EXHIBIT 27
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PLEDGE AND SECURITY AGREEMENT
PLEDGE AND SECURITY AGREEMENT dated April 2, 2003, made by Xxxxx X.
May, an individual whose principal residence is in the State of New York (the
"PLEDGOR"), in favor of Bank of America, N.A., a national banking association
(the "BANK" and, together with its successors and assigns, collectively the
"LENDERS"), as agent for the Bank and its permitted successors and assigns (in
such capacity and together with its successors and assigns, the "AGENT").
W I T N E S S E T H:
WHEREAS, the Pledgor, Xxxx May (collectively, the "BORROWERS") and the
Bank are parties to the Third Amended and Restated Credit Agreement dated as of
January 18, 1996, as amended and restated on June 19, 1997, as amended and
restated as of January 2, 1999, and as amended and restated as of April 2, 2001
(as amended or otherwise modified from time to time, the "CREDIT AGREEMENT"),
pursuant to which the Bank agreed to make loans (each a "LOAN" and collectively
the "LOANS") and issue letters of credit (the "LETTERS OF CREDIT") to the
Borrowers in an aggregate amount at any time outstanding not to exceed the
amounts of the Commitments referred to therein;
WHEREAS, it was a condition precedent to the making of the Loans to the
Borrowers pursuant to the Credit Agreement that DWG Acquisition Group, L.P., a
Delaware limited partnership of which the Pledgor and Xxxxxx Xxxxx are the sole
general partners ("DWG"), execute and deliver to the Agent the Triarc Pledge
Agreement, pursuant to which DWG pledged to the Agent, and granted to the Agent
a security interest in, the outstanding shares of capital stock issued by Triarc
Companies, Inc. (the "ISSUER") from time to time owned by DWG (the "DWG
SHARES");
WHEREAS, DWG has released a portion of the DWG Shares to the Pledgor,
which were used by the Pledgor to pay the exercise price of certain stock
options owned by the Pledgor to purchase shares of stock of the Issuer and the
Pledgor obtained certain shares of stock of the Issuer upon the exercise of such
stock options (the "OPTION SHARES"); and
WHEREAS, the Borrowers have requested that the Bank extend the
Termination Date set forth in the Credit Agreement for two years and consent to
the liquidation and dissolution of DWG, and the Bank is willing to so extend the
Termination Date and consent to the liquidation and dissolution of DWG, subject
to, among other things, the condition precedent that the Pledgor shall have
executed and delivered to the Agent a pledge and security agreement providing
for the pledge to the Agent of, and the grant to the Agent of a security
interest in, all Pledged Shares (including the Option Shares) at any time or
from time to time distributed to the Pledgor by DWG (it being understood and
agreed that any Pledged Shares so distributed shall at all times be subject to
the lien and security interest of the Agent);
NOW, THEREFORE, in consideration of the premises and the agreements
herein and in order to induce the Bank to make and maintain the Loans pursuant
to the Credit Agreement, the Pledgor hereby agrees with the Agent as follows:
SECTION 1. DEFINITIONS. Reference is hereby made to the Credit
Agreement for a statement of the terms thereof. All terms used in this Pledge
Agreement which are defined in the Credit Agreement or in Article 8 or Article 9
of the Uniform Commercial Code (the "CODE") as in effect from time to time in
the State of New York and which are not otherwise defined herein shall have the
same meanings herein as set forth therein.
SECTION 2. PLEDGE AND GRANT OF SECURITY INTEREST. As collateral
security for all of the Obligations (as defined in SECTION 3 hereof), the
Pledgor hereby pledges and assigns to the Agent, for the benefit of the Lenders,
and grants to the Agent, for the benefit of the Lenders, a continuing security
interest in, the Pledgor's right, title and interest in and to the following
(collectively, the "PLEDGED COLLATERAL"):
(a) the shares of stock described in SCHEDULE I hereto (the
"PLEDGED SHARES") issued by the Issuer, the certificates representing the
Pledged Shares, all options and other rights, contractual or otherwise, in
respect thereof (including, without limitation, any registration rights, whether
under the Registration Rights Agreement dated as of April 23, 1993 (as amended
or otherwise modified from time to time, the "REGISTRATION RIGHTS AGREEMENT"),
between the Issuer and the Pledgor, any other registration rights agreement
between the Issuer and the Pledgor or otherwise), and all dividends,
distributions, cash, instruments, investment property and other property
(including, without limitation, any stock dividend and any distribution in
connection with a stock split) from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of the Pledged
Shares;
(b) all security entitlements of the Pledgor in any and all of
the foregoing; and
(c) all proceeds (including proceeds of proceeds) of any and
all of the foregoing;
in each case, whether now owned or hereafter acquired by the Pledgor and
howsoever such interest therein may arise or appear (whether by ownership,
security interest, claim or otherwise).
SECTION 3. SECURITY FOR OBLIGATIONS. The security interest created
hereby in the Pledged Collateral constitutes continuing collateral security for
all of the following obligations whether now existing or hereafter incurred
(collectively, the "Obligations"):
(a) the prompt payment by each Borrower, as and when due and
payable (whether by scheduled maturity, maturity, required prepayment,
acceleration, demand or otherwise), of all amounts from time to time owing by
either of them in respect of any Loan Document, whether for principal, interest,
fees or otherwise (including, without limitation, amounts that but for the
operation of Section 362(a) of the Bankruptcy Code would become due); and
(b) the due performance and observance by the Borrowers of all
of their other obligations from time to time existing under any Loan Document.
