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
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Name: Ted Ratcliff
Title: