exhibit10-1_011409.htm


    EXHIBIT
10.1

     

    CREDIT
AGREEMENT

     

    DATED
AS OF JANUARY 14, 2009

     

    AMONG

     

    WENDY’S
INTERNATIONAL HOLDINGS, LLC,

     

    AS
HOLDINGS,

     

    WENDY’S
INTERNATIONAL, INC.,

     

    AS
THE BORROWER

     

    THE
LENDERS FROM TIME TO TIME PARTIES HERETO,

     

    JPMORGAN
CHASE BANK, N.A.,

     

    AS
ADMINISTRATIVE AGENT,

     

    BANK
OF AMERICA, N.A.,

     

    AS
SYNDICATION AGENT

     

    AND

     

    WACHOVIA
BANK, NATIONAL ASSOCIATION,

     

    AS
DOCUMENTATION AGENT

     

    
       

      J.P.
MORGAN SECURITIES INC.,

      BANC
OF AMERICA SECURITIES LLC AND

    

    WACHOVIA
CAPITAL MARKETS LLC,

    AS
JOINT LEAD ARRANGERS AND JOINT BOOKRUNNERS

     

    
      
        
          
          

        

        
           


          
            

          

        

        
          
          

        

      

    

     

    Table of Contents

    
 

    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  	 	Page 
	
                                          ARTICLE I DEFINITIONS

                                        	
                                          1

                                        
	 
      	 
      	 
      
	
                                          1.1.

                                        	
                                          Defined
      Terms

                                        	
                                          1

                                        
	
                                          1.2.

                                        	
                                          Other
      Definitional Provisions

                                        	
                                          23

                                        
	 
      	 
      	 
      
	
                                          ARTICLE II THE CREDITS

                                        	
                                          24

                                        
	 
      	 
      	 
      
	
                                          2.1.

                                        	
                                          Commitment

                                        	
                                          24

                                        
	
                                          2.2.

                                        	
                                          Required
      Payments; Termination

                                        	
                                          24

                                        
	
                                          2.3.

                                        	
                                          Ratable
      Loans

                                        	
                                          25

                                        
	
                                          2.4.

                                        	
                                          Types
      of Advances

                                        	
                                          25

                                        
	
                                          2.5.

                                        	
                                          Facility
      Fee; Reductions in Aggregate Commitment

                                        	
                                          25

                                        
	
                                          2.6.

                                        	
                                          Minimum
      Amount of Each Advance

                                        	
                                          25

                                        
	
                                          2.7.

                                        	
                                          Optional
      Principal Payments

                                        	
                                          25

                                        
	
                                          2.8.

                                        	
                                          Method
      of Selecting Types and Interest Periods for New Advances

                                        	
                                          25

                                        
	
                                          2.9.

                                        	
                                          Conversion
      and Continuation of Outstanding Advances

                                        	
                                          26

                                        
	
                                          2.10.

                                        	
                                          Changes
      in Interest Rate, etc

                                        	
                                          26

                                        
	
                                          2.11.

                                        	
                                          Inability
      to Determine Interest Rate

                                        	
                                          27

                                        
	
                                          2.12.

                                        	
                                          Eurodollar
      Advances and Rates Applicable After Default

                                        	
                                          27

                                        
	
                                          2.13.

                                        	
                                          Method
      of Payment

                                        	
                                          27

                                        
	
                                          2.14.

                                        	
                                          Noteless
      Agreement; Evidence of Indebtedness

                                        	
                                          28

                                        
	
                                          2.15.

                                        	
                                          Telephonic
      Notices

                                        	
                                          28

                                        
	
                                          2.16.

                                        	
                                          Interest
      Payment Dates; Interest and Fee Basis

                                        	
                                          29

                                        
	
                                          2.17.

                                        	
                                          Notification
      of Advances, Interest Rates, Prepayments and Commitment Reductions;
      Availability of Loans

                                        	
                                          29

                                        
	
                                          2.18.

                                        	
                                          Mandatory
      Prepayments from Dispositions and Casualty Events; Commitment
      Termination

                                        	
                                          29

                                        
	
                                          2.19.

                                        	
                                          Lending
      Installations

                                        	
                                          29

                                        
	
                                          2.20.

                                        	
                                          Non-Receipt
      of Funds by the Agent

                                        	
                                          29

                                        
	
                                          2.21.

                                        	
                                          Defaulting
      Lenders

                                        	
                                          30

                                        
	
                                          2.22.

                                        	
                                          Replacement
      of Lender

                                        	
                                          32

                                        
	
                                          2.23.

                                        	
                                          Increase
      of Aggregate Commitment

                                        	
                                          32

                                        
	 
      	 
      	 
      
	
                                          ARTICLE III LETTERS OF CREDIT

                                        	
                                          33

                                        
	 
      	 
      	 
      
	
                                          3.1.

                                        	
                                          General

                                        	
                                          33

                                        
	
                                          3.2.

                                        	
                                          Notice
      of Issuance, Amendment, Renewal, Extension; Certain
    Conditions

                                        	
                                          33

                                        
	
                                          3.3.

                                        	
                                          Expiration
      Date

                                        	
                                          33

                                        
	
                                          3.4.

                                        	
                                          Participations

                                        	
                                          34

                                        
	
                                          3.5.

                                        	
                                          Reimbursement

                                        	
                                          34

                                        


                                   

                                   

                                  
                                    
                                      
                                      

                                    

                                    
                                      i

                                      
                                        

                                      

                                    

                                    
                                      
                                      

                                    

                                  

                                   

                                  	
                                          3.6.

                                        	
                                          Obligations
      Absolute

                                        	
                                          34

                                        
	
                                          3.7.

                                        	
                                          Disbursement
      Procedures

                                        	
                                          35

                                        
	
                                          3.8.

                                        	
                                          Interim
      Interest

                                        	
                                          35

                                        
	
                                          3.9.

                                        	
                                          Replacement
      of the Issuing Lender

                                        	
                                          35

                                        
	
                                          3.10.

                                        	
                                          Fees
      and Other Charges

                                        	
                                          36

                                        


                                

                              

                            

                          

                        

                         

                        
                          
                            
                              	
                                      ARTICLE IV YIELD PROTECTION; TAXES

                                    	
                                      36

                                    
	 
      	 
      	 
      
	
                                      4.1.

                                    	
                                      Yield
      Protection

                                    	
                                      36

                                    
	
                                      4.2.

                                    	
                                      Changes
      in Capital Adequacy Regulations

                                    	
                                      37

                                    
	
                                      4.3.

                                    	
                                      Availability
      of Types of Advances

                                    	
                                      37

                                    
	
                                      4.4.

                                    	
                                      Funding
      Indemnification

                                    	
                                      38

                                    
	
                                      4.5.

                                    	
                                      Taxes

                                    	
                                      38

                                    
	
                                      4.6.

                                    	
                                      Lender
      Statements; Survival of Indemnity

                                    	
                                      41

                                    
	
                                      4.7.

                                    	
                                      Alternative
      Lending Installation

                                    	
                                      41

                                    
	 
      	 
      	 
	
                                      ARTICLE V CONDITIONS PRECEDENT

                                    	
                                      41

                                    
	 
      	 
      	 
      
	
                                      5.1.

                                    	
                                      Closing
      Date

                                    	
                                      41

                                    
	
                                      5.2.

                                    	
                                      Each
      Advance

                                    	
                                      43

                                    
	 
      	 
      	 
      
	
                                      ARTICLE VI REPRESENTATIONS AND WARRANTIES

                                    	
                                      44

                                    
	 
      	 
      	 
      
	
                                      6.1.

                                    	
                                      Existence
      and Standing

                                    	
                                      44

                                    
	
                                      6.2.

                                    	
                                      Authorization
      and Validity

                                    	
                                      44

                                    
	
                                      6.3.

                                    	
                                      No
      Conflict; Government Consent

                                    	
                                      44

                                    
	
                                      6.4.

                                    	
                                      Financial
      Statements

                                    	
                                      44

                                    
	
                                      6.5.

                                    	
                                      Material
      Adverse Change

                                    	
                                      45

                                    
	
                                      6.6.

                                    	
                                      Taxes

                                    	
                                      45

                                    
	
                                      6.7.

                                    	
                                      Litigation

                                    	
                                      45

                                    
	
                                      6.8.

                                    	
                                      Material
      Subsidiaries

                                    	
                                      46

                                    
	
                                      6.9.

                                    	
                                      Employee
      Benefit Plans

                                    	
                                      46

                                    
	
                                      6.10.

                                    	
                                      Accuracy
      of Information

                                    	
                                      46

                                    
	
                                      6.11.

                                    	
                                      Regulations
      of the Board

                                    	
                                      47

                                    
	
                                      6.12.

                                    	
                                      Compliance
      With Laws

                                    	
                                      47

                                    
	
                                      6.13.

                                    	
                                      Environmental
      Matters

                                    	
                                      47

                                    
	
                                      6.14.

                                    	
                                      Investment
      Company Act

                                    	
                                      48

                                    
	
                                      6.15.

                                    	
                                      Public
      Utility Holding Company Act

                                    	
                                      48

                                    
	
                                      6.16.

                                    	
                                      Insurance

                                    	
                                      48

                                    
	
                                      6.17.

                                    	
                                      No
      Default or Unmatured Default

                                    	
                                      48

                                    
	
                                      6.18.

                                    	
                                      Ownership
      of Property; Liens

                                    	
                                      48

                                    
	
                                      6.19.

                                    	
                                      Intellectual
      Property

                                    	
                                      48

                                    
	
                                      6.20.

                                    	
                                      Labor
      Matters

                                    	
                                      49

                                    
	
                                      6.21.

                                    	
                                      Use
      of Proceeds

                                    	
                                      49

                                    
	
                                      6.22.

                                    	
                                      Security
      Documents

                                    	
                                      49

                                    
	
                                      6.23.

                                    	
                                      Solvency

                                    	
                                      49

                                    
	
                                      6.24.

                                    	
                                      Regulation
      H

                                    	
                                      49

                                    


                               

                               

                              
                                
                                  
                                  

                                

                                
                                  ii

                                  
                                    

                                  

                                

                                
                                  
                                  

                                

                              

                               

                              
                                	
                                        6.25.

                                      	
                                        Certain
      Documents

                                      	
                                        49

                                      
	
                                        6.26.

                                      	
                                        Unrestricted
      Subsidiaries

                                      	
                                        49

                                      
	
                                        6.27.

                                      	
                                        Triarc
      Aquisition

                                      	
                                        50

                                      
	
                                        6.28.

                                      	
                                        Underwriting
      Insurance Policies

                                      	
                                        50

                                      
	
                                        6.29.

                                      	
                                        Compliance
      with OFAC Rules and Regulations

                                      	
                                        50

                                      
	
                                        6.30.

                                      	
                                        Foreign
      Assets Control Regulations, Etc.

                                      	
                                        50

                                      


                              

                            

                          

                        

                         

                        
                          
                            
                              
                                
                                  	
                                          ARTICLE VII COVENANTS

                                        	
                                          50

                                        
	 
      	 
      	 
      
	
                                          7.1.

                                        	
                                          Financial
      and Collateral Reporting

                                        	
                                          50

                                        
	
                                          7.2.

                                        	
                                          Use
      of Proceeds

                                        	
                                          52

                                        
	
                                          7.3.

                                        	
                                          Notice
      of Default

                                        	
                                          52

                                        
	
                                          7.4.

                                        	
                                          Conduct
      of Business

                                        	
                                          53

                                        
	
                                          7.5.

                                        	
                                          Taxes

                                        	
                                          53

                                        
	
                                          7.6.

                                        	
                                          Insurance

                                        	
                                          53

                                        
	
                                          7.7.

                                        	
                                          Maintenance
      of Rights; Compliance with Laws and Contractual
Obligations

                                        	
                                          54

                                        
	
                                          7.8.

                                        	
                                          Maintenance
      of Properties

                                        	
                                          54

                                        
	
                                          7.9.

                                        	
                                          Inspection;
      Keeping of Books and Records

                                        	
                                          54

                                        
	
                                          7.10.

                                        	
                                          Additional
      Collateral, etc

                                        	
                                          55

                                        
	
                                          7.11.

                                        	
                                          Designation
      of Unrestricted Subsidiaries

                                        	
                                          58

                                        
	
                                          7.12.

                                        	
                                          Mortgages

                                        	
                                          59

                                        
	
                                          7.13.

                                        	
                                          Environmental
      Laws

                                        	
                                          60

                                        
	
                                          7.14.

                                        	
                                          Dividends

                                        	
                                          60

                                        
	
                                          7.15.

                                        	
                                          Indebtedness

                                        	
                                          61

                                        
	
                                          7.16.

                                        	
                                          Merger;
      Dissolution

                                        	
                                          62

                                        
	
                                          7.17.

                                        	
                                          Sale
      of Assets; Casualty Events

                                        	
                                          63

                                        
	
                                          7.18.

                                        	
                                          Investments
      and Acquisitions

                                        	
                                          66

                                        
	
                                          7.19.

                                        	
                                          Liens

                                        	
                                          67

                                        
	
                                          7.20.

                                        	
                                          Transactions
      with Affiliates

                                        	
                                          70

                                        
	
                                          7.21.

                                        	
                                          Rate
      Management Transactions

                                        	
                                          71

                                        
	
                                          7.22.

                                        	
                                          Subsidiary
      Covenants

                                        	
                                          71

                                        
	
                                          7.23.

                                        	
                                          Maximum
      Consolidated Indebtedness to Adjusted EBITDA

                                        	
                                          72

                                        
	
                                          7.24.

                                        	
                                          Minimum
      Fixed Charge Coverage Ratio

                                        	
                                          72

                                        
	
                                          7.25.

                                        	
                                          Modifications
      of Certain Debt Instruments

                                        	
                                          72

                                        
	
                                          7.26.

                                        	
                                          Sale
      and Leaseback Transactions

                                        	
                                          72

                                        
	
                                          7.27.

                                        	
                                          Capital
      Expenditures

                                        	
                                          73

                                        
	
                                          7.28.

                                        	
                                          Organizational
      Separateness

                                        	
                                          73

                                        
	
                                          7.29.

                                        	
                                          Changes
      in Fiscal Periods

                                        	
                                          73

                                        
	
                                          7.30.

                                        	
                                          Payments
      for Consent

                                        	
                                          73

                                        
	
                                          7.31.

                                        	
                                          Underwriting
      of Insurance Policies

                                        	
                                          73

                                        
	
                                          7.32.

                                        	
                                          Pledge
      of WNAP Interests

                                        	
                                          73

                                        
	 
      	 
      	 
      
	
                                          ARTICLE VIII DEFAULTS

                                        	
                                          74

                                        
	 
      	 
      	 
      
	
                                          ARTICLE IX ACCELERATION, WAIVERS, AMENDMENTS AND
      REMEDIES

                                        	
                                          76

                                        


                                

                                 

                                 

                                
                                  
                                    
                                    

                                  

                                  
                                    iii

                                    
                                      

                                    

                                  

                                  
                                    
                                    

                                  

                                

                                 

                                	
                                        9.1.

                                      	
                                        Acceleration

                                      	
                                        76

                                      
	
                                        9.2.

                                      	
                                        Amendments

                                      	
                                        76

                                      
	
                                        9.3.

                                      	
                                        Preservation
      of Rights

                                      	
                                        77

                                      


                              

                            

                          

                        

                         

                        
                          
                            	
                                    ARTICLE X GENERAL PROVISIONS

                                  	
                                    77

                                  
	 
      	 
      	 
      
	
                                    10.1.