Without limiting the generality of the foregoing, this Pledge Agreement secures
the payment of all amounts that constitute part of the Obligations and would be
owed by a Borrower to the
Agent or any of the Lenders but for the fact that they are unenforceable or not
allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving either Borrower.
SECTION 4. DELIVERY OF THE PLEDGED COLLATERAL.
(a) All certificates currently representing the Pledged Shares
shall be delivered to the Agent on or prior to the execution and delivery of
this Pledge Agreement. All other certificates and instruments constituting
Pledged Collateral from time to time or required to be pledged to the Agent by
the Pledgor pursuant to the terms of this Pledge Agreement (the "ADDITIONAL
COLLATERAL") shall be delivered to the Agent within five (5) days of receipt
thereof by or on behalf of the Pledgor. All such certificates and instruments
shall be held by or on behalf of the Agent pursuant hereto and shall be
delivered in suitable form for transfer by delivery or shall be accompanied by
duly executed instruments of transfer or assignment in blank, all in form and
substance reasonably satisfactory to the Agent.
(b) If the Pledgor shall receive, by virtue of the Pledgor's
being or having been an owner of any Pledged Collateral, any (i) stock
certificate (including, without limitation, any certificate representing a stock
dividend or distribution in connection with any increase or reduction of
capital, reclassification, merger, consolidation, sale of assets, combination of
shares, stock split, spin-off or split-off), promissory note or other
instrument, (ii) option or right, whether as an addition to, substitution for,
or in exchange for, any Pledged Collateral, or otherwise, (iii) dividends
payable in cash (except such dividends permitted to be retained by the Pledgor
pursuant to SECTION 7(A) hereof) or in securities or other property or (iv)
dividends or other distributions in connection with a partial or total
liquidation or dissolution or in connection with a reduction of capital, capital
surplus or paid-in surplus, the Pledgor shall receive such stock certificate,
promissory note, instrument, option, right, payment or distribution in trust for
the benefit of the Agent, shall segregate it from the Pledgor's other property
and shall deliver it forthwith to the Agent in the exact form received, with any
necessary indorsement and/or appropriate stock powers duly executed in blank, to
be held by the Agent as Pledged Collateral and as further collateral security
for the Obligations.
SECTION 5. REPRESENTATIONS AND WARRANTIES. The Pledgor represents and
warrants as follows:
(a) The Pledgor has the legal capacity and right to execute,
deliver and perform this Pledge Agreement.
(b) SCHEDULE II hereto sets forth (i) the exact legal name of
the Pledgor and all other names used by the Pledgor at any time during the five
years preceding the date hereof, and (ii) the Pledgor's principal residence and
each place of residence of the Pledgor during the five years preceding the
Closing Date.
(c) The execution, delivery and performance by the Pledgor of
this Pledge Agreement (i) do not and will not contravene any law or any
contractual restriction binding on or affecting the Pledgor or any of the
Pledgor's properties (including, without limitation, any governing document of
the Issuer or any rule, directive or policy of the Issuer), and (ii) do not and
will not result in or require the creation of any Lien upon or encumbrance upon
or with
respect to any of the Pledgor's properties other than pursuant to this Pledge
Agreement. The exercise by the Agent of its rights and remedies under this
Pledge Agreement (including, without limitation, the sale or other disposition
of the Pledged Shares) will not violate any contractual restriction binding on
or affecting the Pledgor or the Pledged Shares.
(d) This Pledge Agreement is a legal, valid and binding
obligation of the Pledgor, enforceable against the Pledgor in accordance with
its terms.
(e) The Pledgor is and will be at all times the legal and
beneficial owner of the Pledged Collateral of the Pledgor free and clear of any
Lien, except for the security interest created by this Pledge Agreement.
(f) The exercise by the Agent of any of its rights and
remedies hereunder (including, without limitation, the sale or other disposition
of the Pledged Shares by the Agent) will not contravene any law (subject to
compliance with laws affecting the offering and sale of securities generally) or
any contractual restriction binding on or affecting any the Pledgor or any of
the Pledgor's properties (including, without limitation, any governing document
of the Issuer) and will not result in or require the creation of any Lien upon
or with respect to any of the Pledgor's properties other than pursuant to this
Pledge Agreement and the other Loan Documents.
(g) The Pledged Shares are fully paid and nonassessable and,
to the best of the Pledgor's knowledge, have been duly authorized and validly
issued. All other shares of stock constituting Pledged Collateral will be duly
authorized and validly issued, fully paid and nonassessable. The Pledgor has
legally and beneficially owned the Pledged Shares described in Schedule I hereto
since the dates set forth opposite the applicable certificate evidencing such
Pledged Shares as set forth in Schedule I hereto. The information set forth in
Schedule I hereto is true and correct.
(h) There is no action, suit or proceeding pending or, to the
Pledgor's knowledge, threatened or otherwise affecting the Pledgor before any
court or other Governmental Authority or arbitrator that is reasonably likely to
materially adversely affect the financial condition of the Pledgor or the
Pledgor's ability to perform his obligations hereunder and under the other Loan
Documents.
