exhibit10-1_032009.htm


    EXHIBIT
10.1

       

      INCREASE JOINDER

      


      March 17,
2009

      


      Reference
is hereby made to the Amended and Restated Credit Agreement, dated as of July
25, 2005, amended as of May 1, 2006 and May 21, 2007 and amended and restated as
of March 11, 2009, among ARBY’S RESTAURANT GROUP, INC., a Delaware corporation
(“Borrower”),
WENDY’S INTERNATIONAL, INC. (“WII Co-Borrower”),
WENDY’S INTERNATIONAL HOLDINGS, LLC (“Ultimate Parent
Co-Borrower” and together with Borrower and WII Co-Borrower, “Revolving
Borrowers”), ARBY’S RESTAURANT HOLDINGS, LLC, a Delaware limited
liability company (together with the Revolving Borrowers, “Borrowers”), TRIARC
RESTAURANT HOLDINGS, LLC, a Delaware limited liability company, the Lenders
party thereto, the Issuers, CITICORP NORTH AMERICA, INC., as administrative
agent (in such capacity, together with its successors, the “Administrative
Agent”) and collateral agent (in such capacity, together with its
successors, the “Collateral Agent”),
BANK OF AMERICA, N.A. and CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as
co-syndication agents, and WACHOVIA BANK,
NATIONAL ASSOCIATION, SUNTRUST BANK AND GE
CAPITAL FRANCHISE FINANCE CORPORATION, as
co-documentation agents (as amended, restated, modified and/or supplemented from
time to time, the “Credit
Agreement”).  Unless otherwise defined herein, capitalized
terms used herein shall have the respective meanings set forth in the Credit
Agreement.

       

      Each
party hereto other than the Borrowers and the Administrative Agent (the “Incremental Revolving
Lenders”) hereby agrees to provide the increase to the existing Revolving
Credit Commitments (the “Incremental Revolving Credit
Commitments”) set forth on its signature page hereto pursuant to and in
accordance with Section 2.19 of the
Credit Agreement.  The Incremental Revolving Credit Commitments
provided pursuant to this Increase Joinder (the “Increase Joinder”)
shall be subject to all of the terms in the Credit Agreement and to the
conditions set forth in Section 2.19 thereof,
and shall be entitled to all the benefits afforded by the Credit Agreement and
the other Loan Documents, and shall, without limiting the foregoing, benefit
equally and ratably from the Guaranty and security interests created by the
Collateral Documents.

       

      The
Incremental Revolving Lenders, the Borrowers and the Administrative Agent
acknowledge and agree that the Incremental Revolving Credit Commitments provided
pursuant to this Increase Joinder shall constitute Revolving Credit Commitments
for all purposes of the Credit Agreement and the other applicable Loan
Documents.  The Incremental Revolving Lenders hereby agree to be
responsible for their Ratable Portion of all outstanding Letter of Credit
Obligations and participations in outstanding Letters of Credit.  For
the avoidance of doubt, the prior sentence shall be deemed, as necessary, to
amend the Credit Agreement and to automatically effect assignments (without
recourse or warranty) of outstanding Letter of Credit Obligations and
participations in outstanding Letters of Credit, such that all Revolving Credit
Lenders hold all outstanding Letter of Credit Obligations and participations in
outstanding Letters of Credit in accordance with their Ratable Portion after
giving effect to this Increase Joinder (and similarly hold any corresponding
benefits or security).

       


      
        
           


        

        
          - 1
-

          
            

          

        

        
           


        

      


      Each
Incremental Revolving Lender (i) confirms that it has received a copy of the
Credit Agreement and the WIH Model referred to in Section 4.4(b) of the
Credit Agreement, together with any other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Increase Joinder and to become a Lender under the Credit Agreement; (ii)
agrees that it will, independently and without reliance upon the Administrative
Agent or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement; (iii) appoints and
authorizes the Administrative Agent and the Collateral Agent to take such action
as agent on its behalf and to exercise such powers and discretion under the
Credit Agreement and the other Loan Documents as are delegated to the
Administrative Agent or the Collateral Agent by the terms thereof, together with
such powers and discretion as are reasonably incidental thereto; and (iv) agrees
that it will perform in accordance with their terms all of the obligations that
by the terms of the Credit Agreement and the other Loan Documents are required
to be performed by it as a Lender.