                                  	
                                    Survival
      of Representations

                                  	
                                    77

                                  
	
                                    10.2.

                                  	
                                    Governmental
      Regulation

                                  	
                                    77

                                  
	
                                    10.3.

                                  	
                                    Headings

                                  	
                                    78

                                  
	
                                    10.4.

                                  	
                                    Entire
      Agreement

                                  	
                                    78

                                  
	
                                    10.5.

                                  	
                                    Several
      Obligations; Benefits of this Agreement

                                  	
                                    78

                                  
	
                                    10.6.

                                  	
                                    Expenses;
      Indemnification

                                  	
                                    78

                                  
	
                                    10.7.

                                  	
                                    Accounting

                                  	
                                    79

                                  
	
                                    10.8.

                                  	
                                    Severability
      of Provisions

                                  	
                                    79

                                  
	
                                    10.9.

                                  	
                                    Nonliability
      of Lenders

                                  	
                                    79

                                  
	
                                    10.10.

                                  	
                                    Releases
      of Guarantees and Liens

                                  	
                                    80

                                  
	
                                    10.11.

                                  	
                                    Confidentiality

                                  	
                                    80

                                  
	
                                    10.12.

                                  	
                                    Nonreliance

                                  	
                                    81

                                  
	
                                    10.13.

                                  	
                                    Disclosure

                                  	
                                    81

                                  
	
                                    10.14.

                                  	
                                    USA
      Patriot Act

                                  	
                                    81

                                  
	
                                    10.15.

                                  	
                                    Advertising,
      Promotion and Marketing

                                  	
                                    81

                                  
	 
      	 
      	 
      
	
                                    ARTICLE XI THE AGENT

                                  	
                                    81

                                  
	 
      	 
      	 
      
	
                                    11.1.

                                  	
                                    Appointment;
      Nature of Relationship

                                  	
                                    81

                                  
	
                                    11.2.

                                  	
                                    Powers

                                  	
                                    81

                                  
	
                                    11.3.

                                  	
                                    General
      Immunity

                                  	
                                    82

                                  
	
                                    11.4.

                                  	
                                    No
      Responsibility for Loans, Recitals, etc

                                  	
                                    82

                                  
	
                                    11.5.

                                  	
                                    Action
      on Instructions of Lenders

                                  	
                                    82

                                  
	
                                    11.6.

                                  	
                                    Employment
      of Agents and Counsel

                                  	
                                    82

                                  
	
                                    11.7.

                                  	
                                    Reliance
      on Documents; Counsel

                                  	
                                    82

                                  
	
                                    11.8.

                                  	
                                    Agent’s
      Reimbursement and Indemnification

                                  	
                                    82

                                  
	
                                    11.9.

                                  	
                                    Notice
      of Default

                                  	
                                    83

                                  
	
                                    11.10.

                                  	
                                    Rights
      as a Lender

                                  	
                                    83

                                  
	
                                    11.11.

                                  	
                                    Lender
      Credit Decision

                                  	
                                    83

                                  
	
                                    11.12.

                                  	
                                    Successor
      Agent

                                  	
                                    83

                                  
	
                                    11.13.

                                  	
                                    Agent
      and Arranger Fees

                                  	
                                    83

                                  
	
                                    11.14.

                                  	
                                    Delegation
      to Affiliates

                                  	
                                    84

                                  
	
                                    11.15.

                                  	
                                    No
      Duties Imposed on Syndication Agent, Co-Documentation Agents or
      Arrangers

                                  	
                                    84

                                  
	 
      	 
      	 
      
	
                                    ARTICLE XII SETOFF; RATABLE PAYMENTS

                                  	
                                    84

                                  
	 
      	 
      	 
      
	
                                    12.1.

                                  	
                                    Setoff

                                  	
                                    84

                                  
	
                                    12.2.

                                  	
                                    Ratable
      Payments

                                  	
                                    85

                                  
	 
      	 
      	 
      
	
                                    ARTICLE XIII BENEFIT OF AGREEMENT; ASSIGNMENTS;
      PARTICIPATIONS

                                  	
                                    85

                                  


                          

                           

                           

                          
                            
                              
                              

                            

                            
                              iv

                              
                                

                              

                            

                            
                              
                              

                            

                          

                           

                          	
                                  13.1.

                                	
                                  Successors
      and Assigns

                                	
                                  85

                                
	
                                  13.2.

                                	
                                  Participations

                                	
                                  85

                                
	
                                  13.3.

                                	
                                  Assignments

                                	
                                  86

                                
	
                                  13.4.

                                	
                                  Dissemination
      of Information

                                	
                                  88

                                
	
                                  13.5.

                                	
                                  Tax
      Certifications

                                	
                                  88

                                
	 
      	 
      	 
      


                        

                         

                        
                          	
                                  ARTICLE XIV NOTICES

                                	
                                  88

                                
	 
      	 
      	 
      
	
                                  14.1.

                                	
                                  Notices

                                	
                                  88

                                
	
                                  14.2.

                                	
                                  Change
      of Address

                                	
                                  89

                                
	 
      	 
      	 
      
	
                                  ARTICLE XV COUNTERPARTS

                                	
                                  89

                                
	 
      	 
      	 
      
	
                                  ARTICLE XVI CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER
      OF JURY TRIAL

                                	
                                  89

                                
	 
      	 
      	 
      
	
                                  16.1.

                                	
                                  CHOICE
      OF LAW

                                	
                                  89

                                
	
                                  16.2.

                                	
                                  CONSENT
      TO JURISDICTION

                                	
                                  89

                                
	
                                  16.3.

                                	
                                  WAIVER
      OF JURY TRIAL

                                	
                                  89

                                


                        

                      

                    

                  

                

              

            

          

        

      

    

    


    
      
        
          
          

        

        
          v

          
            

          

        

        
          
          

        

      

    

    

      SCHEDULES

      


      
        
          	
                  Schedule
      1.1A

                	
                  Pricing

                
	
                  Schedule
      1.1B

                	
                  Commitments

                
	
                  Schedule
      1.1C

                	
                  Existing
      Letters of Credit

                
	
                  Schedule
      1.1D

                	
                  Excluded
      Indebtedness

                
	
                  Schedule
      1.1E

                	
                  Mortgaged
      Properties

                
	
                  Schedule
      1.1F

                	
                  Unrestricted
      Subsidiaries

                
	
                  Schedule 6.8

                	
                  Material
      Subsidiaries

                
	
                  Schedule 6.9

                	
                  Employment
      Benefit Plans

                
	
                  Schedule 6.11

                	
                  Regulation

                
	
                  Schedule 6.18

                	
                  Real
      Property Owned by the Borrower and its Restricted Subsidiaries and used in
      the Business

                
	
                  Schedule 6.22.1

                	
                  Security
      Documents Requiring Filing

                
	
                  Schedule 6.22.2

                	
                  Filing
      Offices

                
	
                  Schedule 7.15

                	
                  Indebtedness
      Outstanding

                
	
                  Schedule 7.18

                	
                  Existing
      Investments

                
	
                  Schedule 7.19

                	
                  Existing
      Liens

                
	
                  Schedule 7.20

                	
                  Transactions
      with Affiliates

                
	
                  Schedule 7.22

                	
                  Subsidiary
      Covenants

                


        

      

      


       

      EXHIBITS

       

      
        
          	
                  Exhibit
      A

                	
                  Form
      of Borrower’s Counsel’s Opinion

                
	
                  Exhibit
      B

                	
                  Form
      of Compliance Certificate

                
	
                  Exhibit
      C

                	
                  Form
      of Assignment and Assumption Agreement

                
	
                  Exhibit
      D

                	
                  Form
      of Promissory Note (if requested)

                
	
                  Exhibit
      E

                	
                  Form
      of Guarantee and Collateral Agreement

                
	
                  Exhibit
      F

                	
                  Form
      of Commitment and Acceptance

                
	
                  Exhibit
      G

                	
                  Form
      of Mortgage

                
	
                  Exhibit
      H

                	
                  Form
      of U.S. Tax Compliance Certificate

                
	
                  Exhibit
      I

                	
                  Form
      of Borrowing Notice

                


        

      


      
        
          
          

        

        
          vi

          
            

          

        

        
          
          

        

      



    CREDIT
AGREEMENT

     

    This
Credit Agreement, dated as of January 14, 2009, is among Wendy’s International
Holdings, LLC, a Delaware limited liability company, as Holdings, Wendy’s
International, Inc., an Ohio corporation, as Borrower, the Lenders from time to
time parties hereto, JPMorgan Chase Bank, N.A., a national banking association,
as administrative agent, Bank of America, N.A., as syndication agent, and
Wachovia Bank, National Association, as documentation agent. The parties hereto
agree as follows:

     

    ARTICLE I

     

    DEFINITIONS

     

    1.1.           Defined
Terms.  As
used in this Agreement:

     

    “2011/2014
Indenture” means that certain Indenture, dated as of November 13, 2001,
entered into by the Borrower in connection with the issuance of the 2011 Notes
and the 2014 Notes, together with all instruments and other agreements entered
into by the Borrower in connection therewith.

     

    “2025 Indenture”
means that certain Indenture, dated as of December 14, 1995, entered into by the
Borrower in connection with the issuance of the 2025 Notes, together with all
instruments and other agreements entered into by the Borrower in connection
therewith.

     

    “2011 Notes”
means the 6.250% Senior Notes due 2011, issued under the 2011/2014
Indenture.

     

    “2014 Notes”
means the 6.20% Senior Notes due 2014, issued under the 2011/2014
Indenture.

     

    “2025 Debentures”
means the 7.00% Debentures due 2025, issued under the 2025
Indenture.

     

    “Accounting
Changes” is defined in Section
10.7 hereof.

     

    “Acquisition”
means any transaction, or any series of related transactions, consummated on or
after the Closing Date, by which any Group Member (i) acquires any going
business or all or substantially all of the assets of any firm, corporation or
limited liability company, or division thereof, whether through purchase of
assets, merger or otherwise or (ii) directly or indirectly acquires (in one
transaction or as the most recent transaction in a series of transactions) at
least a majority (in number of votes) of the securities of a corporation which
have ordinary voting power for the election of directors (other than securities
having such power only by reason of the happening of a contingency) or a
majority (by percentage or voting power) of the outstanding ownership interests
of a partnership or limited liability company.

     

    “Additional
Assets” means any property, plant, equipment or other asset used or to be
used by the Borrower or a Subsidiary in a Related Business or otherwise useful
in a Related Business (it being understood that Capital Expenditures on property
or assets already used in a Related Business or to replace any property or
assets that are the subject of a casualty event generating the proceeds being
invested in such property or assets shall be deemed an investment in Additional
Assets).

     

    
      
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    “Adjusted EBITDA”
means, with reference to any period, Consolidated EBITDAR minus
Consolidated Rental Expense, all calculated for the Borrower and its Restricted
Subsidiaries on a consolidated basis in accordance with Agreement Accounting
Principles.

     

    “Adjusted Eurodollar
Rate” for any Interest Period means the quotient of (a) the Eurodollar
Base Rate applicable to such Interest Period, divided by (b) one minus the
Reserve Requirement (expressed as a decimal) applicable to such Interest
Period

     

    “Advance” means a
borrowing hereunder, (i) made by the Lenders on the same Borrowing Date, or (ii)
converted or continued by the Lenders on the same date of conversion or
continuation, consisting, in either case, of the aggregate amount of the several
Loans of the same Type and, in the case of Eurodollar Loans, for the same
Interest Period.

     

    “Affiliate” of
any Person means any other Person directly or indirectly controlling, controlled
by or under common control with such Person. A Person shall be deemed to control
another Person if the controlling Person owns 10% or more of any class of voting
securities (or other ownership interests) of the controlled Person or possesses,
directly or indirectly, the power to direct or cause the direction of the
management or policies of the controlled Person, whether through ownership of
stock or other ownership interests, by contract or otherwise.

     

    “Affected Lender”
as defined in Section
2.22.

     

    “Agent” means
JPMCB in its capacity as contractual representative of the Lenders pursuant to
ARTICLE
XI, and not in its individual capacity as
a Lender, as administrative agent, and any successor Agent appointed pursuant to
ARTICLE
XI.

     

    “Aggregate
Commitments” means the aggregate of the Commitments of all the Lenders,
as increased or decreased from time to time pursuant to the terms hereof. The
initial Aggregate Commitment as of the Closing Date is Two Hundred Million and
00/100 Dollars ($200,000,000).

     

    “Aggregate L/C
Commitments” means $40,000,000.

     

    “Aggregate Outstanding
Credit Exposure” means, at any time, an amount equal to the sum of (a)
the aggregate principal amount of all Loans then outstanding and (b) the L/C
Obligations then outstanding.

     

    “Agreement” means
this Credit Agreement, as it may be amended, restated, supplemented or otherwise
modified and as in effect from time to time.

     

    “Agreement Accounting
Principles” means GAAP applied in a manner consistent with that used in
preparing the financial statements referred to in Section
6.4(b);
provided,
however,
that except as otherwise provided in Section
10.7, with respect to the calculation of the financial
covenants set forth in Sections
7.23 and 7.24 (and the defined terms used in such Sections) and the
calculation of Capital Expenditures, “Agreement Accounting Principles” means
generally accepted accounting principles as in effect in the United States as of
the Closing Date, applied in a manner consistent with that used in preparing the
financial statements of the Borrower referred to in Section
6.4(b)
hereof.

     

    “Alternate Base
Rate” means, for any day, a rate per annum equal to the greatest of (a)
the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in
effect on such day plus 1⁄2 of 1% per annum and (c) the Adjusted Eurodollar Rate
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such
day (or if such day is not a Business Day, the immediately preceding Business
Day) plus 1% per annum; provided that,
for the avoidance of doubt, the Adjusted Eurodollar Rate for any day shall be
based on the rate appearing on the Reuters BBA Libor Rates Page 3750 (or on any
successor or substitute page of such page) at approximately 11:00 a.m. London
time on such day.  Any change in the Alternate Base Rate due to a
change in the Prime Rate, the Federal Funds Effective Rate or the Eurodollar
Rate shall be effective from and including the effective date of such change in
the Prime Rate, the Federal Funds Effective Rate or the Eurodollar Rate,
respectively.

    

     

    “Anti-Terrorism
Order” means Executive Order 13224, as amended, as set forth at 
www.treas.gov/offices/enforcement/ofac/programs/terror/terror.shtml
and http://www.treas.gov/offices/enforcement/ofac/legal/eo/13224.pdf,
or as otherwise published from time to time.

     

    “Applicable Fee
Rate” means, with respect to the Facility Fee, at any time, the
percentage rate per annum which is applicable at such time with respect to each
such fee as set forth on Schedule
1.1A.

     

    “Applicable
Margin” means, with respect to Advances of any Type, at any time, the
percentage rate per annum which is applicable at such time with respect to
Advances of such Type as set forth on Schedule
1.1A.

     

    “Approved Fund”
means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate
of a Lender or (c) an entity or an Affiliate of an entity that administers or
manages a Lender.

     

    “Arby’s” means
Arby’s Restaurant Group, Inc.

     

    “Arrangers” means
J.P. Morgan Securities Inc., Banc of America Securities LLC and Wachovia Capital
Markets LLC, and each of their successors, each in its capacity as Joint Lead
Arranger and Joint Bookrunner.

     

    “Article” means
an article of this Agreement unless another document is specifically
referenced.

     

    “Assignment
Agreement” is defined in Section
13.3.1.

     

    “Authorized Financial
Officer” means any of the chief financial officer, treasurer, any
assistant treasurer or controller of the Borrower, acting singly.