(i) No authorization or approval or other action by, and no
notice to or filing with, any Governmental Authority or other regulatory body or
any other Person is required for (i) the due execution, delivery and performance
by the Pledgor of this Pledge Agreement or the other Loan Documents to which the
Pledgor is a party, (ii) the grant by the Pledgor, or the perfection, of the
security interest purported to be created hereby in the Pledged Collateral or
(iii) the exercise by the Agent of any of its rights and remedies hereunder,
except for the filing of a Form 144.
(j) The Pledgor is and will be at all times the legal and
beneficial owner of the Pledged Collateral in existence, free and clear of any
lien, security interest, option or other charge or encumbrance except for the
security interest created by this Pledge Agreement. There is no financing
statement naming the Pledgor as debtor (or similar documents or instrument of
registration under the law of any jurisdiction) now on file or registered in any
public office covering any interest of the Pledgor in the Pledged Collateral,
except in favor of the Agent.
(k) This Pledge Agreement creates a valid security interest in
favor of the Agent in the Pledged Collateral, as security for the Obligations.
The Agent's having possession of the Pledged Shares and all other certificates,
instruments and cash constituting Pledged Collateral from time to time results
in the perfection of such security interest. Such security interest is, or in
the case of Pledged Collateral in which the Pledgor obtains rights after the
date hereof, will be, a perfected, first priority security interest. All action
necessary or desirable to perfect and protect such security interest has been
duly taken, except for the Agent's having possession of certificates,
instruments and cash constituting Pledged Collateral after the date hereof.
(l) The information on Exhibit A hereto (the Restricted
Securities Statement) is accurate and complete.
(m) The Pledgor has furnished the Agent with a true, correct
and complete copy of the Registration Rights Agreement and each other
registration rights and other agreement in respect of or otherwise affecting any
of the Pledged Shares in existence on the date hereof.
SECTION 6. COVENANTS AS TO THE PLEDGED COLLATERAL. So long as any of
the Obligations shall remain outstanding, any Letter of Credit shall remain
outstanding or any Lender shall have any Commitment under the Credit Agreement,
unless the Agent shall otherwise consent in writing:
(a) RECORDS. The Pledgor will keep adequate records concerning
the Pledged Collateral and permit the Agent or any agents or representatives
thereof at any reasonable time and from time to time to examine and make copies
of and abstracts from such records.
(b) NOTICES. The Pledgor will, at his expense, promptly
deliver to the Agent a copy of each notice or other communication received by
the Pledgor in respect of the Pledged Collateral of the Pledgor.
(c) DEFEND TITLE. The Pledgor will (at the expense of the
Pledgor) defend his right, title and interest in and to the Pledged Collateral
against the claims of any Person.
(d) FURTHER ASSURANCES. The Pledgor will (at the expense of
the Pledgor), at any time and from time to time, promptly execute and deliver
all further instruments and documents and take all further action that may be
necessary or desirable or that the Agent may reasonably request in order (i) to
perfect and protect the security interest created or purported to be created
hereby (whether pursuant to laws, rules, regulations or general practices
currently in effect or adopted subsequent to the date hereof); (ii) to enable
the Agent to exercise and enforce its rights and remedies hereunder in respect
of the Pledged Collateral (including, without limitation, by executing one or
more Forms 144); or (iii) to otherwise effect the purposes of this Pledge
Agreement, including, without limitation: (A) at the request of the Agent,
marking conspicuously each of the records of the Pledgor pertaining to the
Pledged Collateral with a legend, in form and substance satisfactory to the
Agent, indicating that such Pledged Collateral is subject to the security
interest
created hereby; (B) if any Pledged Collateral shall be evidenced by a promissory
note or other instrument or chattel paper, delivering and pledging to the Agent
hereunder such note, instrument or chattel paper duly indorsed and accompanied
by executed instruments of transfer or assignment, all in form and substance
satisfactory to the Agent; (C) delivering to the Agent irrevocable proxies in
respect of the Pledged Collateral and executing and filing such financing or
continuation statements, or amendments thereto, as may be necessary or desirable
or that the Agent may request in order to perfect and preserve the security
interest created or purported to be created hereby; and (D) furnishing to the
Agent from time to time statements and schedules further identifying and
describing the Pledged Collateral and such other reports in connection with the
Pledged Collateral as the Agent may reasonably request, all in reasonable
detail.
(e) CHANGE OF NAME OR ADDRESS. The Pledgor will give the Agent
at least 30 days' prior written notice of any change in the Pledgor's name or
principal residence.
(f) TRANSFERS AND OTHER RESTRICTIONS. The Pledgor will not (i)
sell, assign (by operation of law or otherwise), exchange or otherwise dispose
of any Pledged Collateral except as expressly permitted by Section 7(a) hereof.
(g) RULE 144 COVENANTS. The Pledgor will not sell any
securities of the same class or convertible into the same class of securities as
the Pledged Shares, whether or not such securities are pledged hereunder, except
as otherwise expressly permitted by the Credit Agreement. The Pledgor will use
his reasonable efforts to cause any Person with whom he shall be deemed one
"person" for purposes of Rule 144(a)(2) (the Pledgor and all such parties being
hereinafter collectively referred to as the "ATTRIBUTION GROUP") to refrain from
selling any securities of the same class or convertible into the same class of
securities as the Pledged Shares, whether or not such securities are pledged
hereunder, and in the event of any such sale consented to by the Agent will
furnish the Agent with a copy of any Form 144 filed in respect of such sale.
