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EXHIBIT 10.7
[EXECUTION COPY]
GUARANTY AND OPTION AGREEMENT
THIS GUARANTY AND OPTION AGREEMENT (as amended, supplemented, amended
and restated or otherwise modified from time to time, this "Guaranty"), dated as
of January 12, 2000, is made by TRIARC COMPANIES, INC., a Delaware corporation
(the "Guarantor"), in favor of ING (U.S.) CAPITAL LLC (together with its
successors and assigns, "ING").
W I T N E S S E T H:
WHEREAS, pursuant to a Note Purchase Agreement, dated as of January 12,
2000 (as amended, supplemented, amended and restated or otherwise modified from
time to time, the "Note Purchase Agreement"), between MCM Capital Group, Inc., a
Delaware corporation (the "Company") and ING, ING has purchased the Series No. 1
Notes from the Company;
WHEREAS, the Guarantor owns an equity interest in the Company;
WHEREAS, as a condition precedent to the purchase of the Series No. 1
Notes under the Note Purchase Agreement, the Guarantor is required to execute
and deliver this Guaranty;
WHEREAS, the Guarantor has duly authorized the execution, delivery and
performance of this Guaranty; and
WHEREAS, it is in the best interests of the Guarantor to execute this
Guaranty inasmuch as the Guarantor will derive substantial direct and indirect
benefits from the purchase of the Series No. 1 Notes from the Company by ING
pursuant to the Note Purchase Agreement and the execution and delivery of the
Warrant Agreement between the Company and ING;
NOW THEREFORE, for good and valuable consideration the receipt of which
is hereby acknowledged, and in order to induce ING to purchase the Series No. 1
Notes from the Company, and to induce ING to enter into the Note Purchase
Agreement and the Warrant Agreement, the Guarantor agrees, for the benefit of
ING, as follows.
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Terms. The following terms (whether or not
underscored) when used in this Guaranty, including its preamble and recitals,
shall have the following meanings (such definitions to be equally applicable to
the singular and plural forms thereof):
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"Applicable Fees" means, with respect to any Eligible Transaction, the
aggregate amount of compensation (net of syndication fees, underwriting
commissions or similar fees) actually paid by a Triarc Party to the Lead Banker
in such Eligible Transaction.
"Company" is defined in the first recital.
"CPH Party" means Consolidated Press Holdings Ltd. or any of its
Affiliates.
"Eligible Transaction" means a single transaction to which a Triarc
Party is a party:
(a) in any line of business in which ING is then active;
(b) in which ING was offered, but declined, the right (i) to
be the Lead Banker and (ii) to receive at least 40% of any Applicable
Fees paid to such Lead Banker;
(c) in which a nationally recognized investment banking firm
other than ING was engaged to be the Lead Banker;
(d) in which the terms on which the Lead Banker is engaged are
substantially the same as those offered to ING; and
(e) in which the aggregate amount of Applicable Fees is
greater than $1,000,000.
"Guaranteed Obligations" is defined in Section 2.1(a).
"Guarantor" is defined in the preamble.
"Guaranty" is defined in the preamble.
"ING" is defined in the preamble.
"Lead Banker" means, with respect to any Eligible Transaction, the lead
or co-lead investment banking firm or firms involved in arranging, underwriting
or providing investment banking or financial advisory services in connection
with such Eligible Transaction.
"Material Role" means, with respect to any transaction (including but
not limited to any Eligible Transaction), that in connection with such
transaction, ING (a) acts as the lead underwriter, arranger or similar position,
(b) acts as the co-lead underwriter, arranger or similar position, or (c)
receives 20% or more of the aggregate compensation paid by Triarc Parties and
all CPH Parties in connection with the underwriting or arranging of such
transaction.
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"Note Purchase Agreement" is defined in the first recital.
"Stockholders Agreement" means that certain Stockholders Agreement,
dated as of January 12, 2000, by and among the Company, ING, and the other
parties identified on the signature pages thereto.
"Triarc Change of Control" means the acquisition by any Person or group
(other than either of Nelson Peltz or Peter W. May or any of their respective
Affiliates (including members of their immediate families) or any trusts or
estates of which either is a primary beneficiary or any entity of which either
of them hold a majority of the Voting Stock, or any combination of the
foregoing) of a direct or indirect majority in interest (more than 50%) of the
issued and outstanding Voting Stock of the Guarantor by merger or consolidation
or otherwise.
"Triarc Party" means the Guarantor, the Company or any of
their respective Affiliates.
SECTION 1.2. Note Purchase Agreement Definitions. Unless otherwise
defined herein or the context otherwise requires, terms used in this Guaranty,
including its preamble and recitals, have the meanings provided in the Note
Purchase Agreement.
