EXHIBIT 30
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PLEDGE AND SECURITY AGREEMENT
PLEDGE AND SECURITY AGREEMENT dated July 23, 2004, made by
Xxxxxx Xxxxx, 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, Xxxxxxx Xxxxx (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 ("DWG") of which the Pledgor and
Xxxxx X. May are the sole general partners ("General Partners"), 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 ("Triarc Shares") issued by Triarc Companies, Inc. (the
"Issuer") from time to time owned by DWG; and
WHEREAS, (a) the Pledgor has (i) notified the Collateral Agent
that pursuant to Section 7.3 of the Credit Agreement, the General Partners
intend to liquidate DWG and transfer approximately two-thirds of the Triarc
Shares owned by DWG (the "Xxxxx Interest") to the Pledgor (subject to the
perfected, first priority Lien and security interest of the Collateral Agent)
and (ii) requested that the Collateral Agent amend certain terms and provisions
of the Credit Agreement relating to the liquidation of DWG; and (b) the
Collateral Agent is willing to permit such Triarc Shares to be distributed to
its partners so long as (i) concurrently with the liquidation of DWG, the Triarc
Shares comprising the Xxxxx Interest shall have been transferred (subject to the
perfected, first priority Lien and security interest of the Collateral Agent,
securing the Obligations) to the Pledgor, (ii) immediately after such
liquidation, the Collateral Agent shall have a perfected, first priority Lien
on, and security interest in, the Triarc Shares owned by DWG comprising the
Xxxxx Interest, as security for the Obligations, and (iii) the Pledgor shall
have executed and delivered, among other things, this Pledge Agreement;
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
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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
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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
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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
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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, 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. 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
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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
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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
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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
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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
10
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 to c/o Triarc Companies, Inc., 000 Xxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, 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
11
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.
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(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
13
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.
14
IN WITNESS WHEREOF, the Pledgor has caused this Pledge
Agreement to be executed and delivered on the date first above written.
/s/ Xxxxxx Xxxxx
------------------------
Xxxxxx Xxxxx
AMENDMENT NO. 1 TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
AMENDMENT NO. 1 (the "AMENDMENT"), dated as of November 20, 2001, to
the THIRD AMENDED AND RESTATED CREDIT AGREEMENT, dated as of April 2, 2001 (as
previously amended, the "CREDIT AGREEMENT"), by and between XXXXXX XXXXX and
XXXXXXX XXXXX (the "BORROWERS"), and BANK OF AMERICA, N.A., formerly known as
NationsBank, N.A. (the "BANK").
WHEREAS, the Borrowers and the Bank have entered into the Third
Amended and Restated Credit Agreement, pursuant to which the Bank agreed to
make loans (each a "LOAN" and collectively the "LOANS") to the Borrowers in an
aggregate principal 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 by
the Bank that, among other things, the Borrowers shall have pledged to the
Collateral Agent for the benefit of the Lenders, and granted to the Collateral
Agent for the benefit of the Lenders a security interest in, all of the
Borrowers' rights in the Partnerships set forth on Schedule I to the Credit
Agreement;
WHEREAS, the Borrowers have requested that the Collateral Agent (i)
release its lien on, and security interest in, the partnership interest of
Xxxxxxx Xxxxx in Everest Capital Fund, L.P. and Everest Capital Frontier, L.P.
(collectively, the "RELEASED COLLATERAL") and (ii) consent to the investment
of the proceeds of such Partnerships in Everest Capital Senior Debt, L.P. (the
"NEW PARTNERSHIP"), subject to the pledge to the Collateral Agent for the
benefit of the Lenders of, and the grant by Xxxxxxx Xxxxx (the "GRANTOR") of a
perfected, first priority security interest in favor of the Collateral Agent
for the benefit of the Lenders in, the Grantor's interest in the New
Partnership; and
WHEREAS, the Collateral Agent is willing to release its security
interest in the Released Collateral, subject to, among other things, the
execution and delivery by the Borrowers of an amendment to the Credit
Agreement;
NOW, THEREFORE, the Borrowers and the Bank hereby agree as follows:
1. DEFINITIONS. All terms used herein which are defined in the
Credit Agreement and not otherwise defined herein are used herein as defined
therein.
2. AMENDMENT TO CREDIT AGREEMENT. Schedule I to the Credit
Agreement is hereby amended by replacing Schedule I to the Credit Agreement
with Schedule I hereto, which shall be Schedule I to the Credit Agreement for
all purposes thereof.
3. REPRESENTATIONS AND WARRANTIES. Each Borrower hereby
represents and warrants to the Bank as follows:
(a) CAPACITY. Such Borrower has the legal capacity to
execute, deliver and perform this Amendment, and to perform the Credit
Agreement, as amended, and each other Loan Document to which such Borrower is
a party.
(b) NO VIOLATION. The execution, delivery and
performance by such Borrower of this Amendment, and the performance of the
Credit Agreement, as amended hereby, and each other Loan Document to which
such Borrower is a party (i) do not and will not violate any law or any
contractual restriction binding on or otherwise affecting such Borrower or any
of the properties of such Borrower, except for any violation that could not
reasonably be expected to have a Material Adverse Effect, and (ii) do not and
will not result in the creation or imposition of any Lien upon any of the
property (now owned or hereafter acquired) of such Borrower, except Liens
created in favor of the Bank.