(h) COOPERATION. The Pledgor will cooperate fully with the
Agent with respect to any sale by the Agent of any of the Pledged Collateral
after the occurrence and during the continuance of an Event of Default,
including full and complete compliance with all requirements of Rule 144, and
will give to the Agent all information and will do all things necessary,
including the execution of all documents, forms, instruments and other items, to
comply with Rule 144 for the complete and unrestricted sale and/or transfer of
any or all of the Pledged Collateral.
(i) LIEN. The Pledgor will not create or suffer to exist any
(i) Lien upon or with respect to any of the Pledged Collateral except for the
security interests created by this Pledge Agreement or (ii) any contractual
restriction on the transferability of any of the Pledged Collateral (including,
without limitation, any market standoff or other "lock-up" agreement) other than
the restriction in the Registration Rights Agreement (as in effect on the date
hereof), which applies only to the Pledgor (and not to any sale or disposition
of the Pledged Collateral by the Agent or any Lender).
(j) AGREEMENTS AFFECTING PLEDGED COLLATERAL. The Pledgor will
not make or consent to any amendment or other modification or waiver with
respect to any of the Pledged Collateral (including, without limitation, to the
Registration Rights Agreement), or enter into any
agreement or permit to exist any restriction with respect to any of the Pledged
Collateral other than pursuant hereto.
(k) OTHER ACTIONS. The Pledgor will not take or fail to take
any action that would in any manner impair the value or enforceability of the
Agent's security interest in the Pledged Collateral.
SECTION 7. VOTING RIGHTS, DIVIDENDS, ETC. IN RESPECT OF THE PLEDGED
COLLATERAL.
(a) So long as no Default or Event of Default shall have
occurred and be continuing:
(i) the Pledgor may exercise any and all voting and
other consensual rights pertaining to any Pledged Collateral in a manner not
inconsistent with the terms of this Pledge Agreement;
(ii) the Pledgor may receive and retain any and all
dividends or other distributions paid in respect of the Pledged Collateral of
the Pledgor; PROVIDED, HOWEVER, that any and all (A) dividends paid or payable
other than in cash in respect of, and instruments and other property received,
receivable or otherwise distributed in respect of or in exchange for, any
Pledged Collateral (including, without limitation, shares of stock or other
instruments issued in respect of any "spin-off" of any division or subsidiary of
the Issuer), (B) dividends and other distributions paid or payable in cash in
respect of any Pledged Collateral in connection with a partial or total
liquidation or dissolution or in connection with a reduction of capital, capital
surplus or paid-in surplus, and (C) cash paid, payable or otherwise distributed
in redemption of, or in exchange for, any Pledged Collateral shall be, and shall
forthwith be delivered to the Agent to hold as, Pledged Collateral and shall, if
received by the Pledgor, be received in trust for the benefit of the Agent,
shall be segregated from the other property or funds of the Pledgor, and shall
be forthwith delivered to the Agent in the exact form received with any
necessary indorsement and/or appropriate stock powers duly executed in blank, to
be held by the Agent as Pledged Collateral and as further collateral security
for the Obligations; and
(iii) the Agent will execute and deliver (or cause to
be executed and delivered) all such proxies and other instruments as the Pledgor
may reasonably request for the purpose of enabling the Pledgor to exercise the
voting and other rights that the Pledgor is entitled to exercise pursuant to
paragraph (i) of this SECTION 7(A) and to receive the dividends that the Pledgor
is authorized to receive and retain pursuant to paragraph (ii) of this SECTION
7(A).
(b) Upon the occurrence and during the continuance of any
Default or Event of Default:
(i) all rights of the Pledgor to exercise the voting
and other consensual rights that the Pledgor would otherwise be entitled to
exercise pursuant to paragraph (i) of subsection (a) of this SECTION 7, and to
receive the dividends and other distributions that the Pledgor would otherwise
be authorized to receive and retain pursuant to paragraph (ii) of subsection (a)
of this Section 7, shall cease, and (A) all such rights shall thereupon become
vested in the Agent, which shall thereupon have the sole right to exercise such
voting and other
consensual rights and to receive and hold as Pledged Collateral such dividends
and other distributions, and (B) the Pledgor shall execute and deliver all such
proxies and other instruments as the Agent may reasonably request for the
purpose of enabling Agent to exercise the voting and other rights that it is
entitled to exercise pursuant to this Section 7(b)(i);
(ii) without limiting the generality of the
foregoing, the Agent may at its option exercise any and all rights of
conversion, exchange, subscription or any other rights, privileges or options
pertaining to any of the Pledged Collateral as if it were the absolute owner
thereof, including, without limitation, the right to exchange, in its
discretion, any and all of the Pledged Collateral upon the merger,
consolidation, reorganization, recapitalization or other adjustment of any
issuer of Pledged Collateral, or upon the exercise by any issuer of Pledged
Collateral of any right, privilege or option pertaining to any Pledged
Collateral, and, in connection therewith, to deposit and deliver any and all of
the Pledged Collateral with any committee, depository, transfer agent, registrar
or other designated agent upon such terms and conditions as it may determine;
and
(iii) all dividends and other distributions that are
received by the Pledgor contrary to the provisions of paragraph (i) of this
SECTION 7(B) shall be received in trust for the benefit of the Agent, shall be
segregated from the other funds of the Pledgor, and shall be forthwith paid over
to the Agent as Pledged Collateral in the exact form received with any necessary
indorsement and/or appropriate stock powers duly executed in blank, to be held
by the Agent as Pledged Collateral hereunder.