ARTICLE II
GUARANTY PROVISIONS
SECTION 2.1. Guaranty. Subject to Section 2.9, the Guarantor hereby
absolutely, unconditionally and irrevocably
(a) guarantees the full and punctual payment when due, whether
at stated maturity, by required prepayment, declaration, acceleration,
demand or otherwise, of $10,000,000 of the principal amount of the
Series No. 1 Notes (excluding any PIK Notes but including all such
principal amounts which would become due but for the operation of the
automatic stay under Section 362(a) of the United States Bankruptcy
Code, 11 U.S.C. Section 362(a), and the operation of Sections 502(b)
and 506(b) of the United States Bankruptcy Code, 11 U.S.C. Section
502(b) and Section 506(b)) (the "Guaranteed Obligations"); and
(b) indemnifies and holds harmless ING for any and all
reasonable out-of-pocket costs and expenses (including reasonable
attorneys' fees and expenses) incurred by ING in enforcing any rights
under this Guaranty;
provided, however, that the Guarantor shall only be liable under this Guaranty
for the maximum amount of such liability that can be hereby incurred without
rendering this Guaranty voidable under applicable law relating to fraudulent
conveyance or fraudulent transfer, and not for any greater amount. This Guaranty
constitutes a guaranty of payment when due and not of collection, and the
Guarantor specifically agrees that it
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shall not be necessary or required that ING exercise any right, assert any claim
or demand or enforce any remedy whatsoever against the Company, any other
Obligor or any other Person before or as a condition to the obligations of the
Guarantor hereunder.
SECTION 2.2. Reinstatement, etc. The Guarantor hereby agrees that this
Guaranty shall continue to be effective or be reinstated, as the case may be, if
at any time any payment (in whole or in part) of any of the Guaranteed
Obligations is invalidated, declared to be fraudulent or preferential, set
aside, rescinded or must otherwise be restored by any Noteholder, upon the
insolvency, bankruptcy, reorganization (or similar event) of the Company, any
other Obligor or otherwise, all as though such payment had not been made.
SECTION 2.3. Guaranty Absolute, etc. This Guaranty shall in all
respects be a continuing, absolute, unconditional and irrevocable guaranty of
payment, and shall remain in full force and effect until the payment in full of
the Guaranteed Obligations (subject, however, to Section 8.5 of the Note
Purchase Agreement). The Guarantor guarantees that the Guaranteed Obligations of
the Company and each other Obligor will be paid strictly in accordance with the
terms of the Note Purchase Agreement and each other Purchase Document under
which they arise, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of any
Noteholder with respect thereto. The liability of the Guarantor under this
Guaranty shall be absolute, unconditional and irrevocable irrespective of:
(a) any lack of validity, legality or enforceability of the
Note Purchase Agreement or any other Purchase Document;
(b) the failure of any Noteholder to assert any claim or
demand or to enforce any right or remedy against the Company, any other
Obligor or any other Person (including any other guarantor) under the
provisions of the Note Purchase Agreement, any other Purchase Document
or otherwise, or to exercise any right or remedy against any other
guarantor (including the Guarantor) of, or collateral securing, any
Guaranteed Obligations;
(c) any change in the time, manner or place of payment of, or
in any other term of, all or any part of the Guaranteed Obligations, or
any other extension, compromise or renewal of any Guaranteed
Obligation;
(d) any reduction, limitation, impairment or termination of
any Guaranteed Obligations for any reason, including any claim of
waiver, release, surrender, alteration or compromise, and shall not be
subject to (and the Guarantor hereby waives any right to or claim of)
any defense or setoff, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality, irregularity,
compromise or unenforceability of, or any other event or occurrence
affecting, any Guaranteed Obligations or otherwise;
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(e) any amendment to, rescission, waiver or other modification
of, or any consent to or departure from, any of the terms of the Note
Purchase Agreement or any other Purchase Document;
(f) any addition, exchange, release, surrender or
non-perfection of any collateral, or any amendment to or waiver or
release or addition of, or consent to or departure from, any other
guaranty held by any Noteholder securing any of the Guaranteed
Obligations; or
(g) any other circumstance which might otherwise constitute a
defense available to, or a legal or equitable discharge of, the
Company, any other Obligor, any surety or any guarantor.
SECTION 2.4. No Demand. Notwithstanding any provision in this Guaranty
to the contrary, no claim or demand shall be made under this Guaranty prior to
July 12, 2001, and the Guarantor shall have no obligation to make any payment
under this Guaranty, and shall suffer no liability for any Guaranteed
Obligation, prior to any such claim or demand.
