-down costs away from the aircraft's base of operation; (d) Insurance obtained for the specific flight; (e) Landing fees, airport taxes, and similar assessments; (f) Customs, foreign permit, and similar fees directly related to the flight, if applicable; (g) In-flight food and beverages; (h) Passenger ground transportation; and (i) Flight planning and weather contract services. Under no circumstances shall the compensation paid by the Lessee to the Owner under this agreement exceed the amounts permissible under 14 C.F.R. ss.91.501(d). 2.2 Invoice and Payment. Within thirty (30) business days following the completion of each flight of the Aircraft on behalf of Lessee, Owner or an affiliate of Owner shall invoice Lessee for the charges specified in Section 2.1. Lessee shall pay the amount stated in the invoice within ten (10) business days following its receipt. 2.3 Taxes. The payment of any compensation in connection with the flights conducted on behalf of Lessee under this agreement is subject to federal transportation excise tax as provided under 26 U.S.C. ss.4261. Owner shall be responsible for the payment of any and all federal transportation excise taxes in connection with this Agreement. All other federal, state, or local taxes, duties or assessments imposed on the charges specified in Section 2.1 shall be the responsibility of Lessee. ARTICLE 3: DELIVERY AND REDELIVERY OF AIRCRAFT 3.1 Scheduling of Aircraft. Lessee shall request use of the Aircraft no less than three (3) hours prior to the requested departure time. All requests for the use of the Aircraft shall be submitted to such employee of Owner or one of its affiliates as shall be designated by Owner. Each such request shall specify the name of the Lessee, the date of departure, the date of return, the point of origin and the destination, the number and name of all passengers and emergency contact information for each passenger which shall not be another passenger on the same flight. Owner shall have final and exclusive authority over the scheduling of the Aircraft. 3.2 Delivery and Redelivery of Aircraft. Delivery and redelivery of the Aircraft by one party to the other party shall ordinarily be made at Stewart International Airport in New Windsor, New York; provided, however, that delivery and/or redelivery of the Aircraft may be made at such other airport as shall be agreed upon by the parties. ARTICLE 4: FLIGHT CREWS AND FLIGHT OPERATIONS 4.1 Flight Crews. Owner shall provide a complete flight crew for the operation of the Aircraft during the lease of the Aircraft to Lessee under this Agreement. Each member of such flight crew shall be duly licensed and qualified to operate the Aircraft in accordance with the regulations and requirements of the Federal Aviation Administration ("FAA"). 4.2 Operational Control. Owner shall at all times have operational control over all flights performed under this Agreement and shall be solely responsible for compliance with all applicable FAA regulations. The Lessee shall have the right to determine the schedules and destination of a flight while the Aircraft is being operated on behalf of Lessee, provided however that the pilot-in-command shall have sole authority to determine whether a flight may be safely operated and to initiate and terminate flights. Lessee undertakes to accept all decisions of the pilot-in-command regarding the operation of the Aircraft. 4.3 Operation of Aircraft. Owner shall operate the Aircraft in a safe and reasonable manner and at all times in compliance with all applicable laws and regulations, including, without limitation, the rules and regulations of the FAA. ARTICLE 5: MAINTENANCE 5.1 Aircraft Maintenance. During the term of this Agreement, Owner shall service and repair the Aircraft so as to: (a) maintain the Aircraft in good operating condition; (b) keep the Aircraft duly certified as airworthy at all times under the regulations of the FAA; (c) maintain the Aircraft in accordance with the standards prescribed by applicable law as the same may be in effect from time to time; and (d) maintain all records, logs and other documents required to be maintained with respect to the Aircraft. 