(c) APPROVALS. No authorization or approval or other
action by, and no notice to or filing with, any Governmental Authority or
other regulatory body, and no consent of any other Person, is required for the
due execution, delivery and performance by such Borrower of this Amendment, or
the performance of the Credit Agreement, as amended, or any other Loan
Document to which such Borrower is a party.
(d) ENFORCEABILITY OF LOAN DOCUMENTS. Each of this
Amendment and the Credit Agreement, as amended hereby, and each other Loan
Document to which such Borrower is a party constitutes, and each Loan Document
to which such Borrower will be a party, when delivered hereunder, will
constitute, a legal, valid and binding obligation of such Borrower,
enforceable against such Borrower in accordance with its respective terms.
(e) LITIGATION. There is no material pending or, to
such Borrower's knowledge, threatened action, suit or proceeding affecting
such Borrower before any court or other Governmental Authority or any
arbitrator, which is reasonably likely to have a Material Adverse Effect.
(f) BRING-DOWN. (i) The representations and warranties
by such Borrower contained in Section 4 of this Amendment and in Article IV of
the Credit Agreement, and of each Loan Party in each other Loan Document and
certificate or other writing delivered to the Bank pursuant hereto or thereto
on or prior to the date hereof are true and correct in all material respects
on and as of such date as though made on and as of such date, except to the
extent that any such representation and warranty expressly relates solely to
an earlier date (in which case such representation and warranty shall be true
and correct on and as of such earlier date); (ii) no Event of Default or
Default has occurred and is continuing or would result from the effectiveness
of this Amendment; and (iii) since the date of the Credit Agreement, no
material adverse change in the operations, condition (financial or otherwise),
business, assets, income or prospects of such Borrower has occurred and is
continuing.
4. CONDITIONS. This Amendment shall become effective on the
date (the "EFFECTIVE DATE") as of which each of the following conditions
precedent shall have been satisfied in a manner satisfactory to the Bank:
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(a) The Bank shall have received the following, each in
form and substance satisfactory to the Bank:
(i) this Amendment, duly executed by the
Borrowers;
(ii) the Acknowledgment and Consent,
substantially in the form attached hereto as Exhibit I, duly executed by DWG
and PF;
(iii) Amendment No.1 to the CP Security Agreement;
(iv) the Consent and Recognition of the General
Partner of Everest Capital Senior Debt, L.P., duly executed by an authorized
agent of Everest Capital Senior Debt, L.P. and a general partner thereof,
together with a copy of the New Partnership's organizational document;
(v) the undated Assignment of Partnership
Interest made by Xxxxxxx Xxxxx in respect of her limited partnership interest
in the New Partnership;
(vi) a copy of appropriate financing statements
on Form UCC-1, duly filed in such office or offices as may be necessary or, in
the opinion of the Bank, desirable to perfect the security interests purported
to be created by Amendment No.1 to the CP Security Agreement; and
(vii) certified copies of requests for copies or
information on Form UCC-11, listing all effective financing statements which
name Xxxxxxx Xxxxx as debtor and which are filed in the offices required by
the Bank, together with copies of such financing statements, none of which,
except as otherwise agreed to in writing by the Bank, shall cover any of the
Collateral.
(b) (i) The representations and warranties contained in
Section 3 hereof, in Article IV of the Credit Agreement and in each other Loan
Document and certificate or other writing delivered to the Bank pursuant
hereto on or prior to the Effective Date are true and correct on and as of the
Effective Date as though made on and as of the Effective Date, except to the
extent that any such representation and warranty expressly relates solely to
an earlier date (in which case such representation and warranty shall be true
and correct on and as of such earlier date); (ii) no Event of Default or
Default has occurred and is continuing or would result from this Amendment;
and (iii) since the date of the Credit Agreement, no material adverse change
in the financial condition, properties or prospects of any Loan Party has
occurred and is continuing on the Effective Date.
5. ACKNOWLEDGMENT, WAIVER AND CONSENT. (a) Pursuant to the
request of the Borrowers and in accordance with Section 7.1 of the Credit
Agreement and Section 12(a) of the CP Security Agreement, the Bank hereby
consents to, and waives any noncompliance with Section 5(e) of the CP Security
Agreement by reason of the redemption by Xxxxxxx Xxxxx of the partnership
interests in Everest Capital Fund L.P. and Everest Capital Frontier, L.P.
-3-
(b) The waiver set forth in this Section 5 shall be
effective only for the specific purpose and in the specific instance described
above, and shall not otherwise modify any of the obligations of any Loan Party
under the Loan Documents.
6. MISCELLANEOUS.
(a) CONTINUED EFFECTIVENESS OF CREDIT AGREEMENT.
Except as otherwise expressly provided herein, the Credit Agreement is, and
shall continue to be, in full force and effect and is hereby ratified and
confirmed in all respects, except that on and after the date hereof (i) all
references in the Credit Agreement to "this Agreement", "hereto", "hereof",
"hereunder" or words of like import referring to the Credit Agreement shall
mean the Credit Agreement as amended by this Amendment, and (ii) all
references in the other Loan Documents to the "Credit Agreement", "thereto",
"thereof", "thereunder" or words of like import referring to the Credit
Agreement shall mean the Credit Agreement as amended by this Amendment.