SECTION 2.5. Waiver, etc. The Guarantor hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Guaranteed Obligations and this Guaranty and any requirement that any Noteholder
protect, secure, perfect or insure any Lien (or any property subject thereto) in
favor of ING or any other Noteholder, or exhaust any right or take any action
against the Company, any other Obligor or any other Person (including any other
guarantor) or any collateral securing the Guaranteed Obligations.
SECTION 2.6. Postponement of Subrogation, etc. The Guarantor agrees
that it will not exercise any rights which it may acquire by way of rights of
subrogation under this Guaranty or any other Purchase Document to which it is a
party, nor shall the Guarantor seek or be entitled to seek any contribution or
reimbursement from the Company or any other Obligor, in respect of any payment
made hereunder, under any other Purchase Document or otherwise, until following
the payment in full of the Guaranteed Obligations. Any amount paid to the
Guarantor on account of any such subrogation rights prior to the payment in full
of the Guaranteed Obligations shall be held in trust for the benefit of ING and
shall immediately be paid and turned over to ING in the exact form received by
the Guarantor (duly endorsed in favor of ING, if required), to be credited and
applied against the Guaranteed Obligations, whether matured or unmatured, in
accordance with Section 4.5 of the Note Purchase Agreement; provided, however,
that if
(a) the Guarantor has made payment to ING of all or any part
of the Guaranteed Obligations; and
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(b) the payment in full of the Guaranteed Obligations has
occurred;
then at the Guarantor's request ING will, at the expense of the Guarantor,
execute and deliver to the Guarantor appropriate documents (without recourse and
without representation or warranty) necessary to evidence the transfer by
subrogation to the Guarantor of an interest in the Guaranteed Obligations
resulting from such payment; provided, that the failure to receive such
assignment shall not limit the Guarantor's right of subrogation. In furtherance
of the foregoing, at all times prior to the payment in full of the Guaranteed
Obligations the Guarantor shall refrain from taking any action or commencing any
proceeding against the Company or any other Obligor (or its successors or
assigns, whether in connection with a bankruptcy proceeding or otherwise) to
recover any amounts in the respect of payments made under this Guaranty to ING.
SECTION 2.7. Successors, Transferees and Assigns, etc. This Guaranty
shall:
(a) be binding upon the Guarantor and its successors,
transferees and assigns; and
(b) inure to the benefit of and be enforceable by ING.
Without limiting the generality of clause (b), ING may assign or otherwise
transfer (in whole or in part) any Series No. 1 Note held by it to any other
Person and such other Person shall thereupon become vested with all rights and
benefits in respect thereof granted to ING under this Guaranty or otherwise,
subject, however, to any contrary provisions in such assignment or transfer and
to the provisions of the Note Purchase Agreement.
SECTION 2.8. Payments. The Guarantor agrees that all payments made by
the Guarantor hereunder will be made in United States dollars to ING without
set-off, counterclaim or other defense and in accordance with Sections 4.1 and
4.2 and 4.10 of the Note Purchase Agreement, free and clear of and without
deduction for any Taxes, the Guarantor hereby agreeing to comply with and be
bound by the provisions of Sections 4.1 and 4.2 and 4.10 of the Note Purchase
Agreement in respect of all payments made by it hereunder and the provisions of
which Sections are hereby incorporated into and made a part of this Guaranty by
this reference as if set forth herein; provided, that references to the
"Company" in such Sections shall be deemed to be references to the Guarantor,
and references to "this Agreement" shall be deemed to be references to this
Guaranty.
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SECTION 2.9. Adjustment to Guaranteed Obligations. Notwithstanding
anything else to the contrary contained herein, to the extent the Guaranteed
Obligations guaranteed hereunder include any outstanding principal amount of the
Series No. 1 Notes, such outstanding principal amount shall be reduced (for
purposes of this Guaranty only) and the Guarantor shall not be liable to ING for
the following amounts:
(a) the amount of any fees paid to ING or any Affiliate (net
of syndication fees, underwriting commissions or similar fees) by any
Triarc Party or any CPH Party in connection with any transaction
occurring after the Closing Date for which ING or any Affiliate has a
Material Role; and
(b) for each Eligible Transaction for which ING or any
Affiliate does not have a Material Role, the greater of (i) an amount
equal to 25% of the Applicable Fees in such Eligible Transaction, or
(ii) the amount of any fees paid to ING (net of syndication fees,
underwriting commissions or similar fees) by any Triarc Party or any
CPH Party in connection with such Eligible Transaction.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations. In order to induce ING to enter into the
Note Purchase Agreement, and to induce ING to enter into the Warrant Agreement,
the Guarantor represents and warrants to ING
(a) Organization, Power, Authority, etc. The Guarantor is a
corporation duly incorporated and in good standing under the laws of
the jurisdiction of its incorporation and has full power and authority
to enter into and perform its obligations under this Guaranty.
