-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, HDlJZFMc4LMv1c6Rm0pEyPmhdFFEYeQ2EQ4bV0L2n3d1CtY/CSnP/HakDmDcQ1wL X+0ZiI5UtnjksZDwdDK9Kw== 0000950142-03-001119.txt : 20030701 0000950142-03-001119.hdr.sgml : 20030701 20030701164149 ACCESSION NUMBER: 0000950142-03-001119 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20030701 GROUP MEMBERS: DWG ACQUISITION GROUP, L.P. GROUP MEMBERS: NELSON PELTZ GROUP MEMBERS: PETER W. MAY SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: TRIARC COMPANIES INC CENTRAL INDEX KEY: 0000030697 STANDARD INDUSTRIAL CLASSIFICATION: PATENT OWNERS & LESSORS [6794] IRS NUMBER: 380471180 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-11818 FILM NUMBER: 03768453 BUSINESS ADDRESS: STREET 1: 280 PARK AVENUE STREET 2: 24TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10017 BUSINESS PHONE: 212-451-3000 MAIL ADDRESS: STREET 1: 280 PARK AVENUE STREET 2: 24TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10017 FORMER COMPANY: FORMER CONFORMED NAME: DWG CORP DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: DEISEL WEMMER GILBERT CORP DATE OF NAME CHANGE: 19680820 FORMER COMPANY: FORMER CONFORMED NAME: DWG CIGAR CORP DATE OF NAME CHANGE: 19680820 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: DWG ACQUISITION GROUP L P CENTRAL INDEX KEY: 0000928266 IRS NUMBER: 380471180 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 900 THIRD AVE CITY: NEW YORK STATE: NY ZIP: 10022 BUSINESS PHONE: 2122303000 MAIL ADDRESS: STREET 1: 900 THIRD AVE CITY: NEW YORK STATE: NY ZIP: 10022 SC 13D/A 1 sc13da13-dwg.txt AMENDMENT NO. 13 ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ----------------------- SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 13)* ----------------------- TRIARC COMPANIES, INC. (Name of Issuer) CLASS A COMMON STOCK, PAR VALUE $.10 PER SHARE (Title of Class of Securities) 895927 10 1 (CUSIP Number) PETER W. MAY C/O TRIARC COMPANIES, INC. 280 PARK AVENUE NEW YORK, NEW YORK 10017 TEL. NO.: (212) 451-3000 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) ----------------------- JULY 1, 2003 (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 1(f) or 1(g), check the following box [_]. Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-1(a) for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). ================================================================================ - ----------------------------- ----------------------------- CUSIP NO. 895927 10 1 Page 2 of 10 - ----------------------------- ----------------------------- - -------------------------------------------------------------------------------- NAME OF REPORTING PERSON 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DWG ACQUISITION GROUP, L.P. - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [_] (b) [_] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS Not applicable - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER -0- (See Item 5) ------------------------------------------------ NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY OWNED 5,343,662 (See Item 5) BY EACH REPORTING ------------------------------------------------ PERSON 9 SOLE DISPOSITIVE POWER WITH -0- (See Item 5) ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 5,343,662 (See Item 5) - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,343,662 (See Item 5) - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [_] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 25.5%* - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON PN - -------------------------------------------------------------------------------- - ------------------------ * As of April 30, 2003, there were 20,947,333 shares of Class A Common Stock outstanding, based on Triarc Companies, Inc.'s Form 10-Q for the Quarterly Period Ended March 30, 2003. All ownership percentages provided in this Schedule 13D are based on this number of shares outstanding. - ----------------------------- ----------------------------- CUSIP NO. 895927 10 1 Page 3 of 10 - ----------------------------- ----------------------------- - -------------------------------------------------------------------------------- NAME OF REPORTING PERSON 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON NELSON PELTZ - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [_] (b) [_] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS Not applicable - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 1,707,506 (See Item 5) ------------------------------------------------ NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY OWNED 5,343,662 (See Item 5) BY EACH REPORTING ------------------------------------------------ PERSON 9 SOLE DISPOSITIVE POWER WITH 1,707,506 (See Item 5) ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 5,343,662 (See Item 5) - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 7,051,168 (See Item 5) - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [_] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 31.7% (See Item 5) - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON IN - -------------------------------------------------------------------------------- - ----------------------------- ----------------------------- CUSIP NO. 895927 10 1 Page 4 of 10 - ----------------------------- ----------------------------- - -------------------------------------------------------------------------------- NAME OF REPORTING PERSON 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON PETER W. MAY - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [_] (b) [_] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS Not applicable - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 1,079,148 (See Item 5) ------------------------------------------------ NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY OWNED 5,343,662 (See Item 5) BY EACH REPORTING ------------------------------------------------ PERSON 9 SOLE DISPOSITIVE POWER WITH 1,079,148 (See Item 5) ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 5,343,662 (See Item 5) - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 6,422,810 (See Item 5) - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [_] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 29.6% (See Item 5) - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON IN - -------------------------------------------------------------------------------- - ----------------------------- ----------------------------- CUSIP NO. 895927 10 1 Page 5 of 10 - ----------------------------- ----------------------------- AMENDMENT NO. 13 TO SCHEDULE 13D This Amendment No. 13 amends and supplements the Schedule 13D dated October 13, 1992 (the "Original Statement"), as amended and restated by Amendment No. 6 dated May 3,1993, as amended by Amendment No. 7 dated February 14, 1996, as amended by Amendment No. 8 dated October 13, 1998, as amended by Amendment No. 9 dated March 12, 1999, as amended by Amendment No. 10 dated May 4, 1999, as amended by Amendment No. 11 dated November 12, 2002 and as amended by Amendment No. 12 dated April 25, 2003 (the Original Statement, as so amended shall be known as the "Statement"), with respect to the Class A Common Stock, par value $.10 per share (the "Common Stock"), of Triarc Companies, Inc., a Delaware corporation and successor by merger to Triarc Companies, Inc., an Ohio corporation formerly named DWG Corporation (the "Company"). Unless otherwise indicated, all capitalized terms used herein shall have the same meaning as set forth in the Statement. Except as set forth below, there are no changes to the information set forth in the Statement. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. Item 5 of the Statement is amended by deleting the fourteenth paragraph thereof and substituting in its place the following paragraph: DWG Acquisition Group, L.P., Mr. Peltz and Mr. May may be deemed to beneficially own an aggregate of 5,343,662, 7,051,168 and 6,422,810 shares of Common Stock, respectively, representing approximately 25.5%, 31.7% and 29.6% of the outstanding shares of Common Stock, respectively. - ----------------------------- ----------------------------- CUSIP NO. 895927 10 1 Page 6 of 10 - ----------------------------- ----------------------------- ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO THE ISSUER. Item 6 of the Statement is amended by deleting the second paragraph and substituting in place the following paragraph: On December 21, 1995, all shares of Common Stock previously pledged by the Purchaser to Citibank were released. On January 19, 1996, the Custodial Loans were repaid in full and all shares of Common Stock previously pledged by the Purchaser to Custodial Trust Company were released. As of January 18, 1996, January 25, 1996, January 31, 1996, April 2, 2001 and April 2, 2003, Messrs. Peltz and May each entered into separate loan documentation with respect to certain loans that are secured by shares of Common Stock (the "BOA Loans") made to each of them in the ordinary course of business by Bank of America, N.A., formerly known as NationsBank, N.A. ("BOA"). Each of the BOA Loans are revolving demand loans and bear interest at a rate based upon the London interbank offered rate. The BOA Loans made to Mr. Peltz are effectively secured by 21,200 shares of Common Stock owned by the Peltz L.P. and 3,562,415 shares of Common Stock owned by the Purchaser. The BOA Loans made to Mr. May are effectively secured by the 255,682 shares of Common Stock owned by Mr. May and 1,781,207 shares of Common Stock owned by the Purchaser. The loan documentation in connection with each of the BOA Loans contains standard default provisions and other provisions with respect to the shares of Common Stock pledged pursuant thereto. The Pledge and Security Agreement entered into by the Purchaser with respect to the Common Stock owned by it in favor of BOA and the amendment thereto are included in the documents filed as Exhibit 20 hereto and are incorporated herein by reference. The Pledge Agreement entered into by the Peltz L.P. with respect to the Common Stock owned by it and the Pledge and Security Agreement entered into by Mr. May with respect - ----------------------------- ----------------------------- CUSIP NO. 895927 10 1 Page 7 of 10 - ----------------------------- ----------------------------- to the Common Stock owned by him are filed as Exhibits 26 and 27, respectively, hereto and are incorporated herein by reference. Item 6 of the Statement is amended by replacing the words "which are filed respectively as Exhibits 1, 2, 3, 8, 20 and 25" in the first sentence of the fourth paragraph with the following: "Which are filed as Exhibits 1, 2, 3, 8, 20 and 25-27." ITEM 7. MATERIALS TO BE FILED AS EXHIBITS. The following documents are included in this Statement as exhibits thereto: 26. Pledge Agreement dated as of April 2, 2001, made by Pelltz Family Limited Partnership in favor of Bank of America, N.A. 27. Pledge and Security Agreement dated April 2, 2003, made by Peter W. May, in favor of Bank of America, N.A. - ----------------------------- ----------------------------- CUSIP NO. 895927 10 1 Page 8 of 10 - ----------------------------- ----------------------------- SIGNATURES After reasonable inquiry and to the best of its knowledge and belief, each of the undersigned certifies that the information set forth in this Statement is true, complete and correct. Dated: July 1, 2003 DWG ACQUISITION GROUP, L.P. By: /s/ Nelson Peltz --------------------------------------- Name: Nelson Peltz Title: General Partner By: /s/ Peter W. May --------------------------------------- Name: Peter W. May Title: General Partner /s/ Nelson Peltz -------------------------------------------- Nelson Peltz /s/ Peter W. May -------------------------------------------- Peter W. May - ----------------------------- ----------------------------- CUSIP NO. 895927 10 1 Page 9 of 10 - ----------------------------- ----------------------------- EXHIBIT INDEX -------------