(b) COUNTERPARTS. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which shall be deemed to be an original, but all of
which taken together shall constitute one and the same agreement.
(c) HEADINGS. Section headings herein are included for
convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
(d) GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(e) COSTS AND EXPENSES. The Borrowers agree to pay on
demand all reasonable fees, costs and expenses of the Bank (including, without
limitation, the reasonable fees and other client charges of Xxxxxxx Xxxx &
Xxxxx LLP) in connection with the Credit Agreement, this Amendment and the
related agreements, instruments and other documents.
(f) AMENDMENT AS LOAN DOCUMENT. The Borrowers hereby
acknowledge and agree that this Amendment constitutes a "Loan Document."
Accordingly, it shall be an Event of Default under the Credit Agreement if (i)
any representation or warranty made by the Borrowers under or in connection
with this Amendment shall have been untrue, false or misleading in any
material respect when made, or (ii) the Borrowers shall fail to perform or
observe any term, covenant or agreement contained in this Amendment.
(g) WAIVER OF JURY TRIAL. THE BORROWERS AND THE BANK
EACH HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS AMENDMENT OR THE ACTIONS OF THE BANK IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed and delivered as of the date first above written.
/s/ Xxxxxx Xxxxx
--------------------------------
XXXXXX XXXXX
/s/ Xxxxxxx Xxxxx
--------------------------------
XXXXXXX XXXXX
BANK OF AMERICA, N.A.
By: /s/ Xxxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title Senior Vice President
-5-
OMNIBUS AMENDMENT NO. 8 TO
CREDIT AGREEMENT
OMNIBUS AMENDMENT NO. 8, dated January 31, 2006 (the "AMENDMENT"), to
the AMENDED DOCUMENTS (as defined below), by and among XXXXXX XXXXX and
XXXXXXX XXXXX (the "BORROWERS") and BANK OF AMERICA, N.A., a national banking
association (the "BANK").
WHEREAS, the Borrowers and the Bank are parties to the Third Amended
and Restated Credit Agreement, dated as of April 2, 2001 (as previously
amended, the "CREDIT AGREEMENT"), among the Borrowers and the Bank, pursuant
to which the Bank has agreed to make, during the period from the Effective
Date (as defined in the Credit Agreement) to the Termination Date (as defined
in the Credit Agreement), (a) Revolving A Loans to the Borrowers in the
aggregate principal amount not to exceed $43,000,000 at any time outstanding
and (b) Revolving B Loans in the aggregate principal amount not to exceed
$7,000,000 at any time outstanding;
WHEREAS, it was a condition precedent to the making of any Loan (as
defined in the Credit Agreement) that Xxxxxx Xxxxx execute and deliver the
Pledge and Security Agreement dated as of July 23, 2004 (the "PLEDGE
AGREEMENT"; together with the Credit Agreement, collectively, the "AMENDED
DOCUMENTS"), made by Xxxxxx Xxxxx (the "PLEDGOR") in favor of the Bank,
pursuant to which the Pledgor granted to the Bank a perfected, first priority
security interest in, and a Lien on, the Pledgor's equity interest in, among
other things, the Pledged Shares (as defined in the Credit Agreement), as
security for the Obligations (as defined in the Credit Agreement);
WHEREAS, the Borrowers have requested that the Bank amend certain
provisions of the Amended Documents to provide for, among other things, (a) an
increase in the maximum principal amount available under the Revolving A
Commitment from $43,000,000 to $65,000,000, (b) the termination of the
Revolving B Commitment, (c) the release of the Bank's Lien on, and security
interest in, the Pledgor's interest in the Partnership Interest (as defined in
the Credit Agreement) pledged to the Bank pursuant to the NP Security
Agreement (as defined in the Credit Agreement) (the "RELEASED COLLATERAL") and
(d) the grant by the Pledgor in favor of the Bank of a perfected, first
priority security interest in, and a Lien on, (i) all of the Triarc Shares (as
defined in the Credit Agreement) owned by the Pledgor not previously been
pledged to the Bank, including, without limitation, certain Triarc Shares held
by the Pledgor in a securities account maintained by Banc of America
Investment Services, Inc., all as more fully described on Schedule I attached
hereto, as such Schedule I may be amended or supplemented from time to time,
(ii) the Securities Accounts referred to below and (iii) certain related
collateral (the Collateral described in clauses (i), (ii) and (iii),
hereinafter referred to as the "ADDITIONAL COLLATERAL"), all in accordance
with and subject to the terms and conditions set forth herein; and
WHEREAS, the Bank is willing to amend the Amended Documents to
provide for such increase, subject to, among other things, the grant by the
Pledgor in favor of the Bank of a perfected, first priority security interest
in, and a Lien on, the Additional Collateral, the payment of commitment fees
in the aggregate amount of $82,500 and the other terms and conditions set
forth herein;
NOW, THEREFORE, in consideration of the premises and the agreements
herein and in order to induce the Bank to maintain the Loans, the Borrowers
hereby agree with the Bank as follows:
1. DEFINITIONS. All terms used herein which are defined in the
Credit Agreement and not otherwise defined herein are used herein as defined
therein.