     

    “Authorized
Officer” means any of the president, chief executive officer, chief
financial officer, treasurer or any assistant treasurer or controller of the
Borrower, acting singly.

     

    “Available
Amount” means, at any time, (a) the sum of (i) 50% of Consolidated Net
Income of the Borrower and its Subsidiaries for the period from the Closing Date
(or, if the Borrower is not capable of measuring Consolidated Net Income from
the Closing Date, the first day thereafter from which Borrower is capable of
providing an accurate measurement of Consolidated Net Income (which shall be a
date no later than the first day of the first fiscal quarter beginning on or
after the Closing Date)) through the last day of the most recently ended fiscal
quarter or fiscal year for which financial statements have been delivered
pursuant to Section
7.1.1 or Section
7.1.2, as the case may be,  and (ii) the amount of net
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    all equity issuances after the Closing Date, minus (b) all
dividends and distributions made pursuant to Section
7.14.6.

     

    “Board” means the
Board of Governors of the Federal Reserve System of the United States (or any
successor).

     

    “Borrower” means
Wendy’s International, Inc., an Ohio corporation, and its permitted successors
and assigns (including, without limitation, a debtor in possession on its
behalf).

     

    “Borrowing Date”
means a date on which an Advance is made hereunder.

     

    “Borrowing
Notice” is defined in Section
2.8.

     

    “Business” is
defined in Section
6.13.2.

     

    “Business Day”
means (i) with respect to any borrowing, payment or rate selection of Eurodollar
Advances, a day (other than a Saturday or Sunday) on which banks generally are
open in New York, New York for the conduct of substantially all of their
commercial lending activities, interbank wire transfers can be made on the
Fedwire system and dealings in Dollars are carried on in the London interbank
market and (ii) for all other purposes, a day (other than a Saturday or Sunday)
on which banks generally are open in New York, New York for the conduct of
substantially all of their commercial lending activities and interbank wire
transfers can be made on the Fedwire system.

     

    “Capital
Expenditures” means, for any period, with respect to any Person, the
aggregate of all expenditures by such Person for the acquisition of fixed or
capital assets or additions to equipment (including replacements, capitalized
repairs and improvements during such period) that should be capitalized under
Agreement Accounting Principles on a consolidated balance sheet of such Person,
excluding (i) any portion of such additions to equipment attributable solely to
Permitted Acquisitions, (ii) capital expenditures to the extent financed with
proceeds of equity issuances or proceeds of casualty events and (iii) capital
expenditures to the extent financed with Capital Leases and, without
duplication, any portion of such additions to equipment attributable solely to
Capital Leases.

     

    “Capital Stock”
means any and all shares, interests, participations or other equivalents
(however designated) of capital stock of a corporation, any and all equivalent
ownership interests in a Person (other than a corporation) and any and all
warrants, rights or options to purchase any of the foregoing.

     

    “Capitalized
Lease” of a Person means any lease of Property by such Person as lessee
which would be capitalized on a balance sheet of such Person prepared in
accordance with Agreement Accounting Principles.

     

    “Capitalized Lease
Obligations” of a Person means the principal amount of the obligations of
such Person under Capitalized Leases which would be shown as a liability on a
balance sheet of such Person prepared in accordance with Agreement Accounting
Principles.

     

    “Cash Equivalent
Investments” means (a) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition; (b) demand
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    business:
(c) certificates of deposit, time deposits, eurodollar time deposits or
overnight bank deposits having maturities of six months or less from the date of
acquisition issued by any Lender or by any commercial bank (whether domestic or,
in the case of Foreign Subsidiaries, foreign) having combined capital and
surplus of not less than $500,000,000; (d) commercial paper of an issuer rated
at least A-1 by Standard & Poor’s Ratings Services (“S&P”) or P-1
by Moody’s Investors Service, Inc. (“Moody’s”), or
carrying an equivalent rating by a nationally recognized rating agency, if both
of the two named rating agencies cease publishing ratings of commercial paper
issuers generally, and maturing within six months from the date of acquisition;
(e) repurchase obligations of any Lender or of any commercial bank satisfying
the requirements of clause (c) of this definition, having a term of not more
than 30 days, with respect to securities issued or fully guaranteed or insured
by the United States government; (f) securities with maturities of one year or
less from the date of acquisition issued or fully guaranteed by any state,
commonwealth or territory of the United States, by any political subdivision or
taxing authority of any such state, commonwealth or territory or by any foreign
government, the securities of which state, commonwealth, territory, political
subdivision, taxing authority or foreign government (as the case may be) are
rated at least A by S&P or A by Moody’s; (g) securities with maturities of
six months or less from the date of acquisition backed by standby letters of
credit issued by any Lender or any commercial bank satisfying the requirements
of clause (c) of this definition; (h) money market mutual or similar funds that
invest exclusively in assets satisfying the requirements of clauses (a) through
(g) of this definition; or (i) money market funds that (i) comply with the
criteria set forth in SEC Rule 2a-7 under the Investment Company Act of 1940, as
amended, (ii) are rated AAA by S&P and Aaa by Moody’s and (iii) have
portfolio assets of at least $3,000,000,000.

     

    “Casualty Event”
means any event that gives rise to the receipt by Holdings, the Borrower or any
Subsidiary of any insurance proceeds or condemnation awards in respect of any
Real Estate Collateral (including any improvements thereon) to replace or repair
such Real Estate Collateral.

     

    “Change in
Control” means any event or series of events by which:

     

    (i)           on
or after completion of any initial public offering of the Capital Stock of
Holdings, any “person” or “group” (within the meaning of Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934, as amended, but excluding (A)
any employee benefit or stock ownership plans of the Borrower, (B) members of
the board of directors and executive officers of Holdings as of the Closing
Date, (C) the families of such members and executive officers, (D) family trusts
established by or for the benefit of any of the foregoing individuals and (E)
Permitted Investors) becomes the “beneficial owner” (as defined in Rule 13d-3
under the Securities Exchange Act of 1934, as amended), directly or indirectly
of more than fifty percent (50%) of the combined voting power of all classes of
common stock of Holdings; or

     

    (ii)           during
any period of twelve (12) consecutive calendar months, the board of directors of
Holdings shall cease to have as a majority of its members individuals who either
(A) were directors of Holdings on the first day of such period, or (B) were
elected or nominated for election to the board of directors of Holdings at the
recommendation of or other approval by at least a majority of the directors then
still in office at the time of such election or nomination who were directors of
Holdings on the first day of such period, or whose election or nomination for
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      (iii)           prior
to the completion of any initial public offering of the Capital Stock of
Holdings, the Permitted Investors shall cease to own of record and beneficially
an amount of common stock of Holdings equal to at least sixty (60%) of the
amount of common stock of Holdings owned by the Permitted Investors of record
and beneficially as of the Closing Date; or

       

      (iv)           Holdings
shall cease to own and control, of record and beneficially, directly, 100% of
each class of outstanding Capital Stock of the Borrower free and clear of all
Liens (except Liens created by the Guarantee and Collateral
Agreement).

       

      “Closing Date”
means January 14, 2009.

       

      “Code” means the
Internal Revenue Code of 1986, as amended, reformed or otherwise modified from
time to time, and any rule or regulation issued thereunder.

       

      “Collateral”
means the property of the Loan Parties, now owned or hereafter acquired, upon
which a Lien is purported to be created by any Security Document.

       

      “Collateral
Agent” means “Collateral Agent” as defined in the Guarantee and
Collateral Agreement.

       

      “Collateral Coverage
Ratio” is defined in Section
7.10.1.

       

      “Commitment”
means, for each Lender, the obligation of such Lender to make Loans to the
Borrower in an aggregate amount not to exceed the amount set forth on Schedule
1.1B opposite such Lender’s name, or in any Assignment Agreement that has
become effective pursuant to Section
13.3.2, or any Commitment and Acceptance that has become
effective pursuant to Section
2.23, as any such amount may be modified from time to time
pursuant to the terms hereof.

       

      “Commitment and
Acceptance” is defined in Section
2.23.

       

      “Compensatory
Award” means any award of stock options, stock appreciation rights,
restricted stock or restricted stock units, or any other compensatory stock
award granted by a Group Member or its Control Group members to current or
former employees, consultants, advisors or directors of a Group Member or its
Control Group members as compensation for services provided.

    

     

    
          “Consolidated
EBITDAR” means, with reference to any period, Income from Continuing
Operations plus
(a) to the extent deducted from revenues in determining Income from Continuing
Operations during such period, (i) Consolidated Interest Expense, (ii) expense
for taxes paid or accrued, (iii) depreciation, (iv) amortization, (v)
Consolidated Rental Expense and (vi) extraordinary, nonrecurring charges,
expenses and losses incurred during such period (including fees, expenses and
charges paid or incurred in connection with any Permitted Acquisitions to the
extent such fees, expenses and charges are reasonable, as determined by the
Agent in its reasonable discretion), (vii) all other non-cash charges, expenses
and losses (including the amount of any impairment charges or any compensation
deduction for any Compensatory Award), (viii) without duplication of clause
(vi), fees, expenses and charges paid or incurred in connection with the
consummation of the Triarc Acquisition and the closing of this Agreement but
only up to an aggregate amount equal to $85,000,000 in 2008 and 2009 and (ix)
without duplication of clause (vii), non-cash stock compensation in connection
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      consummation of the Triarc Acquisition
but only up to an aggregate amount equal to $27,000,000 minus
(b) to the extent added to revenues in determining Income from Continuing
Operations during such period, (i) extraordinary, nonrecurring gains incurred
during such period and (ii) all other non-cash income, in the case of clauses
(a) and (b),
all calculated for the Borrower and its Restricted Subsidiaries on a
consolidated basis in accordance with Agreement Accounting
Principles.

    

     

    “Consolidated
Indebtedness” means, at any time, the aggregate amount of all
Indebtedness of the Borrower and its Restricted Subsidiaries at such time,
calculated on a consolidated basis in accordance with Agreement Accounting
Principles.

     

    “Consolidated Interest
Expense” means, with reference to any period, the interest expense of the
Borrower and its Restricted Subsidiaries calculated on a consolidated basis for
such period in accordance with Agreement Accounting Principles.

     

    “Consolidated Net
Income” means, with reference to any period, the net income (or loss) of
the Borrower and its Restricted Subsidiaries calculated on a consolidated basis
for such period in accordance with Agreement Accounting Principles.

     

    “Consolidated Rental
Expense” means, with reference to any period, the Rental Expense of the
Borrower and its Restricted Subsidiaries calculated on a consolidated basis for
such period in accordance with Agreement Accounting Principles.

     

    “Contingent
Obligation” of a Person means any agreement, undertaking, commitment or
arrangement by which such Person assumes, guarantees, endorses, contingently
agrees to purchase or provide funds for the payment of, or otherwise becomes or
is contingently liable upon, the obligation or liability of any other Person for
Indebtedness, or agrees to maintain the net worth or working capital or other
financial condition of any other Person, or otherwise assures any creditor of
such other Person against loss, including, without limitation, any comfort
letter, operating agreement, take-or-pay contract or the obligations of any such
Person as general partner of a partnership with respect to the liabilities of
the partnership, minus in each case, the aggregate amount of any reserves
established for losses and obligations assigned to third parties.

     

    “Contractual
Obligation” means as to any Person, any provision of any security issued
by such Person or of any agreement, instrument or other undertaking to which
such Person is a party or by which it or any of its property is
bound.

     

    “Control Investment
Affiliate” means, as to any Person, any other Person that (a) directly or
indirectly, is in control of, is controlled by, or is under common control with,
such Person and (b) is organized by such Person primarily for the purpose of
making equity or debt investments in one or more companies.  For
purposes of this definition, “control” of a Person means the power, directly or
indirectly, to direct or cause the direction of the management and policies of
such Person whether by contract or otherwise.

     

    “Controlled
Group” means all members of a controlled group of corporations or other
business entities and all trades or businesses (whether or not incorporated)
under common control which, in either case, together with any Group Member, are
treated as a single employer under Section 414 (b) or (c) of the Code or solely
for purposes of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.

     

    “Conversion/Continuation
Notice” is defined in Section
2.9.

     

    
      
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    “Coverage Ratio”
is defined in Section
7.24.

     

    “Default” means
an event described in ARTICLE
VIII.

     

    “Defaulting
Lender” means any Lender that, as reasonably determined by the Agent,
that has (a) failed to fund any portion of its Loans or its participations in
Letters of Credit within three Business Days of the date required to be funded
by it hereunder, (b) notified the Borrower, the Agent, the Issuing Lender or any
Lender in writing that it does not intend to comply with any of its funding
obligations under this Agreement or has made a public statement to the effect
that it does not intend to comply with its funding obligations under this
Agreement or under other agreements in which it commits to extend credit, (c)
failed, within three Business Days after request by the Agent, to confirm that
it will comply with the terms of this Agreement relating to its obligations to
fund prospective Loans and participations in then outstanding Letters of Credit,
(d) otherwise failed to pay over to the Agent or any other Lender any other
amount required to be paid by it hereunder within three Business Days of the
date when due, unless the subject of a good faith dispute, or (e) (i) become or
is insolvent or has a parent company that has become or is insolvent or (ii)
become the subject of a bankruptcy or insolvency proceeding, or has had a
receiver, conservator, trustee or custodian appointed for it, or has taken any
action in furtherance of, or indicating its consent to, approval of or
acquiescence in any such proceeding or appointment or has a parent company that
has become the subject of a bankruptcy or insolvency proceeding, or has had a
receiver, conservator, trustee or custodian appointed for it, or has taken any
action in furtherance of, or indicating its consent to, approval of or
acquiescence in any such proceeding or appointment.

     

    “Disposition”
means, with respect to any Property, any sale, lease, sale and leaseback,
assignment, conveyance, transfer or other disposition thereof (but for avoidance
of doubt, shall not include a casualty event or condemnation).  The
terms “Dispose” and “Disposed of” shall have correlative meanings.

     

    “Dollar” and
“$” means
dollars in the lawful currency of the United States of America.

     

    “Domestic
Subsidiary” means any Subsidiary of the Borrower organized under the laws
of any jurisdiction within the United States.

     

    “Environmental
Laws” means any and all applicable Federal, state, local, municipal and
foreign statutes, laws (including applicable principles of common law),
regulations, ordinances, judgments, orders, codes, decrees, injunctions,
permits, licenses relating to (i) the protection of the environment, (ii) the
effect of the environment on human health, (iii) emissions, discharges or
releases of pollutants, contaminants, hazardous substances or wastes into
surface water, ground water or land, or (iv) the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, hazardous substances or wastes or the clean-up or
other remediation thereof.

     

    “ERISA” means the
Employee Retirement Income Security Act of 1974, as amended from time to time,
and any rules or regulations issued thereunder.