EXHIBIT DESCRIPTION PAGE NO. ------- ----------- -------- 1 Stock Purchase Agreement dated as of October 1, 1992 by Filed with and between the Purchaser, Posner, Posner Trust and Original Security Management. Statement 2 Exchange Agreement dated as of October 12, 1992 between Filed with the Company and Security Management. Original Statement 3 Agreement dated as of October 1, 1992 between the Filed with Company and the Purchaser. Original Statement 4 Agreement of Limited Partnership of the Purchaser dated as Filed with of September 25, 1992. Original Statement 5 Joint Filing Agreement of the Purchaser, Peltz and May. Filed with Original Statement 6 Memorandum of Understanding, dated January 21, 1993, by Filed with and between the Purchaser and William A. Ehrman, Amendment individually and derivatively on behalf of SEPSCO. No. 2 7 Letter dated January 25, 1993 from Steven Posner to the Filed with Purchaser (including proposed terms and conditions of Amendment Consulting Agreement to be entered into between the No. 2 Company and Steven Posner). 8 Undertaking and Agreement, dated February 9, 1993, Filed with executed by the Purchaser. Amendment No. 3 9 Amendment No. 3 dated as of April 14, 1993 to Agreement Filed with of Limited Partnership of the Purchaser. Amendment No. 4 10 Citibank Loan Documents (Exhibits and Schedule omitted). Filed with Amendment No. 4 11 Republic Loan Documents (Exhibits and Schedules omitted). Filed with Amendment No. 4 12 Pledge and Security Agreement, dated as of April 5, 1993, Filed with between the Purchaser and Citibank. Amendment No. 5 13 Custodial Loan Documents. Filed with Amendment No. 5
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EXHIBIT DESCRIPTION PAGE NO. ------- ----------- -------- 14 Agreement, dated May 2, 1994 among Nelson Peltz, Filed with Peter W. May and Leon Kalvaria. Amendment No. 6 15 Amended and Restated Pledge and Security Agreement, Filed with dated as of July 25, 1994 between the Purchaser and Amendment Citibank. No. 6 16 Amendment No. 1 dated as of November 15, 1992 to Agreement Filed with of Limited Partnership of the Purchaser. Amendment No. 7 17 Amendment No. 2 dated as of March 1, 1993 to Agreement Filed with of Limited Partnership of the Purchaser. Amendment No. 7 18 Amendment No. 4 dated a January 1, 1995 to Agreement of Filed with Limited Partnership of the Purchaser. Amendment No. 7 19 Amendment No. 5 dated as of January 1, 1996 to Filed with Agreement of Limited Partnership of the Purchaser. Amendment No. 7 20 BoA Loan documents (Exhibits and Schedules omitted). Filed with Amendment No. 7 21 Letter, dated October 12, 1998, from Messrs. Nelson Peltz Filed with and Peter W. May to the Company. Amendment No. 8 22 Press release, issued by the Company, dated October 12, Filed with 1998. Amendment No. 8 23 Letter, dated October 12, 1998, from the Company to Filed with Messrs. Nelson Peltz and Peter W. May. Amendment No. 8 24 Press release issued by the Company, dated March 10, Filed with 1999. Amendment No. 9 25 Amended and Restated Agreement of Limited Partnership Filed with of the Purchaser, amended and restated as of November 11, Amendment 2002. No. 11 26 Pledge Agreement dated April 2, 2001, made by Peltz Family Filed herewith Limited Partnership, in favor of Bank of America, N.A. 27 Pledge and Security Agreement dated April 2, 2003, made Filed herewith by Peter W. May, in favor of Bank of America, N.A. (Schedule II omitted).
EX-10 3 ex26_sc13da13-dwg.txt EXHIBIT 26 EXHIBIT 26 ---------- Date: April 2, 2001 Pledge Agreement Between and ================================================================================ BANK: (SECURED PARTY) PLEDGOR/(DEBTOR): Bank of America, N.A. Peltz Family Limited Partnership Banking Center: [_____________________] 101 South Tryon Street Charlotte, North Carolina 28255 ================================================================================ Pledgor is a Delaware limited partnership. - -------------------------------------------------------------------------------- Address is Pledgor's place of business ================================================================================ 1. SECURITY INTEREST. For good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Pledgor pledges, assigns and grants to Bank, as collateral agent (in such capacity, together with its successors or assigns, the "Collateral Agent") for the Bank and its permitted successors and assigns (collectively, the "Lenders"), a security interest and lien in the Collateral (hereinafter defined) to secure the payment and the performance of the Obligations (hereinafter defined). 2. COLLATERAL. The security interest is granted in the following collateral ("Collateral"): A. DESCRIPTION OF COLLATERAL. Account number [_________________] (together with any successor or replacement account, the "Account") maintained by Pledgor with Bank of America, N.A. (together with its successors and assigns, "Agent"), as custodian under an agreement for custody, investment management, investment advisory or similar services between Pledgor and the Agent, specifically including but not limited to all investments and investment property now or hereafter held in or credited to the Account, including, without limitation, all security entitlements with respect to the Account, all documents, instruments, ordinary goods, certificates of title, general intangibles, chattel paper, mineral interests, certificated and uncertificated securities, securities in book-entry form, mutual funds, U.S. government and state obligations, deposit accounts and cash now or hereafter deposited in or credited to the Account. B. PROCEEDS. All additions, substitutes and replacements for and proceeds of the above Collateral (including all income and benefits resulting from any of the above, such as dividends payable or distributable in cash, property or stock; interest, premium and principal payments; redemption proceeds and subscription rights; and shares or other proceeds of conversions or splits of any securities in Collateral). Any securities received by the Pledgor which shall comprise such additions, substitutes and replacements for, or proceeds of, the Collateral, shall be held in trust for the Collateral Agent and shall be delivered immediately to the Collateral Agent. Any cash proceeds shall be held in trust for the Collateral Agent and upon request shall be delivered immediately to the Collateral Agent. 3. 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 (the "OBLIGATIONS"): (a) the obligations of Claudia Peltz and Nelson Peltz, as borrowers (the "Borrowers"), to pay, as and when due and payable (whether on demand, by mandatory prepayment, by scheduled maturity or otherwise), all amounts from time to time owing by any of them in respect of any Loan Document, as such term is defined in (i) the Third Amended and Restated Credit Agreement, dated as of January 18, 1996, between the Borrowers and the Bank, as amended and restated as of June 19, 1997, as amended and restated as of January 2, 1999, and as amended and restated as of April 2, 2001 (as so amended and restated, and as such agreement may be further amended or otherwise modified from time to time, the "Loan Agreement"; capitalized terms used herein and not defined having the meanings herein set forth therein), whether for reimbursement of drawings, payment on guaranties, termination compensation on hedging agreements, principal, interest, fees, indemnities or otherwise (including, without limitation, amounts that but for the operation of Section 362(a) of the Bankruptcy Code would become due); (b) the due performance and observance by the Borrowers of all of their other obligations from time to time existing under any Loan Document (as defined in the Loan Agreement); and (c) the due performance and observance by each Borrower of all of such Borrower's obligations under this Agreement and each other Loan Document (as defined in the Loan Agreement) to which such Borrower is or may become a party. Without limiting the generality of the foregoing, this Agreement secures the payment of all amounts that constitute part of the Obligations and would be owed by a Borrower to the Bank under a Note (as defined in the Loan Agreement) or any of the other Loan Documents but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving either Pledgor. In the event any amount paid to a Lender on any Obligation is subsequently recovered from such Lender in or as a result of any bankruptcy, insolvency or fraudulent conveyance proceeding involving an obligor of the Obligations other than the Pledgor, the Pledgor shall be liable to such Lender for the amounts so recovered up to the fair market value of the Collateral whether or not the Collateral has been released or the security interest terminated. In the event the Collateral has been released or the security interest terminated, the fair market value of the Collateral shall be determined, at the Collateral Agent's option, as of the date the Collateral was released, the security interest terminated, or said amounts were recovered. B. USE OF PROCEEDS. The proceeds of any indebtedness or obligation secured by the Collateral WILL NOT BE used directly or indirectly to purchase or carry any "margin stock" as that term is defined in Regulation U of the Board of Governors of the Federal Reserve System, or extend credit to or invest in other parties for the purpose of purchasing or carrying any such "margin stock," or to reduce or retire any indebtedness incurred for such purpose or otherwise in a manner which would violate Regulations G, T or U. 4. PLEDGOR'S WARRANTIES. The Pledgor hereby represents and warrants to the Collateral Agent as follows: A. FINANCING STATEMENTS. Except as may be noted by schedule attached hereto and incorporated herein by reference, no financing statement covering the Collateral is or will be on file in any public office, except the financing statements relating to this security interest, and no security interest, other than the one herein created, has attached or been perfected in the Collateral or any part thereof. PLEDGE AGREEMENT PAGE 2 B. OWNERSHIP. The Pledgor owns, or will use the proceeds of any loans by a Lender to become the owner of, the Collateral free from any setoff, claim, restriction, lien, security interest or encumbrance except liens for taxes not yet due and payable and the security interest hereunder. C. POWER AND AUTHORITY. The Pledgor has full power and authority to make this Agreement, and all necessary consents and approvals of any persons, entities, governmental or regulatory authorities and securities exchanges have been obtained to effectuate the validity of this Agreement. 