2. AMENDMENTS TO CREDIT AGREEMENT. The Credit Agreement is,
effective as of the Amendment Effective Date and subject to the satisfaction
(or due waiver) of the conditions set forth in Section 6 hereof, hereby
amended as follows:
(a) Section 1.1 of the Credit Agreement is hereby
amended as follows:
(i) Section 1.1 of the Credit Agreement is
hereby amended by inserting the following definitions in their
appropriate alphabetical order:
""BA CONTROL AGREEMENT" means the Collateral Account
Notification and Acknowledgment Agreement dated the date hereof,
among Xxxxxx Xxxxx, the Bank and the Securities Intermediary, in
respect of the Securities Account referred to therein, as amended or
otherwise modified from time to time."
""LIQUID ASSETS" means any of the following (excluding
assets of any retirement plan): (a) any equity security which, as of
any date, (i) is traded on the New York Stock Exchange, the American
Stock Exchange or the NASDAQ Stock Market/National Market System,
(ii) has a minimum share price of at least $10 per share on such date
and (iii) any Borrower would be able to sell, based on the average
daily trading value of such equity security during the four week
period immediately preceding such date, over a period equal to five
Business Days; (b) any publicly traded debt security of a corporation
organized under the laws of the United States or any state thereof
(including the District of Columbia) that is readily marketable; (c)
(i) any money market fund registered under the Investment Company Act
of 1940, as amended, (A) which has total assets of at least
$1,000,000,000, or (B) whose net asset values are reported on a daily
basis in THE WALL STREET JOURNAL and (ii) any other money market
funds that are deemed to be acceptable to the Bank in its sole
judgment; (d) any municipal bond issued by any state, city or local
agency or authority of the United States which is rated at least BBB
by Standard & Poor's Rating Service, a division of XxXxxx-Xxxx, Inc.,
and Baa by Xxxxx'x Investors Service, Inc., and which has a remaining
maturity not in excess of five years; (e) any United States Treasury
bills; (f) any United States Treasury notes or United States Treasury
bonds which have a remaining maturity not in excess of five years;
and (g) any cash, in each case of clauses (a) though (g) above, free
and clear of any Liens; PROVIDED, HOWEVER, that in no event shall any
of the Triarc Shares be included in the
2
calculation of Liquid Assets regardless whether or not such Triarc
Shares have been pledged to the Bank."
""OMNIBUS AMENDMENT NO. 8" means the Third Omnibus
Amendment, dated as of January 31, 2006, by and between the Borrower
and the Bank."
""OMNIBUS AMENDMENT NO. 8 EFFECTIVE DATE" means the later of
(i) January 31, 2006 and (ii) the date on which all of the conditions
precedent set forth in Section 6 of the Omnibus Amendment No. 8 have
been satisfied or waived in writing."
""SECURITIES ACCOUNT" means (a) Account Number P62-021016
maintained by Xxxxxx Xxxxx with Banc of America Investment Services,
Inc. and (b) any successor or replacement accounts."
""SECURITIES INTERMEDIARY" means Banc of America Investment
Services, Inc."
(b) Section 1.1 of the Credit Agreement is hereby
amended by amending and restating each of the following definitions set forth
therein to read as follows:
""LOAN DOCUMENTS" means this Agreement, the Notes, the 2005
Credit Agreement, the other 2005 Loan Documents, the Letters of
Credit, the L/C Applications, the NP Security Agreement, the NP
Pledge Agreement, the BA Control Agreement, the Hedging Agreements
and all other instruments, agreements and other documents executed
and delivered pursuant hereto or thereto."
"PLEDGED SHARES" means, collectively, the shares of common
stock issued by Triarc and pledged by Xxxxxx Xxxxx to the Collateral
Agent pursuant to the NP Pledge Agreement, including, without
limitation, any Triarc Shares held in the Securities Account.
"TERMINATION DATE" means (i) with respect to the Revolving B
Commitment, the Omnibus Amendment No. 8 Effective Date and (ii) with
respect to the Revolving A Commitment, August 5, 2007 or, with
respect to any Commitment, such earlier date on which such Commitment
shall be terminated pursuant to this Agreement.
(c) The definition of the term "Revolving A Commitment"
is hereby amended by deleting the reference to "$43,000,000" therein, and by
substituting therefor "$65,000,000".
(d) Section 5.1 of the Credit Agreement is hereby
amended by (i) deleting the word "and" at the end of clause (f) therein, (ii)
redesignating clause (g) therein as clause (h) and (iii) adding the following
new clause (g) to read as follows:
3
"(g) as soon as available and in any event not more
than 60 days after the end of each calendar quarter,
brokers' statements, bank statements, data and calculations
and such other information concerning the financial
condition of either Borrower as the Bank from time to time
may reasonably request, demonstrating in reasonable detail
compliance with the provisions of Section 5.9 and 5.15; and"
(e) The Credit Agreement is hereby amended by adding
the following new Section 5.13, to read as follows:
"Section 5.13 INDEBTEDNESS. Not create, incur or suffer to
exist any Indebtedness, other than:
(a) Indebtedness created hereunder, under the
under the Notes or otherwise in favor of the Bank;
(b) Indebtedness permitted by Section 5.14;
and
(c) Indebtedness existing on the date hereof,
as set forth in Schedule 5.13 hereto, and the extension of
maturity, refinancing or modification of the terms thereof;
PROVIDED, HOWEVER, that (i) such extension, refinancing or
modification is pursuant to terms that are not less
favorable to the Borrowers and the Bank than the terms of
the Indebtedness being extended, refinanced or modified and
(ii) after giving effect to such extension, refinancing or
modification, the amount of such Indebtedness is not greater
than the amount of Indebtedness outstanding immediately
prior to such extension, refinancing or modification; and
(d) other unsecured Indebtedness in an
aggregate principal amount not to exceed $1,000,000 at any
time outstanding."
