AMENDED AND RESTATED INVESTMENT MANAGEMENT TRUST AGREEMENT by and between TRIAN ACQUISITION I CORP. and
AMENDED
AND RESTATED
by
and between
and
U.S.
TRUST COMPANY OF DELAWARE
Dated
as of October 1, 2008
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__________________________________________________________________ |
Schedule
A Fee
Items
Exhibit
A
Termination Letter
Exhibit
B
Termination Letter
Exhibit
C
Authorized Individuals
AMENDED AND RESTATED
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 Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
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
DISTRIBUTIONS OF INCOME FROM TRUST ACCOUNT
2.1 Taxes. 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.
ARTICLE 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 not be used to make any payments to the Trustee under such
Sections).
3.4 Stockholder
Vote. In
connection with any vote of the holders of the Company’s common stock issued in
the Initial Public Offering (such stockholders, the “Public Stockholders”)
regarding a Business Combination, the Company shall provide to the Trustee an
affidavit or certificate of a firm regularly engaged in the business of
soliciting proxies and tabulating stockholder votes verifying the vote of the
Public Stockholders regarding such Business Combination.
ARTICLE IV
LIMITATIONS
OF LIABILITY
The
Trustee shall have no responsibility or liability for:
(a) Taking
any action with respect to the Property, other than as directed in Article
I and Article II hereof and the Trustee shall have no
liability to any party except for liability arising out of its own gross
negligence, willful misconduct or bad faith;
(b) Instituting
any proceeding for the collection of any principal and income arising from, or
institute, appear in or defend any proceeding of any kind with respect to, any
of the Property unless and until it shall have received written instructions
from the Company given as provided herein to do so and the Company shall have
advanced or guaranteed to it funds sufficient to pay any expenses incident
thereto;
(c) Verifying
that any of the investments selected by the Company pursuant to Article I(c)
hereof constitute United States “government securities” within the meaning of
Section 2(a)(16) of the 1940 Act or have maturity dates of 180 days or less or
that any money market funds selected by the Company meet the conditions of
Sections (c)(2), (c)(3) and (c)(4) of Rule 2a-7 promulgated under the 1940
Act;
(d) Refunding
any depreciation in principal of any Property;
(e) Assuming
that the authority of any person designated by the Company to give instructions
hereunder shall not be continuing unless provided otherwise in such designation
or unless the Company shall have delivered a written revocation of such
authority to the Trustee;
(f) Any
action taken or omitted by it, or any action suffered by it to be taken or
omitted, in good faith and in the exercise of its own best judgment, except for
its gross negligence, willful misconduct or bad faith, whether to the other
parties hereto or anyone else. The Trustee may rely conclusively and
shall be protected in acting upon any order, notice, demand, certificate,
opinion or advice of counsel (including counsel chosen by the Trustee),
statement, instrument, report or other paper or document (not only as to its due
execution and the validity and effectiveness of its provisions, but also as to
the truth and acceptability of any information therein contained) that is
believed by the Trustee, in good faith, to be genuine and to be signed or
presented by the proper person or persons. The Trustee shall not be
bound by any notice or demand, or any waiver, modification, termination or
rescission of this Agreement or any of the terms hereof, unless evidenced by a
written instrument delivered to the Trustee signed by the proper party or
parties and, if the duties or rights of the Trustee are affected, unless it
shall give its prior written consent thereto;
(g) Verifying
the correctness of the information set forth in the Registration Statement or
confirming that any Business Combination made by the Company or any other action
taken by it is as contemplated by the Registration Statement;
(h) Preparing,
executing and filing tax reports, income or other tax returns and paying any
taxes with respect to income and activities relating to the Trust Account,
regardless of whether such tax is payable by the Trust Account or the Company,
including, but not limited to, income tax obligations, it being expressly
understood that, as set forth in Section 2.1
hereof, if there is any income tax obligation relating to income on the Property
in the Trust Account, as determined from time to time by the Company and
regardless of whether such tax is payable by the Company or the Trust Account,
at the written instruction of the Company, the Trustee shall make funds
available in cash from the Property in the Trust Account in an amount specified
by the Company as owing to the applicable tax authority, which amount shall be
paid directly to the Company by electronic funds transfer, account debit or
other method of payment, and the Company shall forward such payment to the
taxing authority; and
(i) Verifying
calculations, qualifying or otherwise approving Company requests for
distributions pursuant to Article I(i) and Sections
2.1, 2.2, 2.3 and 2.4
hereof.