     

    “ERISA Event”
means: (a) any Reportable Event; (b) the existence with respect to any Plan of a
non-exempt “Prohibited Transaction” (as defined in Section 406 of ERISA or
Section 4975(f)(3) of the Code) which could reasonably be expected to result in
liability to any Group Member; (c) any failure by any Plan to satisfy the
minimum funding standards (within the meaning of Section 412 of the Code or
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    or
not waived; (d) the filing pursuant to Section 412 of the Code or
Section 303 of ERISA of an application for a waiver of the minimum funding
standard with respect to any Plan, the failure to make by its due date a
required installment under Section 412(m) of the Code (or Section 430(j) of the
Code, as amended by the Pension Protection Act of 2006) with respect to any Plan
or the failure by any Group Member or any of its Controlled Group members to
make any required contribution to a Multiemployer Plan; (e) the incurrence
by any Group Member or any of its Controlled Group members of any liability
under Title IV of ERISA with respect to the termination of any Plan,
including but not limited to the imposition of any Lien in favor of the PBGC or
any Plan; (f) a determination that any Plan is in “at risk” status (within
the meaning of Title IV of ERISA); (g) the receipt by any Group Member or any of
its Controlled Group members from the PBGC or a plan administrator of any notice
relating to an intention to terminate any Plan or to appoint a trustee to
administer any Plan under Section 4042 of ERISA; (h) the incurrence by any Group
Member or any of its Controlled Group members of any material liability with
respect to the withdrawal or partial withdrawal from any Plan or Multiemployer
Plan; or (i) the receipt by any Group Member or any of its Controlled Group
members of any notice, or the receipt by any Multiemployer Plan of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization, or
in endangered or critical status (within the meaning of Section 432 of the Code
or Section 305 or Title IV of ERISA).

     

    “Eurodollar
Advance” means an Advance which, except as otherwise provided in Section
2.12, bears interest at the applicable Eurodollar
Rate.

     

    “Eurodollar Base
Rate” means, with respect to a Eurodollar Advance for the relevant
Interest Period, the rate appearing on Reuters BBA Libor Rates Page 3750 (or on
any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the Agent from
time to time for purposes of providing quotations of interest rates applicable
to Dollar deposits in the London interbank market) as of 11:00 a.m. (London
time) two (2) Business Days prior to the first day of such Interest Period, and
having a maturity equal to such Interest Period, provided, that
if no such rate is available to the Agent, the applicable Eurodollar Base Rate
for the relevant Interest Period shall instead be the rate at which Dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Agent in immediately available
funds in the London interbank market at approximately 11:00 a.m. (London time)
two (2) Business Days prior to the first day of such Interest
Period.

     

    “Eurodollar Loan”
means a Loan which, except as otherwise provided in Section
2.12, bears interest at the applicable Eurodollar
Rate.

     

    “Eurodollar Rate”
means, with respect to a Eurodollar Advance for the relevant Interest Period,
the sum of (i) the quotient of (a) the Eurodollar Base Rate applicable to such
Interest Period, divided by (b) one minus the Reserve Requirement (expressed as
a decimal) applicable to such Interest Period, plus (ii) the then Applicable
Margin, changing as and when the Applicable Margin changes.

     

    “Excess Net Cash
Proceeds” is defined in Section
7.17.2(iii).

     

    “Excluded Taxes”
means, in the case of each Lender or applicable Lending Installation and the
Agent or any other recipient of any payment to be made by or on account of any
obligation of the Borrower hereunder or under any Note, (A) taxes imposed on its
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    income, franchise taxes (imposed in lieu of net income
taxes) imposed on it, and backup withholding taxes (including, in each case, any
such taxes to the extent imposed on a branch) (i) by the jurisdiction under the
laws of which such Lender or the Agent, as applicable, is incorporated or
organized or any political combination or subdivision or taxing authority
thereof, (ii) by the jurisdiction in which the Agent’s or such Lender’s, as
applicable, principal executive office or such Lender’s or Agent’s applicable
Lending Installation is located, or (iii) as a result of any other present or
former connection between the Agent or such Lender or the applicable Lending
Installation and the jurisdiction of the Governmental Authority imposing such
tax or any political subdivision or taxing authority thereof or therein (other
than any such connection arising solely from the Agent’s or such Lender’s or the
applicable Lending Installation’s having executed, delivered or performed its
obligations or received a payment under, or enforced, this Agreement or any
other Loan Document), (B) any branch profits taxes imposed by the United States
of America or any similar tax imposed by any other jurisdiction described in
clause (A) above, or (C) any withholding taxes imposed on amounts payable to a
Lender at the time such Lender becomes a party to this Agreement, except to the
extent that such Lender’s assignor (if any) was entitled, at the time of
assignment, to receive additional amounts from the Borrower with respect to such
Taxes pursuant to Section
4.5.1.

     

    “Existing Letters of
Credit” means the letters of credit issued or continued by any Issuing
Lender and outstanding on the Closing Date as set forth on Schedule
1.1C.

     

    “Facility Fee” is
defined in Section
2.5.1.

     

    “Facility Termination
Date” means the earlier of (a) November 1, 2011 and (b) the date of
termination in whole of the Aggregate Commitment pursuant to Section
2.5 or Section
9.1.

     

    “Federal Funds Effective
Rate” means, for any day, an interest rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published for such day (or, if such day is not a Business Day, for the
immediately preceding Business Day) by the Federal Reserve Bank of New York, or,
if such rate is not so published for any day which is a Business Day, the
average of the quotations at approximately 12:00 noon (New York, New York time)
on such day on such transactions received by the Agent from three (3) Federal
funds brokers of recognized standing selected by the Agent in its sole
discretion.

     

    “Floating Rate
Advance” means an Advance which, except as otherwise provided in Section
2.12, bears interest at the Alternate Base
Rate.

     

    “Floating Rate
Loan” means a Loan which, except as otherwise provided in Section
2.12, bears interest at the Alternate Base
Rate.

     

    “Foreign Benefit
Arrangement” means any employee benefit arrangement mandated by non-U.S.
law that is required to be funded and that is maintained or contributed to by
any Group Member or any of its Controlled Group members.

     

    “Foreign Plan”
means any employee benefit plan (within the meaning of Section 3(3) of ERISA,
whether or not subject to ERISA) that is required to be funded and that is not
subject to U.S. law and is maintained or contributed to by any Group Member or
any of its Controlled Group members.

     

    
      
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      “Foreign
Subsidiary” means any Subsidiary of the Borrower that is neither a
Domestic Subsidiary nor a Unrestricted Subsidiary.

       

      “Fund” means any
Person (other than a natural person) that is (or will be) engaged in making,
purchasing, holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course of its business.

       

      “GAAP” means
generally accepted accounting principles in effect in the United States from
time to time.

       

      “Governmental
Authority” means any nation or government, any state or other political
subdivision thereof, any agency, authority, instrumentality, regulatory body,
court, central bank or other governmental entity exercising executive,
legislative, judicial, taxing, regulatory or administrative functions of or
pertaining to government, any securities exchange and any self-regulatory
organization.

       

      “Group Members”
means the collective reference to Holdings, the Borrower and their respective
Restricted Subsidiaries.

       

      “Guarantee and
Collateral Agreement” means the Guarantee and Collateral Agreement to be
executed and delivered by Holdings, the Borrower and each Subsidiary Guarantor,
substantially in the form of Exhibit
E.

    

     

    “Guarantee
Obligation” means, as to any Person (the “guaranteeing person”), any
obligation, including a reimbursement, counterindemnity or similar obligation,
of the guaranteeing Person that guarantees or in effect guarantees, or which is
given to induce the creation of a separate obligation by another Person
(including any bank under any letter of credit) that guarantees or in effect
guarantees, any Indebtedness, leases, dividends or other obligations (the
“primary obligations”) of any other third Person (the “primary obligor”) in any
manner, whether directly or indirectly, including any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any such primary
obligation or any property constituting direct or indirect security therefor,
(ii) to advance or supply funds (1) for the purchase or payment of any such
primary obligation or (2) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation or
(iv) otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; provided,
however, that the term “Guarantee Obligation” shall not include
endorsements of instruments for deposit or collection in the ordinary course of
business.  The amount of any Guarantee Obligation of any guaranteeing
person shall be deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such Guarantee
Obligation is made and (b) the maximum amount for which such guaranteeing person
may be liable pursuant to the terms of the instrument embodying such Guarantee
Obligation, unless such primary obligation and the maximum amount for which such
guaranteeing person may be liable are not stated or determinable, in which case
the amount of such Guarantee Obligation shall be such guaranteeing person’s
maximum reasonably anticipated liability in respect thereof as determined by the
Borrower in good faith.

     

    “Guarantors”
means the collective reference to Holdings and the Subsidiary
Guarantors.

     

    
      
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    “Holdings” means
Wendy’s International Holdings, LLC, a Delaware limited liability
company.

     

    “Immaterial
Subsidiary” means, at any time, any Subsidiary that is not a Material
Subsidiary.

     

    “Income from Continuing
Operations” means income from the continuing operations of
Borrower and its Restricted Subsidiaries as set forth in the Borrower’s
consolidated income statement.

     

    “Indebtedness” of
a Person means, at any time, without duplication, such Person’s (i) obligations
for borrowed money, (ii) obligations representing the deferred purchase price of
Property or services (other than accounts payable arising in the ordinary course
of such Person’s business payable on terms customary in the trade), (iii)
obligations with respect to Indebtedness, whether or not assumed, secured by
Liens on Property now or hereafter owned or acquired by such Person, (iv)
obligations which are evidenced by notes, bonds, debentures, acceptances, or
other instruments, (v) Capitalized Lease Obligations, (vi) Contingent
Obligations (whether or not then due and payable by such Person), (vii)
reimbursement obligations under letters of credit, bankers acceptances, surety
bonds and similar instruments, (viii) Off-Balance Sheet Liabilities, (ix) Net
Mark-to-Market Exposure under Rate Management Transactions, (x) Rate Management
Obligations and (xi) any other obligation for borrowed money or other financial
accommodation which in accordance with Agreement Accounting Principles would be
shown as a liability on the consolidated balance sheet of such Person; provided, however, that
obligations under operating leases shall not constitute
“Indebtedness”.  Notwithstanding the forgoing, Contingent Obligations
and Off-Balance Sheet Liabilities shall only constitute “Indebtedness” of the
Borrower and its Subsidiaries to the extent such items are reported in the
footnotes of the consolidated financial statements of the
Borrower.  For purposes of Section
7.23, Indebtedness of the type specified in clauses (ix) and
(x) of this definition, listed on Schedule
1.1D or any reimbursement obligations under surety bonds referred to in
clause (vii) shall not be deemed to be Indebtedness.

     

    “Intellectual
Property” means the collective reference to all rights, priorities and
privileges relating to intellectual property, whether arising under United
States, multinational or foreign laws or otherwise, including copyrights,
copyright licenses, patents, patent licenses, trademarks, trademark licenses,
technology, know-how and processes, and all rights to sue at law or in equity
for any infringement or other impairment thereof, including the right to receive
all proceeds and damages therefrom.

     

    “Interest Period”
means, with respect to a Eurodollar Advance, a period of one, two, three or six
months, commencing on a Business Day selected by the Borrower pursuant to this
Agreement. Such Interest Period shall end on but exclude the day which
corresponds numerically to such date one, two, three or six months thereafter,
provided,
however,
that if there is no such numerically corresponding day in such next, second,
third or sixth succeeding month, such Interest Period shall end on the last
Business Day of such next, second, third or sixth succeeding month. If an
Interest Period would otherwise end on a day which is not a Business Day, such
Interest Period shall end on the next succeeding Business Day, provided, however, that
if said next succeeding Business Day falls in a new calendar month, such
Interest Period shall end on the immediately preceding Business
Day.

     

    “Investment” of a
Person means any loan, advance (other than commission, travel and similar
advances to officers and employees made in the ordinary course of business and
consistent with past practices), extension of credit (other than accounts
receivable arising in the 

     

    
      
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    ordinary
course of business on terms customary in the trade) or contribution of capital
by such Person; stocks, bonds, mutual funds, partnership interests, notes,
debentures or other securities owned by such Person; any deposit accounts and
certificate of deposit owned by such Person; and structured notes, derivative
financial instruments and other similar instruments or contracts owned by such
Person.  The amount of any Investment shall be the original cost of
such Investment plus the cost of all additions thereto, without any adjustments
for increases or decreases in value, or write-ups, write-downs or write-offs
with respect to such Investment less all returns of principal or equity thereon
or repayments thereof. 

     

    “Issuing Lender”
means any one of JPMCB, Bank of America, N.A., or Wachovia Bank, National
Association, or any affiliate thereof.

     

    “JPMCB” means
JPMorgan Chase Bank, N.A., a national banking association, in its individual
capacity, and its successors.

     

    “L/C Commitment”
means, for each L/C Lender, the obligation of such L/C Lender to participate in
Letters of Credit in an aggregate amount not to exceed the amount set forth on
Schedule
1.1B opposite such L/C Lender’s name, or in any Assignment Agreement that
has become effective pursuant to Section
13.3.2, or any Commitment and Acceptance that has become
effective pursuant to Section
2.23, as any such amount may be modified from time to time
pursuant to the terms hereof.

     

    “L/C
Disbursement” means a payment made by the Issuing Lender pursuant to a
Letter of Credit.

     

    “L/C Exposure”
means, with respect to any L/C Lender, at any time, its L/C Percentage of the
L/C Obligations at such time.

     

    “L/C Lenders”
means the collective reference to JPMCB, Bank of America, N.A., and Wachovia
Bank, National Association.

     

    “L/C Obligations”
means, at any time, an amount equal to the sum of (a) the aggregate then undrawn
and unexpired amount of the then outstanding Letters of Credit and (b) the
aggregate amount of drawings under Letters of Credit that have not then been
reimbursed pursuant to Section
3.5.

     

    “L/C
Participants” means the collective reference to JPMCB, Bank of America,
N.A., and Wachovia Bank, National Association other than the Issuing
Lender.

     

    “L/C Percentage”
means, with respect to any L/C Lender, a portion equal to a fraction the
numerator of which is such L/C Lender’s L/C Commitment at such time and the
denominator of which is the Aggregate L/C Commitment at such time; provided that
in the case of Section
2.21 when any Defaulting Lender shall exist, “L/C
Percentage” shall mean the percentage of the Aggregate L/C Commitment
(disregarding any Defaulting Lender’s L/C Commitment) represented by such L/C
Lender’s L/C Commitment.  If the Aggregate L/C Commitment has been
terminated or expired, a fraction the numerator of which is the aggregate
outstanding principal amount of such L/C Lender’s L/C Exposure and the
denominator of which is the L/C Obligations.

     

    “Lenders” means
the lending institutions listed on the signature pages of this Agreement and
their respective successors and assigns.

     

    
      
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      “Lending
Installation” means, with respect to a Lender or the Agent, the office,
branch, subsidiary or affiliate of such Lender or the Agent listed on the
signature pages hereof or on the administrative information sheets provided to
the Agent in connection herewith or on a Schedule or otherwise selected by such
Lender or the Agent pursuant to Section
2.19.

       

      “Letters of
Credit” is defined in Section
3.1.

       

      “Leverage Ratio”
is defined in Section
7.23.

       

      “Lien” means any
lien (statutory or other), mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including, without
limitation, the interest of a vendor or lessor under any conditional sale,
Capitalized Lease or other title retention agreement).

       

      “Loan” means,
with respect to a Lender, such Lender’s loan made pursuant to ARTICLE
II (or any conversion or continuation
thereof).

       

      “Loan Documents”
means this Agreement, the Security Documents and all other documents,
instruments, notes (including any Notes issued pursuant to Section
2.14 (if requested)) and agreements executed and delivered
in connection herewith or therewith, as the same may be amended, restated,
supplemented or otherwise modified and in effect from time to
time.

       

      “Loan Parties”
means each Group Member that is a party to a Loan Document.

       

      “Margin Stock”
means “margin stock,” as such term is defined in Regulation U.

       

      “Market Disruption
Loans” means Loans the rate of interest applicable to which is based upon
the Market Disruption Rate, and the Applicable Margin with respect thereto shall
be the same as the Applicable Margin then applicable to Eurodollar Loans; provided,
that, other than with respect to the rate of interest and Applicable Margin
applicable thereto, Market Disruption Loans shall for all purposes hereunder and
under the other Loan Documents be treated as Floating Rate Loans.