(f) The Credit Agreement is hereby amended by adding
the following new Section 5.14, to read as follows:
"Section 5.14 GUARANTIES, ETC. Not assume, guarantee,
endorse or otherwise become directly or contingently liable
(including, without limitation, liable by way of agreement,
contingent or otherwise, to purchase, to provide funds for payment,
to supply funds to or otherwise invest in the debtor or otherwise to
assure the creditor against loss), in connection with any
Indebtedness or liability of any other Person, other than:
(a) guaranties by endorsement of negotiable
instruments for deposit or collection in the ordinary
course;
(b) guaranties existing on the date hereof, as
set forth in Schedule 5.13 hereto, and the extension of
maturity, refinancing or modification of the terms thereof;
PROVIDED, HOWEVER, that (i) such extension, refinancing or
modification is pursuant to terms that are not less
4
favorable to the Borrowers and the Bank than the terms of
the Indebtedness being extended, refinanced or modified and
(ii) after giving effect to such extension, refinancing or
modification, the amount of such Indebtedness is not greater
than the amount of Indebtedness outstanding immediately
prior to such extension, refinancing or modification; and
(c) other unsecured guaranties covering
Indebtedness in an aggregate principal amount not to exceed
$500,000 at any time outstanding."
(g) The Credit Agreement is hereby amended by adding
the following new Section 5.15, to read as follows:
"Section 5.15 LIQUID ASSETS. Not permit the aggregate fair
market value of Liquid Assets of the Borrowers to be at any time less
than $12,000,000."
3. AMENDMENTS TO PLEDGE AGREEMENT.
(a) Section 2 of the Pledge Agreement is hereby amended
by (i) redesignating clauses (a), (b) and (c) thereof as clauses (b), (c) and
(d) respectively, and (ii) adding the following new clause (a) therein to read
as follows:
"(a) account number P62-021016 maintained by the Pledgor
with Banc of America Investment Services, Inc. ("BAIS" and/or the
"SECURITIES INTERMEDIARY"), including, without limitation, all cash
and cash equivalents, investment property, financial assets, security
entitlements, capital stock, partnership interests, limited liability
company interests and other equity interests, stock options,
commodity contracts, notes, debentures, bonds, promissory notes or
other evidences of indebtedness and all other securities and other
assets now or hereafter deposited in or credited to such accounts
(together with any successor or replacement accounts, all of the
foregoing accounts are hereinafter referred to individually as a
"SECURITIES ACCOUNT" and collectively, the "SECURITIES ACCOUNTS");
(b) SCHEDULES. Schedule I to the Pledge Agreement is
hereby amended and restated by replacing Schedule I to the Pledge Agreement
with ANNEX A hereto, which shall be Schedule I to the Pledge Agreement for all
purposes therein.
4. COMMITMENT FEE. In consideration for the execution and
delivery of this Amendment, the Borrowers agree to pay to the Bank a
non-refundable commitment fee (the "COMMITMENT FEE") equal to $82,500, which
Commitment Fee is in addition to any fees payable to the Bank pursuant to the
Credit Agreement or any amendment thereof. The Commitment Fee shall be deemed
fully earned on the Amendment Effective Date. The Commitment Fee shall be
payable in two installments, consisting of (a) the first installment of
Commitment Fee, payable on the Amendment Effective Date, equal to $41,250 and
(b) the second installment of Commitment Fee, payable on the earlier to occur
of August 5, 2006 or the date the Obligations
5
are paid in full, equal to $41,250. The parties hereto hereby agree that the
reference to the "Revolving A Commitment" set forth in Section 4 of Amendment
No. 6 to Third Amendment and Restated Credit Agreement, dated as of August 5,
2005 ("AMENDMENT NO. 6"), shall be deemed a reference to "$43,000,000". The
Bank hereby waives the remaining commitment fee installments with respect to
the Revolving B Commitment that, pursuant to Section 4 of Amendment No. 6, are
payable on or before March 30, 2006 and September 30, 2006.
5. REPRESENTATIONS AND WARRANTIES. Each Borrower hereby
represents and warrants to the Bank as follows:
(a) CAPACITY. Such Borrower has the legal capacity to
execute, deliver and perform this Amendment, and to perform the Amended
Documents, as amended, the New Note (as defined in Section 6) and each other
Loan Document to which such Borrower is a party.