(j) (i)
Special, consequential or punitive damages, (ii) acts or omissions of securities
depositories, brokers or dealers; or (iii) any losses due to forces beyond the
control of the Trustee, including without limitation, strikes, work stoppages,
acts of war or terrorism, insurrection, revolution, nuclear or natural
catastrophes or acts of God and interruptions, loss or malfunctions of
utilities, communications or computer (software and hardware)
services.
The
Trustee:
(a) shall not
(by virtue of this Agreement or the performance of its duties hereunder) be held
to any obligations, duties (including fiduciary duties) or relationship of
agency or trust for or with the Public Stockholders or the
Representatives;
(b) shall
have no duties or obligations other than those specifically set forth in this
Agreement and no duties or obligations shall be implied;
(c) shall be
able to consult with counsel satisfactory to it (including counsel for the other
parties hereto) and the advice or opinion of such counsel, after consultation
with the Company and its counsel, shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in accordance with the advice or opinion of such
counsel;
(d) shall
not, notwithstanding any provision of this Agreement to the contrary, be
required to make any payment hereunder until sufficient funds are actually
received by the Trustee; and
(e) shall not
be required to take any action hereunder if the Trustee shall have reasonably
determined, or shall have been advised by counsel, that such action is likely to
result in liability on the part of the Trustee or is contrary to the terms
hereof or is otherwise contrary to law.
In
carrying out its duties and obligations hereunder, the Trustee may do so by or
through agents or affiliates disclosed or referenced in any account agreement
signed by the Company or otherwise reasonably acceptable to the
Company. The rights, privileges, protections, immunities and benefits
provided to the Trustee hereunder (including its right to be indemnified) are
extended to, and shall be enforceable by, any such agents or
affiliates.
ARTICLE V
WAIVER
OF CLAIMS AGAINST TRUST ACCOUNT
The
Trustee hereby waives any and all right, title, interest or claim of any kind
(“Claim”) that
the Trustee may have against the Property held in the Trust Account, and hereby
agrees not to seek recourse, reimbursement, set-off, payment or satisfaction for
any Claim against the Trust Account for any reason whatsoever. In the
event that the Trustee has a claim against the Company under this Agreement,
including, without limitation, Section 3.2, the
Trustee will pursue such claim solely against the Company and not against the
Property held in the Trust Account.
ARTICLE VI
TERMINATION
This
Agreement shall terminate as follows:
(a) If the
Company desires to appoint a successor trustee or the Trustee gives written
notice to the Company that it desires to resign under this Agreement, the
Company shall use its reasonable efforts to identify a successor trustee, during
which time the Trustee shall continue to act in accordance with the terms of
this Agreement. At such time that the Company notifies the Trustee
that a successor trustee has been appointed by the Company and has agreed to
become subject to the terms of this Agreement, the Trustee shall transfer the
management of the Trust Account to the successor trustee, including but not
limited to the transfer of copies of the reports and statements relating to the
Trust Account, whereupon this Agreement shall terminate; provided, however, that, in the
event that the Company does not identify a successor trustee within 60 days of
receipt of the resignation notice from the Trustee, the Trustee may apply to a
court of competent jurisdiction in the state or federal courts of New York or
Delaware for the appointment of a successor trustee; or
(b) At such
time that the Trustee has completed the liquidation of the Trust Account in
accordance with the provisions of Article I(i) hereof, and distributed the
Property in accordance with the provisions of the applicable Termination Letter,
this Agreement shall terminate except with respect to Section 3.2 hereof.
ARTICLE VII
MISCELLANEOUS
7.1
Procedures for Funds
Transfer. The
Company and the Trustee each acknowledge that the Trustee will follow the
security procedures set forth below with respect to funds transferred from the
Trust Account. Upon receipt of written instructions, the Trustee will
confirm such instructions with an Authorized Individual for the Company at an
Authorized Telephone Number listed on Exhibit C attached hereto. The
Company and the Trustee will each restrict access to confidential information
relating to such security procedures to authorized persons. Each
party must notify the other party immediately if it has reason to believe
unauthorized persons may have obtained access to such information, or of any
change in its authorized personnel. In executing funds transfers, the
Trustee will rely upon account numbers or other identifying numbers of a
beneficiary, beneficiary’s bank or intermediary bank, rather than
names. The Trustee shall not be liable for any loss, liability or
expense resulting from any error in an account number or other identifying
number, provided it has accurately transmitted the numbers
provided.
7.2 Governing
Law. This
Agreement shall be governed by and construed and enforced in accordance with the
laws of the State of Delaware, without giving effect to conflicts of law
principles that would result in the application of the substantive laws of
another jurisdiction.
7.3 Counterparts. This
Agreement may be executed in several original or facsimile counterparts, each
one of which shall constitute an original, and together shall constitute but one
instrument.