SECTION 8. ADDITIONAL PROVISIONS CONCERNING THE PLEDGED COLLATERAL.
(a) The Pledgor hereby authorizes the Agent to file, without
the signature of the Pledgor where permitted by law, one or more financing or
continuation statements, and amendments thereto, relating to the Pledged
Collateral. The Agent hereby agrees to notify the Pledgor promptly after any
such filing.
(b) The Pledgor hereby irrevocably appoints the Agent the
Pledgor's attorney-in-fact and proxy, with full authority in the place and stead
of the Pledgor and in the name of the Pledgor or otherwise, from time to time in
the Agent's discretion, to take any action and to execute any instrument (at the
expense of the Pledgor) that the Agent may reasonably deem necessary or
advisable to accomplish the purposes of this Pledge Agreement including, without
limitation, (i) at any time and from time to time, to receive, indorse and
collect all instruments made payable to the Pledgor representing any
distribution in respect of any Pledged Collateral and to give full discharge for
the same, (ii) to complete, execute and file one or more Forms 144 with respect
to any of the Pledged Collateral and (iii) to receive, endorse and collect any
drafts or other instruments, documents and chattel paper representing any
dividend or other distribution in respect of the Pledged Collateral and, in
addition to the foregoing and without limitation: (A) to ask, demand, collect,
xxx for, recover, compound, receive and give acquittance and receipts for moneys
due and to become due under or in respect of any of the Pledged Collateral and
to receive, indorse, and collect any drafts or other instruments, documents and
chattel paper in connection therewith; and (B) to file any claims or take any
action or institute any proceedings that the Agent may deem necessary or
desirable for the collection of any of the Pledged Collateral or otherwise to
enforce the rights of the Agent with respect to any of the Pledged Collateral;
PROVIDED, HOWEVER, that the Agent shall
exercise such powers only during the occurrence and continuance of an Event of
Default. This power is coupled with an interest and is irrevocable until all of
the Obligations are paid in full and the termination of all of the Letters of
Credit and each Commitment.
(c) If the Pledgor fails to perform any agreement or
obligation contained herein, the Agent (immediately after giving notice to the
Pledgor) may itself perform, or cause performance of, such agreement or
obligation, and the expenses of the Agent incurred in connection therewith shall
be payable by the Pledgor pursuant to SECTION 11 hereof, together with interest
from the date such expenses are paid by the Agent until repaid in full, at the
rate for overdue principal under the Credit Agreement, all payable on demand.
(d) The powers conferred on the Agent hereunder are solely to
protect its interest in the Pledged Collateral and shall not impose any duty
upon it to exercise any such powers. Except for the exercise of reasonable care
to assure the safe custody of any Pledged Collateral in its possession, the
Agent shall have no duty or liability to preserve rights pertaining thereto and
shall be relieved of all responsibility for the Pledged Collateral upon
surrendering it or tendering surrender of it to the Pledgor. The Agent shall be
deemed to have exercised reasonable care in the custody and preservation of the
Pledged Collateral in its possession if the Pledged Collateral is accorded
treatment substantially equal to that which the Agent accords its own property,
it being understood that the Agent shall not have responsibility for (i)
ascertaining or taking action with respect to calls, conversions, exchanges,
maturities, tenders or other matters relating to any Pledged Collateral, whether
or not the Agent has or is deemed to have knowledge of such matters, or (ii)
taking any necessary steps to preserve rights against any parties with respect
to any Pledged Collateral.
(e) The Agent may at any time in its discretion (i) subject
only to the rights of the Pledgor under Section 7(a) hereof and so long as an
Event of Default has occurred and is continuing, without prior notice to the
Pledgor, transfer or register in the name of the Agent or any of its nominees
any or all of the Pledged Collateral, and (ii) exchange certificates or
instruments constituting Pledged Collateral for certificates or instruments of
smaller or larger denominations.
SECTION 9. REMEDIES UPON DEFAULT. If any Event of Default shall have
occurred and be continuing:
(a) The Agent may exercise in respect of the Pledged
Collateral, in addition to other rights and remedies provided for herein or
otherwise available to it, all of the rights and remedies of a secured party on
default under the Code then in effect in the State of New York (whether or not
the Code applies to the affected Pledged Collateral); and without limiting the
generality of the foregoing, also may without notice except as specified below,
sell the Pledged Collateral or any part thereof in one or more parcels at public
or private sale, at any exchange or broker's board or elsewhere, at such price
or prices and on such other terms as the Agent may deem commercially reasonable.
The Pledgor agrees that, to the extent notice of sale shall be required by law,
at least 10 days' notice to the Pledgor of the time and place of any public sale
or the time after which any private sale is to be made shall constitute
reasonable notification. The Agent shall not be obligated to make any sale of
Pledged Collateral regardless of notice of sale having been given. The Agent may
adjourn any public or private sale from time
to time by announcement at the time and place fixed therefor, and such sale may,
without further notice, be made at the time and place to which it was so
adjourned. The Pledgor agrees to complete and execute one or more Forms 144, and
to cooperate in the completion and execution of one or more Forms 144 if
completed and executed by the Agent, to the extent necessary or desirable to
permit a sale of the Pledged Collateral in compliance with Rule 144.