       

    

    “Market Disruption
Rate” means, for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to, in the reasonable discretion of the
Agent, either (i) the Alternate Base Rate for such day or (ii) the rate for such
day reasonably determined by the Agent (after consultation with the Borrower) to
be the cost of funds of representative participating members in the interbank
eurodollar market selected by the Agent (which may include Lenders) for
maintaining loans similar to the relevant Market Disruption
Loans.  Any change in the Market Disruption Rate shall be effective as
of the opening of business on the effective day of any change in the relevant
component of the Market Disruption Rate.  Notwithstanding the
foregoing, if the “Market Disruption Rate” as determined in accordance with the
immediately preceding sentences is less than 3.25% for any Interest Period, then
for all purposes of this Agreement and the other Loan Documents, the “Market
Disruption Rate” shall be deemed equal to 3.25% for such Interest
Period.

     

    “Material Adverse
Effect” means a material adverse effect on (i) the business, Property,
condition (financial or otherwise) or results of operations of the Borrower and
its Subsidiaries taken as a whole, or (ii) the validity or enforceability of any
of the Loan Documents or the rights

    
      
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    or
remedies of the Agent or the Lenders thereunder (other than any termination
thereof in accordance with its terms).

     

    “Material
Indebtedness” means any Indebtedness in an outstanding principal amount
of $25,000,000 or more in the aggregate (or the equivalent thereof in any
currency other than Dollars).

     

    “Material Indebtedness
Agreement” means any agreement or instrument under which any Material
Indebtedness was created or is governed or which provides for the incurrence of
Indebtedness in an amount which would constitute Material Indebtedness (whether
or not an amount of Indebtedness constituting Material Indebtedness is
outstanding thereunder).

     

    “Material
Subsidiary” shall mean each Restricted Subsidiary now existing or
hereafter acquired or formed and each successor thereto that (a) for the most
recent fiscal 9-month period of the Borrower before the Closing Date or
thereafter for the most recent fiscal year of the Borrower accounted for more
than 5% (excluding any intercompany adjustments) of the consolidated revenues of
the Borrower or (b) as at the end of such fiscal 9-month period or such fiscal
year, as the case may be, was the owner of more than 5% (excluding any
intercompany adjustments) of the consolidated assets of the Borrower as shown on
the consolidated financial statements of the Borrower and its consolidated
Subsidiaries for such fiscal 9-month period or for such fiscal year, as the case
may be; provided that,
notwithstanding the forgoing, Scioto Insurance Company, Wendy’s of Denver, Inc.,
Oldemark LLC and The New Bakery Co of Ohio, Inc. each shall be deemed a
“Material Subsidiary.”

     

    “Materials of
Environmental Concern” means any gasoline or petroleum (including crude
oil or any fraction thereof) or petroleum products or any hazardous or toxic
substances, materials or wastes, defined or regulated as such in or under any
Environmental Law, including asbestos, toxic molds, polychlorinated biphenyls
and urea-formaldehyde insulation and any other substance, material or waste that
could give rise to liability under any Environmental Law.

     

    “Merger
Agreement” means that certain Agreement and Plan of Merger, dated as of
April 23, 2008, among WAG, the Borrower and Green Merger Sub, Inc., as amended
by that certain letter agreement, dated as of August 14, 2008, by and between
WAG and the Borrower.

     

    “Merger
Documentation” means, collectively, the Merger Agreement and all
schedules, exhibits and annexes thereto and all side letters and agreements
affecting the terms thereof or entered into in connection
therewith.

     

    “Moody’s” means
Moody’s Investors Service, Inc., together with its successors.

     

    “Mortgaged
Properties” means the real properties listed on Schedule
1.1E, as to which the Collateral Agent, for the benefit of the Secured
Parties, shall be granted a Lien pursuant to the Mortgages.

     

    “Mortgages” means
each of the mortgages and deeds of trust made by any Loan Party in favor of, or
for the benefit of, the Collateral Agent, for the benefit of the Secured
Parties, substantially in the form of Exhibit
G (with such changes thereto as shall be advisable under the law of the
jurisdiction in which such mortgage or deed of trust is to be
recorded).

     

    
      
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    “Multiemployer
Plan” means a multiemployer plan, as defined in Section 4001(a)(3) of
ERISA, which is covered by Title IV of ERISA and to which any Group Member or
any of its Controlled Group members is obligated to make
contributions.

     

    “Net Cash
Proceeds” means, in connection with any Disposition or any Casualty Event
involving Real Estate Collateral, the proceeds thereof in the form of cash and
Cash Equivalent Investments (including any such proceeds received by way of
deferred payment of principal pursuant to a note or installment receivable or
purchase price adjustment receivable or otherwise, but only as and when
received), net of (i) attorneys’ fees, accountants’ fees and investment banking
fees, (ii) amounts required to be applied to the repayment of Indebtedness
secured by a Lien expressly permitted hereunder on any asset that is the subject
of such Disposition or Casualty Event involving Real Estate Collateral (other
than any Lien pursuant to a Security Document) and other customary fees and
expenses actually incurred in connection therewith, (iii) taxes paid or
reasonably estimated to be payable as a result thereof (after taking into
account any available tax credits or deductions and any tax sharing
arrangements) and (iv)
reasonable reserves for indemnification, adjustment of purchase price or similar
obligations incurred or assumed in connection therewith (provided that,
to the extent and at the time any such amounts are released from such reserve,
such amounts shall constitute Net Cash Proceeds).

     

    “Net Mark-to-Market
Exposure” of a Person means, as of any date of determination, the excess
(if any) of all unrealized losses over all unrealized profits of such Person
arising from Rate Management Transactions. “Unrealized losses” means the fair
market value of the cost to such Person of replacing such Rate Management
Transaction as of the date of determination (assuming the Rate Management
Transaction were to be terminated as of that date), and “unrealized profits”
means the fair market value of the gain to such Person of replacing such Rate
Management Transaction as of the date of determination (assuming such Rate
Management Transaction were to be terminated as of that date).

     

    “Non-Survey
Property” is defined in Section
7.10.3.

     

    “Non-U.S. Lender”
is defined in Section
4.5.5.

     

    “Note” is defined
in Section
2.14.4.

     

    “Obligations”
means the unpaid principal of and interest on (including interest accruing after
the maturity of the Loans and Reimbursement Obligations and interest accruing
after the filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to the Borrower, whether
or not a claim for post-filing or post-petition interest is allowed in such
proceeding) the Loans and all other obligations and liabilities of the Borrower
to the Agent, the Collateral Agent, any Arranger, any indemnitee under the
provisions of Section
10.6.2 or to any Lender (or, in the case of Specified Swap
Agreements, any affiliate of any Lender), whether direct or indirect, absolute
or contingent, due or to become due, or now existing or hereafter incurred,
which may arise under, out of, or in connection with, this Agreement, any other
Loan Document, the Letters of Credit, any Specified Swap Agreement or any other
document made, delivered or given in connection herewith or therewith, whether
on account of principal, interest, reimbursement obligations, fees, indemnities,
costs, expenses (including all fees, charges and disbursements of counsel to the
Agent, the Collateral Agent, any Arranger or to any Lender that are required to
be paid by any Group Member pursuant hereto) or otherwise.

     

    “OFAC” means the
U.S. Department of the Treasury’s Office of Foreign Assets Control.

     

    
      
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    “Off-Balance Sheet
Liability” of a Person means, without duplication, (i) any liability
under any Sale and Leaseback Transaction which is not a Capitalized Lease, (ii)
any liability under any so-called “synthetic lease” transaction or “tax
ownership operating lease” entered into by such Person, or (iii) any other
obligations arising with respect to any other transaction which is the
functional equivalent of or takes the place of borrowing but which does not
constitute a liability on the consolidated balance sheets of such Person,
excluding (i) Operating Lease Obligations and (ii) any obligations outstanding
that arise in connection with transfers of loan obligations owing to the
Borrower and its Subsidiaries by franchisees and other related assets that are
treated as true sales of financial assets under FASB Statement No. 140, as in
effect from time to time.

     

    “Operating Lease”
of a Person means any lease of Property (other than a Capitalized Lease) by such
Person as lessee which has an original term (including any required renewals and
any renewals effective at the option of the lessor) of one year or
more.

     

    “Operating Lease
Obligations” means, as at any date of determination, the total amount of
all future minimum lease payments due under all then existing Operating Leases
of the Borrower and its Subsidiaries.

     

    “Other Taxes” is
defined in Section
4.5.2.

     

    “Participants” is
defined in Section
13.2.1.

     

    “Patriot Act”
means the USA Patriot Act, Title III of Pub. L. 107-56, signed into law on
October 26, 2001.

     

    “Payment Date”
means the first day of each January, April, July and October.

     

    “PBGC” means the
Pension Benefit Guaranty Corporation, or any successor thereto.

     

    “Permitted
Acquisition” is defined in Section
7.18.11.

     

    “Permitted
Investors” means the collective reference to WAG and its Control
Investment Affiliates.

     

    “Person” means
any natural person, corporation, firm, joint venture, partnership, limited
liability company, association, enterprise, trust or other entity or
organization, or any government or political subdivision or any agency,
department or instrumentality thereof.

     

    “Plan” means an
employee pension benefit plan, which is covered by Title IV of ERISA or subject
to the minimum funding standards under Section 412 of the Code as to which any
Group Member or any of its Controlled Group members may have any
liability.

     

    “Pledged Stock”
means “Pledged Stock” as defined in the Guarantee and Collateral
Agreement.

     

    “Prime Rate”
means the rate of interest per annum publicly announced from time to time by
JPMCB as its prime rate in effect at its principal office in New York City; each
change in the Prime Rate shall be effective from and including the date such
change is publicly announced as being effective.

     

    
      
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    “Pro Forma
Adjustments” means, as of any date of determination, in connection with
the calculation of the Leverage Ratio or the Coverage Ratio for any applicable
four fiscal quarter period (such period, the “Reference Period”), the following
adjustments, to the extent applicable:

     

    
      
        	
                 
      

              	
                (i)

              	
                (x)
      if the Borrower or any Restricted Subsidiary has incurred any Indebtedness
      in excess of $5,000,000 in the aggregate during such Reference Period that
      remains outstanding on such date of determination or if the transaction
      giving rise to the need to calculate the Leverage Ratio or Coverage Ratio
      is an incurrence of Indebtedness and the Borrower or any Restricted
      Subsidiary has incurred Indebtedness in excess of $5,000,000 during such
      Reference Period, Consolidated EBITDAR, Adjusted EBITDA, Consolidated
      Interest Expense and Consolidated Rental Expense for such Reference Period
      will be calculated after giving effect on a pro forma basis to such
      Indebtedness as if such Indebtedness had been incurred on the first day of
      such Reference Period (except that in making such computation, the amount
      of Indebtedness under any revolving credit facility outstanding on the
      date of such calculation will be deemed to be (i) the average daily
      balance of such Indebtedness during such Reference Period or such shorter
      period for which the revolving loans were incurred under such facility
      were outstanding or (ii) if such facility was created after the end of
      such Reference Period, the average daily balance of such Indebtedness
      during the period from the date such revolving loans were incurred under
      such facility to the date of such calculation) and the discharge of any
      other Indebtedness repaid, repurchased, defeased or otherwise discharged
      with the proceeds of such new Indebtedness as if such discharge had
      occurred on the first day of such Reference Period; or

                 

              
	 	 	
                (y) if the Borrower or any Restricted Subsidiary has
      repaid, repurchased, defeased or otherwise discharged any Indebtedness in
      excess of $5,000,000 during such Reference Period that is no longer
      outstanding on such date of determination or if the transaction giving
      rise to the need to calculate the Leverage Ratio or Coverage Ratio
      involves a discharge of Indebtedness, Consolidated EBITDAR, Adjusted
      EBITDA, Consolidated Interest Expense and Consolidated Rental Expense for
      such Reference Period will be calculated after giving effect on a pro
      forma basis to such discharge of such Indebtedness, including with the
      proceeds of such new Indebtedness, as if such discharge had occurred on
      the first day of such Reference Period;

                 

              
	 	 (ii)
      	 if
      during such Reference Period the Borrower or any Restricted Subsidiary has
      made any Disposition for gross proceeds in excess of $5,000,000 in the
      aggregate or disposed of any company, division, operating unit, segment,
      business, group of related assets or line of business for gross proceeds
      in excess of $5,000,000 in the aggregate or if the transaction giving rise
      to the need to calculate the Leverage Ratio or Coverage Ratio is such a
      Disposition:


      

    

     

    (x)
the Consolidated EBITDAR and Adjusted EBITDA for such Reference Period will be
reduced by an amount equal to the Consolidated EBITDAR or Adjusted EDITDA, as
applicable, (if positive) directly attributable to the assets which are the
subject of such disposition for such Reference Period or increased by an amount
equal to the Consolidated EBITDAR or Adjusted EBITDA, as applicable, (if
negative) directly attributable thereto for such Reference Period;
and

     

    (y)
Consolidated Interest Expense and Consolidated Rental Expense for such Reference
Period will be reduced by an amount equal to the Consolidated Interest Expense
or Consolidated Rental Expenses, as applicable, directly attributable to any
Indebtedness of the Borrower or any Restricted Subsidiary
repaid,

     

    
      
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    repurchased,
defeased or otherwise discharged with respect to the Borrower and its continuing
Restricted Subsidiaries in connection with such Disposition for such Reference
Period (or, if the Capital Stock of any Restricted Subsidiary is sold, the
Consolidated Interest Expense or Consolidated Rental Expense, as applicable, for
such Reference Period directly attributable to the Indebtedness of such
Restricted Subsidiary to the extent the Borrower and its continuing Restricted
Subsidiaries are no longer liable for such Indebtedness after such
sale);

     

    
      	 	
              (iii)
      

            	
               if
      during such Reference Period the Borrower or any Restricted Subsidiary (by
      merger or otherwise) has made an Investment in an amount in excess of
      $5,000,000 in the aggregate in any Restricted Subsidiary or the Borrower
      (or any Person which becomes a Restricted Subsidiary or is merged with or
      into the Borrower or any Restricted Subsidiary) or an acquisition of
      assets in excess of $5,000,000 in the aggregate, including any acquisition
      of assets occurring in connection with a transaction causing a calculation
      to be made hereunder, which constitutes all or substantially all of a
      company, division, operating unit, segment, business, group of related
      assets or line of business, Consolidated EBITDAR, Adjusted EBITDA,
      Consolidated Interest Expense and Consolidated Rental Expense for such
      Reference Period will be calculated after giving pro forma effect thereto
      (including the incurrence of any Indebtedness) as if such Investment or
      acquisition occurred on the first day of such Reference Period;
      and

            
	 	 (iv)	
              if during
      such Reference Period (x) any Person that was not the Borrower or a
      Restricted Subsidiary that subsequently became a Restricted Subsidiary or
      was merged with or into the Borrower or any Restricted Subsidiary during
      such Reference Period and (y) has incurred any Indebtedness or has
      discharged any Indebtedness, has made any Disposition or any Investment or
      Acquisition of assets that would have required an adjustment pursuant to
      clause (i), (ii) or (iii) above if made by the Borrower or a Restricted
      Subsidiary during such Reference Period, Consolidated EBITDAR, Adjusted
      EBITDA, Consolidated Interest Expense and Consolidated Rental Expense for
      such Reference Period will be calculated after giving pro forma effect
      thereto as if such transaction occurred on the first day of such Reference
      Period.