(b) NO VIOLATION. The execution, delivery and
performance by such Borrower of this Amendment and the New Note, and the
performance of the Amended Documents, as amended hereby, the New Note and each
other Loan Document to which such Borrower is a party (i) do not and will not
violate any law or any contractual restriction (including, without limitation,
any constituent document of Triarc or any rule, directive or policy of Triarc)
binding on or otherwise affecting such Borrower or any of the properties of
such Borrower, and (ii) do not and will not result in the creation or
imposition of any Lien upon any of the property (now owned or hereafter
acquired) of such Borrower, except Liens created in favor of the Collateral
Agent. The exercise by the Bank of any of its rights and remedies under this
Amendment or under the Amended Documents, as amended hereby (including,
without limitation, the sale or other disposition of the Pledged Shares by the
Bank), will not violate any law or any contractual obligation (including,
without limitation, any constituent document of Triarc or any rule, directive
or policy of Triarc) binding on or affecting such Borrower or Triarc.
(c) APPROVALS. No authorization or approval or other
action by, and no notice to or filing with, any Governmental Authority or
other regulatory body, and no consent of any other Person (including, without
limitation, Triarc), is required for (i) the due execution, delivery and
performance by such Borrower of this Amendment or the New Note, (ii) the
performance of the Amended Documents, as amended, the New Note or any other
Loan Document to which such Borrower is a party, (iii) the creation of a
perfected, first priority security interest in any of the Additional
Collateral, or (iv) the exercise by the Bank of any of its rights and remedies
with respect to any of the Additional Collateral.
(d) ENFORCEABILITY OF LOAN DOCUMENTS. Each of this
Amendment and the Amended Documents, as amended hereby, the New Note and each
other Loan Document to which such Borrower is a party constitutes, and each
Loan Document to which such Borrower will be a party, when delivered
hereunder, will constitute, a legal, valid and binding obligation of such
Borrower, enforceable against such Borrower in accordance with its respective
terms.
(e) LITIGATION. There is no material pending or, to
such Borrower's knowledge, threatened action, suit or (i) proceeding affecting
such Borrower before any court or other Governmental Authority or any
arbitrator, which is reasonably likely to have a Material
6
Adverse Effect, or (ii) affecting the Additional Collateral or any other
Collateral pending or threatened in writing before any court or other
Governmental Authority or arbitrator.
(f) PLEDGE AGREEMENT. The Pledge Agreement, as amended
hereby, creates a valid security interest in favor of the Bank in, among other
things, the Additional Collateral and the other Pledged Collateral, as
security for the Obligations. Pursuant to the BA Control Agreement the Bank
has control of the Pledged Shares (other than any certificated Pledged Shares)
and the other Additional Collateral, and such control pursuant to the BA
Control Agreement by the Bank of such Pledged Shares and of all other
certificates, instruments and cash constituting Additional Collateral from
time to time results in the perfection of such security interest. Such
security interest is, or in the case of Additional Collateral or any other
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.
(g) REGULATION U. None of the proceeds of any Loan will
be used for the purpose, whether immediate, incidental or ultimate, of buying
or carrying margin stock (within the meaning of Regulation U issued by the
Board of Governors of the Federal Reserve System).
(h) RULE 144.
(i) The Pledged Shares are fully paid and
nonassessable and 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 on Exhibit B hereto since the
dates set forth opposite the applicable certificate evidencing such Pledged
Shares as set forth on Exhibit B hereto. The information set forth in Exhibit
B hereto is true and correct;
(ii) the Pledged Shares are or may be deemed
restricted or control securities (as indicated on Exhibit B) for purposes of
Rule 144 of the General Rules and Regulations under the Securities Act of 1933
("RULE 144") promulgated by the Securities and Exchange Commission. The
Pledgor understands that in order for the Bank to make any Loan to the
Borrowers which is collateralized by the Rule 144 Securities, the Bank must be
able to sell the Rule 144 Securities pursuant to Rule 144 (other than with
respect to any waiting or holding period imposed by Rule 144 as of the date
hereof), which requires that certain conditions must be met;
(iii) the Pledgor has held the Pledged Shares
and borne the full economic risk thereof since or prior to the date(s)
indicated on Exhibit B;
(iv) the Pledgor is familiar with the
provisions of Section 16 of the Securities Exchange Act of 1934 and the rules
promulgated thereunder and has made his own determination if the provisions
thereof are applicable to the Pledgor, and, if applicable, understands the
possible consequences if the Bank sells the Pledged Shares at a time when such
sale would deem the Pledgor to have received "short-swing" profits, which
consequences could include the payment of all such profits to the issuer of
the Rule 144 Securities by the Pledgor;
7
(v) the Pledgor agrees that the Pledged Shares
may be sold as provided for in the Pledge Agreement and, except as provided in
the Pledge Agreement, expressly waives any rights of notice of sale,
advertisement procedures, or related provisions granted under applicable law,
including the New York Lien Law;
(vi) the Pledgor has furnished and shall
furnish the Bank with a true, correct and complete copy of each registration
rights agreement and other agreement, if any, in respect of or otherwise
affecting any of the Pledged Shares in existence on the date hereof or that
may hereafter be entered into;
(vii) the Pledgor is and will be at all times
the legal and beneficial owner of the Additional Collateral in existence, free
and clear of any Lien, security interest, option or other charge or
encumbrance except for the security interest created by the 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 Additional Collateral, except in favor of the Bank; and
(viii) upon the occurrence and during the
continuance of an Event of Default, the Bank may publicly sell, transfer or
otherwise dispose of the Additional Collateral pursuant to Rule 144(k) without
regard to the requirements of paragraphs (c), (e), (f) or (h) of Rule 144 so
long as the Bank is not an affiliate of Triarc at the date of such sale,
transfer or other disposition or at any time within the three months prior
thereto.