(b) The Pledgor agrees that in any sale of any Pledged
Collateral hereunder the Agent is hereby authorized to comply with any
limitation or restriction in connection with such sale as it may be advised by
counsel is necessary in order to avoid any violation of applicable law, rule or
regulation (including, without limitation, compliance with such procedures as
may restrict the number of prospective bidders and purchasers, require that such
prospective bidders and purchasers have certain qualifications, and restrict
such prospective bidders and purchasers to persons who will represent and agree
that they are purchasing for their own account for investment and not with a
view to the distribution or resale of such Pledged Collateral), or in order to
obtain any required approval of the sale or of the purchasers by any
Governmental Authority, regulatory body or official, and the Pledgor further
agrees that such compliance shall not result in such sale being considered or
deemed not to have been made in a commercially reasonable manner, nor shall the
Agent be liable or accountable to the Pledgor for any discount allowed by reason
of the fact that such Pledged Collateral is sold in compliance with any such
limitation or restriction.
(c) Notwithstanding the provisions of subsection (b) of this
Section 9, the Pledgor recognizes that the Agent may deem it impracticable to
effect a public sale of all or any part of the Pledged Collateral and that the
Agent may, therefore, determine to make one or more private sales of any such
Pledged Collateral to a restricted group of purchasers who will be obligated to
agree, among other things, to acquire such Pledged Collateral for their own
account, for investment and not with a view to the distribution or resale
thereof. The Pledgor acknowledges that any such private sale may be at prices
and on terms less favorable to the seller than the prices and other terms that
might have been obtained at a public sale and, notwithstanding the foregoing,
agrees that such private sales shall be deemed to have been made in a
commercially reasonable manner and that the Agent shall have no obligation to
delay sale of any such securities for the period of time necessary to permit the
issuer of any securities constituting Pledged Collateral (the "SECURITIES") to
register such securities for public sale under the Securities Act of 1933, as
amended (the "SECURITIES ACT"). The Pledgor further acknowledges and agrees that
any offer to sell such Securities that has been (i) publicly advertised on a
bona fide basis in a newspaper or other publication of general circulation in
the financial community of New York, New York (to the extent that such an offer
may be so advertised without prior registration under the Securities Act) or
(ii) made privately in the manner described above to not less than fifteen BONA
FIDE offerees shall be deemed to involve a "public disposition" for the purposes
of Section 9-610 of the Code (or any successor or similar, applicable statutory
provision) as then in effect in the State of New York, notwithstanding that such
sale may not constitute a "public offering" under the Securities Act, and that
the Agent may, in such event, bid for and purchase such Securities.
(d) Any cash held by the Agent as Pledged Collateral and all
cash proceeds received by the Agent in respect of any sale of, collection from,
or other realization upon, all or any part of the Pledged Collateral may, in the
discretion of the Agent, be held by the Agent as collateral for, and/or then or
at any time thereafter applied (after payment of any
amounts payable to the Agent pursuant to SECTION 10 hereof) in whole or in part
by the Agent against, all or any part of the Obligations in such order as the
Agent shall elect. Any surplus of such cash or cash proceeds held by the Agent
and remaining after payment in full of all of the Obligations, the termination
of all of the Letters of Credit and the termination of each Commitment shall be
paid over to the Pledgor or to such Person as may be lawfully entitled to
receive such surplus.
(e) In the event that the proceeds of any such sale,
collection or realization are insufficient to pay all amounts to which the Agent
or any Lender is legally entitled, the Pledgor shall be liable for the
deficiency, together with interest thereon at the highest rate specified in the
Credit Agreement for interest on overdue principal thereof or such other rate as
shall be fixed by applicable law, together with the costs of collection and the
reasonable fees, costs and expenses of any attorneys employed by the Agent or
any of the Lenders to collect such deficiency.
SECTION 10. INDEMNITY AND EXPENSES.
(a) The Pledgor agrees to indemnify the Agent from and against
any and all claims, losses and liabilities (including, without limitation, the
reasonable fees, client charges and other expenses of the Agent's counsel)
growing out of or resulting from this Pledge Agreement or the enforcement of any
of the terms hereof (including, without limitation, the sale of Pledged
Collateral pursuant to a public or private offering and each and every document
produced in furtherance thereof), except claims, losses or liabilities resulting
solely and directly from the Agent's gross negligence or willful misconduct.
(b) The Pledgor agrees to pay to the Agent on demand the
amount of any and all costs and expenses, including the reasonable fees and
other client charges of the Agent's counsel and of any experts and agents, that
the Agent may incur in connection with (i) the amendment, modification,
administration and termination of this Pledge Agreement, (ii) the custody,
preservation, use or operation of, or the sale of, collection from, or other
realization upon, any of the Pledged Collateral (including, without limitation,
fees or commissions of any broker), (iii) the exercise or enforcement of any of
the rights of the Collateral Agent hereunder, or (iv) the failure by the Pledgor
to perform or observe any of the provisions hereof.