5. PLEDGOR'S COVENANTS. Until full payment and performance of all of the Obligations and termination or expiration of any obligation or commitment of any Lender to make advances or loans to the Borrowers, or the Guaranty, Letter of Credit or Hedging Agreement has not terminated, unless the Lenders otherwise consent in writing: A. OBLIGATION AND THIS AGREEMENT. The Pledgor shall perform all of its agreements herein and in any other agreements between the Pledgor and a Lender (subject to any grace period expressly set forth herein and therein). B. OWNERSHIP OF COLLATERAL. The Pledgor shall defend the Collateral against all claims and demands of all persons at any time claiming any interest therein adverse to the Collateral Agent. The Pledgor shall keep the Collateral free from all liens and security interests except those for taxes not yet due and payable and the security interest hereby created. C. COSTS OF THE COLLATERAL AGENT. The Pledgor shall pay all costs necessary to obtain, preserve, perfect, defend and enforce the security interest created by this Agreement, collect the Obligations, and preserve, defend, enforce and collect the Collateral, including but not limited to taxes, assessments, reasonable attorney's fees, legal expenses and expenses of sales. Whether Collateral is or is not in the Collateral Agent's possession, and without any obligation to do so and without waiving the Pledgor's default for failure to make any such payment, the Collateral Agent at its option may (upon notice to the Pledgor) pay any such costs and expenses and discharge encumbrances on Collateral, and such payments shall be a part of the Obligations and bear interest at the highest lawful rate set out in the Obligations. The Pledgor agrees to reimburse the Collateral Agent on demand for any costs so incurred. D. INFORMATION AND INSPECTION. The Pledgor shall (i) promptly furnish the Collateral Agent any information with respect to Collateral requested by the Collateral Agent; (ii) allow the Collateral Agent or its representatives to inspect and copy, or furnish the Collateral Agent or its representatives with copies of, all records relating to the Collateral and the Obligations; and (iii) promptly furnish the Collateral Agent or its representatives with any other information the Collateral Agent may reasonably request. E. ADDITIONAL DOCUMENTS. The Pledgor shall sign and deliver any papers furnished by the Collateral Agent which are necessary or desirable in the judgment of the Collateral Agent to obtain, maintain and perfect the security interest hereunder and to enable the Collateral Agent to comply with any federal or state law in order to obtain or perfect the Collateral Agent's interest in Collateral or to obtain proceeds of Collateral. F. NOTICE OF CHANGES. The Pledgor shall notify the Collateral Agent immediately of (i) any material adverse change in the Collateral, (ii) a change in the Pledgor's place of business, (iii) a change in any matter warranted or represented by the Pledgor in this Agreement, or in any of the Loan Documents relating to the Obligations or furnished to a Lender pursuant to this Agreement, and (iv) the occurrence of an Event of Default as defined herein. PLEDGE AGREEMENT PAGE 3 G. POSSESSION OF COLLATERAL. The Pledgor shall deliver a copy of this Agreement (or other notice acceptable to the Collateral Agent) to any broker, financial intermediary, or any other person in possession of any of the Collateral or on whose books the interest of the Pledgor in the Collateral appears, and such delivery shall constitute notice to such person of the Collateral Agent's security interest in the Collateral and shall constitute the Pledgor's instruction to such person to note the Collateral Agent's security interest on their books and records, or deliver to the Collateral Agent certificates or other evidence of the Collateral promptly upon the Collateral Agent's request. The Pledgor shall deliver all investment securities and other instruments and documents which are a part of the Collateral and in the Pledgor's possession to the Collateral Agent immediately, or if hereafter acquired, immediately following acquisition, in a form suitable for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank with signatures appropriately guaranteed in form and substance suitable to the Collateral Agent. H. CHANGE OF NAME/STATUS. The Pledgor shall not change its name, change its status, use any trade name or engage in any business not reasonably related to its business as presently conducted and in accordance with Loan Documents. I. POWER OF ATTORNEY. The Pledgor appoints the Collateral Agent and any officer thereof as the Pledgor's attorney-in-fact with full power in the Pledgor's name and on the Pledgor's behalf to do every act which the Pledgor is obligated to do or may be required to do hereunder; however, (i) nothing in this paragraph shall be construed to obligate the Collateral Agent to take any action hereunder nor shall the Collateral Agent be liable to the Pledgor for failure to take any action hereunder, and (ii) the Collateral Agent shall not take any action under this paragraph unless an Event of Default (as defined in the Loan Agreement) has occurred and is continuing. This appointment shall be deemed a power coupled with an interest and shall not be terminable as long as any Obligation is outstanding or any Lender has any commitment to make any loan to a Borrower, or the Guaranty, any Letter of Credit or Hedging Agreement has not terminated. Without limiting the generality of the foregoing, the Collateral Agent shall have the right and power to receive, endorse and collect all checks and other orders for the payment of money made payable to the Pledgor representing any dividend, interest payment or other distribution payable in respect of the Collateral or any part thereof. J. OTHER PARTIES AND OTHER COLLATERAL. No renewal or extensions of or any other indulgence with respect to the Obligations or any part thereof, no modification of the documents(s) evidencing the Obligations, no release of any security, no release of any person (including any maker, indorser, guarantor or surety) liable on the Obligations, no delay in enforcement of payment, and no delay or omission or lack of diligence or care in exercising any right or power with respect to the Obligations or any security therefor or guaranty thereof or under this Agreement shall in any manner impair or affect the rights of any Lender or the Collateral Agent under any law, hereunder, or under any other agreement pertaining to the Collateral. Neither the Collateral Agent nor any Lender need file suit or assert a claim for personal judgment against any person for any part of the Obligations or seek to realize upon any other security for the Obligations, before the Collateral Agent forecloses or otherwise realizes upon the Collateral. The Pledgor waives any right that can be waived to the benefit of or to require or control application of any other security or proceeds thereof. K. WAIVERS BY PLEDGOR. The Pledgor waives notice of the creation, advance, increase, existence, extension or renewal of, and of any indulgence with respect to, the Obligations; waives presentment, demand, notice of dishonor, and protest; waives notice of the amount of the Obligations outstanding at any time, notice of any change in financial condition of any person liable for the Obligations or any part thereof, notice of any event of default, and all other notices respecting the Obligations; and agrees that maturity of the Obligations and any part thereof may be accelerated, extended or renewed one or more times by any Lender in its discretion, without notice to the Pledgor. The Pledgor waives any right to require that any action be brought against any other person or to PLEDGE AGREEMENT PAGE 4 require that resort be had to any other security or to any balance of any deposit account. The Pledgor further waives any right of subrogation or to enforce any right of action against the other Borrower until the Obligations are paid in full. 6. RIGHTS AND POWERS OF THE COLLATERAL AGENT. A. GENERAL. The Collateral Agent, before or after an Event of Default, without liability to the Pledgor may: take control of proceeds, including stock received as dividends or by reason of stock splits; release Collateral in its possession to the Pledgor, temporarily or otherwise; reject as unsatisfactory any property hereafter offered by the Pledgor as Collateral; take control of funds generated by the Collateral, such as cash dividends, interest and proceeds, and exercise all other rights which an owner of such Collateral may exercise, except the right to vote or dispose of Collateral before an event of default; and at any time transfer any of the Collateral or evidence thereof into its own name or that of its nominee. Neither any Lender nor the Collateral Agent shall be liable for failure to collect any account or instruments, or for any act or omission on the part of such Lender or the Collateral Agent, or any officers, agents or employees of any of them, except for its or their own willful misconduct or gross negligence. The foregoing rights and powers of the Collateral Agent will be in addition to, and not a limitation upon, any rights and powers of the Collateral Agent given by law, elsewhere in this Agreement, or otherwise. Without limiting the generality of the foregoing, it is hereby understood and agreed that (i) the Pledgor shall not have any right to withdraw any Collateral now or hereafter on deposit in an Account, (ii) the Collateral Agent shall have full dominion over and control of the Accounts (except as otherwise expressly provided herein), and (iii) for purposes of Articles 8 and 9 of the Uniform Commercial Code, to the extent applicable, the Collateral Agent has "control" over the Accounts and the securities from time to time held in the Accounts. B. CONVERTIBLE COLLATERAL. The Collateral Agent may present for conversion any Collateral which is convertible into any other instrument or investment security or a combination thereof with cash, but the Collateral Agent shall not have any duty to present for conversion any Collateral unless it shall have received from the Pledgor detailed written instructions to that effect at a time reasonably far in advance of the final conversion date to make such conversion possible. 