7.4 Complete Agreement;
Amendment; Waiver of Trial by Jury. This
Agreement contains the entire agreement and understanding of the parties hereto
with respect to the subject matter hereof. This Agreement or any
provision hereof may only be changed, amended, waived or modified by a writing
signed by each of the parties hereto; provided, however, that no such
change, amendment, waiver or modification may be made without the prior written
consent of the Representatives. As to any claim, cross-claim or
counterclaim in any way relating to this Agreement, each party waives the right
to trial by jury.
7.5 Consent to
Jurisdiction. The
parties hereto consent to the non-exclusive jurisdiction and venue of any state
or federal court located in the State of Delaware, for purposes of resolving any
disputes hereunder. The parties hereto also submit to the
non-exclusive jurisdiction and venue of any state or federal court located in
the State of New York, and hereby waive any objection to such jurisdiction and
that such courts represent and inconvenient forum.
7.6 Notice; Consent;
Requests. Any
notice, consent or request to be given in connection with any of the terms or
provisions of this Agreement shall be in writing and shall be sent by express
mail or similar private courier service, by certified mail (return receipt
requested), by hand delivery or by facsimile transmission:
if to the
Trustee, to:
U.S.
Trust Company of Delaware
DE5-002-04-12
0000 X.
Xxxx Xxxxxx
Xxxxxxxxxx,
Xxxxxxxx 00000
Attn:
Xxxxxxxx XxXxxxx
Fax No.:
(000) 000-0000
if to the
Company, to:
000 Xxxx
Xxxxxx, 00xx Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn:
Chief Legal Officer
Fax No.:
(000) 000-0000
in either
case with a copy to:
Deutsche
Bank Securities Inc.
Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
c/o
Deutsche Bank Securities Inc.
00 Xxxx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn:
Equity Capital Markets - Syndicate Manager
and
Deutsche
Bank Securities Inc.
Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
c/o
Deutsche Bank Securities Inc.
00 Xxxx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn:
General Counsel
Fax No.:
(000) 000-0000
and
Xxxx,
Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn:
Xxxx X. Xxxxxxx, Esq.
Fax No.:
(000) 000-0000
and
Xxxxxx
Xxxxxxxx Xxxxx & Xxxxxxxx LLP
Xxx
Xxxxxxx Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxx X. Check, Esq.
Fax No.:
(000) 000-0000
7.7 Assignability. This
Agreement may not be assigned by the Trustee without the prior written consent
of the Company and the Representatives.
7.8 Authority to
Contract. Each of
the Trustee and the Company hereby represents that it has the full right and
power and has been duly authorized to enter into this Agreement and to perform
its respective obligations as contemplated hereunder.
7.9 Publicity. The
Trustee hereby consents to the inclusion of U.S. Trust Company of Delaware in
public filings or other materials relating to the activities of Trian
Acquisition I Corp.
7.10 Third Party
Beneficiaries. Each of
the Company and the Trustee hereby acknowledge that the Representatives are
third party beneficiaries of this Agreement.
[Remainder
of this page left intentionally blank]
IN
WITNESS WHEREOF, the parties have duly executed this Agreement as of the date
first written above.
U.S. TRUST COMPANY OF
DELAWARE
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By:
|
/s/XXXXXXXX XXXXXXX | ||
Name
|
Xxxxxxxx
XxXxxxx
|
||
Title:
|
Senior
Vice President
|
By:
|
/s/XXXX XXXXXX | ||
Name
|
Xxxx
Xxxxxx
|
||
Title:
|
Treasurer,
Chief Financial Officer
and
Assistant Secretary
|
SCHEDULE
A
Fee
Item
|
Time
and Method of Payment
|
Amount
|
Initial
acceptance
fee
|
Upon
signing of this Agreement
|
$1000
|
Annual
fee
|
First
year, initial signing of this Agreement
by
wire transfer or check; thereafter on the
anniversary
of the date of this Agreement
by
wire transfer or check
|
$4000
|
Transaction
processing
fee for
disbursements
to
Company
under
Article
I(i) and
Sections
2.1, 2.2
and
2.3
|
Deduction
by Trustee from accumulated
income
following disbursement made to
Company
under Section 2
|
$250
|
EXHIBIT
A
[Letterhead
of Company]
U.S.
Trust Company of Delaware
DE5-002-04-12
0000 X.
Xxxx Xxxxxx
Xxxxxxxxxx,
Xxxxxxxx 00000
Attn:
Xxxxxxxx XxXxxxx
Re: Trust
Account
No. Termination
Letter
Ladies
and Gentlemen:
Pursuant
to Article I(i) of the Amended and Restated Investment Management Trust
Agreement between Trian Acquisition I Corp. (“Company”) and U.S.