5.2 Maintenance Scheduling. All maintenance and inspections of the Aircraft shall have priority in scheduling the operation of the Aircraft on behalf of Lessee, unless such maintenance and inspections may be deferred in accordance with applicable FAA regulations and recommended manufacturer maintenance procedures. ARTICLE 6: REPRESENTATIONS AND WARRANTIES 6.1 Owner Representations and Warranties. Owner represents and warrants to Lessee as follows: (a) Owner has title to the Aircraft and has all necessary authority to enter into this Agreement for the lease of the Aircraft to Lessee; and (b) Owner has not entered into this Agreement for the purpose of engaging in the sale of air transportation services for compensation or hire in contravention of the rules and regulations of the FAA. 6.2 Lessee Representations and Warranties. Lessee represents and warrants to Owner as follows: (a) Lessee has all necessary authority to enter into this Agreement for the lease of the Aircraft from Owner; and (b) Lessee has not entered into this Agreement for the purpose of engaging in the sale of air transportation services or for compensation or hire in contravention of the rules and regulations of the FAA. ARTICLE 7: INSURANCE 7.1 Insurance. Owner or one of its affiliates shall provide and maintain Aircraft third party aviation legal liability insurance in an amount not less than $500 million Such insurance shall include the following provisions: (a) Lessee shall be named as an additional insured; (b) Such insurance shall be primary without any right of contribution from any insurance carried by the Lessee; (c) The underwriter of such insurance shall waive any right of subrogation with respect to potential claims against Lessee. 7.2 Indemnification. Owner hereby indemnifies and agrees to hold Lessee harmless from and against any and all liabilities, claims, demands, suits, judgments, damages, losses, costs and expenses (including reasonable legal expenses and attorneys' fees) for or on account of or in any way connected with injury to or death of any persons whomsoever or loss of or damage to property arising out of (i) the use or operation of the Aircraft under this Agreement or in any way connected with this Agreement including but not limited to the Aircraft and related equipment or (ii) the performance or nonperformance by Owner of its responsibilities under this Agreement, unless such loss or damage results from the gross negligence or willful misconduct of Lessee. ARTICLE 8: TERMINATION 8.1 Termination by Owner. Owner shall have the right to terminate this Agreement upon not less than 60 days prior written notice to Lessee. This Agreement shall automatically terminate upon the cessation of [Lessee's services as a director of Triarc](1) [Lessee being an affiliate of Owner](2). ARTICLE 9: MISCELLANEOUS 9.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to any conflict of laws rules thereof that might indicate the application of the laws of any other jurisdiction. 9.2 Severability. If any provision of this Agreement becomes invalid, illegal or unenforceable in any respect under any law, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. 9.3 Counterparts. This Agreement may be executed in any number of counterparts, each such counterpart constituting an original hereof. ARTICLE 10: TRUTH-IN-LEASING 10.1 Truth-in-Leasing. THE AIRCRAFT SUBJECT TO THIS TIME SHARING AGREEMENT HAS BEEN MAINTAINED AND INSPECTED IN ACCORDANCE WITH PART 91 OF THE FEDERAL AVIATION REGULATIONS DURING THE TWELVE (12) MONTHS PRECEDING THE EFFECTIVE DATE HEREOF AND THE PARTIES HERETO CERTIFY THAT FOR THE PURPOSES OF THE OPERATION TO BE CONDUCTED PURSUANT TO THIS AGREEMENT THE AIRCRAFT IS IN FULL COMPLIANCE WITH THE APPLICABLE MAINTENANCE AND INSPECTON REQUIREMENTS OF SAID PART 91. THE NAME AND ADDRESS OF THE PARTY RESPONSIBLE FOR THE OPERATIONAL CONTROL OF THE AIRCRAFT FOR THE TERM OF THIS AGREEMENT IS 280 HOLDINGS, LLC, 280 PARK AVENUE, NEW YORK, NEW YORK 10017, AND SAID PARTY HEREBY CERTIFIES THAT IT UNDERSTANDS ITS RESPONSIBILITY TO COMPLY WITH APPLICABLE FEDERAL AVIATION REGULATIONS. AN EXPLANATION OF THE FACTORS BEARING ON OPERATIONAL CONTROL AND PERTINENT FEDERAL AVIATION REGULATIONS CAN BE OBTAINED FROM THE NEAREST FEDERAL AVIATION ADMINISTRATION FLIGHT STANDARDS DISTRICT OFFICE. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. 