EXHIBIT 10.1
TRIARC DEERFIELD HOLDINGS, LLC
Amendment No. 1 to the
Amended and Restated Limited Liability Company Agreement
THIS AMENDMENT NO. 1 (this "Amendment") to the Amended and Restated
Limited Liability Company Agreement, dated as of November 10, 2005 (the "LLC
Agreement"), of Triarc Deerfield Holdings, LLC, a Delaware limited liability
company (the "Company") is made as of November 16, 2006. All capitalized terms
used but not defined herein shall have the meanings ascribed to such terms in
the LLC Agreement.
R E C I T A L S:
Pursuant to clause (ii)(z) of the proviso to Section 12.1 of the LLC
Agreement, the Board of Managers wishes to adopt this Amendment to cure a defect
in the LLC Agreement.
NOW, THEREFORE, the LLC Agreement is hereby amended as follows:
1. Amendment to Definition of "Attributable GAAP Net Profits." Section
1.8(a) of the LLC Agreement is hereby amended by deleting the definition of
"Attributable GAAP Net Profits" and replacing it in its entirety as follows:
"Attributable GAAP Net Profits" means, as of any date of
determination, with respect to any Class B Member, the product of (x) the excess
of (i) cumulative net profits of the Company earned since the Issuance Date as
determined in accordance with GAAP, excluding any net profits and net losses
attributable to any Special Investment, over (ii) the sum of (A) the aggregate
amount of distributions theretofore made by the Company to all Class B Members
pursuant to Section 3.1(a)(i) and (B) the excess, if any, of the aggregate
amount of distributions theretofore made by the Company to all Class B Members
pursuant to Section 11.2(b)(iv)(x), over the aggregate amount of Capital
Contributions theretofore made by all Class B Members, and (y) such Class B
Member's Class B Percentage. For the avoidance of any doubt, (i) in the event of
a sale or other disposition of all or a portion of the Company's assets or any
similar transaction, subclause (x) shall, to the extent otherwise required under
this Agreement, include the net profits and losses of the Company attributable
to such sale or disposition computed from the Deerfield Acquisition Date as
determined in accordance with GAAP, excluding any net profits and losses
attributable to any Special Investment; and (ii) subclause (x) shall, to the
extent otherwise required under this Agreement, include the net profits and
losses of the Company as determined in accordance with GAAP attributable to any
hypothetical or deemed liquidation of the Company or sale, or adjustment to fair
market value, of Company assets, as if such events actually occurred (including
pursuant to Sections 4.1(a), 4.3(h), 9.3, 9.4 and 11.2(d)).
2. Amendment to Definition of "Class A Attributable GAAP Net Profits."
Section 1.8(a) of the LLC Agreement is hereby amended by deleting the definition
of "Class A Attributable GAAP Net Profits" and replacing it in its entirety as
follows:
"Class A Attributable GAAP Net Profits" means, with respect to each
Class A Member, an amount equal to the product of (A) the excess, if any, of (x)
the cumulative net profits of the Company earned since the Issuance Date as
determined in accordance with GAAP, excluding any net profits and net losses
attributable to any Special Investment, over (y) the sum of (i) an amount equal
to cumulative Class B Attributable GAAP Net Profits with respect to all Class A
Members, (ii) the aggregate amount of distributions theretofore made by the
Company to all Class B Members pursuant to Section 3.1(a)(i) and (iii) the
excess, if any, of the aggregate amount of distributions theretofore made by the
Company to all Class B Members pursuant to Section 11.2(b)(iv)(x), over the
aggregate amount of the Capital Contributions theretofore made by all Class B
Members; and (B) a fraction, the numerator of which is such Class A Member's
Adjusted Capital Contributions and the denominator of which is the aggregate
Adjusted Capital Contributions of the Class A Members. For the avoidance of any
doubt, (i) in the event of a sale or other disposition of all or a portion of
the Company's assets or any similar transaction, subclause (x) shall include the
net profits and losses of the Company attributable to such sale or disposition
computed from the Deerfield Acquisition Date as determined in accordance with
GAAP, excluding any net profits and losses attributable to any Special
Investment; and (ii) subclause (x) shall, to the extent otherwise required under
this Agreement, include the net profits and losses of the Company as determined
in accordance with GAAP attributable to any hypothetical liquidation of the
Company or sale, or adjustment to fair market value, of Company assets, as if
such events actually occurred (including pursuant to Sections 4.1(a), 4.3(h),
9.3, 9.4 and 11.2(d)).
3. Clarification Regarding Amortization Charges. Section 1.8(a) of the
LLC Agreement is hereby amended by deleting the definition of "GAAP" and
replacing it in its entirety as follows:
"GAAP" means generally accepted accounting principles of the United
States of America, except that, for all purposes of this Agreement, GAAP shall
be determined without regard to any amortization or write-off charges related to
the issuance of the Class B Units (i.e., any such charges that would otherwise
be deducted in accordance with GAAP, shall not be so deducted).
4. Ratification of the LLC Agreement. Except as otherwise expressly
provided herein, all of the terms and conditions of the LLC Agreement are
ratified and shall remain unchanged and continue in full force and effect.
5. Applicable Law. This Amendment shall be governed by, and construed
in accordance with, the laws of the State of Delaware, without giving effect to
the conflict of laws principles thereof.
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IN WITNESS WHEREOF, this Amendment has been executed as of the date
first above written.
BOARD OF MANAGERS:
/s/XXXXX X. MAY
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Xxxxx X. May
/s/XXXXXXX X. XXXXXXXX
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Xxxxxxx X. XxXxxxxx
/s/XXXXX X. XXXXXX
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Xxxxx X. Xxxxxx