(b) Due Authorization. The execution and delivery by the
Guarantor of this Guaranty and the performance by the Guarantor of its
obligations hereunder have been duly authorized by all necessary
corporate action, do not require any Approval, do not and will not
conflict with, result in any violation of, or constitute any default
under, any provision of any Organizational Document.
(c) Validity, etc. This Guaranty constitutes the legal, valid
and binding obligation of the Guarantor enforceable in accordance with
its terms, subject, however, as to enforcement only, to bankruptcy,
insolvency, reorganization, moratorium or similar laws at the time in
effect affecting the enforceability of the rights of creditors
generally and general equity principles (regardless of whether
enforcement is sought in a proceeding at law or in equity).
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SECTION 3.2. Guarantor Compensation and Consent. The Guarantor
represents and warrants, and ING acknowledges and agrees, that the
Guarantor has received no direct economic consideration for entering
into this Guaranty other than (a) a cash fee equal to $200,000 and (b)
warrants for purchase of up to 100,000 Common Shares of the Company. By
execution and delivery of this Guaranty and notwithstanding any
provision in the Note Purchase Agreement to the contrary, ING as the
Purchaser consents to such compensation and such compensation is not a
violation of Sections 6.2.5 or 6.2.11 of the Note Purchase Agreement.
ARTICLE IV
AGREEMENTS AS TO SERIES NO. 1 NOTES
AND WARRANT
SECTION 4.1. Series No. 1 Notes.
(a) If at any time a Triarc Change in Control occurs, the
Guarantor shall either (i) offer to purchase, and if such offer is
accepted shall purchase, from the Noteholders, within 30 days of the
date of such occurrence, all outstanding Series No. 1 Notes for a
purchase price, payable in immediately available funds, equal to the
Optional Redemption Price of such Series No. 1 Notes together with all
unpaid interest accrued thereon to the date of such purchase; or (ii)
to secure payment pursuant to this Guaranty, deposit into a collateral
escrow account reasonably acceptable to the Guarantor and the Required
Noteholders cash or Cash Equivalent Investments equal to the Guaranteed
Obligations, as adjusted from time to time pursuant to Section 2.9.
Upon payment of a principal amount of the Series No. 1 Notes (other
than the PIK Notes) after the date of establishment of such escrow
account equal to the Guaranteed Obligations, as adjusted from time to
time pursuant to Section 2.9, all remaining amounts on deposit in the
escrow account shall be returned to the Guarantor. Upon the
consummation of any purchase pursuant to this Section 4.1(a), ING and
such other Noteholder shall comply with Section 4.2 below.
(b) The Guarantor (or any third party designated by the
Guarantor) shall have the right, upon 15 Business Days' prior written
notice to ING and any other Noteholder, to purchase all (but not less
than all) outstanding Series No. 1 Notes, for a purchase price, payable
in immediately available funds, equal to the Optional Redemption Price
of such Series No. 1 Notes together with all unpaid interest accrued
thereon to the date of such purchase. Upon the consummation of any
purchase pursuant to this Section 4.1(b), ING and such other Noteholder
shall comply with Section 4.2 below.
(c) The Guarantor (or any third party designated by the
Guarantor) shall have the right, at any time during which the Company
may redeem Series No. 1 Notes pursuant to Section 4.7 of the Note
Purchase Agreement, to purchase the Series No. 1 Notes identified in
the written notice of such prospective assignment delivered to the
Company in accordance with Section 4.7 of the Note Purchase Agreement,
on the same terms and conditions as such prospective assignment.
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SECTION 4.2. Warrants. Upon the consummation of any purchase of Series
No. 1 Notes pursuant to Section 4.1(a) or (b) above during any time period
identified below, ING or any other holder of the Warrants promptly shall deliver
to the Guarantor (or to such third-party purchaser previously identified by the
Guarantor) the following respective percentages of Warrants then owned by ING or
any other holder of the Warrants:
Period: Percentage of Warrants Returned:
- ------- --------------------------------
From the Closing Date
through 90 days thereafter 100%
From the 91st day after the
Closing Date through the
270th day after the Closing Date 50%
Any time after the 270th day
after the Closing Date 0%
SECTION 4.3. Maintenance of Cash Reserves. The Guarantor shall maintain
in its accounts Cash Equivalent Investments, free of any and all Liens, in an
aggregate amount no less than $10,000,000 (subject, however, to reduction by an
amount equal to any reduction of Guaranteed Obligations pursuant to Section
2.9).