7. DEFAULT. A. EVENT OF DEFAULT. An event of default shall occur if an Event of Default (as defined in the Loan Agreement) has occurred. B. RIGHTS AND REMEDIES. If any Event of Default shall occur and be continuing, then, in each and every such case, the Collateral Agent may, without (a) presentment, demand, or protest, (b) notice of default, dishonor, demand, non-payment, or protest, (c) notice by the Collateral Agent or any Lender of intent to accelerate all or any part of the Obligations, (d) notice by the Collateral Agent or any Lender of acceleration of all or any part of the Obligations, or (e) notice of any other kind, all of which the Pledgor hereby expressly waives (except for any notice required under this Agreement, any other Loan Document or which may not be waived under applicable law), at any time thereafter exercise and/or enforce any of the following rights and remedies, at the option of the Lenders and the Collateral Agent: i. ACCELERATION. The Obligations shall, at each Lender's option, become immediately due and payable, and the obligations, if any, of any Lender to permit further borrowings under the Obligations shall at such Lender's option immediately cease and terminate. PLEDGE AGREEMENT PAGE 5 ii. LIQUIDATION OF COLLATERAL. Sell, or instruct any agent or broker to sell, all or any part of the Collateral in a public or private sale, direct any agent or broker to liquidate all or any part of any Account and deliver all proceeds thereof to the Collateral Agent, and apply all proceeds to the payment of any or all of the Obligations in such order and manner as the Lenders shall, in their discretion, choose. iii. UNIFORM COMMERCIAL CODE. All of the rights, powers and remedies of a secured creditor under the Uniform Commercial Code ("UCC") as adopted in the jurisdiction to which the Collateral Agent is subject under this Agreement. iv. RIGHT OF SET OFF. Without notice or demand to the Pledgor, set off and apply against any and all of the Obligations any and all deposits (general or special, time or demand, provisional or final) and any other indebtedness, at any time held or owing by a Lender or by any affiliate or correspondent of a Lender to or for the credit of the account of the Pledgor or any guarantor or endorser of any of the Obligations. v. INVESTMENT MANAGEMENT. Without notice or demand to the Pledgor, terminate any investment management agreement with respect to any of the Collateral. The Pledgor specifically understands and agrees that any sale by the Collateral Agent of all or part of the Collateral pursuant to the terms of this Agreement may be effected by the Collateral Agent at times and in manners which could result in the proceeds of such sale as being significantly and materially less than might have been received if such sale had occurred at different times or in different manners, and the Pledgor hereby releases the Collateral Agent and its officers and representatives from and against any and all obligations and liabilities arising out of or related to the timing or manner of any such sale. If, in the opinion of the Collateral Agent, there is any question that a public sale or distribution of any Collateral will violate any state or federal securities law, the Collateral Agent may offer and sell such Collateral in a transaction exempt from registration under federal securities law, and any such sale made in good faith by the Collateral Agent shall be deemed "commercially reasonable." 8. GENERAL. A. PARTIES BOUND. The Collateral Agent's rights hereunder shall inure to the benefit of its successors and assigns, and in the event of any assignment or transfer of any of the Obligations or the Collateral, the Collateral Agent thereafter shall be fully discharged from any responsibility with respect to the Collateral so assigned or transferred, but the Collateral Agent shall retain all rights and powers hereby given with respect to any of the Obligations or Collateral not so assigned or transferred. All representations, warranties and agreements of the Pledgor shall be binding upon the personal representatives, heirs, successors and assigns of the Pledgor. B. WAIVER. No delay of the Collateral Agent in exercising any power or right shall operate as a waiver thereof; nor shall any single or partial exercise of any power or right preclude other or further exercise thereof or the exercise of any other power or right. No waiver by the Collateral Agent of any right hereunder or of any default by the Pledgor shall be binding upon the Collateral Agent unless in writing, and no failure by the Collateral Agent to exercise any power or right hereunder or waiver of any default by the Pledgor shall operate as a waiver of any other or further exercise of such right or power or of any further default. Each right, power and remedy of the Collateral Agent and the Lenders as provided for herein or in any of the Loan Documents, or which shall now or hereafter exist at law or in equity or by statute or otherwise, shall be cumulative and concurrent and shall be in PLEDGE AGREEMENT PAGE 6 addition to every other such right, power or remedy. The exercise or beginning of the exercise by the Collateral Agent or any Lender of any one or more of such rights, powers or remedies shall not preclude the simultaneous or later exercise by any such party of any or all other such rights, powers or remedies. C. AGREEMENT CONTINUING. This Agreement shall constitute a continuing agreement, applying to all future as well as existing transactions, whether or not of the character contemplated at the date of this Agreement, and if all transactions between the Lenders and Borrowers shall be closed at any time, shall be equally applicable to any new transactions thereafter. Provisions of this Agreement, unless by their terms exclusive, shall be in addition to other agreements between the parties. Time is of the essence of this Agreement. D. DEFINITIONS. Unless the context indicates otherwise, definitions in the UCC apply to words and phrases in this Agreement; if UCC definitions conflict, Article 9 definitions apply. E. NOTICE. Notice shall be deemed reasonable if mailed postage prepaid at least 5 days before the related action (or if the UCC elsewhere specifies a longer period, such longer period) to the address of the Pledgor given above. Each notice, request and demand shall be deemed given or made, if sent by mail, upon the earlier of the date of receipt or five (5) days after deposit in the U.S. Mail, first class postage prepaid, or if sent by any other means, upon delivery. F. MODIFICATIONS. No provision hereof shall be modified or limited except by a written agreement expressly referring hereto and to the provisions so modified or limited and signed by the Pledgor and the Collateral Agent. The provisions of this Agreement shall not be modified or limited by course of conduct or usage of trade. G. PARTIAL INVALIDITY. The unenforceability or invalidity of any provision of this Agreement shall not affect the enforceability or validity of any other provision herein, and the invalidity or unenforceability of any provision of any loan document to any person or circumstance shall not affect the enforceability or validity of such provision as it may apply to other persons or circumstances. H. APPLICABLE LAW AND VENUE. This Agreement has been delivered in the State of New York and shall be construed in accordance with the laws of that State. It is performable by the Pledgor in the county or city of the Collateral Agent's address set out above and the Pledgor expressly waives any objection as to venue in any such location. Wherever possible each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Agreement. I. FINANCING STATEMENT. To the extent permitted by applicable law, a carbon, photographic or other reproduction of this Agreement or any financing statement covering the Collateral shall be sufficient as a financing statement. J. ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES HERETO INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS INSTRUMENT, AGREEMENT OR DOCUMENT 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."), PLEDGE AGREEMENT PAGE 7 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 INSTRUMENT, AGREEMENT, OR DOCUMENT MAY BRING AN ACTION, INCLUDING A SUMMARY OR EXPEDITED PROCEEDING, TO COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM TO WHICH THIS AGREEMENT APPLIES IN ANY COURT HAVING JURISDICTION OVER SUCH ACTION. (i) SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE COUNTY OF THE PLEDGOR'S DOMICILE AT TIME OF THE EXECUTION OF THIS INSTRUMENT, AGREEMENT OR DOCUMENT 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. (ii) 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 BANK 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 BANK 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 BANK 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 INSTRUMENT, AGREEMENT OR DOCUMENT. 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. K. CONTROLLING DOCUMENT. To the extent that this Agreement conflicts with or is in any way incompatible with any other loan document concerning the Obligation, any promissory note shall control over any other document, and if such promissory note does not address an issue, then each other loan document shall control to the extent that it deals most specifically with an issue. L. EXECUTION UNDER SEAL. This agreement is being executed under seal by the Pledgor. M. NOTICE OF FINAL AGREEMENT. This written Agreement and any other related loan documents constitute the final agreement between the parties, and supersede all prior written agreements and all prior, contemporaneous or subsequent oral agreements of the parties regarding all issues addressed in the loan documents. PLEDGE AGREEMENT PAGE 8 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed under seal by their duly authorized representatives as of the date first above written. BANK/SECURED PARTY: PLEDGOR: BANK OF AMERICA, N.A., AS COLLATERAL AGENT PELTZ FAMILY LIMITED PARTNERSHIP By: /s/ Jane R. Heller (Seal) By: /s/ Nelson Peltz (Seal) ------------------------------- ----------------------- Name: Jane R. Heller Name: Nelson Peltz ---------------------------- -------------------- Title: Senior Vice President Title: General Partner ---------------------------- -------------------- PLEDGE AGREEMENT PAGE 9 STATE OF NEW YORK ) ) SS: COUNTY OF NEW YORK ) Sworn to, subscribed, sealed and acknowledged before me, the undersigned authority, on the __ day of May___, 2001 in the state and county aforesaid, by _________________, to me known, who personally appeared before me. Notary: ____________________________________ Print Notary's Name: _______________________ [NOTARIAL SEAL] Notary Public, State of ____________________ My commission expires: _____________________ PLEDGE AGREEMENT PAGE 10 EX-10 4 ex27_sc13da13-dwg.txt EXHIBIT 27 EXHIBIT 27 ---------- PLEDGE AND SECURITY AGREEMENT PLEDGE AND SECURITY AGREEMENT dated April 2, 2003, made by Peter W. May, an individual whose principal residence is in the State of New York (the "PLEDGOR"), in favor of Bank of America, N.A., a national banking association (the "BANK" and, together with its successors and assigns, collectively the "LENDERS"), as agent for the Bank and its permitted successors and assigns (in such capacity and together with its successors and assigns, the "AGENT"). W I T N E S S E T H: WHEREAS, the Pledgor, Leni May (collectively, the "BORROWERS") and the Bank are parties to the Third Amended and Restated Credit Agreement dated as of January 18, 1996, as amended and restated on June 19, 1997, as amended and restated as of January 2, 1999, and as amended and restated as of April 2, 2001 (as amended or otherwise modified from time to time, the "CREDIT AGREEMENT"), pursuant to which the Bank agreed