EXHIBIT 31
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AMENDMENT NO. 5 TO
PLEDGE AND SECURITY AGREEMENT
AMENDMENT NO. 5, dated July 23, 2004 (the "Amendment"), to the
PLEDGE AND SECURITY AGREEMENT, dated April 2, 2003 (as amended, the "Pledge
Agreement"), made by XXXXX X. MAY, an individual whose principal residence is in
the State of New York (the "Pledgor"), in favor of BANK OF AMERICA, N.A.,
formerly known as NationsBank, N.A. (the "Bank"), as collateral agent for the
Bank (in such capacity, the "Collateral Agent"). Capitalized terms used and not
defined herein have the meanings set forth in the Credit Agreement referred to
below.
WHEREAS, the Pledgor and the Collateral Agent are parties to
the Pledge Agreement, providing for the pledge to the Collateral Agent of, and
the grant to the Collateral Agent of a security interest in, (i) certain of the
outstanding shares of capital stock ("Triarc Shares") issued by Triarc
Companies, Inc., a Delaware corporation ("Triarc"), which are owned by the
Pledgor, and (ii) all dividends, cash, instruments and other property that may
thereafter be distributed by Triarc to the Pledgor in connection with such
shares (collectively, "Pledged Shares"), as collateral security for certain
loans and other financial accommodations (collectively, the "Loans") made by the
Bank to the Pledgor and Xxxx May under the Third Amended and Restated Credit
Agreement, dated as of April 2, 2001 (as amended, restated or otherwise
modified, the "Credit Agreement"), by and among the Pledgor and Xxxx May, as
borrowers, and the Bank;
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
Xxxxxx Xxxxx 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 Triarc Shares
from time to time owned by DWG;
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 one-third of the Triarc
Shares owned by DWG (as more fully described in Schedule II attached hereto, the
"May 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 the Triarc Shares owned by DWG to be distributed to its partners so long
as (i) concurrently with the liquidation of DWG, the Triarc Shares comprising
the May 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 comprising the May Interest (the "May Shares"),
as security for the Obligations, and (iii) the Pledgor shall have executed and
delivered, among other things, this Amendment;
WHEREAS, in accordance with Section 2 of the Pledge Agreement,
the Pledgor has delivered to the Collateral Agent the certificates representing
the May Shares as additional Collateral to secure the Obligations; and
WHEREAS, in order to reflect the pledge of such additional
Pledged Shares, each of the undersigned desires to amend the Pledge Agreement in
the manner described below;
NOW, THEREFORE, in consideration of the premises and the
agreements herein and in order to induce the Bank to maintain the Loans, the
Pledgor hereby agrees with the Collateral Agent as follows:
1. Definitions. All terms used herein which are defined in the
Pledge Agreement and not otherwise defined herein are used herein as defined
therein.
2. Schedule. Schedule I to the Pledge Agreement is hereby
deleted in its entirety, and Annex A hereto is hereby substituted therefor. Any
and all references to Schedule I in the Pledge Agreement shall be deemed to
refer to Annex A hereto, and all references to "Pledged Shares" in the Pledge
Agreement shall mean the shares of stock described in item 1 of Annex A hereto.
Without limiting the generality of the foregoing or the Pledge Agreement, the
Pledgor hereby pledges and assigns to the Collateral Agent for the benefit of
the Bank and the other Lenders, and grants to the Collateral Agent for the
benefit of the Bank and the other Lenders a security interest in, all of his
right, title and interest in the shares of stock issued by Triarc and described
in item 1 of Annex A hereto.
3. Representations and Warranties. The Pledgor hereby
represents and warrants to the Collateral Agent as follows:
(a) The representations and warranties made by the Pledgor in
the Pledge Agreement and in each other Loan Document to which he is a party
delivered to the Bank on or prior to the date hereof are true and correct on and
as of the date hereof as though made on and as of the date hereof (except to the
extent such representations and warranties expressly relate to an earlier date
in which case such representations and warranties shall be true and correct as
of such earlier date).
(b) The Pledgor has the legal capacity and right to execute,
deliver and perform this Amendment.
(c) The execution, delivery and performance by the Pledgor of
this Amendment (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 Triarc or
any rule, directive or policy of Triarc), and (ii) do not and will not result in
or require the creation of any lien, security interest or other charge or
encumbrance upon or with respect to any of the Pledgor's properties, other than
in favor of the Collateral Agent. The exercise by the Collateral Agent of its
rights and remedies under this Amendment or under the Pledge Agreement, as
amended hereby (including, without limitation, the sale or other disposition
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of the Pledged Shares by the Collateral Agent), will not violate any contractual
restriction binding on or affecting the Pledgor or the Pledged Shares.
(d) Each of this Amendment and the Pledge Agreement, as
amended hereby, constitutes the legal, valid and binding obligation of the
Pledgor, enforceable against the Pledgor in accordance with its terms.
(e) Security Interest. The Pledge Agreement, as amended
hereby, creates a valid security interest in the Pledged Collateral (including,
without limitation, the shares of Triarc formerly owned by DWG allocable to the
May Interest) as security for the Obligations. The Collateral Agent having
possession of the certificates described in Annex A hereto results in the
perfection of the Collateral Agent's security interest in the Pledged Shares
(including, without limitation, the shares of Triarc formerly owned by DWG and
allocable to the May Interest.
(f) Continued Effectiveness of the Pledge Agreement. Except as
otherwise expressly provided herein, the Pledge Agreement and the other Loan
Documents to which the Pledgor is a party 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 Pledge Agreement to
"this Agreement", "hereto", "hereof", "hereunder" or words of like import
referring to the Pledge Agreement shall mean the Pledge Agreement as amended by
this Amendment, and (ii) all references in the other Loan Documents to which the
Pledgor is a party to the "PWM Pledge Agreement", "thereto", "thereof",
"thereunder" or words of like import referring to the Pledge Agreement shall
mean the Pledge 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 Collateral
Agent under the Pledge Agreement or any other Loan Document, nor constitute a
waiver of any provision of the Pledge Agreement.
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4. 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.
5. Headings. Section headings herein are included for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
6. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the law of the State of New York.
7. Amendment as Loan Document. The Pledgor hereby acknowledges
and agrees 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 Pledgor under or in connection with this
Amendment shall have been untrue, false or misleading in any material respect
when made, or (ii) the Pledgor shall fail to perform or observe any term,
covenant or agreement contained in this Amendment.
8. Effectiveness. This Amendment shall become effective on the
date as of which the Collateral Agent shall have received this Amendment, duly
executed by the Pledgor.
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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.
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Xxxxx Xxx
BANK OF AMERICA, N.A., as collateral agent
By:
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Title: Vice President
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