       

      Upon (i)
the execution of a counterpart of this Increase Joinder by the Incremental
Revolving Lenders, the Administrative Agent and the Borrowers and (ii) the
delivery to the Administrative Agent of a fully executed counterpart (including
by way of facsimile or other electronic transmission) hereof, the undersigned
shall have the Revolving Credit Commitment set forth on its signature page
hereto, effective as of the date hereof.

       

      Borrowers
hereby represent and warrant that, assuming the Incremental Revolving Lenders
and Administrative Agent execute and deliver this Increase Joinder, all of the
conditions set forth in Section 2.19(b) of
the Credit Agreement with respect hereto have been satisfied and Borrowers are
in compliance with all of the terms of such Section.

       

      Borrowers
hereby authorize the Administrative Agent to take the actions provided in Section 2.19(d) of
the Credit Agreement so that, after giving effect to this Increase Joinder, the
Revolving Credit Outstandings are held by the Revolving Credit Lenders pro rata
based on their Revolving Credit Commitments.

       

      After the
execution and delivery to the Administrative Agent of a fully executed copy of
this Increase Joinder (including by way of counterparts and by facsimile or
other electronic transmission) by the parties hereto, this Increase Joinder may
only be changed, modified or varied by written instrument in accordance with the
requirements for the modification of Loan Documents pursuant to Section 11.1 of the
Credit Agreement.

       

      This
Increase Joinder shall be deemed a Loan Document under the Credit
Agreement.

       

      This
Increase Joinder may be executed by one or more of the parties hereto on any
number of separate counterparts, and all of said counterparts taken together
shall be deemed to constitute one and the same instrument.  Delivery
of an executed signature page hereof by facsimile or electronic transmission
shall be effective as delivery of a manually executed counterpart
hereof.

       


      
        
           


        

        
          - 2
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      THIS
INCREASE JOINDER AND THE OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK.

       


      
        
           


        

        
          - 3
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                                                         ,
as an Incremental Revolving Lender

       

       

      
        	
                 
      

              	
                By:_______________________________________

              


      

      
        	
                 
      

              	
                Name:

              


      

      
        	
                 
      

              	
                Title:

              


      

       

      Incremental
Revolving Credit Commitment:$

       

      


      
        	
                 
      

              	
                Notice
      Address:

              


      

      


      
        	
                 
      

              	
                Attention:

              


      

      
        	
                 
      

              	
                Email:

              


      

      Telephone:

      Facsimile:

       

      


       


      
        
          
            [Signature Page to the Increase
Joinder]

          

           


        

        
           


          
            

          

        

        
           


        

      


      ARBY’S
RESTAURANT GROUP, INC.

       

      


       

       

      By:__________________________________________                      

                                        Name:

                                        Title:

       

      WENDY’S
INTERNATIONAL HOLDINGS, LLC

       

      


       

       

      By:__________________________________________                      

                                        Name:

                                        Title:

       

      ARBY’S
RESTAURANT HOLDINGS, LLC,

       

      


       

       

      By:__________________________________________                      

                                        Name:

                                        Title:

       

      WENDY’S
INTERNATIONAL, INC.

       

      


       

       

      By:__________________________________________                      

                                        Name:

                                        Title:

       


      
        
          
            [Signature Page to the Increase
Joinder]

          

           


        

        
           


          
            

          

        

        
           


        

      


      


       

      Agreed
and Accepted

      this 17th
day of March, 2009:

       

      CITICORP NORTH AMERICA,
INC.,

      as
Administrative Agent

       

      
        	
                 
      

              	
                By:________________________________

              


      

      
        	
                 
      

              	
                Name:

              


      

      
        	
                 
      

              	
                Title:

              


      

       

      


       


      
        
          
            [Signature Page to the Increase
Joinder]