to make loans (each a "LOAN" and collectively the "LOANS") and issue letters of credit (the "LETTERS OF CREDIT") to the Borrowers in an aggregate amount at any time outstanding not to exceed the amounts of the Commitments referred to therein; WHEREAS, it was a condition precedent to the making of the Loans to the Borrowers pursuant to the Credit Agreement that DWG Acquisition Group, L.P., a Delaware limited partnership of which the Pledgor and Nelson Peltz are the sole general partners ("DWG"), execute and deliver to the Agent the Triarc Pledge Agreement, pursuant to which DWG pledged to the Agent, and granted to the Agent a security interest in, the outstanding shares of capital stock issued by Triarc Companies, Inc. (the "ISSUER") from time to time owned by DWG (the "DWG SHARES"); WHEREAS, DWG has released a portion of the DWG Shares to the Pledgor, which were used by the Pledgor to pay the exercise price of certain stock options owned by the Pledgor to purchase shares of stock of the Issuer and the Pledgor obtained certain shares of stock of the Issuer upon the exercise of such stock options (the "OPTION SHARES"); and WHEREAS, the Borrowers have requested that the Bank extend the Termination Date set forth in the Credit Agreement for two years and consent to the liquidation and dissolution of DWG, and the Bank is willing to so extend the Termination Date and consent to the liquidation and dissolution of DWG, subject to, among other things, the condition precedent that the Pledgor shall have executed and delivered to the Agent a pledge and security agreement providing for the pledge to the Agent of, and the grant to the Agent of a security interest in, all Pledged Shares (including the Option Shares) at any time or from time to time distributed to the Pledgor by DWG (it being understood and agreed that any Pledged Shares so distributed shall at all times be subject to the lien and security interest of the Agent); NOW, THEREFORE, in consideration of the premises and the agreements herein and in order to induce the Bank to make and maintain the Loans pursuant to the Credit Agreement, the Pledgor hereby agrees with the Agent as follows: SECTION 1. DEFINITIONS. Reference is hereby made to the Credit Agreement for a statement of the terms thereof. All terms used in this Pledge Agreement which are defined in the Credit Agreement or in Article 8 or Article 9 of the Uniform Commercial Code (the "CODE") as in effect from time to time in the State of New York and which are not otherwise defined herein shall have the same meanings herein as set forth therein. SECTION 2. PLEDGE AND GRANT OF SECURITY INTEREST. As collateral security for all of the Obligations (as defined in SECTION 3 hereof), the Pledgor hereby pledges and assigns to the Agent, for the benefit of the Lenders, and grants to the Agent, for the benefit of the Lenders, a continuing security interest in, the Pledgor's right, title and interest in and to the following (collectively, the "PLEDGED COLLATERAL"): (a) the shares of stock described in SCHEDULE I hereto (the "PLEDGED SHARES") issued by the Issuer, the certificates representing the Pledged Shares, all options and other rights, contractual or otherwise, in respect thereof (including, without limitation, any registration rights, whether under the Registration Rights Agreement dated as of April 23, 1993 (as amended or otherwise modified from time to time, the "REGISTRATION RIGHTS AGREEMENT"), between the Issuer and the Pledgor, any other registration rights agreement between the Issuer and the Pledgor or otherwise), and all dividends, distributions, cash, instruments, investment property and other property (including, without limitation, any stock dividend and any distribution in connection with a stock split) from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of the Pledged Shares; (b) all security entitlements of the Pledgor in any and all of the foregoing; and (c) all proceeds (including proceeds of proceeds) of any and all of the foregoing; in each case, whether now owned or hereafter acquired by the Pledgor and howsoever such interest therein may arise or appear (whether by ownership, security interest, claim or otherwise). SECTION 3. SECURITY FOR OBLIGATIONS. The security interest created hereby in the Pledged Collateral constitutes continuing collateral security for all of the following obligations whether now existing or hereafter incurred (collectively, the "Obligations"): (a) the prompt payment by each Borrower, as and when due and payable (whether by scheduled maturity, maturity, required prepayment, acceleration, demand or otherwise), of all amounts from time to time owing by either of them in respect of any Loan Document, whether for principal, interest, fees or otherwise (including, without limitation, amounts that but for the operation of Section 362(a) of the Bankruptcy Code would become due); and (b) the due performance and observance by the Borrowers of all of their other obligations from time to time existing under any Loan Document. Without limiting the generality of the foregoing, this Pledge Agreement secures the payment of all amounts that constitute part of the Obligations and would be owed by a Borrower to the Agent or any of the Lenders but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving either Borrower. SECTION 4. DELIVERY OF THE PLEDGED COLLATERAL. (a) All certificates currently representing the Pledged Shares shall be delivered to the Agent on or prior to the execution and delivery of this Pledge Agreement. All other certificates and instruments constituting Pledged Collateral from time to time or required to be pledged to the Agent by the Pledgor pursuant to the terms of this Pledge Agreement (the "ADDITIONAL COLLATERAL") shall be delivered to the Agent within five (5) days of receipt thereof by or on behalf of the Pledgor. All such certificates and instruments shall be held by or on behalf of the Agent pursuant hereto and shall be delivered in suitable form for transfer by delivery or shall be accompanied by duly executed instruments of transfer or assignment in blank, all in form and substance reasonably satisfactory to the Agent. (b) If the Pledgor shall receive, by virtue of the Pledgor's being or having been an owner of any Pledged Collateral, any (i) stock certificate (including, without limitation, any certificate representing a stock dividend or distribution in connection with any increase or reduction of capital, reclassification, merger, consolidation, sale of assets, combination of shares, stock split, spin-off or split-off), promissory note or other instrument, (ii) option or right, whether as an addition to, substitution for, or in exchange for, any Pledged Collateral, or otherwise, (iii) dividends payable in cash (except such dividends permitted to be retained by the Pledgor pursuant to SECTION 7(A) hereof) or in securities or other property or (iv) dividends or other distributions in connection with a partial or total liquidation or dissolution or in connection with a reduction of capital, capital surplus or paid-in surplus, the Pledgor shall receive such stock certificate, promissory note, instrument, option, right, payment or distribution in trust for the benefit of the Agent, shall segregate it from the Pledgor's other property and shall deliver it forthwith to the Agent in the exact form received, with any necessary indorsement and/or appropriate stock powers duly executed in blank, to be held by the Agent as Pledged Collateral and as further collateral security for the Obligations. SECTION 5. REPRESENTATIONS AND WARRANTIES. The Pledgor represents and warrants as follows: (a) The Pledgor has the legal capacity and right to execute, deliver and perform this Pledge Agreement. (b) SCHEDULE II hereto sets forth (i) the exact legal name of the Pledgor and all other names used by the Pledgor at any time during the five years preceding the date hereof, and (ii) the Pledgor's principal residence and each place of residence of the Pledgor during the five years preceding the Closing Date. (c) The execution, delivery and performance by the Pledgor of this Pledge Agreement (i) do not and will not contravene any law or any contractual restriction binding on or affecting the Pledgor or any of the Pledgor's properties (including, without limitation, any governing document of the Issuer or any rule, directive or policy of the Issuer), and (ii) do not and will not result in or require the creation of any Lien upon or encumbrance upon or with respect to any of the Pledgor's properties other than pursuant to this Pledge Agreement. The exercise by the Agent of its rights and remedies under this Pledge Agreement (including, without limitation, the sale or other disposition of the Pledged Shares) will not violate any contractual restriction binding on or affecting the Pledgor or the Pledged Shares. (d) This Pledge Agreement is a legal, valid and binding obligation of the Pledgor, enforceable against the Pledgor in accordance with its terms. (e) The Pledgor is and will be at all times the legal and beneficial owner of the Pledged Collateral of the Pledgor free and clear of any Lien, except for the security interest created by this Pledge Agreement. (f) The exercise by the Agent of any of its rights and remedies hereunder (including, without limitation, the sale or other disposition of the Pledged Shares by the Agent) will not contravene any law (subject to compliance with laws affecting the offering and sale of securities generally) or any contractual restriction binding on or affecting any the Pledgor or any of the Pledgor's properties (including, without limitation, any governing document of the Issuer) and will not result in or require the creation of any Lien upon or with respect to any of the Pledgor's properties other than pursuant to this Pledge Agreement and the other Loan Documents. (g) The Pledged Shares are fully paid and nonassessable and, to the best of the Pledgor's knowledge, have been duly authorized and validly issued. All other shares of stock constituting Pledged Collateral will be duly authorized and validly issued, fully paid and nonassessable. The Pledgor has legally and beneficially owned the Pledged Shares described in Schedule I hereto since the dates set forth opposite the applicable certificate evidencing such Pledged Shares as set forth in Schedule I hereto. The information set forth in Schedule I hereto is true and correct. (h) There is no action, suit or proceeding pending or, to the Pledgor's knowledge, threatened or otherwise affecting the Pledgor before any court or other Governmental Authority or arbitrator that is reasonably likely to materially adversely affect the financial condition of the Pledgor or the Pledgor's ability to perform his obligations hereunder and under the other Loan Documents. (i) No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority or other regulatory body or any other Person is required for (i) the due execution, delivery and performance by the Pledgor of this Pledge Agreement or the other Loan Documents to which the Pledgor is a party, (ii) the grant by the Pledgor, or the perfection, of the security interest purported to be created hereby in the Pledged