SECTION 4.4. Assignments. ING shall not assign any portion of its Notes
or Warrants without (i) delivery of this Guaranty and the Stockholders Agreement
to the assignee; and (ii) delivery by such assignee to Triarc of an
acknowledgment of, and an agreement by the assignee, in a form reasonably
acceptable to Triarc, to be bound by the terms and conditions of this Guaranty
and the Stockholders Agreement, including, without limitation, the obligation to
surrender all or part of the Warrants without additional consideration upon
certain events pursuant to this Guaranty.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.1. Binding on Successors, Transferees and Assigns;
Assignment. In addition to, and not in limitation of, Section 3.7, this Guaranty
shall be binding upon the Guarantor and its successors, transferees and assigns
and shall inure to the benefit of and be enforceable by and against ING and its
successors, transferees and assigns (to the full extent provided pursuant to
Section 2.7); provided, however, that the Guarantor may not assign any of its
obligations hereunder without the prior written consent of ING.
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SECTION 5.2. Amendments, etc. No amendment to or waiver of any
provision of this Guaranty, nor consent to any departure by the Guarantor
herefrom, shall in any event be effective unless the same shall be in writing
and signed by ING or successors and assigns and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given.
SECTION 5.3. Notices. All notices and other communications provided for
hereunder shall be in writing (including facsimile communication) and mailed or
telecopied or delivered (i) in the case of the Guarantor, to the Guarantor in
care of the Company at the address or facsimile number of the Company specified
in the Note Purchase Agreement and (ii) in the case of ING, to ING at the
address or facsimile number of ING specified in the Note Purchase Agreement. All
such notices and other communications, when mailed and properly addressed with
postage prepaid or if properly addressed and sent by pre-paid courier service,
shall be deemed given when received; any such notice or communication, if
transmitted by facsimile, shall be deemed given when the confirmation of
transmission thereof is received by the transmitter.
SECTION 5.4. No Waiver; Remedies. In addition to, and not in limitation
of, Section 2.3 and Section 2.5, no failure on the part of any Noteholder to
exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
SECTION 5.5. Captions. Section captions used in this Guaranty are for
convenience of reference only, and shall not affect the construction of this
Guaranty.
SECTION 5.6. Severability. Wherever possible each provision of this
Guaranty shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Guaranty.
SECTION 5.7. Governing Law, Entire Agreement, etc. THIS GUARANTY SHALL
BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF NEW YORK (INCLUDING FOR SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK). THIS GUARANTY CONSTITUTES THE
ENTIRE UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER
HEREOF AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT
THERETO.
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SECTION 5.8. Forum Selection and Consent to Jurisdiction. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH, THIS
GUARANTY, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL
OR WRITTEN) OR ACTIONS OF THE NOTEHOLDERS OR THE GUARANTOR SHALL BE BROUGHT AND
MAINTAINED IN THE COURTS OF THE STATE OF NEW YORK, NEW YORK COUNTY OR IN THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED,
HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY PROPERTY MAY BE BROUGHT,
AT ING'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH PROPERTY MAY BE
FOUND. THE GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK, NEW YORK COUNTY AND OF THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE
PURPOSE OF ANY SUCH LITIGATION AND IRREVOCABLY AGREES TO BE BOUND BY ANY
JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION. THE GUARANTOR
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE
PREPAID, OR BY PERSONAL SERVICE WITHIN OR OUTSIDE OF THE STATE OF NEW YORK. THE
GUARANTOR HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY
SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT
SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT
THE GUARANTOR HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY
COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT
PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO
ITSELF OR ITS PROPERTY, THE GUARANTOR HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN
RESPECT OF ITS OBLIGATIONS UNDER THIS GUARANTY.
SECTION 5.9. Waiver of Jury Trial. THE GUARANTOR HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS GUARANTY OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE NOTEHOLDERS OR THE
GUARANTOR. THE GUARANTOR ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND
SUFFICIENT CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS A
MATERIAL INDUCEMENT FOR ING ENTERING INTO THE NOTE PURCHASE AGREEMENT.
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SECTION 5.10. Counterparts. This Guaranty may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
TRIARC COMPANIES, INC.
By: /s/ John L. Barnes, Jr.
_______________________________
Name: John L. Barnes, Jr.
Title: Executive Vice President
ACCEPTED AND AGREED:
ING (U.S.) CAPITAL, LLC,
By: /s/ David Balestrery
_________________________________
Name: David Balestrery
Title: Vice President
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