            


    

     

    For
purposes of this definition, whenever pro forma effect is to be given to any
calculation under this definition, the pro forma calculations will be determined
in good faith by an Authorized Financial Officer (including pro forma expense
and cost reductions calculated on a basis consistent with Regulation S-X under
the Securities Act).  If any Indebtedness bears a floating rate of
interest and is being given pro forma effect, the interest expense on such
Indebtedness will be calculated as if the rate in effect on the date of
determination had been the applicable rate for the entire period (taking into
account any Rate Management Transaction applicable to such Indebtedness if such
Rate Management Transaction has a remaining term in excess of 12
months).  If any Indebtedness that is being given pro forma effect
bears an interest rate at the option of the Borrower, the interest rate shall be
calculated by applying such optional rate chosen by the Borrower.

     

    “Properties” is
defined in Section
6.13.1.

     

    “Property” of a
Person means any and all property, whether real, personal, tangible, intangible,
or mixed, of such Person, or other assets owned, leased or operated by such
Person.

    
       

      “Pro Forma Balance
Sheet” is defined in Section
6.4.

       

    

    
      
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    “Pro Rata Share”
means, with respect to any Lender, a portion equal to a fraction the numerator
of which is such Lender’s Commitment at such time (in each case, as adjusted
from time to time in accordance with the provisions of this Agreement) and the
denominator of which is the Aggregate Commitment  at such time, or, if
the Aggregate Commitment has been terminated or expired, a fraction the
numerator of which is the aggregate outstanding principal amount of such
Lender’s Loans and L/C Exposure, each at such time, and the denominator of which
is the Aggregate Outstanding Credit Exposure.

     

    “Purchasers” is
defined in Section
13.3.1.

     

    “Rate Management
Obligations” of a Person means any and all obligations of such Person,
whether absolute or contingent and howsoever and whensoever created, arising,
evidenced or acquired (including all renewals, extensions and modifications
thereof and substitutions therefor), under (i) any and all Rate Management
Transactions, and (ii) any and all cancellations, buy backs, reversals,
terminations or assignments of any Rate Management Transactions.

     

    “Rate Management
Transaction” means any transaction (including an agreement with respect
thereto) now existing or hereafter entered by the Borrower or a Restricted
Subsidiary which is a rate swap, basis swap, forward rate transaction, commodity
swap, commodity option, equity or equity index swap, equity or equity index
option, bond option, interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collar transaction, forward transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or any other similar transaction (including any option with respect to any of
these transactions) or any combination thereof, whether linked to one or more
interest rates, foreign currencies, commodity prices, equity prices or other
financial measures.

     

    “Real Estate
Collateral” means any restaurant site which is fee-owned and operated by
the Borrower or any of its Restricted Subsidiaries that is subject to a Mortgage
pursuant to Section
7.12, Section
7.10.1 or Section
7.10.2.

     

    “Real Estate Fair
Value” means, with respect to any real property, five times the Trailing
12-month Cash Flow of such real property.

     

    “Regulation D”
means Regulation D of the Board as from time to time in effect and any successor
thereto or other regulation or official interpretation of said Board relating to
reserve requirements applicable to member banks of the Federal Reserve
System.

     

    “Regulation U”
means Regulation U of the Board as from time to time in effect and any successor
or other regulation or official interpretation of said Board relating to the
extension of credit by banks, non-banks and non-broker lenders for the purpose
of purchasing or carrying Margin Stock applicable to member banks of the Federal
Reserve System.

     

    “Regulation X”
means Regulation X of the Board as from time to time in effect and any successor
or other regulation or official interpretation of said Board relating to the
extension of credit by foreign lenders for the purpose of purchasing or carrying
margin stock (as defined therein).

     

    “Reimbursement
Obligation” means the obligation of the Borrower to reimburse the Issuing
Lender pursuant to Section
3.5 for amounts drawn under Letters of
Credit.

     

    
      
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    “Related
Business” means any business which is the same as or related to any of
the businesses of the Borrower and its Restricted Subsidiaries on the Closing
Date.

     

    “Related Parties”
means, with respect to any specified Person, such Person's Affiliates and the
respective directors, officers, employees, agents and advisors of such Person
and such Person's Affiliates.

     

    “Rental Expense”
of a Person means the aggregate fixed amounts payable by such Person under any
Operating Lease.

     

    “Reportable
Event” means a reportable event as defined in Section 4043 of ERISA and
the regulations issued under such section, with respect to a Plan, excluding,
however, such events as to which the PBGC has by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within thirty (30)
days of the occurrence of such event.

     

    “Required
Lenders” means Lenders in the aggregate having greater than fifty percent
(50%) of the Aggregate Commitment or, if the Aggregate Commitment has been
terminated, Lenders in the aggregate holding greater than fifty percent (50%) of
the Aggregate Outstanding Credit Exposure.

     

    “Requirement of
Law” means, as to any Person, the Certificate of Incorporation and By
Laws or other organizational or governing documents of such Person, and any law,
treaty, rule or regulation or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is
subject.

     

    “Requisite Disruption
Lenders” means the holders of more than 50% of the Aggregate
Commitment.

     

    “Reserve
Requirement” means, with respect to an Interest Period, the maximum
aggregate reserve requirement (including all basic, supplemental, marginal and
other reserves) which is imposed under Regulation D on “Eurocurrency
liabilities” (as defined in Regulation D).

     

    “Restricted
Entities” means any institution which is not primarily engaged in the
business of buying, selling or making loans.

     

    “Restricted
Payment” is defined in Section
7.14.

     

    “Restricted
Subsidiaries” means, individually and collectively, all Subsidiaries of
the Borrower that are not Unrestricted Subsidiaries.

     

    “S&P” means
Standard and Poor’s Ratings Group, a division of The McGraw Hill Companies,
Inc., together with its successors.

     

    “Sale and Leaseback
Transaction” means any sale or other transfer of Property by any Person
with the intent to lease such Property back as lessee.

     

    “Sanctioned
Country” means a country subject to a sanctions program identified on the
list maintained by OFAC and available at http://www.treas.gov/offices/enforcement/ofac/sdn/,
or as otherwise published from time to time.

     

    
      
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    “Sanctioned
Person” means (i) a Person named on the list of “Specially Designated
Nationals” maintained by OFAC available at http://www.treas.gov/offices/enforcement/ofac/sdn/,
or as otherwise published from time to time, or (ii) (A) an agency of the
government of a Sanctioned Country, (B) an organization controlled by a
Sanctioned Country, or (C) a person resident in a Sanctioned Country, to the
extent subject to a sanctions program administered by OFAC.

     

    “Secured Parties”
means “Secured Parties” as defined in the Guarantee and Collateral
Agreement.

     

    “Security
Documents” means the collective reference to the Guarantee and Collateral
Agreement, the Mortgages and all other security documents hereafter delivered to
the Collateral Agent granting a Lien on any property of any Person to secure the
Obligations.

     

    “Senior Note
Indentures” means the 2011/2014 Indenture and the 2025
Indenture.

     

    “Senior Notes”
means the 2011 Notes, the 2014 Notes and the 2025 Notes.

     

    “Single Employer
Plan” means a Plan maintained by the Borrower or any member of the
Controlled Group for employees of the Borrower or any member of the Controlled
Group.

     

    “Solvent” means,
when used with respect to any Person, that, as of any date of determination, (a)
the amount of the “present fair saleable value” of the assets of such Person
will, as of such date, exceed the amount of all “liabilities of such Person,
contingent or otherwise”, as of such date, as such quoted terms are determined
in accordance with applicable federal and state laws governing determinations of
the insolvency of debtors, (b) the present fair saleable value of the assets of
such Person will, as of such date, be greater than the amount that will be
required to pay the liability of such Person on its debts as such debts become
absolute and matured, (c) such Person will not have, as of such date, an
unreasonably small amount of capital with which to conduct its business, and (d)
such Person will be able to pay its debts as they mature.  For
purposes of this definition, (i) “debt” means liability on a “claim”, and (ii)
“claim” means any (x) right to payment, whether or not such a right is reduced
to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured or (y) right to an
equitable remedy for breach of performance if such breach gives rise to a right
to payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured
or unsecured.

     

    “Specified Swap
Agreement” means any Rate Management Transaction in respect of interest
rates entered into by the Borrower or any Guarantor and any Person that is a
Lender or an affiliate of a Lender at the time such Rate Management Transaction
is entered into.

     

    “Subsidiary” of a
Person means (i) any corporation more than fifty percent (50%) of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(ii) any partnership, limited liability company, association, joint venture or
similar business organization more than fifty percent (50%) of the ownership
interests having ordinary voting power of which shall at the time be so owned or
controlled.
Unless otherwise expressly provided, all references herein to a “Subsidiary”
shall mean a Subsidiary of the Borrower.

    
      
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    “Subsidiary
Guarantor” means (i) each Material Subsidiary of the Borrower other than
any Foreign Subsidiary or any Unrestricted Subsidiary and (ii) any Immaterial
Subsidiary designated by the Borrower as Subsidiary Guarantor.

     

    “Survey” is
defined in Section
7.12.2.

     

    “Taxes” means any
and all present or future taxes, duties, levies, imposts, deductions, charges or
withholdings, imposed by any Governmental Authority, but excluding Excluded
Taxes and Other Taxes.

     

    “Terminated
Lender” as defined in Section
2.22.

     

    “Title Insurance
Company” is defined in Section
7.12.2.

     

    “Trailing 12-month
Sales” means, at any time, for any restaurant sites owned and operated by
the Borrower or any of its Restricted Subsidiaries, net revenue generated for
the prior 12 month period.

     

    “Trailing 12-month Cash
Flow” means, at any time, with respect to any restaurant sites owned and
operated by the Borrower or any of its Restricted Subsidiaries, store-level
income (including work opportunity tax credits) generated in the prior 12 month
period before the deduction of (i) interest expense, (ii) expense for taxes paid
or accrued, (iii) depreciation, (iv) amortization, and (v) corporate overhead
expenditures, in each case, calculated in a manner consistent with the per site
cash flow materials provided to the Agent prior to the Closing
Date.

     

    “Transferee” is
defined in Section
13.4.

     

    “Triarc
Acquisition” means the acquisition of the Borrower by WAG through the
merger of Green Merger Sub, Inc., a wholly-owned subsidiary of WAG, with and
into the Borrower, with the Borrower being the surviving corporation and a
wholly-owned subsidiary of WAG, in accordance with the Merger
Documentation.

     

    “Type” means,
with respect to any Advance, its nature as a Floating Rate Advance or a
Eurodollar Advance and with respect to any Loan, its nature as a Floating Rate
Loan or a Eurodollar Loan.

     

    “United States”
means the United States of America.

     

    “Unmatured
Default” means an event which but for the lapse of time or the giving of
notice, or both, would constitute a Default.

     

    “Unrestricted
Subsidiary” means any Subsidiary of the Borrower designated as an
Unrestricted Subsidiary pursuant to Section
7.11.  The Unrestricted Subsidiaries as of the Closing Date are
listed on Schedule
1.1F.

     

    “WAG” means
Wendy’s /Arby’s Group, Inc. (f/k/a Triarc Companies, Inc.).

     

    “WNAP” means
Wendy’s National Advertising Program, Inc., an Ohio corporation.

     

    1.2.          Other
Definitional Provisions.

     

    
      
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    1.2.1               Unless
otherwise specified therein, all terms defined in this Agreement shall have the
defined meanings when used in the other Loan Documents or any certificate or
other document made or delivered pursuant hereto or thereto.

     

    1.2.2               As
used herein and in the other Loan Documents, and any certificate or other
document made or delivered pursuant hereto or thereto, (i) accounting terms
relating to any Group Member not defined in Section
1.1 and accounting terms partly defined in Section
1.1, to the extent not defined, shall have the respective
meanings given to them under GAAP, (ii) the words “include”, “includes” and
“including” shall be deemed to be followed by the phrase “without limitation”,
(iii) the word “incur” shall be construed to mean incur, create, issue, assume,
become liable in respect of or suffer to exist (and the words “incurred” and
“incurrence” shall have correlative meanings), (iv) the words “asset” and
“property” shall be construed to have the same meaning and effect and to refer
to any and all tangible and intangible assets and properties, including cash,
Capital Stock, securities, revenues, accounts, leasehold interests and contract
rights, and (v) references to agreements or other Contractual Obligations shall,
unless otherwise specified, be deemed to refer to such agreements or Contractual
Obligations as amended, supplemented, restated or otherwise modified from time
to time.

     

    1.2.3               The
words “hereof”, “herein” and “hereunder” and words of similar import, when used
in this Agreement, shall refer to this Agreement as a whole and not to any
particular provision of this Agreement, and Section, Schedule and Exhibit
references are to this Agreement unless otherwise specified.

     

    1.2.4               The
meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.

     

    ARTICLE II

     

    THE
CREDITS

     

    2.1.           Commitment.  From and including the Closing Date and prior
to the Facility Termination Date, upon the satisfaction of the conditions
precedent set forth in Section
5.1 and 5.2, as applicable, each Lender severally (and not jointly)
agrees, on the terms and conditions set forth in this Agreement, to make Loans
to the Borrower from time to time, in Dollars in an amount not to exceed in the
aggregate at any one time outstanding its Pro Rata Share of the Aggregate
Commitment; provided, that
at no time shall the Aggregate Outstanding Credit Exposure hereunder exceed the
Aggregate Commitment. Subject to the terms of this Agreement, the Borrower may
borrow, repay and reborrow Loans at any time prior to the Facility Termination
Date.  The commitment of each Lender to lend hereunder shall
automatically expire on the Facility Termination Date.

     

    2.2.           Required
Payments; Termination.  Any
outstanding Advances and all other unpaid Obligations shall be paid in full by
the Borrower on the Facility Termination Date.  Notwithstanding the
termination of the Commitments under this Agreement on the Facility Termination
Date, until all of the Obligations (other than contingent indemnity obligations)
shall have been fully paid and satisfied in cash and all financing arrangements
among the Borrower and the Lenders hereunder and under the other Loan Documents
shall have been terminated, all of the rights and remedies under this Agreement
and the other Loan Documents shall survive.

     

    
      
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    2.3.           Ratable
Loans.  Each
Advance hereunder shall consist of Loans made from the several Lenders ratably
in proportion to the ratio that their respective Commitments bear to the
Aggregate Commitment.

     

    2.4.           Types of
Advances.  The Advances may be Floating Rate Advances or
Eurodollar Advances, or a combination thereof, selected by the Borrower in
accordance with Sections
2.8 and 2.9.

     

    2.5.           Facility Fee;
Reductions in Aggregate Commitment.

     

    2.5.1               Facility
Fee.  The Borrower agrees to pay to the Agent for the account
of each Lender a facility fee (the “Facility Fee”)
at a per annum rate equal to the Applicable Fee Rate for the Facility Fee on the
average daily amount of such Lender’s unused Commitment from and including the
Closing Date to and including the Facility Termination Date, payable quarterly
in arrears on each Payment Date hereafter and on the Facility Termination
Date.

     

    2.5.2               Reductions in
Aggregate Commitment.  The Borrower may permanently reduce the
Aggregate Commitment in whole, or in part, ratably among the Lenders in integral
multiples of $10,000,000, upon at least three (3) Business Days’ prior written
notice to the Agent, which notice shall specify the amount of any such
reduction, provided, however, that
the amount of the Aggregate Commitment may not be reduced below the Aggregate
Outstanding Credit Exposure.  All accrued interest and Facility Fees
shall be payable on the effective date of any termination of the obligations of
the Lenders to make Loans hereunder.