Trust Company of Delaware (“Trustee”), dated as
October 1, 2008 (“Trust Agreement”),
this is to advise you that the Company has entered into an agreement (“Business Agreement”)
with [ ] “Target Business”) to
consummate a business combination with Target Business (the “Business
Combination”) on or about [insert date]. The Company shall
notify you at least 48 hours in advance of the actual date of the consummation
of the Business Combination (“Consummation
Date”).
In
accordance with the terms of the Trust Agreement, we hereby authorize you to
commence liquidation of Trust Account No. ________________ (the “Trust Account”) to
the effect that, on the Consummation Date, all of funds held in the Trust
Account will be immediately available for transfer to the account or accounts
that the Company shall direct in writing.
At least
2 business days prior to the Consummation Date, the Company shall deliver to you
written instructions (either by fax or e-mail) with respect to the transfer of
the funds held in the Trust Account (“Instruction Letter”);
and on the Consummation Date, counsel for the Company shall deliver to you
written notification (either by fax or e-mail) that the Business Combination has
been consummated (“Counsel’s
Letter”). You are hereby directed and authorized to transfer
the funds held in the Trust Account on the Consummation Date, in accordance with
the terms of the Instruction Letter. In the event that certain deposits held in
the Trust Account may not be liquidated by the Consummation Date without
penalty, you will notify the Company of the same and the Company shall direct
you as to whether such funds should remain in the Trust Account and distributed
after the Consummation Date to the Company. Upon the distribution of
all the funds in the Trust Account pursuant to the terms hereof, the Trust
Agreement shall be terminated and the Trust Account closed.
In the
event that the Business Combination is not consummated on the Consummation Date
described in the notice thereof and we have not notified you on or before the
original Consummation Date of a new Consummation Date, then the funds held in
the Trust Account shall, upon written instruction from the Company, be
re-deposited as provided in the Trust Agreement on the business day immediately
following the Consummation Date as set forth in the notice.
Very truly yours,
cc:
Deutsche Bank Securities Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated.
EXHIBIT
B
[Letterhead
of Company]
U. S.
Trust Company of Delaware
DE5-002-04-12
0000 X.
Xxxx Xxxxxx
Xxxxxxxxxx,
Xxxxxxxx 00000
Attn:
Xxxxxxxx XxXxxxx
Re: Trust
Account
No. Termination
Letter
Ladies
and Gentlemen:
Pursuant
to Article I(i) of the Amended and Restated Investment Management Trust
Agreement between Trian Acquisition I Corp. (“Company”) and U.S.
Trust Company of Delaware (“Trustee”), dated as
of October 1, 2008 (“Trust Agreement”),
this is to advise you that the Company has been dissolved due to its inability
to effect a Business Combination within the time frame specified in the
Company’s prospectus relating to its Initial Public Offering. Capitalized terms
used but not defined herein shall have the meanings set forth in the Trust
Agreement.
Attached
hereto is a certified copy of the Certificate of Dissolution as filed with the
Secretary of State of Delaware. In accordance with the terms of the Trust
Agreement, we hereby authorize you, to commence, as promptly as practicable,
liquidation of the Trust Account and distribution of the funds in the Trust
Account to [ ] (the
“Designated Paying
Agent”) on behalf of the Company. You will notify the Company
and the Designated Paying Agent in writing at [insert address] as to when all
such funds will be available for immediate transfer (the “Transfer
Date”). The Designated Paying Agent shall thereafter notify
you as to the account or accounts of the Designated Paying Agent that the funds
in the Trust Account should be transferred to on the Transfer Date so that the
Designated Paying Agent may commence distribution of such funds in accordance
with the Company’s instructions. You shall have no obligation to
oversee the Designated Paying Agent’s distribution of the funds. Upon
the payment to the Designated Paying Agent of all the funds in the Trust
Account, the Trust Agreement shall terminate in accordance with the terms
thereof.
cc:
Deutsche Bank Securities Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated.
EXHIBIT
C
AUTHORIZED
INDIVIDUAL(S)
|
AUTHORIZED
|
|
FOR
TELEPHONE CALL BACK
|
TELEPHONE
NUMBER(S)
|
|
Company:
|
||
000
Xxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn:
Xxxxxx X. Garden or Xxxx Xxxxxx
|
(000)
000-0000
|
|
Trustee:
|
||
U.S.
TRUST COMPANY OF DELAWARE
DE5-002-04-12
0000
X. Xxxx Xxxxxx
Xxxxxxxxxx,
Xxxxxxxx 00000
Attn:
Xxxxxxxx XxXxxxx
|
(000)
000-0000
|