AMENDED AND RESTATED INVESTMENT MANAGEMENT TRUST AGREEMENTInvestment Management Trust Agreement |
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TRIAN ACQUISITION I CORP. | Deutsche Bank Securities Inc | Merrill Lynch, Pierce, Fenner & Smith Incorporated | TRIAN ACQUISITION I CORP | Trian Acquisition I, LLC | US Trust Company | Wilmington Trust Company. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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AMENDED AND RESTATED INVESTMENT MANAGEMENT TRUST AGREEMENT by and between TRIAN ACQUISITION I CORP.
and
U.S. TRUST COMPANY OF DELAWARE
ARTICLE I AGREEMENTS AND COVENANTS OF TRUSTEE
ARTICLE II LIMITED DISTRIBUTIONS OF INCOME FROM TRUST ACCOUNT
ARTICLE III AGREEMENTS AND COVENANTS OF THE COMPANY
ARTICLE IV LIMITATIONS OF LIABILITY
ARTICLE V WAIVER OF CLAIMS AGAINST TRUST ACCOUNT
Schedule A Fee Items Exhibit A Termination Letter Exhibit B Termination Letter Exhibit C Authorized Individuals
AMENDED AND RESTATED INVESTMENT MANAGEMENT TRUST AGREEMENT
This AMENDED AND RESTATED INVESTMENT MANAGEMENT TRUST AGREEMENT (this “ Agreement ”) is made as of October 1, 2008 by and between Trian Acquisition I Corp. (the “ Company ”) and U.S. Trust Company of Delaware, as trustee (the “ Trustee ”).
WHEREAS, the Company’s Registration Statement on Form S-1 under the Securities Act of 1933, as amended, No. 333-147094 (the “ Registration Statement ”) for its initial public offering (the “ Initial Public Offering ”) of units, each consisting of one share of common stock and one warrant to purchase one share of common stock, was declared effective on January 23, 2008 (the “ Effective Date ”) by the Securities and Exchange Commission;
WHEREAS, Deutsche Bank Securities Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated acted as representatives (the “ Representatives ”) of the several underwriters in the Initial Public Offering;
WHEREAS, Trian Acquisition I, LLC (the “ Sponsor ”) purchased from the Company an aggregate of 10,000,000 warrants (the “ Sponsor Warrants ”) at a price of $1.00 per warrant in a private placement that occurred immediately prior to the consummation of the Initial Public Offering;
WHEREAS, as described in the Registration Statement, and in accordance with the Company’s Amended and Restated Certificate of Incorporation (the “ Certificate of Incorporation ”), $905,608,000 of the proceeds of the Initial Public Offering and the sale of the Sponsor Warrants was delivered to Wilmington Trust Company, as initial trustee (the “ Initial Trustee ”), upon consummation of the Initial Public Offering (such amount delivered to the Initial Trustee, together with income earned thereon, the “ Property ”), and deposited and held in the Trust Account (as defined below);
WHEREAS, a portion of the Property consists of $29,808,000 attributable to a deferred underwriters’ discount that the underwriters in the Initial Public Offering have agreed to deposit in the Trust Account until such time as the Company consummates a Business Combination (as defined in the Company’s Certificate of Incorporation); and
WHEREAS, pursuant to Section 6.1 of this Agreement, the Initial Trustee has resigned as trustee and the Company has appointed the Trustee to serve as successor trustee hereunder, and the Trustee has agreed to become subject to the terms and conditions of this Agreement;
NOW, THEREFORE, for and in consideration of the mutual agreements herein contained, the parties hereto agree as follows:
AGREEMENTS AND COVENANTS OF TRUSTEE
Subject to the terms and conditions of this Agreement, including Article IV hereof, the Trustee hereby agrees and covenants to:
(a) Hold the Property in trust in accordance with the terms of this Agreement in a segregated trust account (the “ Trust Account ”) established by the Trustee;
(b) Manage, supervise and administer the Trust Account subject to the terms and conditions set forth herein;
(c) In a timely manner, upon the written instruction of the Company, invest and reinvest the Property in United States “government securities” within the meaning of Section 2(a)(16) of the Investment Company Act of 1940, as amended (the “ 1940 Act ”), having a maturity date of 180 days or less or in any money market funds selected by the Company meeting the conditions of Sections (c)(2), (c)(3) and (c)(4) of Rule 2a-7 promulgated under the 1940 Act (any such investments may include funds for which the Trustee or an affiliate of the Trustee serves as an investment advisor, administrator, shareholder servicing agent, custodian or sub-custodian, subject to customary fees and expenses);
(d) Collect and receive, when due, all principal and income arising from the Property, which shall become part of the “Property” as such term is used herein;
(e) Promptly notify the Company of all communications received by it with respect to the Property requiring action by the Company;
(f) Promptly supply any necessary information or documents as may be requested by the Company in connection with the Company’s preparation of the tax returns relating to the Property held in the Trust Account or otherwise relating to the Trust Account;
(g) Participate in any plan or proceeding for protecting or enforcing any right or interest arising from the Property if, as and when instructed by the Company to do so;
(h) Render to the Company, and to the Representatives if the Company shall so instruct, monthly written statements of the activities of and amounts in the Trust Account reflecting all receipts and disbursements of the Trust Account;
(i) Commence liquidation of the Trust Account promptly after receipt of, and only in accordance with the terms of, a letter (the “ Termination Letter ”), substantially in the form attached hereto as either Exhibit A or Exhibit B, signed on behalf of the Company by its Chairman of the Board, Vice Chairman, Chief Executive Officer, Chief Financial Officer or other authorized officer of the Company, and complete the liquidation of the Trust Account and distribute the Property in the Trust Account only as directed in the Termination Letter and the other documents referred to therein; provided , however , that in the event that a Termination Letter has not been received by January 23, 2010 or, if an extension is approved in accordance with the terms of the Certificate of Incorporation, the last day of the Extension Period (as defined therein) (the “ Termination Date ”), the Trust Account shall be liquidated and distributed in accordance with the procedures set forth in the Termination Letter attached as Exhibit B hereto and the documents referred to therein.