     

    2.5.3               Generally.  All
fees payable hereunder or under any fee letter entered into in connection
herewith shall be paid on the dates due, in immediately available funds, to the
Agent for distribution, in the case of Facility Fees to the
Lenders.  Fees paid shall not be refundable under any circumstances
except in the case of manifest error in the calculation of any fee
payment.

     

    2.6.           Minimum Amount
of Each Advance.  Each
Eurodollar Advance shall be in the minimum amount of $5,000,000 (and in
multiples of $1,000,000 if in excess thereof), and each Floating Rate Advance
shall be in the minimum amount of $1,000,000 (and in multiples of $1,000,000 if
in excess thereof), provided, however, that
any Floating Rate Advance may be in the amount of the unused Aggregate
Commitment.

     

    2.7.           Optional
Principal Payments.  The Borrower may from time to time pay,
without penalty or premium, all outstanding Floating Rate Advances, or, in a
minimum aggregate amount of $1,000,000 or any integral multiple of $1,000,000 in
excess thereof, any portion of the outstanding Floating Rate Advances on any
Business Day upon notice to the Agent by no later than 12:00 noon (New York, New
York time) on the date of such prepayment.  The Borrower may from time
to time pay, subject to the payment of any funding indemnification amounts
required by Section
4.4 but without penalty or premium, all outstanding
Eurodollar Advances, or, in a minimum aggregate amount of $5,000,000 or any
integral multiple of $1,000,000 in excess thereof, any portion of the
outstanding Eurodollar Advances upon three (3) Business Days’ prior written
notice to the Agent.

     

    2.8.           Method of
Selecting Types and Interest Periods for New
Advances.  The
Borrower shall select the Type of Advance and, in the case of each Eurodollar
Advance, the Interest Period applicable thereto from time to time.  No
Interest Period may end after the Facility Termination Date.  The
Borrower shall give the Agent irrevocable notice (a “Borrowing
Notice”), substantially in the form of Exhibit
I, not 

     

    
      
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    later
than 12:00 noon (New York, New York time) on the Borrowing Date of each Floating
Rate Advance and three (3) Business Days before the Borrowing Date for each
Eurodollar Advance, specifying:

     

    2.8.1               the
Borrowing Date of such Advance, which shall be a Business Day;

     

    2.8.2               the
aggregate amount of such Advance;

     

    2.8.3               the
Type of Advance selected; and

     

    2.8.4               in
the case of each Eurodollar Advance, the Interest Period applicable
thereto.

     

    Not later than 2:00 p.m. (New York, New York time) on each
Borrowing Date, each Lender shall make available its Loan or Loans in funds
immediately available in New York to the Agent at its address specified pursuant
to ARTICLE
IX.  The Agent will promptly
make the funds so received from the Lenders available to the Borrower at the
Agent’s aforesaid address.

     

    2.9.           Conversion and
Continuation of Outstanding Advances.  Floating Rate Advances shall continue as
Floating Rate Advances unless and until such Floating Rate Advances are
converted into Eurodollar Advances pursuant to this Section
2.9 or are repaid in accordance with Section
2.7.  Each Eurodollar Advance shall continue as a
Eurodollar Advance until the end of the then applicable Interest Period
therefor, at which time such Eurodollar Advance shall be automatically converted
into a Floating Rate Advance unless (x) such Eurodollar Advance is or was repaid
in accordance with Section
2.7 or (y) the Borrower shall have given the Agent a
Conversion/Continuation Notice (as defined below) requesting that, at the end of
such Interest Period, such Eurodollar Advance continue as a Eurodollar Advance
for the same or another Interest Period.  Subject to the terms of
Section
2.6 and the first sentence of Section
2.12, the Borrower may elect from time to time to convert all
or any part of a Floating Rate Advance into a Eurodollar Advance; provided that
any automatic conversion of a Eurodollar Advance shall only be made on the last
day of the Interest Period applicable thereto.  The Borrower shall
give the Agent irrevocable notice (a “Conversion/Continuation
Notice”) of each conversion of a Floating Rate Advance into a Eurodollar
Advance or continuation of a Eurodollar Advance not later than 12:00 noon (New
York, New York time) on the third (3rd) Business Day prior to the date of the
requested conversion or continuation, as the case may be,
specifying:

     

    2.9.1               the
requested date of such conversion or continuation which shall be a Business
Day;

     

    2.9.2               the
aggregate amount and Type of the Advance which is to be converted or continued;
and

     

    2.9.3               the
amount of such Advance which is to be converted into or continued as a
Eurodollar Advance and the duration of the Interest Period applicable
thereto.

     

    2.10.           Changes in
Interest Rate, etc.  Each Floating Rate Advance shall bear interest
on the outstanding principal amount thereof, for each day from and including the
date such Advance is made or is automatically converted from a Eurodollar
Advance into a Floating Rate Advance pursuant to Section
2.9, to but excluding the date it is paid or is converted into
a Eurodollar Advance pursuant to Section
2.9 hereof, at a rate per annum equal to the Alternate
Base Rate plus the Applicable Margin for such day.  Changes in the
rate of interest on that portion of any Advance maintained as a Floating Rate
Advance will take effect simultaneously with each change in the Alternate Base
Rate or the Applicable Margin, as applicable.  Each Eurodollar Advance shall bear
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    and including the first day of the Interest Period
applicable thereto to (but not including) the last day of such Interest Period
at the interest rate determined by the Agent as applicable to such Eurodollar
Advance based upon the Borrower’s selections under Sections
2.8 and 2.9 and otherwise in accordance with the terms
hereof.  Changes in the rate of interest on that portion of any
Advance maintained as a Eurodollar Advance will take effect simultaneously with
each change in the Applicable Margin.


     

    2.11.           Inability to
Determine Interest Rate.  If
prior to the first day of any Interest Period:

     

    2.11.1               the
Agent shall have reasonably determined (which determination shall be conclusive
and binding upon the Borrower) that, by reason of circumstances materially and
adversely affecting the relevant market, adequate and reasonable means do not
exist for ascertaining the Eurodollar Rate for such Interest Period,
or

     

    2.11.2               the
Agent shall have received notice from the Requisite
Disruption  Lenders that the Eurodollar Rate determined or to be
determined for such Interest Period will not adequately and fairly reflect the
cost to such Lenders (as conclusively certified by such Lenders) of making or
maintaining their affected Loans during such Interest Period,

     

    the Agent shall give written notice thereof to the Borrower
and the relevant Lenders as soon as practicable thereafter.  In the
case of any determination pursuant to Section
2.11.1, such written notice shall set forth in reasonable detail
the circumstances affecting the relevant market and the inability to ascertain
the Eurodollar Rate.  If such notice is given (x) any Eurodollar Loan
requested to be made on the first day of such Interest Period shall be made as
Market Disruption Loan (provided, however, that
the Borrower shall have the right to withdraw any Borrowing Notice after receipt
of such notice), (y) any Loan that were to have been converted on the first day
of such Interest Period to a Eurodollar Loan shall be continued as Market
Disruption Loan and (z) any outstanding Eurodollar Loan shall be converted, on
the last day of the then-current Interest Period, to a Market Disruption
Loan.  Until such notice has been withdrawn by the Agent, no further
Eurodollar Loans shall be made or continued as such, nor shall the Borrower have
the right to convert Loans to Eurodollar Loans.  The Agent shall use
reasonable efforts to promptly withdraw such notice if the circumstances
affecting the relevant market which prompted the giving of such notice no longer
exist.

     

    2.12.           Eurodollar
Advances and Rates Applicable After Default.  Notwithstanding anything to the contrary
contained in Section
2.8, 2.9 or 2.10, during the
continuance of a Default or Unmatured Default the Required Lenders may, at their
option, by notice to the Borrower, declare that no Advance may be made as,
converted into or continued as a Eurodollar Advance.  Upon any failure
to pay (i) any principal of any Loan or any Reimbursement Obligation when due
(whether at the stated maturity, by acceleration or otherwise), such overdue
amounts shall bear interest (x) in the case of the Loans, at the rate that would
otherwise be applicable thereto plus 2% per annum or (y) in the case of
Reimbursement Obligations, the rate applicable to Floating Rate Loans plus 2%
per annum, or (ii) any interest payable on any Loan or Reimbursement Obligation,
any fee or other amount payable hereunder when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amounts shall bear
interest at a rate per annum equal to the rate then applicable to Floating Rate
Loans plus 2% per
annum, in each case, with respect to clauses (i) and (ii) above, from the date
of such non payment until such amount is paid in full (as well after as before
judgment).

     

    2.13.           Method of
Payment.  All payments of the Obligations hereunder
shall be made, without setoff, deduction, or counterclaim, in immediately
available funds to the Agent at the Agent’s address specified pursuant to
ARTICLE
IX, or at any other Lending Installation
of the Agent specified in writing by the Agent to the Borrower, by 12:00 noon (local time) on
the date when due and shall be applied ratably by the Agent among the
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    Lender shall be delivered promptly by the Agent to such
Lender in the same type of funds that the Agent received at its address
specified pursuant to ARTICLE
IX or at any Lending Installation
specified in a notice received by the Agent from such Lender.  The
Agent is hereby authorized to charge the account of the Borrower maintained with
JPMCB for each payment of principal, interest and fees as it becomes due
hereunder.

     

    2.14.           Noteless
Agreement; Evidence of Indebtedness.

     

    2.14.1               Each
Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the Indebtedness of the Borrower to such Lender resulting
from each Loan made by such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.

     

    2.14.2               The
Agent shall also maintain accounts in which it will record (a) the date and the
amount of each Loan made hereunder, the Type thereof and, in the case of
Eurodollar Loans, the Interest Period with respect thereto, (b) the amount of
any principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder, (c) the amount of any sum received by the
Agent hereunder from the Borrower and each Lender’s share thereof, (d) the
effective date and amount of each Commitment and Acceptance delivered to and
accepted by it and the parties thereto pursuant to Section
2.23, (e) the effective date and amount of each Assignment
Agreement delivered to and accepted by it and the parties thereto pursuant to
Section
13.3 and (f) all other appropriate debits and credits as
provided in this Agreement, including, without limitation, all fees, charges,
expenses and interest.  The Agent shall make such accounts and related
information available to the Borrower upon the reasonable request of the
Borrower.

     

    2.14.3               The
entries maintained in the accounts maintained pursuant to clauses
(i) and (ii)
above shall, absent manifest error, be prima facie evidence of the existence and
amounts of the Obligations therein recorded; provided, however, that
the failure of the Agent or any Lender to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Obligations in accordance with their terms.

     

    2.14.4               Any
Lender may request that its Loans be evidenced by a promissory note in
substantially the form of Exhibit
D (a “Note”).  In
such event, the Borrower shall prepare, execute and deliver to such Lender such
Note payable to the order of such Lender.  Thereafter, the Loans
evidenced by such Note and interest thereon shall at all times (prior to any
assignment pursuant to Section
13.3) be represented by one or more Notes payable to the order
of the payee named therein, except to the extent that any such Lender
subsequently returns any such Note for cancellation and requests that such Loans
once again be evidenced as described in clauses
(i) and (ii)
above.

     

    2.15.           Telephonic
Notices.  The
Borrower hereby authorizes the Lenders and the Agent to extend, convert or
continue Advances, effect selections of Types of Advances and to transfer funds
based on telephonic notices made by any person or persons the Agent in good
faith and in the absence of gross negligence or willful misconduct believes to
be acting on behalf of the Borrower, it being understood that the foregoing
authorization is specifically intended to allow Borrowing Notices and
Conversion/Continuation Notices to be given telephonically.  The
Borrower agrees to deliver promptly to the Agent a written confirmation, signed
by an Authorized Officer, if such confirmation is requested by the
Agent, of each telephonic notice.  If the written confirmation differs
in any material respect from the action taken by the Agent and the Lenders, the
records of the Agent shall govern absent manifest error.

     

    
      
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    2.16.           Interest
Payment Dates; Interest and Fee Basis.  Interest
accrued on each Floating Rate Advance shall be payable in arrears on each
Payment Date, commencing with the first such date to occur after the Closing
Date, on any date on which the Floating Rate Advance is prepaid, whether due to
acceleration or otherwise, and at maturity.  Interest accrued on that
portion of the outstanding principal amount of any Floating Rate Advance
converted into a Eurodollar Advance on a day other than a Payment Date shall be
payable on the date of conversion.  Interest accrued on each
Eurodollar Advance shall be payable on the last day of its applicable Interest
Period, on any date on which the Eurodollar Advance is prepaid, whether by
acceleration or otherwise, and at maturity.  Interest accrued on each
Eurodollar Advance having an Interest Period longer than three months shall also
be payable on the last day of each three-month interval during such Interest
Period.  Interest on Eurodollar Loans and fees shall be calculated for
actual days elapsed on the basis of a 360-day year.  Interest on
Floating Rate Loans which are calculated on the basis of the Prime Rate shall be
calculated for actual days elapsed on the basis of a 365-day year or, if
applicable, a 366-day year.  Interest shall be payable for the day an
Advance is made but not for the day of any payment on the amount paid if payment
is received prior to 12:00 noon (local time) at the place of
payment.  If any payment of principal of or interest on an Advance,
any fees or any other amounts payable to the Agent or any Lender hereunder shall
become due on a day which is not a Business Day, such payment shall be made on
the next succeeding Business Day and, in the case of a principal payment, such
extension of time shall be included in computing interest, fees and commissions
in connection with such payment.

     

    2.17.           Notification
of Advances, Interest Rates, Prepayments and Commitment Reductions; Availability
of Loans.  Promptly
after receipt thereof, the Agent will notify each Lender of the contents of each
Aggregate Commitment reduction notice, Borrowing Notice, Conversion/Continuation
Notice, and repayment notice received by it hereunder.  The Agent will
notify the Borrower and each Lender of the interest rate applicable to each
Eurodollar Advance promptly upon determination of such interest rate and will
give the Borrower and each Lender prompt notice of each change in the Alternate
Base Rate, the Applicable Margin and the Applicable Fee Rate.

     

    2.18.           Mandatory
Prepayments from Dispositions and Casualty Events; Commitment
Termination.  In the event the Borrower shall be required to
apply the Net Cash Proceeds of a Disposition or Casualty Event involving Real
Estate Collateral to the prepayment of the Loans (and reduction of the
Commitments) pursuant to Section
7.17.2, such Net Cash Proceeds shall be applied first,
to Floating Rate Loans and, second,
to Eurodollar Loans.  Each prepayment of the Loans under this Section
2.18 (except in the case of Loans that are Floating Rate
Loans) shall be accompanied by accrued interest to the date of such prepayment
on the amount prepaid.  Upon any such prepayment, the Commitments
shall be automatically reduced by an aggregate amount equal to the aggregate
principal amount of the Loans so prepaid.  Each such notice shall
specify the date of such prepayment and provide a reasonably detailed
calculation of the amount of such prepayment.

     

    2.19.           Lending
Installations.  Each Lender may book its Loans at any Lending
Installation selected by such Lender and may change its Lending Installation
from time to time.  All terms of this Agreement shall apply to any
such Lending Installation and the Loans and any Notes issued hereunder shall be
deemed held by each Lender for the benefit of any such Lending
Installation.  Each Lender may, by written notice to the Agent and the
Borrower in accordance with ARTICLE
VIII, designate replacement or additional
Lending Installations through which Loans will be made by it and for whose
account Loan payments are to be made.