(i) [REGISTERED PLEDGED SHARES. Sales by the Pledgor in
transactions (the "COVERED TRANSACTIONS") described in the section of the
[Prospectus] captioned "Plan of Distribution" of up to an aggregate of
___________ shares of Triarc Shares (evidenced by Certificate Nos. _________)
owned by the Pledgor are registered under the [Registration Statement].
Assuming the continued effectiveness of the Registration Statement and such
delivery of the Prospectus as may be required by the Securities Act of 1933,
as amended, sales by the Bank, in its capacity as a "pledgee" under the Pledge
Agreement, of the Pledged Shares in Covered Transactions would be registered
under the Registration Statement and would not require any amendment to the
Registration Statement or supplement of the Prospectus.]
(j) RESIDENCE. The principal residence of each Borrower
is 000 Xxxxx Xxxx Xxxx, Xxxxx Xxxxx, XX 00000.
(k) SECURITIES INTERMEDIARY. The Pledgor has directed
the Securities Intermediary, and the Securities Intermediary has agreed, that
it will comply with entitlement orders originated by the Bank without further
consent by the Pledgor pursuant to the BA Control Agreement.
(l) BRING-DOWN. (i) The representations and warranties
by such Borrower contained in this Section 6 of this Amendment and in Article
IV of the Credit Agreement, as amended hereby, and of each Loan Party in each
other Loan Document and certificate or other writing delivered to the Bank
pursuant hereto or thereto on or prior to the date hereof are true and correct
in all material respects on and as of such date as though made on and
8
as of such date, except to the extent that any such representation and
warranty expressly relates solely to an earlier date (in which case such
representation and warranty shall be true and correct on and as of such
earlier date); (ii) no Event of Default or Default has occurred and is
continuing or would result from the effectiveness of this Amendment; and (iii)
since the date of the Credit Agreement, no material adverse change in the
operations, condition (financial or otherwise), business, assets, income or
prospects of such Borrower has occurred and is continuing, except as
previously disclosed in writing to the Bank and consented to in writing by the
Bank.
6. CONDITIONS. This Amendment shall become effective on the
date (the "AMENDMENT EFFECTIVE DATE") as of which each of the following
conditions precedent shall have been satisfied in a manner satisfactory to the
Bank:
(a) The Bank shall have received the following
documents, each in form and substance satisfactory to the Bank:
(i) this Amendment, duly executed by the
Borrowers;
(ii) the Fourth Amended and Restated Revolving
A Note, dated the Amendment Effective Date, in substantially the form attached
hereto as ANNEX B, made by the Borrowers to the order of the Bank and in the
original principal amount of $65,000,000 (the "NEW NOTE"); and
(iii) Federal Reserve Form U-1 provided for in
Regulation U issued by the Board of Governors of the Federal Reserve System,
the statements made in which shall be such, in the opinion of the Bank, as to
permit the transactions contemplated hereby in accordance with such
Regulation;
(iv) UCC Financing Statement Amendment,
amending Schedule A to UCC-1 Financing Statement to reflect the pledge by the
Pledgor of the Additional Collateral;
(v) certified copies of requests for copies or
information on Form UCC-11 or other recent UCC search results, listing all
effective financing statements which name a Borrower as debtor, together with
search results with respect to judgment and tax liens searches and copies of
such financing statements and any other lien, none of which, except as
otherwise agreed to in writing by the Bank, shall cover any of the Collateral;
(vi) the original stock certificates
representing 100% of the Pledged Shares that are not subject to the BA Control
Agreement and 15 undated stock powers executed in blank and other proper
instruments of transfer for the stock certificates pledged by the Pledgor to
the Bank;
(vii) an issuer's letter from Triarc with
respect to the pledge of the Pledged Shares by the Pledgor;
(viii) an irrevocable letter, duly executed by
the Pledgor, authorizing the payment of all dividends payable on the Pledged
Shares directly to the Bank without further consent from the Pledgor;
9
(ix) a certified copy of each Registration
Rights Agreement, if any, together with any consent from Triarc that the Bank
may reasonably require in order to enjoy the benefits of any Registration
Rights Agreement in respect of the Pledged Shares;
(x) a restricted securities statement, duly
executed by the Pledgor;
(xi) an opinion, dated the Amendment Effective
Date, of the law firm of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, counsel
to the Borrowers, in form and substance reasonably satisfactory to the Bank
and its counsel;
(xii) the BA Control Agreement, duly executed by
the Securities Intermediary, the Bank and the Pledgor; and
(xiii) such other agreements, instruments,
opinions and other documents as the Bank may reasonably request.
(b) The Bank shall have received all fees and other
amounts due and payable to the Bank, including, without limitation, the
Commitment Fee referred to in Section 4 hereof and all legal fees, costs and
expenses of the Bank in connection with the Credit Agreement, this Amendment
and the other related agreements and documents.