SECTION 11. NOTICES, ETC. All notices and other communications provided
for hereunder shall be in writing and shall be mailed or delivered, if to the
Pledgor, to the Pledgor at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, Telecopy No.
(000) 000-0000, with a copy to Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, 0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxxxx,
Esq., telecopy No. (000) 000-0000; if to the Agent, to it at its address at Bank
of America, N.A., 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, with
copies to Bank of America, N.A., 000 Xxxxx Xxxxxx, Xxxxx 00X, Xxx Xxxx, Xxx Xxxx
00000-0000, Attention: Xx. Xxxx X. Xxxxxx, Senior Vice President, Telecopier No.
(000) 000-0000, and Xxxxxxx Xxxx & Xxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxxxxx X. Xxxxxxxx, Esq.; or as to any such Person at
such other address as shall be designated by such Person in a written notice to
such other Persons complying as to delivery with the terms of this Section 11.
All such notices and other communications shall be effective (i) if mailed, when
received or three days after mailing, whichever is earlier; (ii) if telecopied,
when received; (iii) if telegraphed, when delivered to the telegraph company; or
(iv) if delivered, upon delivery.
SECTION 12. MISCELLANEOUS.
(a) No amendment of any provision of this Pledge Agreement
shall be effective unless it is in writing and signed by the Pledgor and the
Agent, and no waiver of any provision of this Pledge Agreement, and no consent
to any departure by the Pledgor therefrom, shall be effective unless it is in
writing and signed by the Agent, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
(b) No failure on the part of the Agent to exercise, and no
delay in exercising, any right hereunder or under any other Loan Document shall
operate as a waiver thereof; nor shall any single or partial exercise of any
such right preclude any other or further exercise thereof or the exercise of any
other right. The rights and remedies of the Agent provided herein and in the
other Loan Documents are cumulative and are in addition to, and not exclusive
of, any rights or remedies provided by law. The rights of the Agent against the
Pledgor under any Loan Document are not conditional or contingent on any attempt
by the Agent to exercise any of its rights under any other Loan Document against
the Pledgor or against any other Person.
(c) Any provision of this Pledge Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining portions hereof or thereof or affecting the validity
or enforceability of such provision in any other jurisdiction.
(d) This Pledge Agreement shall create a continuing security
interest in the Pledged Collateral and shall (i) remain in full force and effect
until the payment in full or release of the Obligations and the termination of
the Letters of Credit and the Commitments, and (ii) be binding on the Pledgor
and its successors and assigns and shall inure, together with all rights and
remedies of the Agent hereunder, to the benefit of the Agent and its successors,
transferees and assigns. Without limiting the generality of clause (ii) of the
immediately preceding sentence, no Lender may assign or otherwise transfer its
interests hereunder or under any other Loan Document; PROVIDED, HOWEVER, that
any Lender may assign or transfer, as collateral or otherwise, any or all of its
interest hereunder and under the other Loan Documents in accordance with the
applicable provisions of the other Loan Documents. None of the rights or
obligations of the Pledgor hereunder may be assigned or otherwise transferred
without the prior written consent of the Agent.
(e) Upon the satisfaction in full of the Obligations and the
termination of all Letters of Credit and the Commitments, (i) this Pledge
Agreement and the security interest created hereby shall terminate and all
rights to the Pledged Collateral shall revert to the Pledgor, and (ii) the Agent
will, upon the Pledgor's request and at the Pledgor's expense, (A) return to the
Pledgor such of the Pledged Collateral as shall not have been sold or otherwise
disposed of or applied pursuant to the terms hereof and (B) execute and deliver
to the Pledgor such documents as the Pledgor shall reasonably request to
evidence such termination.
(f) This Pledge Agreement shall be governed by and construed
in accordance with the law of the State of New York, except as required by
mandatory provisions of law and except to the extent that the validity or
perfection and the effect of perfection or non-perfection of the security
interest created hereby, or remedies hereunder, in respect of any particular
Pledged Collateral are governed by the law of a jurisdiction other than the
State of New York.
(g) NOTHING IN THIS PLEDGE AGREEMENT IS INTENDED TO BE AN
AMENDMENT OR MODIFICATION OF, OR LIMITATION OR RESTRICTION UPON, ANY PROVISION
OF THE LOAN AGREEMENT (INCLUDING, WITHOUT LIMITATION, THE BORROWERS' OBLIGATIONS
TO PAY THE PRINCIPAL OF AND INTEREST ON THE LOANS MADE PURSUANT TO THE LOAN
AGREEMENT UPON DEMAND), AND THE PROVISIONS OF THE LOAN AGREEMENT AND RELATED
NOTES SHALL BE CONTROLLING AND FULLY EFFECTIVE REGARDLESS OF ANYTHING HEREIN TO
THE CONTRARY. THE PLEDGOR HEREBY ACKNOWLEDGES THAT THE BANK MAY, AT ANY TIME, IN
ITS SOLE AND ABSOLUTE DISCRETION, DEMAND PAYMENT OF THE REVOLVING A LOAN AND THE
RELATED REVOLVING A NOTE EVEN IF THE PLEDGOR HAS FULLY COMPLIED WITH ALL OF THE
TERMS AND CONDITIONS OF THIS PLEDGE AGREEMENT.