ARTICLE II
LIMITED DIST RIBUTIONS OF INCOME FROM TRUST ACCOUNT
2.1 T axes . If there is any income or other federal, state or local tax obligation relating to the Property in the Trust Account as determined by the Company, then, from time to time, upon the written request of the Company, the Trustee shall promptly, to the extent there is not sufficient cash in the Trust Account to pay such tax obligation, liquidate such assets held in the Trust Account as shall be designated by the Company in writing, and disburse to the Company by wire transfer, out of the Property in the Trust Account, the amount indicated by the Company as owing in respect of such tax obligation.
2.2 Working Capital . Upon the written request of the Company, from time to time, the Trustee shall distribute to the Company amounts necessary to fund the Company’s working capital requirements; provided that the Company shall certify to the Trustee that any amounts requested do not exceed the aggregate amount of income earned on the Property through the last day of the month immediately preceding the Company’s request, net of taxes payable in respect of such income and amounts previously disbursed pursuant to Section 2.1 and this Section 2.2 ; and provided further that the Company shall certify to the Trustee that the total amount of disbursements made pursuant to this Section 2.2 does not exceed $9,500,000 in the aggregate.
2.3 Satisfaction of Stockholder Conversion Rights . Upon the written request of the Company, the Trustee shall distribute to the paying agent designated by the Company amounts requested by the Company to satisfy the exercise of stockholder conversion rights in accordance with Section 6.6 of the Certificate of Incorporation in connection with the approval of an Extension Period.
2.4 Expenses of Liquidation and Dissolution . Upon the written request of the Company, following the receipt by the Trustee of the Termination Letter in the form attached hereto as Exhibit B, the Trustee shall distribute to the Company an amount up to $75,000 to pay the Company’s expenses of liquidation and dissolution; provided that the Company shall certify to the Trustee that such amount does not exceed the aggregate amount of income earned on the Property through the last day of the month immediately preceding the Company’s request, net of taxes payable in respect of such income and amounts previously disbursed pursuant to Sections 2.1 and 2.2 ; and provided further that, at the time of making such request, the Company shall certify to the Trustee that it does not otherwise have available outside the Trust Account funds necessary to pay the expenses of liquidation and dissolution.
2.5 No Other Distributions . Except as provided in Sections 2.1 , 2.2 , 2.3 and 2.4 , no other distributions from the Trust Account shall be permitted other than pursuant to Article I(i) above.
A RTICL E III
AGREEMENTS AND COVENANTS OF THE COMPANY
3.1 Instructions . The Company shall give all instructions to the Trustee hereunder in writing, signed by the Company’s Chairman of the Board, Vice Chairman, Chief Executive Officer, Chief Financial Officer or other authorized officer. In addition, except with respect to its duties under Sections 2.1 , 2.2 , 2.3 and 2.4 above, the Trustee shall be entitled to rely on, and shall be protected in relying on, any verbal or telephonic advice or instruction that it in good faith believes to be given by any one of the persons authorized above to give written instructions. The Company shall promptly confirm any such verbal or telephonic instructions in writing.
3.2 Indemnity . The Company shall hold the Trustee harmless and indemnify the Trustee from and against, any and all claims, actions, suits, costs or expenses, including reasonable counsel fees and disbursements, or loss suffered by the Trustee in connection with any claim, action, suit or other proceeding brought against the Trustee involving any claim or demand that in any way arises out of or relates to this Agreement, the services of the Trustee hereunder, or the Property or any income earned on the Property, except for expenses and losses resulting from the Trustee’s gross negligence, willful misconduct or bad faith. Promptly after the receipt by the Trustee of notice of demand or claim or the commencement of any action, suit or proceeding, pursuant to which the Trustee intends to seek indemnification under this Section 3.2 , it shall notify the Company in writing of such claim (hereinafter referred to as the “ Indemnified Claim ”). The Company shall conduct and manage the defense against such Indemnified Claim; provided that the Company shall keep the Trustee reasonably informed of the status of such Indemnified Claim; and provided further that the Trustee may voluntarily participate in such action at its own cost with its own counsel. The Trustee may not agree to settle any Indemnified Claim without the prior written consent of the Company. The Company shall not, without the prior written consent of the Trustee, effect any settlement of any Indemnified Claim unless such settlement (i) includes an unconditional release of the Trustee from all liability on such Indemnified Claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act by or on behalf of the Trustee. The obligations and rights contained in this Section 3.2 shall survive the termination of this Agreement, including the resignation of the Trustee.
3.3 Fees . The Company shall pay the Trustee an initial acceptance fee, an annual fee and a transaction processing fee for each disbursement made pursuant to Article II as set forth on Schedule A hereto, which fees shall be subject to modification by mutual agreement of the parties from time to time. It is expressly understood that said transaction processing fees shall be deducted by the Trustee from disbursements made to the Company pursuant to Section 2.2 . The Trustee shall be entitled to be reimbursed by the Company for its other reasonable expenses hereunder, including the fees and expenses of its counsel it may employ in connection with the exercise and performance of its rights and duties hereunder (excluding fees and expenses of counsel incurred prior to the date of this Agreement), upon presentation of appropriate documentation therefor. The Company shall not be responsible for any other fees or charges of the Trustee except as set forth in this Section 3.3 and as may be provided in Section 3.2 hereof (it being expressly understood that the Property shall no |
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