EXHIBIT 2.4
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EXECUTION COPY
FIRST AMENDMENT TO
MEMBERSHIP INTEREST PURCHASE AGREEMENT
FIRST AMENDMENT TO MEMBERSHIP INTEREST PURCHASE AGREEMENT (this
"AMENDMENT"), dated as of July 25, 2005, by
and among Triarc Companies, Inc., a
Delaware corporation ("TRIARC"); Arby's
Restaurant Group, Inc., a Delaware
corporation and an indirect wholly owned
subsidiary of Triarc ("ARG"); and
Russell V. Umphenour, Jr., Dennis E. Cooper
and J. Russell Welch, as the RTM
Representatives on behalf of each of the
Sellers (as defined below).
W I T N E S S E T H:
WHEREAS, each of Triarc, ARG, each of the persons listed on the
signature pages thereto under the heading
"Sellers" (collectively, the
"SELLERS") and the RTM Representatives is a
party to the Membership Interest
Purchase Agreement, dated as of May 27,
2005 (the "PURCHASE AGREEMENT");
WHEREAS, each of Triarc, ARG, the Sellers and the RTM
Representatives
wish to amend the Purchase Agreement as set
forth herein; and
WHEREAS, Section 9.03 of the Purchase Agreement provides that
the
Purchase Agreement may be amended by an
instrument in writing signed by each of
Triarc, ARG and the RTM Representatives on
behalf of the Sellers.
NOW, THEREFORE, in consideration of the foregoing and the
mutual
covenants and agreements herein contained,
and intending to be legally bound
hereby, the parties hereto hereby agree as
follows:
1.
CERTAIN DEFINITIONS. Capitalized terms used and not otherwise
defined herein shall have the meanings
ascribed to them in the Purchase
Agreement.
2.
AMENDMENT AND RESTATEMENT OF SECTION 5.01(B) OF THE PURCHASE
AGREEMENT. Section 5.01(b) of the Purchase
Agreement is hereby amended and
restated in its entirety as follows:
"(b)
DIVIDENDS. Make, declare or pay any dividend or distribution
on its membership interests or similar
equity interests, other than (i)
distributions to members in an amount equal
to their aggregate liability for
income Taxes based on the operations of
RTMAC, as reasonably determined by
RTMAC, (ii) cash dividends or distributions
in an amount that the RTM
Representatives have demonstrated to the
reasonable satisfaction of Triarc
(based upon reasonably detailed information
provided by the RTM Representatives
to Triarc), after taking into account any
distributions described in clause (i)
that have been made or are expected to be
made prior to the Closing, would not
reasonably be expected to result in the sum
of (x) the absolute value of the Net
Liabilities of the RTM Parties and their
Subsidiaries as of the close of
business on the Closing Date PLUS (y) the
aggregate amount of cash received by
any RTM Party or their Subsidiaries after
the date hereof and on or prior to the
Closing Date that would be
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excluded from current assets under
paragraph (c)(y)(I), (V) or (VI) under the
definition of Net Liabilities if such cash
were an asset of any RTM Party or
their Subsidiaries as of the close of
business on the Closing Date (the
"EXCLUDED RTM CASH AMOUNT") being more than
the sum of (A) the absolute value of
the RTM