SECTION 13. SECURITY INTEREST ABSOLUTE. All rights of the Agent, all
security interests and all obligations of the Pledgor hereunder shall be
absolute and unconditional irrespective of (i) any lack of validity or
enforceability of any Loan Document or any other agreement, instrument or
document relating thereto, (ii) any change in the time, manner or place of
payment of, or in any other term in respect of, all or any of the Obligations,
or any other amendment or waiver of or consent to any departure from any Loan
Document or any other agreement, instrument or document relating thereto, (iii)
any exchange or release of, or non-perfection of any lien on or security
interest in, any collateral for any of the Obligations, or any release or
amendment or waiver of or consent to departure from any guaranty, for all or any
of the Obligations or (iv) any other circumstance which might otherwise
constitute a defense available to, or a discharge of, a Borrower in respect of
any of their obligations under the Credit Agreement , or the Pledgor in respect
of any of the Obligations.
SECTION 14. ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE
PARTIES HERETO INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO
THIS PLEDGE AGREEMENT OR ANY RELATED INSTRUMENTS, AGREEMENTS OR DOCUMENTS,
INCLUDING ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED TORT, SHALL BE
DETERMINED BY BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION ACT
(OR IF NOT APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF PRACTICE AND
PROCEDURE FOR THE ARBITRATION OF COMMERCIAL DISPUTES OF J.A.M.S./ENDISPUTE OR
ANY SUCCESSOR THEREOF ("J.A.M.S."), AND THE "SPECIAL RULES" SET FORTH BELOW. IN
THE EVENT OF ANY INCONSISTENCY, THE SPECIAL RULES SHALL CONTROL. JUDGMENT UPON
ANY ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. ANY PARTY
TO THIS PLEDGE
AGREEMENT MAY BRING AN ACTION, INCLUDING A SUMMARY OR EXPEDITED
PROCEEDING, TO COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM TO WHICH THIS
PLEDGE AGREEMENT APPLIES IN ANY COURT HAVING JURISDICTION OVER SUCH ACTION.
(a) SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE
COUNTY OF PLEDGOR'S OFFICE REFERRED TO IN SECTION 11 HEREOF AT THE TIME OF THE
EXECUTION OF THIS PLEDGE AGREEMENT AND ADMINISTERED BY J.A.M.S. WHO WILL APPOINT
AN ARBITRATOR; IF J.A.M.S. IS UNABLE OR LEGALLY PRECLUDED FROM ADMINISTERING THE
ARBITRATION, THEN THE AMERICAN ARBITRATION ASSOCIATION WILL SERVE. ALL
ARBITRATION HEARINGS WILL BE COMMENCED WITHIN 90 DAYS OF THE DEMAND FOR
ARBITRATION; FURTHER, THE ARBITRATOR SHALL ONLY, UPON A SHOWING OF CAUSE, BE
PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH HEARING FOR UP TO AN ADDITIONAL 60
DAYS.
(b) RESERVATION OF RIGHTS. NOTHING IN THIS ARBITRATION
PROVISION SHALL BE DEEMED TO (I) LIMIT THE APPLICABILITY OF ANY OTHERWISE
APPLICABLE STATUTES OF LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED IN THIS
INSTRUMENT, AGREEMENT, OR DOCUMENT; OR (II) BE A WAIVER BY THE AGENT OF THE
PROTECTION AFFORDED TO IT BY 12 U.S.C. SEC. 91 OR ANY SUBSTANTIALLY EQUIVALENT
STATE LAW; OR (III) LIMIT THE RIGHT OF THE AGENT HERETO (A) TO EXERCISE SELF
HELP REMEDIES SUCH AS (BUT NOT LIMITED TO) SETOFF, OR (B) TO FORECLOSE AGAINST
ANY REAL OR PERSONAL PROPERTY COLLATERAL, OR (C) TO OBTAIN FROM A COURT
PROVISIONAL OR ANCILLARY REMEDIES SUCH AS (BUT NOT LIMITED TO) INJUNCTIVE
RELIEF, WRIT OF POSSESSION OR THE APPOINTMENT OF A RECEIVER. THE AGENT MAY
EXERCISE SUCH SELF HELP RIGHTS, FORECLOSE UPON SUCH PROPERTY, OR OBTAIN SUCH
PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR AFTER THE PENDENCY OF ANY
ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS PLEDGE AGREEMENT. NEITHER THIS
EXERCISE OF SELF HELP REMEDIES NOR THE INSTITUTION OR MAINTENANCE OF AN ACTION
FOR FORECLOSURE OR PROVISIONAL OR ANCILLARY REMEDIES SHALL CONSTITUTE A WAIVER
OF THE RIGHT OF ANY PARTY, INCLUDING THE CLAIMANT IN ANY SUCH ACTION, TO
ARBITRATE THE MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH
REMEDIES.
SECTION 15. OTHER AGREEMENTS. THIS WRITTEN AGREEMENT AND THE OTHER LOAN
DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
IN WITNESS WHEREOF, the Pledgor has caused this Pledge Agreement to be
executed and delivered on the date first above written.
/s/ Xxxxx X. May
---------------------
Xxxxx X. May
SCHEDULE I
TO
PLEDGE AND SECURITY AGREEMENT
PLEDGED SHARES
CERTIFICATE
NAME OF ISSUER NUMBER OF SHARES CLASS NO.(S)
-------------- ---------------- ----- ------
Triarc Companies, Inc. 255,682 Class A
Common Stock