280 HOLDINGS, LLC [LESSEE] By: ___________________________ ____________________________ Name: Title: ___________________________________________ (1) For individual agreements only. (2) For Trian Fund Management, L.P. agreement only. EX-10.7 8 exh107.txt LETTER AGREEMENT Exhibit 10.7 TRIAN FUND MANAGEMENT, L.P. 280 Park Avenue New York, New York August 6, 2007 Triarc Companies, Inc. 280 Park Avenue New York, New York Re: Assignment and Assumption of Lease dated as of July 1, 2007 by and between Triarc Companies, Inc., as assignor and Trian Fund Management L.P., as assignee Gentlemen: All terms not otherwise defined herein shall have the meanings ascribed to them in the captioned assignment ("Assignment"). Triarc Companies, Inc. ("Triarc") has assigned to Trian Fund Management, L.P. ("Trian") that certain Lease for Apartment 28A in the Waldorf-Astoria Hotel pursuant to the Assignment. The Assignment provided that upon execution and delivery of the Assignment, Assignee was to pay to Assignor an amount equal to the Security Deposit. Notwithstanding the foregoing provisions of the Assignment, in lieu of making such payment, Triarc and Trian agree that the security held by Hilton Hotels Corporation ("Hilton") under the Lease in the amount of $112,500 ("Original Security") shall remain the property of Triarc and upon expiration of the Lease, shall be returned to Triarc. Any additional security deposited by Trian with Hilton shall be the property of Trian. In the event Hilton, or its successors, draws upon the Original Security, Trian agrees to promptly replenish said Original Security so that all times, until the expiration, or earlier termination, of the Lease, the full Original Security shall remain on deposit with Hilton. If Trian defaults under the Lease and the Lease is terminated and Hilton retains all or any portion of the Original Security, Trian shall, within ten (10) days thereafter, pay to Triarc an amount equal to the portion of the Original Security retained by Hilton. If Trian renews the Lease beyond its current expiration of July 31, 2010, Trian shall pay to Triarc, on July 31, 2010, an amount equal to the Original Security and all security then held by Hilton shall at all times thereafter be the property of Trian. In the event Hilton fails to return the security upon the expiration, or earlier termination, of the initial term of the Lease, subject to the terms of the preceding sentence, Trian agrees to commence such action as is required to obtain a return of the security and diligently prosecute such action to completion. Triarc and Trian agree to reasonably cooperate with each other in the prosecution of any claim against Hilton. Very truly yours, Trian Fund Management, L.P. By: Trian Fund Management GP, LLC, its general partner By: /s/PETER W. MAY --------------------------- Name: Peter W. May Title: Member Agreed To: Triarc Companies, Inc. By: /s/FRANCIS T. MCCARRON --------------------------------------- Name: Francis T. McCarron Title: Executive Vice President and Chief Financial Officer EX-10.8 9 exh108.txt LETTER AGREEMENT EXHIBIT 10.8 Deerfield & Company LLC 6250 North River Road, 8th Floor Rosemont, IL 60018 August 8, 2007 Deerfield Triarc Capital Corp. DFR Merger Company, LLC c/o Peter Rothschild Daroth Capital Advisors LLC 750 Third Avenue, 22nd Floor New York, NY 10017 Triarc Companies, Inc. (as the Sellers' Representative) 280 Park Avenue New York, NY 10017 Attention: General Counsel Re: Side Letter Regarding the Agreement and Plan of Merger and Registration Rights Agreement Ladies and Gentlemen: Reference is made to (i) the Agreement and Plan of Merger, dated as of April 19, 2007 (as amended, supplemented or otherwise modified from time to time, the "Merger Agreement"), by and among Deerfield Triarc Capital Corp., a Maryland corporation (the "Buyer"), DFR Merger Company, LLC, an Illinois limited liability company ("Buyer Sub"), Deerfield & Company LLC, an Illinois limited liability company (the "Company"), and solely for the purposes set forth therein, Triarc Companies, Inc., a Delaware corporation (in such capacity, the "Sellers' Representative"); and (ii) the Registration Rights Agreement, dated as of April 19, 2007 (as amended, supplemented or otherwise modified from time to time, the "Registration Rights Agreement") among the Buyer, Triarc Deerfield Holdings, LLC, a Delaware limited liability company ("TDH"), and the Persons who may become parties thereto from time to time in accordance with the terms thereof (collectively, the "Stockholders") and the Sellers' Representative. This Side Letter is being entered into pursuant to Section 11.12 of the Merger Agreement and Section 8(d) of the Registration Rights Agreement. Capitalized terms used and not otherwise defined herein shall have the meanings assigned to such terms in the Merger Agreement. The parties acknowledge and agree that Section 11.4(a) did not correctly express the intent of the parties. Accordingly, the parties hereby acknowledge and agree that for all purposes under the Merger Agreement the reference in Section 11.4(a) to "Section 11.2(a)(iii)" should be replaced with "Section 11.2(a)(v)". In addition, the following provisions of the Merger Agreement and the Registration Rights Agreement are waived as provided herein: 1. The Buyer, the Company and the Sellers' Representative hereby waive compliance with the provisions of Section 6.7(a) of the Merger Agreement that require each of the Buyer and the Company to make, or cause to be made, the appropriate filings of the Notification and Report Forms pursuant to the HSR Act with respect to the transactions contemplated by the Merger Agreement within 10 Business Days of April 19, 2007. The Buyer, the Company and the Sellers' Representative acknowledge that such filings were made on May 25, 2007. 2. The Company and the Sellers' Representative hereby waive compliance with the provisions of Section 6.9(a) of the Merger Agreement that require the Buyer to prepare and file with the SEC the preliminary Proxy Statement not more than 30 days after April 19, 2007. The Company and the Sellers' Representative acknowledge that the Buyer filed the preliminary Proxy Statement on May 25, 2007. 3. The Company hereby waives its right to terminate the Merger Agreement pursuant to Section 10.1(d) of the Merger Agreement. The Company acknowledges that the Buyer obtained an executed Debt Commitment Letter on May 24, 2007. 4. TDH and the Sellers' Representative hereby waive compliance with the provisions of Section 2(a) of the Registration Rights Agreement that require the Buyer to prepare and file or cause to be prepared and filed with the SEC the Shelf Registration Statement (as defined in the Registration Rights Agreement) not later than 30 days after April 19, 2007; provided, that the Buyer shall file the Shelf Registration Statement at any time on or prior to the Closing Date (but prior to the Closing) pursuant to the automatic shelf registration statement provisions set forth in General Instruction I.D. of Form S-3. Except to the extent specifically modified herein, the parties agree that the provisions of the Merger Agreement and the Registration Rights Agreement shall remain unmodified. This Side Letter, the Merger Agreement, the Registration Rights Agreement and the other agreements and documents referred to therein constitute the entire agreement among the parties with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings, both oral and written, among the parties with respect to the subject matter hereof and thereof. This Side Letter 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 together shall constitute one and the same instrument. Each counterpart may consist of a number of copies hereof each signed by less than all, but together signed by all, of the parties hereto. The delivery of an executed counterpart of this Side Letter by facsimile or electronic transmission shall be deemed to be valid delivery thereof. If you are in agreement with the foregoing, please execute and deliver a counterpart of this Side Letter as indicated below and return it to us. Sincerely yours, DEERFIELD & COMPANY LLC By: /s/DANIELLE T. VALKNER -------------------------------------- Name: Danielle T. Valkner Title: Chief Financial Officer Accepted and agreed: DEERFIELD TRIARC CAPITAL CORP. By: /s/PETER H. ROTHSCHILD --------------------------------------------- Name: Peter H. Rothschild Title: Interim Chairman DFR MERGER COMPANY, LLC By: DEERFIELD TRIARC CAPITAL CORP., its sole member By: /s/PETER H. ROTHSCHILD ----------------------------------------------- Name: Peter H. Rothschild Title: Interim Chairman TRIARC COMPANIES, INC., as Sellers' Representative By: /s/FRANCIS T. MCCARRON -------------------------------------- Name: Francis T. McCarron Title: Executive Vice President and Chief Financial Officer -----END PRIVACY-ENHANCED MESSAGE-----