(c) (i) The representations and warranties by each
Borrower contained in this Section 5 of this Amendment and in Article IV of
the Credit Agreement, as amended hereby, and of each Loan Party in each other
Loan Document and certificate or other writing delivered to the Bank pursuant
hereto or thereto on or prior to the date hereof are true and correct in all
material respects on and as of such date as though made on and as of such
date, except to the extent that any such representation and warranty expressly
relates solely to an earlier date (in which case such representation and
warranty shall be true and correct on and as of such earlier date); (ii) no
Event of Default or Default has occurred and is continuing or would result
from the effectiveness of this Amendment; and (iii) since the date of the
Credit Agreement, no material adverse change in the operations, condition
(financial or otherwise), business, assets, income or prospects of such
Borrower has occurred and is continuing, except as previously disclosed in
writing to the Bank and consented to in writing by the Bank.
7. POST CLOSING DELIVERIES. The Bank shall have received,
within 14 Business Days of the Amendment Effective Date, [25] undated stock
powers executed in blank and other proper instruments of transfer for the
stock certificates pledged by the Pledgor to the Bank.
8. REPLACEMENT OF OLD NOTE; CONTINUED EFFECTIVENESS OF AMENDED
DOCUMENTS. (a) Simultaneously with the execution and delivery of this
Amendment, the Borrowers are executing and delivering to the Bank the New
Note. On and after the Amendment Effective Date, the existing Revolving A
Note, dated May 5, 2005, made by the Borrowers to the order of the Bank and in
the original principal amount of $43,000,000 (the "OLD NOTE"), shall be
amended, superseded and replaced by the New Note. It is the intention of the
parties hereto that this Amendment and the substitution of the New Note for
the Old Note shall not in any way constitute (i) an extinguishment of the
indebtedness of the Borrowers under the Old Note, (ii) a
10
release of the Borrowers from such obligations, or (iii) a novation of the Old
Note. Promptly after delivery of the New Note, duly executed by the Borrowers
to the Bank, the Old Note, shall each be marked "cancelled" and replaced by
the New Note, provided, that the Borrowers shall pay any unpaid interest on
the Old Note accrued through the date of the New Note on or before January 31,
20006.
(b) All references in the Credit Agreement and in any
other Loan Document to "the Revolving A Note", "thereto", "thereof",
"thereunder" or words of like import referring to the Old Note shall be deemed
to be references to the New Note, as such promissory note may be modified or
extended from time to time, and any note issued in exchange or replacement
therefor. All references in any Loan Document to "Obligations" shall be deemed
to include any indebtedness (including, without limitation, principal and
interest) under the New Note.
(c) Except as otherwise expressly provided herein, the
Amended Documents and the other Loan Documents are, and shall continue to be,
in full force and effect and are hereby ratified and confirmed in all
respects, except that on and after the date hereof (i) all references in the
Amended Documents to "this Agreement", "hereto", "hereof", "hereunder" or
words of like import referring to the Amended Documents shall mean the Amended
Documents as amended by this Amendment, and (ii) all references in the other
Loan Documents to the "Credit Agreement", "thereto", "thereof", "thereunder"
or words of like import referring to the Credit Agreement shall mean the
Credit Agreement, as amended by this Amendment. Except as expressly provided
herein, the execution, delivery and effectiveness of this Amendment shall not
operate as a waiver of any right, power or remedy of the Bank under the
Amended Documents, under any other Loan Document or under any other document,
nor constitute a waiver of any provision of the Amended Documents.
9. RELEASE AND TERMINATION. Without recourse and representation
or warranty of any kind, the Bank hereby releases its security interest in,
and its Lien on, the Released Collateral. The Bank will (A) at the request of
the Borrowers execute appropriate UCC-3 Statements of Release and (B) at the
request of the Borrowers execute such additional instruments and other
writings, and take such other action, as the Borrowers may reasonably request
(in each case, at the cost and expense of the Borrowers) to effect or evidence
the release of the Bank's security interest in the Released Collateral and all
proceeds thereof.
10. MISCELLANEOUS.
(a) COUNTERPARTS. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which shall be deemed to be an original, but all of
which taken together shall constitute one and the same agreement.
(b) HEADINGS. Section headings herein are included for
convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
11
(c) GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(d) COSTS AND EXPENSES. The Borrowers agree to pay on
demand all reasonable fees, costs and expenses of the Bank (including, without
limitation, the reasonable fees and other client charges of Xxxxxxx Xxxx &
Xxxxx LLP) in connection with the Credit Agreement, this Amendment and the
related agreements, instruments and other documents.
(e) AMENDMENT AS LOAN DOCUMENT. The Borrowers hereby
acknowledge and agree that this Amendment constitutes a "Loan Document."
Accordingly, it shall be an Event of Default under the Credit Agreement if (i)
any representation or warranty made by the Borrowers under or in connection
with this Amendment shall have been untrue, false or misleading in any
material respect when made, or (ii) the Borrowers shall fail to perform or
observe any term, covenant or agreement contained in this Amendment.
(f) WAIVER OF JURY TRIAL. THE BORROWERS AND THE BANK
EACH HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS AMENDMENT OR THE ACTIONS OF THE BANK IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
12
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed and delivered as of the date first above written.
/s/ Xxxxxx Xxxxx
--------------------------------
XXXXXX XXXXX
/s/ Xxxxxxx Xxxxx
--------------------------------
XXXXXXX XXXXX
BANK OF AMERICA, N.A.
By: /s/ Xxxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title Senior Vice President