Collateral or (iii) the exercise by the Agent of any of its rights and remedies hereunder, except for the filing of a Form 144. (j) The Pledgor is and will be at all times the legal and beneficial owner of the Pledged Collateral in existence, free and clear of any lien, security interest, option or other charge or encumbrance except for the security interest created by this Pledge Agreement. There is no financing statement naming the Pledgor as debtor (or similar documents or instrument of registration under the law of any jurisdiction) now on file or registered in any public office covering any interest of the Pledgor in the Pledged Collateral, except in favor of the Agent. (k) This Pledge Agreement creates a valid security interest in favor of the Agent in the Pledged Collateral, as security for the Obligations. The Agent's having possession of the Pledged Shares and all other certificates, instruments and cash constituting Pledged Collateral from time to time results in the perfection of such security interest. Such security interest is, or in the case of Pledged Collateral in which the Pledgor obtains rights after the date hereof, will be, a perfected, first priority security interest. All action necessary or desirable to perfect and protect such security interest has been duly taken, except for the Agent's having possession of certificates, instruments and cash constituting Pledged Collateral after the date hereof. (l) The information on Exhibit A hereto (the Restricted Securities Statement) is accurate and complete. (m) The Pledgor has furnished the Agent with a true, correct and complete copy of the Registration Rights Agreement and each other registration rights and other agreement in respect of or otherwise affecting any of the Pledged Shares in existence on the date hereof. SECTION 6. COVENANTS AS TO THE PLEDGED COLLATERAL. So long as any of the Obligations shall remain outstanding, any Letter of Credit shall remain outstanding or any Lender shall have any Commitment under the Credit Agreement, unless the Agent shall otherwise consent in writing: (a) RECORDS. The Pledgor will keep adequate records concerning the Pledged Collateral and permit the Agent or any agents or representatives thereof at any reasonable time and from time to time to examine and make copies of and abstracts from such records. (b) NOTICES. The Pledgor will, at his expense, promptly deliver to the Agent a copy of each notice or other communication received by the Pledgor in respect of the Pledged Collateral of the Pledgor. (c) DEFEND TITLE. The Pledgor will (at the expense of the Pledgor) defend his right, title and interest in and to the Pledged Collateral against the claims of any Person. (d) FURTHER ASSURANCES. The Pledgor will (at the expense of the Pledgor), at any time and from time to time, promptly execute and deliver all further instruments and documents and take all further action that may be necessary or desirable or that the Agent may reasonably request in order (i) to perfect and protect the security interest created or purported to be created hereby (whether pursuant to laws, rules, regulations or general practices currently in effect or adopted subsequent to the date hereof); (ii) to enable the Agent to exercise and enforce its rights and remedies hereunder in respect of the Pledged Collateral (including, without limitation, by executing one or more Forms 144); or (iii) to otherwise effect the purposes of this Pledge Agreement, including, without limitation: (A) at the request of the Agent, marking conspicuously each of the records of the Pledgor pertaining to the Pledged Collateral with a legend, in form and substance satisfactory to the Agent, indicating that such Pledged Collateral is subject to the security interest created hereby; (B) if any Pledged Collateral shall be evidenced by a promissory note or other instrument or chattel paper, delivering and pledging to the Agent hereunder such note, instrument or chattel paper duly indorsed and accompanied by executed instruments of transfer or assignment, all in form and substance satisfactory to the Agent; (C) delivering to the Agent irrevocable proxies in respect of the Pledged Collateral and executing and filing such financing or continuation statements, or amendments thereto, as may be necessary or desirable or that the Agent may request in order to perfect and preserve the security interest created or purported to be created hereby; and (D) furnishing to the Agent from time to time statements and schedules further identifying and describing the Pledged Collateral and such other reports in connection with the Pledged Collateral as the Agent may reasonably request, all in reasonable detail. (e) CHANGE OF NAME OR ADDRESS. The Pledgor will give the Agent at least 30 days' prior written notice of any change in the Pledgor's name or principal residence. (f) TRANSFERS AND OTHER RESTRICTIONS. The Pledgor will not (i) sell, assign (by operation of law or otherwise), exchange or otherwise dispose of any Pledged Collateral except as expressly permitted by Section 7(a) hereof. (g) RULE 144 COVENANTS. The Pledgor will not sell any securities of the same class or convertible into the same class of securities as the Pledged Shares, whether or not such securities are pledged hereunder, except as otherwise expressly permitted by the Credit Agreement. The Pledgor will use his reasonable efforts to cause any Person with whom he shall be deemed one "person" for purposes of Rule 144(a)(2) (the Pledgor and all such parties being hereinafter collectively referred to as the "ATTRIBUTION GROUP") to refrain from selling any securities of the same class or convertible into the same class of securities as the Pledged Shares, whether or not such securities are pledged hereunder, and in the event of any such sale consented to by the Agent will furnish the Agent with a copy of any Form 144 filed in respect of such sale. (h) COOPERATION. The Pledgor will cooperate fully with the Agent with respect to any sale by the Agent of any of the Pledged Collateral after the occurrence and during the continuance of an Event of Default, including full and complete compliance with all requirements of Rule 144, and will give to the Agent all information and will do all things necessary, including the execution of all documents, forms, instruments and other items, to comply with Rule 144 for the complete and unrestricted sale and/or transfer of any or all of the Pledged Collateral. (i) LIEN. The Pledgor will not create or suffer to exist any (i) Lien upon or with respect to any of the Pledged Collateral except for the security interests created by this Pledge Agreement or (ii) any contractual restriction on the transferability of any of the Pledged Collateral (including, without limitation, any market standoff or other "lock-up" agreement) other than the restriction in the Registration Rights Agreement (as in effect on the date hereof), which applies only to the Pledgor (and not to any sale or disposition of the Pledged Collateral by the Agent or any Lender). (j) AGREEMENTS AFFECTING PLEDGED COLLATERAL. The Pledgor will not make or consent to any amendment or other modification or waiver with respect to any of the Pledged Collateral (including, without limitation, to the Registration Rights Agreement), or enter into any agreement or permit to exist any restriction with respect to any of the Pledged Collateral other than pursuant hereto. (k) OTHER ACTIONS. The Pledgor will not take or fail to take any action that would in any manner impair the value or enforceability of the Agent's security interest in the Pledged Collateral. SECTION 7. VOTING RIGHTS, DIVIDENDS, ETC. IN RESPECT OF THE PLEDGED COLLATERAL. (a) So long as no Default or Event of Default shall have occurred and be continuing: (i) the Pledgor may exercise any and all voting and other consensual rights pertaining to any Pledged Collateral in a manner not inconsistent with the terms of this Pledge Agreement; (ii) the Pledgor may receive and retain any and all dividends or other distributions paid in respect of the Pledged Collateral of the Pledgor; PROVIDED, HOWEVER, that any and all (A) dividends paid or payable other than in cash in respect of, and instruments and other property received, receivable or otherwise distributed in respect of or in exchange for, any Pledged Collateral (including, without limitation, shares of stock or other instruments issued in respect of any "spin-off" of any division or subsidiary of the Issuer), (B) dividends and other distributions paid or payable in cash in respect of any Pledged Collateral in connection with a partial or total liquidation or dissolution or in connection with a reduction of capital, capital surplus or paid-in surplus, and (C) cash paid, payable or otherwise distributed in redemption of, or in exchange for, any Pledged Collateral shall be, and shall forthwith be delivered to the Agent to hold as, Pledged Collateral and shall, if received by the Pledgor, be received in trust for the benefit of the Agent, shall be segregated from the other property or funds of the Pledgor, and shall be forthwith delivered to the Agent in the exact form received with any necessary indorsement and/or appropriate stock powers duly executed in blank, to be held by the Agent as Pledged Collateral and as further collateral security for the Obligations; and (iii) the Agent will execute and deliver (or cause to be executed and delivered) all such proxies and other instruments as the Pledgor may reasonably request for the purpose of enabling the Pledgor to exercise the voting and other rights that the Pledgor is entitled to exercise pursuant to paragraph (i) of this SECTION 7(A) and to receive the dividends that the Pledgor is authorized to receive and retain pursuant to paragraph (ii) of this SECTION 7(A). (b) Upon the occurrence and during the continuance of any Default or Event of Default: (i) all rights of the Pledgor to exercise the voting and other consensual rights that the Pledgor would otherwise be entitled to exercise pursuant to paragraph (i) of subsection (a) of this SECTION 7, and to receive the dividends and other distributions that the Pledgor would otherwise be authorized to receive and retain pursuant to paragraph (ii) of subsection (a) of this Section 7, shall cease, and (A) all such rights shall thereupon become vested in the Agent, which shall thereupon have the sole right to exercise such voting and other consensual rights and to receive and hold as Pledged Collateral such dividends and other distributions, and (B) the Pledgor shall execute and deliver all such proxies and other instruments as the Agent may reasonably request for the purpose of enabling Agent to exercise the voting and other rights that it is entitled to exercise pursuant to this Section 7(b)(i); (ii) without limiting the generality of the foregoing, the Agent may at its option exercise any and all rights of conversion, exchange, subscription or any other rights, privileges or options pertaining to any of the Pledged Collateral as if it were the absolute owner thereof, including, without limitation, the right to exchange, in its discretion, any and all of the Pledged Collateral upon the