EXHIBIT 10.9
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FIRST SUPPLEMENT TO
FOURTH AMENDED AND RESTATED OPERATING AGREEMENT OF
DEERFIELD & COMPANY LLC
This First Supplement to the Fourth Amended and Restated
Operating Agreement of Deerfield & Company LLC (this "SUPPLEMENT") is made as of
July 22, 2004 by and among Triarc Companies, Inc., Triarc Deerfield Holdings,
LLC, a Delaware limited liability company ("TDH") and Deerfield & Company LLC
(the "COMPANY").
RECITALS
Triarc, Sachs Capital Management LLC, a Delaware limited
liability company ("SCM"), Deerfield Partners Fund II LLC, a Delaware limited
liability company ("DPF II"), Scott A. Roberts ("ROBERTS"), Marvin Shrear
("SHREAR" and, together with SCM, DPF II and Roberts, the "SELLERS") and Gregory
H. Sachs ("SACHS") are parties to the Purchase Agreement, dated as of June 26,
2004 (as amended through the date hereof, the "PURCHASE AGREEMENT"), which
contemplates a transaction in which Triarc will purchase from the Sellers, and
the Sellers will sell to Triarc, the Purchased Interests (as defined in the
Purchase Agreement) set forth in Annex B to the Purchase Agreement. In
connection with the execution and delivery of the Purchase Agreement, each of
Triarc, SCM, Deerfield Partners Fund III LLC, a Delaware limited liability
company ("DPF III"), Roberts and Jonathan W. Trutter ("TRUTTER") entered into
the Fourth Amended and Restated Operating Agreement of the Company, dated as of
June 26, 2004 (the "OPERATING AGREEMENT"). As of the date hereof, and
immediately prior to the Closing (as defined in the Purchase Agreement), Triarc
has assigned its right to purchase all of the Purchased Interests (other than
Purchased Interests representing a 0.1% Class A Interest of the Company held by
SCM) to TDH pursuant to the letter agreement, dated as of the date hereof (the
"ASSIGNMENT LETTER"), by and between Triarc and TDH. The Company and TDH wish to
amend the Operating Agreement as set forth herein.
AGREEMENT
In consideration of the foregoing, and the representations,
warranties, covenants and conditions set forth or referred to below, the parties
hereto, intending to be legally bound, hereby agree as follows:
1. CERTAIN DEFINITIONS. Capitalized terms used and not
otherwise defined herein have the meanings assigned to such terms in the
Operating Agreement.
2. ADMISSION OF TDH AS A MEMBER.
(a) Effective as of the Closing (as defined in the Purchase
Agreement), TDH hereby agrees to be bound by all the terms and provisions of the
Operating Agreement as a Member with respect to a 56.553% Class A-1 Interest and
a 6.947% Class B Interest. Notwithstanding the foregoing, Triarc shall continue
to have all
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of the rights, and shall continue to be subject to all of the
obligations, of "Triarc" under the Operating Agreement and as a Member with
respect to a 0.1% Class A-1 Interest.
(b) All notices to TDH shall be sent to the address set
forth below or to such other address or person as TDH may designate by notice to
the Company:
Triarc Deerfield Holdings, LLC
c/o Triarc Companies, Inc.
280 Park Avenue
New York, New York 10017
Attn: Brian L. Schorr, Esq.
Fax: (212) 451-3216
With a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, New York 10019-6064
Attn: Paul D. Ginsberg, Esq.
Fax: (212) 757-3990
(c) Pursuant to Section 3.3 of the Operating Agreement,
effective as of the Closing, the Company hereby admits TDH as a Member, and
EXHIBIT A of the Operating Agreement shall be amended and restated in its
entirety as set forth in EXHIBIT A hereto.
(d) Triarc hereby represents and warrants that TDH is a
Triarc Affiliated Party, and that TDH has satisfied all of the requirements
under Section 3.3 of the Operating Agreement to be admitted as a Member.
3. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Supplement and the Operating
Agreement and the exhibits attached hereto and thereto constitute the entire
agreement of the Members relating to the Company. Except to the extent
specifically supplemented hereby, the provisions of the Operating Agreement
shall remain unmodified, and each of Triarc, TDH and the Company hereby confirms
that the Operating Agreement is in full force and effect with respect to itself.
(b) ASSIGNMENT. This Supplement shall be binding upon and
inure to the benefit of and be enforceable by the successors and permissible
assigns of Triarc, TDH and the Company as part of the Operating Agreement in
accordance with the terms thereof.
(c) COUNTERPARTS. This Supplement may be executed in any
number of counterparts, and by the different parties hereto in separate
counterparts, each
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of which shall be deemed an original for all purposes and all of which together
shall constitute one and the same instrument.
(d) GOVERNING LAW. This Supplement, and all claims arising
under, related to, or in connection herewith, shall be governed by and construed
in accordance with the domestic substantive laws of the State of Illinois,
without giving effect to any choice or conflict of law provision or rule that
would cause the application of the domestic substantive laws of any other
jurisdiction.
(e) DISPUTES. The parties intend that any dispute under
this Supplement shall be treated as if such dispute had arisen under the terms
of the Operating Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this
Supplement to be executed as of the date set forth above by their duly
authorized representatives.
TRIARC COMPANIES, INC.
By: /s/ Brian L. Schorr
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Name: Brian L. Schorr
Title: Executive Vice President
and General Counsel
TRIARC DEERFIELD HOLDINGS, LLC
By: /s/ Francis T. McCarron
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Name: Francis T. McCarron
Title: Senior Vice President and
Chief Financial Officer
DEERFIELD & COMPANY LLC
By: /s/ Marvin Shrear
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Name: Marvin Shrear
Title: Secretary & Treasurer
and Director