merger, consolidation, reorganization, recapitalization or other adjustment of any issuer of Pledged Collateral, or upon the exercise by any issuer of Pledged Collateral of any right, privilege or option pertaining to any Pledged Collateral, and, in connection therewith, to deposit and deliver any and all of the Pledged Collateral with any committee, depository, transfer agent, registrar or other designated agent upon such terms and conditions as it may determine; and (iii) all dividends and other distributions that are received by the Pledgor contrary to the provisions of paragraph (i) of this SECTION 7(B) shall be received in trust for the benefit of the Agent, shall be segregated from the other funds of the Pledgor, and shall be forthwith paid over to the Agent as Pledged Collateral in the exact form received with any necessary indorsement and/or appropriate stock powers duly executed in blank, to be held by the Agent as Pledged Collateral hereunder. SECTION 8. ADDITIONAL PROVISIONS CONCERNING THE PLEDGED COLLATERAL. (a) The Pledgor hereby authorizes the Agent to file, without the signature of the Pledgor where permitted by law, one or more financing or continuation statements, and amendments thereto, relating to the Pledged Collateral. The Agent hereby agrees to notify the Pledgor promptly after any such filing. (b) The Pledgor hereby irrevocably appoints the Agent the Pledgor's attorney-in-fact and proxy, with full authority in the place and stead of the Pledgor and in the name of the Pledgor or otherwise, from time to time in the Agent's discretion, to take any action and to execute any instrument (at the expense of the Pledgor) that the Agent may reasonably deem necessary or advisable to accomplish the purposes of this Pledge Agreement including, without limitation, (i) at any time and from time to time, to receive, indorse and collect all instruments made payable to the Pledgor representing any distribution in respect of any Pledged Collateral and to give full discharge for the same, (ii) to complete, execute and file one or more Forms 144 with respect to any of the Pledged Collateral and (iii) to receive, endorse and collect any drafts or other instruments, documents and chattel paper representing any dividend or other distribution in respect of the Pledged Collateral and, in addition to the foregoing and without limitation: (A) to ask, demand, collect, sue for, recover, compound, receive and give acquittance and receipts for moneys due and to become due under or in respect of any of the Pledged Collateral and to receive, indorse, and collect any drafts or other instruments, documents and chattel paper in connection therewith; and (B) to file any claims or take any action or institute any proceedings that the Agent may deem necessary or desirable for the collection of any of the Pledged Collateral or otherwise to enforce the rights of the Agent with respect to any of the Pledged Collateral; PROVIDED, HOWEVER, that the Agent shall exercise such powers only during the occurrence and continuance of an Event of Default. This power is coupled with an interest and is irrevocable until all of the Obligations are paid in full and the termination of all of the Letters of Credit and each Commitment. (c) If the Pledgor fails to perform any agreement or obligation contained herein, the Agent (immediately after giving notice to the Pledgor) may itself perform, or cause performance of, such agreement or obligation, and the expenses of the Agent incurred in connection therewith shall be payable by the Pledgor pursuant to SECTION 11 hereof, together with interest from the date such expenses are paid by the Agent until repaid in full, at the rate for overdue principal under the Credit Agreement, all payable on demand. (d) The powers conferred on the Agent hereunder are solely to protect its interest in the Pledged Collateral and shall not impose any duty upon it to exercise any such powers. Except for the exercise of reasonable care to assure the safe custody of any Pledged Collateral in its possession, the Agent shall have no duty or liability to preserve rights pertaining thereto and shall be relieved of all responsibility for the Pledged Collateral upon surrendering it or tendering surrender of it to the Pledgor. The Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Pledged Collateral in its possession if the Pledged Collateral is accorded treatment substantially equal to that which the Agent accords its own property, it being understood that the Agent shall not have responsibility for (i) ascertaining or taking action with respect to calls, conversions, exchanges, maturities, tenders or other matters relating to any Pledged Collateral, whether or not the Agent has or is deemed to have knowledge of such matters, or (ii) taking any necessary steps to preserve rights against any parties with respect to any Pledged Collateral. (e) The Agent may at any time in its discretion (i) subject only to the rights of the Pledgor under Section 7(a) hereof and so long as an Event of Default has occurred and is continuing, without prior notice to the Pledgor, transfer or register in the name of the Agent or any of its nominees any or all of the Pledged Collateral, and (ii) exchange certificates or instruments constituting Pledged Collateral for certificates or instruments of smaller or larger denominations. SECTION 9. REMEDIES UPON DEFAULT. If any Event of Default shall have occurred and be continuing: (a) The Agent may exercise in respect of the Pledged Collateral, in addition to other rights and remedies provided for herein or otherwise available to it, all of the rights and remedies of a secured party on default under the Code then in effect in the State of New York (whether or not the Code applies to the affected Pledged Collateral); and without limiting the generality of the foregoing, also may without notice except as specified below, sell the Pledged Collateral or any part thereof in one or more parcels at public or private sale, at any exchange or broker's board or elsewhere, at such price or prices and on such other terms as the Agent may deem commercially reasonable. The Pledgor agrees that, to the extent notice of sale shall be required by law, at least 10 days' notice to the Pledgor of the time and place of any public sale or the time after which any private sale is to be made shall constitute reasonable notification. The Agent shall not be obligated to make any sale of Pledged Collateral regardless of notice of sale having been given. The Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. The Pledgor agrees to complete and execute one or more Forms 144, and to cooperate in the completion and execution of one or more Forms 144 if completed and executed by the Agent, to the extent necessary or desirable to permit a sale of the Pledged Collateral in compliance with Rule 144. (b) The Pledgor agrees that in any sale of any Pledged Collateral hereunder the Agent is hereby authorized to comply with any limitation or restriction in connection with such sale as it may be advised by counsel is necessary in order to avoid any violation of applicable law, rule or regulation (including, without limitation, compliance with such procedures as may restrict the number of prospective bidders and purchasers, require that such prospective bidders and purchasers have certain qualifications, and restrict such prospective bidders and purchasers to persons who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or resale of such Pledged Collateral), or in order to obtain any required approval of the sale or of the purchasers by any Governmental Authority, regulatory body or official, and the Pledgor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall the Agent be liable or accountable to the Pledgor for any discount allowed by reason of the fact that such Pledged Collateral is sold in compliance with any such limitation or restriction. (c) Notwithstanding the provisions of subsection (b) of this Section 9, the Pledgor recognizes that the Agent may deem it impracticable to effect a public sale of all or any part of the Pledged Collateral and that the Agent may, therefore, determine to make one or more private sales of any such Pledged Collateral to a restricted group of purchasers who will be obligated to agree, among other things, to acquire such Pledged Collateral for their own account, for investment and not with a view to the distribution or resale thereof. The Pledgor acknowledges that any such private sale may be at prices and on terms less favorable to the seller than the prices and other terms that might have been obtained at a public sale and, notwithstanding the foregoing, agrees that such private sales shall be deemed to have been made in a commercially reasonable manner and that the Agent shall have no obligation to delay sale of any such securities for the period of time necessary to permit the issuer of any securities constituting Pledged Collateral (the "SECURITIES") to register such securities for public sale under the Securities Act of 1933, as amended (the "SECURITIES ACT"). The Pledgor further acknowledges and agrees that any offer to sell such Securities that has been (i) publicly advertised on a bona fide basis in a newspaper or other publication of general circulation in the financial community of New York, New York (to the extent that such an offer may be so advertised without prior registration under the Securities Act) or (ii) made privately in the manner described above to not less than fifteen BONA FIDE offerees shall be deemed to involve a "public disposition" for the purposes of Section 9-610 of the Code (or any successor or similar, applicable statutory provision) as then in effect in the State of New York, notwithstanding that such sale may not constitute a "public offering" under the Securities Act, and that the Agent may, in such event, bid for and purchase such Securities. (d) Any cash held by the Agent as Pledged Collateral and all cash proceeds received by the Agent in respect of any sale of, collection from, or other realization upon, all or any part of the Pledged Collateral may, in the discretion of the Agent, be held by the Agent as collateral for, and/or then or at any time thereafter applied (after payment of any amounts payable to the Agent pursuant to SECTION 10 hereof) in whole or in part by the Agent against, all or any part of the Obligations in such order as the Agent shall elect. Any surplus of such cash or cash proceeds held by the Agent and remaining after payment in full of all of the Obligations, the termination of all of the Letters of Credit and the termination of each Commitment shall be paid over to the Pledgor or to such Person as may be lawfully entitled to receive such surplus. (e) In the event that the proceeds of any such sale, collection or realization are insufficient to pay all amounts to which the Agent or any Lender is legally entitled, the Pledgor shall be liable for the deficiency, together with interest thereon at the highest rate specified in the Credit Agreement for interest on overdue principal thereof or such other rate as shall be fixed by applicable law, together with the costs of collection and the reasonable fees, costs and expenses of any attorneys employed by the Agent or any of the Lenders to collect such deficiency. SECTION 10. INDEMNITY AND EXPENSES. (a) The Pledgor agrees to indemnify the Agent from and against any and all claims, losses and liabilities (including, without limitation, the reasonable fees, client charges and other expenses of the Agent's counsel) growing out of or resulting from this Pledge Agreement or the enforcement of any of the terms hereof (including, without limitation, the sale of Pledged Collateral pursuant to a public or private offering and each and every document produced in furtherance thereof), except claims, losses or liabilities resulting solely and directly from the Agent's gross negligence or willful misconduct. (b) The Pledgor agrees to pay to the Agent on demand the amount of any and all costs and expenses, including the reasonable fees and other client charges of the Agent's counsel and of any experts and agents, that the Agent may incur in connection with (i) the amendment, modification, administration and termination of this Pledge Agreement, (ii) the custody, preservation, use or operation of, or the sale of, collection from, or other realization upon, any of the Pledged Collateral (including, without limitation, fees or commissions of any broker), (iii) the exercise or enforcement of any of the rights of the Collateral Agent hereunder, or (iv) the failure by the Pledgor to perform or observe any of the provisions hereof. SECTION 11. NOTICES, ETC. All notices and other communications provided for hereunder shall be in writing and shall be mailed or delivered, if to the Pledgor, to the Pledgor at 280 Park Avenue, New York, New York, Telecopy No. (212) 451-3024, with a copy to Paul, Weiss, Rifkind, Wharton & Garrison, 1285 Avenue of the Americas, New York, New York 10019, Attention: Neale M. Albert, Esq., telecopy No. (212) 757-3990; if to the Agent, to it at its address at Bank of America, N.A., 101 South Tryon Street, Charlotte, North Carolina 28255, with copies to Bank of America, N.A., 767 Fifth Avenue, Floor 12A, New York, New York 10153-0083, Attention: Ms. Jane R. Heller, Senior Vice President, Telecopier No. (212) 407-5402, and Schulte Roth & Zabel LLP, 919 Third Avenue, New York, New York 10022, Attention: Lawrence S. Goldberg, Esq.; or as to any such Person at such other address as shall be designated by such Person in a written notice to such other Persons complying as to delivery with the terms of this Section 11. All such notices and other communications shall be effective (i) if mailed, when received or three days after mailing, whichever is earlier; (ii) if telecopied, when received; (iii) if telegraphed, when delivered to the telegraph company; or (iv) if delivered, upon delivery. SECTION 12. MISCELLANEOUS. (a) No amendment of any provision of this Pledge Agreement shall be effective unless it is in writing and signed by the Pledgor and the Agent, and no waiver of any provision of this Pledge Agreement, and no consent to any departure by the Pledgor therefrom, shall be effective unless it is in writing and signed by the Agent, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. (b) No failure on the part of the Agent to exercise, and no delay in exercising, any right hereunder or under any other Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right. The rights and remedies of the Agent provided herein and in the other Loan Documents are cumulative and are in addition to, and not exclusive of, any rights or remedies provided by law. The rights of the Agent against the Pledgor under any Loan Document are not conditional or contingent on any attempt by the Agent to exercise any of its rights under any other Loan Document against the Pledgor or against any other Person. (c) Any provision of this Pledge Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining portions hereof or thereof or affecting the validity or enforceability of such provision in any other jurisdiction. (d) This Pledge Agreement shall create a continuing security interest in the Pledged Collateral and shall (i) remain in full force and effect until the payment in full or release of the Obligations and the termination of the Letters of Credit and the Commitments, and (ii) be binding on the Pledgor and its successors and assigns and shall inure, together with all rights and remedies of the Agent hereunder, to the benefit of the Agent and its successors, transferees and assigns. Without limiting the generality of clause (ii) of the immediately preceding sentence, no Lender may assign or otherwise transfer its interests hereunder or under any other Loan Document; PROVIDED, HOWEVER, that any Lender may assign or transfer, as collateral or otherwise, any or all of its interest hereunder and under the other Loan Documents in accordance with the applicable provisions of the other Loan Documents. None of the rights or obligations of the Pledgor hereunder may be assigned or otherwise transferred without the prior written consent of the Agent. (e) Upon the satisfaction in full of the Obligations and the termination of all Letters of Credit and the Commitments, (i) this Pledge Agreement and the security interest created hereby shall terminate and all rights to the Pledged Collateral shall revert to the Pledgor, and (ii) the Agent will, upon the Pledgor's request and at the Pledgor's expense, (A) return to the Pledgor such of the Pledged Collateral as shall not have been sold or otherwise disposed of or applied pursuant to the terms hereof and (B) execute and deliver to the Pledgor such documents as the Pledgor shall reasonably request to evidence such termination. (f) This Pledge Agreement shall be governed by and construed in accordance with the law of the State of New York, except as required by mandatory provisions of law and except to the extent that the validity or perfection and the effect of perfection or non-perfection of the security interest created hereby, or remedies hereunder, in respect of any particular Pledged Collateral are governed by the law of a jurisdiction other than the State of New York. (g) NOTHING IN THIS PLEDGE AGREEMENT IS INTENDED TO BE AN AMENDMENT OR MODIFICATION OF, OR LIMITATION OR RESTRICTION UPON, ANY PROVISION OF THE LOAN AGREEMENT (INCLUDING, WITHOUT LIMITATION, THE BORROWERS' OBLIGATIONS TO PAY THE PRINCIPAL OF AND INTEREST ON THE LOANS MADE PURSUANT TO THE LOAN AGREEMENT UPON DEMAND), AND THE PROVISIONS OF THE LOAN AGREEMENT AND RELATED NOTES SHALL BE CONTROLLING AND FULLY EFFECTIVE REGARDLESS OF ANYTHING HEREIN TO THE CONTRARY. THE PLEDGOR HEREBY ACKNOWLEDGES THAT THE BANK MAY, AT ANY TIME, IN ITS SOLE AND ABSOLUTE DISCRETION, DEMAND PAYMENT OF THE REVOLVING A LOAN AND THE RELATED REVOLVING A NOTE EVEN IF THE PLEDGOR HAS FULLY COMPLIED WITH ALL OF THE TERMS AND CONDITIONS OF THIS PLEDGE AGREEMENT. SECTION 13. SECURITY INTEREST ABSOLUTE. All rights of the Agent, all security interests and all obligations of the Pledgor hereunder shall be absolute and unconditional irrespective of (i) any lack of validity or enforceability of any Loan Document or any other agreement, instrument or document relating thereto, (ii) any change in the time, manner or place of payment of, or in any other term in respect of, all or any of the Obligations, or any other amendment or waiver of or consent to any departure from any Loan Document or any other agreement, instrument or document relating thereto, (iii) any exchange or release of, or non-perfection of any lien on or security interest in, any collateral for any of the Obligations, or any release or amendment or waiver of or consent to departure from any guaranty, for all or any of the Obligations or (iv) any other circumstance which might otherwise constitute a defense available to, or a discharge of, a Borrower in respect of any of their obligations under the Credit Agreement , or the Pledgor in respect of any of the Obligations. SECTION 14. ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES HERETO INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS PLEDGE AGREEMENT OR ANY RELATED INSTRUMENTS, AGREEMENTS OR DOCUMENTS, INCLUDING ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED TORT, SHALL BE DETERMINED BY BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF PRACTICE AND PROCEDURE FOR THE ARBITRATION OF COMMERCIAL DISPUTES OF J.A.M.S./ENDISPUTE OR ANY SUCCESSOR THEREOF ("J.A.M.S."), AND THE "SPECIAL RULES" SET FORTH BELOW. IN THE EVENT OF ANY INCONSISTENCY, THE SPECIAL RULES SHALL CONTROL. JUDGMENT UPON ANY ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. ANY PARTY TO THIS PLEDGE AGREEMENT MAY BRING AN ACTION, INCLUDING A SUMMARY OR EXPEDITED PROCEEDING, TO COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM TO WHICH THIS PLEDGE AGREEMENT APPLIES IN ANY COURT HAVING JURISDICTION OVER SUCH ACTION. (a) SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE COUNTY OF PLEDGOR'S OFFICE REFERRED TO IN SECTION 11 HEREOF AT THE TIME OF THE EXECUTION OF THIS PLEDGE AGREEMENT AND ADMINISTERED BY J.A.M.S. WHO WILL APPOINT AN ARBITRATOR; IF J.A.M.S. IS UNABLE OR LEGALLY PRECLUDED FROM ADMINISTERING THE ARBITRATION, THEN THE AMERICAN ARBITRATION ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL BE COMMENCED WITHIN 90 DAYS OF THE DEMAND FOR ARBITRATION; FURTHER, THE ARBITRATOR SHALL ONLY, UPON A SHOWING OF CAUSE, BE PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH HEARING FOR UP TO AN ADDITIONAL 60 DAYS. (b) RESERVATION OF RIGHTS. NOTHING IN THIS ARBITRATION PROVISION SHALL BE DEEMED TO (I) LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED IN THIS INSTRUMENT, AGREEMENT, OR DOCUMENT; OR (II) BE A WAIVER BY THE AGENT OF THE PROTECTION AFFORDED TO IT BY 12 U.S.C. SEC. 91 OR ANY SUBSTANTIALLY EQUIVALENT STATE LAW; OR (III) LIMIT THE RIGHT OF THE AGENT HERETO (A) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT LIMITED TO) SETOFF, OR (B) TO FORECLOSE AGAINST ANY REAL OR PERSONAL PROPERTY COLLATERAL, OR (C) TO OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY REMEDIES SUCH AS (BUT NOT LIMITED TO) INJUNCTIVE RELIEF, WRIT OF POSSESSION OR THE APPOINTMENT OF A RECEIVER. THE AGENT MAY EXERCISE SUCH SELF HELP RIGHTS, FORECLOSE UPON SUCH PROPERTY, OR OBTAIN SUCH PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR AFTER THE PENDENCY OF ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS PLEDGE AGREEMENT. NEITHER THIS EXERCISE OF SELF HELP REMEDIES NOR THE INSTITUTION OR MAINTENANCE OF AN ACTION FOR FORECLOSURE OR PROVISIONAL OR ANCILLARY REMEDIES SHALL CONSTITUTE A WAIVER OF THE RIGHT OF ANY PARTY, INCLUDING THE CLAIMANT IN ANY SUCH ACTION, TO ARBITRATE THE MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH REMEDIES. SECTION 15. OTHER AGREEMENTS. THIS WRITTEN AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. IN WITNESS WHEREOF, the Pledgor has caused this Pledge Agreement to be executed and delivered on the date first above written. /s/ Peter W. May --------------------- Peter W. May SCHEDULE I TO PLEDGE AND SECURITY AGREEMENT PLEDGED SHARES CERTIFICATE NAME OF ISSUER NUMBER OF SHARES CLASS NO.(S) -------------- ---------------- ----- ------ Triarc Companies, Inc. 255,682 Class A Common Stock -----END PRIVACY-ENHANCED MESSAGE-----