     

    2.20.           Non-Receipt of Funds by the
Agent.  Unless
the Borrower or a Lender, as the case may be, notifies the Agent prior to the
date on which it is scheduled to make payment to the Agent of (i) in the case of
a Lender, the proceeds of a Loan or (ii) in the case of the Borrower, a payment
of principal, interest or fees to the Agent for the account of the Lenders, that
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    the
Agent may assume that such payment has been made.  The Agent may, but
shall not be obligated to, make the amount of such payment available to the
intended recipient in reliance upon such assumption.  If such Lender
or the Borrower, as the case may be, has not in fact made such payment to the
Agent, the recipient of such payment shall, on demand by the Agent, repay to the
Agent the amount so made available together with interest thereon in respect of
each day during the period commencing on the date such amount was so made
available by the Agent until the date the Agent recovers such amount at a rate
per annum equal to (x) in the case of payment by a Lender, the Federal Funds
Effective Rate for such day for the first three (3) days and, thereafter, the
interest rate applicable to the relevant Loan or (y) in the case of payment by
the Borrower, the interest rate applicable to the relevant Loan.

     

    2.21.           Defaulting
Lenders.  Notwithstanding
any provision of this Agreement to the contrary, if any Lender becomes a
Defaulting Lender, then the following provisions shall apply for so long as such
Lender is a Defaulting Lender:

     

    2.21.1               fees
shall cease to accrue on the unfunded portion of the Commitment of such
Defaulting Lender pursuant to Section
2.5.1.

     

    2.21.2               the
Commitments, the outstanding Loans and L/C Exposure of such Defaulting Lender
shall not be included in determining whether all Lenders or the Required Lenders
have taken or may take any action hereunder (including any consent to any
amendment or waiver pursuant to Section
9.2);
provided
that any waiver, amendment or modification requiring the consent of all
Lenders or each affected Lender which affects such Defaulting Lender differently
than other affected Lenders shall require the consent of such Defaulting
Lender.

     

    2.21.3               if
any Letter of Credit is outstanding at the time a L/C Lender becomes a
Defaulting Lender then

     

    
      	
               
      

            	
              (i)

            	
              all or any part of such L/C Exposure shall be
      reallocated among the non-Defaulting Lenders in accordance with their
      respective L/C Percentages but only to the extent that (x) such
      reallocation does not result in any non-Defaulting Lender’s L/C Exposure
      exceeding its L/C Commitment, (y) the Aggregate Outstanding Credit
      Exposure (excluding outstanding Loans of such Defaulting Lender) does not
      exceed the Aggregate Commitment (excluding the Commitment of such
      Defaulting Lender) and (z) the conditions set forth in Section
      5.2 are satisfied at such time;
      and

            


    

     

    
      	
               
      

            	
              (ii)

            	
              if
      the reallocation described in clause (i) above cannot, or can only
      partially, be effected, the Borrower shall within one Business Day
      following notice by the Agent cash collateralize such Defaulting Lender’s
      L/C Exposure (after giving effect to any partial reallocation pursuant to
      clause (i) above) for so long as such L/C Exposure is
      outstanding;

            


    

     

    
      	
               
      

            	
              (iii)

            	
              if
      the Borrower cash collateralizes any portion of such Defaulting Lender’s
      L/C Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting
      Lender pursuant to Section
      3.10 with respect to such Defaulting Lender’s L/C
      Exposure during the period such Defaulting Lender’s L/C Exposure is cash
      collateralized;

            


    

     

    
      
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              (iv)

            	
              if the L/C Exposure of the non-Defaulting Lenders is
      reallocated pursuant to clause (i) above, then the fees payable to the
      Lenders pursuant to Section
      3.10 shall be adjusted in accordance with such
      non-Defaulting Lenders’ L/C Percentages;
  or

            


    

     

    
      	
               
      

            	
              (v)

            	
              if any Defaulting Lender’s L/C Exposure is neither
      cash collateralized pursuant to clause (ii) above nor reallocated pursuant
      to clause (i) above, then, without prejudice to any rights or remedies of
      the Issuing Lender or any L/C Lender hereunder, all fees that otherwise
      would have been payable to such Defaulting Lender pursuant to Section
      3.10 shall be payable to the Issuing Lender until
      such L/C Exposure is cash collateralized and/or
      reallocated.

            


    

     

    2.21.4               in
determining the Aggregate L/C Commitment for purposes of making new extensions
of credit pursuant to Section
3.1, the L/C Commitment of each Defaulting Lender shall be
excluded, and, for avoidance of doubt the Issuing Lender shall not be required
to issue, amend or increase any Letter of Credit unless it has received
assurances satisfactory to it that non-Defaulting L/C Lenders will cover the
related exposure and/or the Borrower has provided cash collateral in respect of
the exposure of such Defaulting L/C Lender satisfactory to
it.

     

    2.21.5               any
amount payable to such Defaulting Lender hereunder (whether on account of
principal, interest, fees or otherwise and including any amount that would
otherwise be payable to such Defaulting Lender pursuant to Section
2.18 but excluding Section
2.22) shall, in lieu of being distributed to such Defaulting
Lender, be retained by the Agent in a segregated account and, subject to any
applicable requirements of law, be applied at such time or times as may be
determined by the Agent (i) first, to the payment of any amounts owing by such
Defaulting Lender to the Agent hereunder, (ii) second, pro rata, to the payment
of any amounts owing by such Defaulting Lender to the Issuing Lender hereunder,
(iii) third, to the funding of any Loan or the funding or cash collateralization
of any participating interest in any Letter of Credit in respect of which such
Defaulting Lender has failed to fund its portion thereof as required by this
Agreement, as determined by the Agent, (iv) fourth, if so determined by the
Agent and the Borrower, held in such account as cash collateral for future
funding obligations of the Defaulting Lender under this Agreement, (v) fifth,
pro rata, to the payment of any amounts owing to the Borrower or the Lenders as
a result of any judgment of a court of competent jurisdiction obtained by the
Borrower or any Lender against such Defaulting Lender as a result of such
Defaulting Lender’s breach of its obligations under this Agreement and (vi)
sixth, to such Defaulting Lender or as otherwise directed by a court of
competent jurisdiction (provided that
if such payment is (x) a prepayment of the principal amount of any Loans or
Reimbursement Obligations which a Defaulting Lender has funded its participation
obligations and (y) made at a time when the conditions set forth in Section
5.2 are satisfied, such payment shall be applied solely
to prepay the Loans of, and Reimbursement Obligations owed to, all
non-Defaulting Lenders according to their Pro Rata Share prior to being applied
to the prepayment of any Loans, or Reimbursement Obligations owed to, any
Defaulting Lender).

     

    In the event that the Agent, the Borrower and the Issuing
Lender each agrees that a Defaulting Lender has adequately remedied all matters
that caused such Lender to be a Defaulting Lender, then the L/C Exposure of the
L/C Lenders shall be readjusted to reflect the inclusion of such L/C Lender’s
L/C Commitment.

     

    
      
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    2.22.           Replacement of
Lender.  If (a) (i) the Borrower is required pursuant
to Section
4.1, 4.2 or
4.5 to make any additional payment to any Lender or (ii)
any Lender’s obligation to make or continue, or to convert Floating Rate
Advances into, Eurodollar Advances shall be suspended pursuant to Section
4.3.1, or (iii) any Lender fails to consent to any amendment,
waiver or consent that otherwise requires the consent of such Lender under Section
9.2.1, 9.2.2, 9.2.3 or 9.2.4 (any Lender so affected or which fails to so consent,
an “Affected
Lender”), so long as (in the case of this clause (iii)) the consent of
the Required Lenders (with the percentage in such definition being deemed to be
75% for this purpose) has been obtained, or (b) (i) any Lender shall become a
Defaulting Lender and (ii) such Defaulting Lender shall fail to cure the default
as a result of which it has become a Defaulting Lender within five Business Days
after the Borrower’s request that it cure such default; then, with respect to
each such Affected Lender or Defaulting Lender (the “Terminated
Lender”), the Borrower may, at its sole expense and effort, upon notice
to such Terminated Lender and the Agent, require such Terminated Lender to
assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section
13.3), all its interests, rights and obligations under this
Agreement to an assignee that shall assume such obligations (which assignee may
be another Lender, if a Lender accepts such assignment); provided that
(i) the Borrower shall have received the prior written consent of the Agent (and
if a L/C Commitment or L/C Exposure is being assigned, the Issuing Lender),
which consent shall not unreasonably be withheld, (ii) such Terminated Lender
shall have received payment of an amount equal to the outstanding principal of
its Loans and participations in L/C Obligations, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder, from the assignee
(to the extent of such outstanding principal and accrued interest and fees) or
the Borrower (in the case of all other amounts, including without limitation
payments due to such Terminated Lender under Sections
4.1, 4.2 and 4.5, and payments, if any, which would have been due to such
Terminated Lender on the day of such assignment under Section
4.4 had the Loans of such Terminated Lender been prepaid
on such date rather than assigned to the replacement Lender, in each case to the
extent not paid by the purchasing Lender), (iii) in the case of any such
assignment resulting from a claim for compensation under Section
4.1, 4.2 or 4.5, such assignment will result in a reduction in such
compensation or payments, (iv) such assignment does not conflict with any
Requirement of Law (excluding Certificates of Incorporation and By-Laws or other
organizational or governing documents), and (v) no Default shall have occurred
and be continuing at the time of such assignment.  Such Terminated
Lender shall not be required to make any such assignment if, prior thereto, as a
result of a waiver by such Terminated Lender or otherwise, the circumstances
entitling the Borrower to require such assignment cease to
apply.

     

    2.23.           Increase of
Aggregate Commitment.  At any time prior to the Facility Termination
Date, the Borrower may, on the terms set forth below, request that the Aggregate
Commitment hereunder be increased on one or more occasions by an aggregate
amount of up to $100,000,000 with the consent of the Agent but without the
consent of any other Lenders (except as provided below); provided, that
(i) the Aggregate Commitment hereunder at no time shall exceed $300,000,000
without the prior written consent of all existing Lenders, (ii) an increase in
the Aggregate Commitment hereunder may only be made if (a) no Default or
Unmatured Default shall have occurred and be continuing on and as of the date of
such increase and (b) the representations and warranties set forth in ARTICLE
VI of this Agreement are true and
correct on and as of such date (except to the extent any such representation or
warranty is stated to relate solely to an earlier date, in which case such
representation or warranty shall have been true and correct on and as of such
earlier date), (iii) no Lender’s respective Commitment shall be increased under
this Section
2.23 without
such Lender’s consent and unless and until any Lender so consents, such Lender
shall be deemed to have refused any increase to its Commitment, (iv) each of the
then existing Lenders shall be given the opportunity to participate in the
increased Aggregate Commitment ratably in the proportion that its Commitment
bears to the Aggregate Commitment and (v) to the extent that all or any portion
of the requested increase in the Aggregate Commitment is not fulfilled pursuant
to the preceding clause
(iv), the increase shall be funded in such additional amounts as any
Lender, including any new financial institution, the Agent and the Borrower
agree, provided, that
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    either the Borrower or the Agent invites to become a Lender
hereunder shall be reasonably acceptable to the Borrower and the
Agent.  In the event of such a requested increase in the Aggregate
Commitment, any existing Lender which the Borrower or the Agent invites to
increase its Commitment (or any new financial institution which the Borrower or
the Agent invites to become a Lender) may set the amount of its Commitment at a
level agreed to by the Borrower and the Agent.  In the event that the
Borrower and one or more of the Lenders (or new financial institutions) shall
agree upon such an increase in the Aggregate Commitment (i) the Borrower, the
Agent and each Lender increasing its Commitment (or new financial institution
extending a new Commitment) shall enter into an agreement substantially in the
form of Exhibit
F hereto (a “Commitment and
Acceptance”) and (ii) the Borrower shall furnish, if requested, a new
Note to each Lender that is increasing its Commitment (or each new financial
institution that is extending a new Commitment).  Upon the execution
and delivery of such Commitment and Acceptance, and upon the Agent’s
reallocation of any outstanding Loans ratably among the Lenders after giving
effect to each such increase in the Aggregate Commitment (subject to Section
4.4), this Agreement shall be deemed to be amended to increase
the Aggregate Commitment accordingly.

     

     

    ARTICLE III

     

    LETTERS
OF CREDIT

     

    3.1.           General.  Subject
to the terms and conditions set forth herein, the Borrower may request the
issuance of letters of credit (“Letters of
Credit”) for its own account, in a form reasonably acceptable to the
Agent and the Issuing Lender, at any time and from time to time from and
including the Closing Date and prior to the Facility Termination
Date.  In the event of any inconsistency between the terms and
conditions of this Agreement and the terms and conditions of any form of letter
of credit application or other agreement submitted by the Borrower to, or
entered into by the Borrower with, the Issuing Lender relating to any Letter of
Credit, the terms and conditions of this Agreement shall control.

     

    3.2.           Notice of
Issuance, Amendment, Renewal, Extension; Certain
Conditions.  To request the issuance of a Letter of Credit
(or the amendment, renewal or extension of an outstanding Letter of Credit), the
Borrower shall hand deliver or telecopy (or transmit by electronic
communication, if arrangements for doing so have been approved by the Issuing
Lender) to the applicable Issuing Lender and the Agent (reasonably in advance of
the requested date of issuance, amendment, renewal or extension) a notice
requesting the issuance of a Letter of Credit, or identifying the Letter of
Credit to be amended, renewed or extended, and specifying the date of issuance,
amendment, renewal or extension (which shall be a Business Day), the date on
which such Letter of Credit is to expire (which shall comply with Section
3.3), the amount of such Letter of Credit, the name and
address of the beneficiary thereof and such other information as shall be
necessary to prepare, amend, renew or extend such Letter of
Credit.  If requested by the Issuing Lender, the Borrower also shall
submit a letter of credit application on the applicable Issuing Lender's
standard form in connection with any request for a Letter of
Credit.  A Letter of Credit shall be issued, amended, renewed or
extended only if (and upon issuance, amendment, renewal or extension of each
Letter of Credit the Borrower shall be deemed to represent and warrant that),
after giving effect to such issuance, amendment, renewal or extension
(i) the L/C Obligations shall not exceed the Aggregate L/C Commitments and
(ii) the sum of the Aggregate Outstanding Credit Exposures shall not exceed
the Aggregate Commitments.

     


    3.3.           Expiration Date.  Each
Letter of Credit shall expire at or prior to the close of business on the
earlier of (i) the date one year after the date of the issuance of such
Letter of Credit (or, in the case of any renewal or extension thereof, one year
after such renewal or extension) and (ii) the date that is five Business
Days prior to the Facility Termination Date; provided that
any Letter of Credit with a term of one year or less may provide for the renewal
thereof for additional periods less then or equal to one year (which shall in no
event extend beyond the date referred to in clause (ii) above).  It is
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    the
Closing Date Existing Letters of Credit shall be deemed Letters of Credit issued
under this Agreement for all purposes of this Agreement and the other Loan
Documents.

     

    3.4.           Participations.  By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the Issuing Lender or the L/C Lenders, the Issuing
Lender hereby grants to each L/C Lender, and each L/C Lender hereby acquires
from the Issuing Lender, a participation in such Letter of Credit equal to such
L/C Lender's L/C Percentage of the aggregate amount available to be drawn under
such Letter of Credit.  In consideration and in furtherance of the
foregoing, each L/C Lender hereby absolutely and unconditionally agrees to pay
to the Agent, for the account of the Issuing Lender, such L/C Lender's L/C
Percentage of each L/C Disbursement made by the Issuing Lender and not
reimbursed by the Borrower on the date due as provided in Section
3.5, or of any reimbursement payment required to be refunded
to the Borrower for any reason.  Each L/C Lender acknowledges and
agrees that its obligation to acquire participations pursuant to this paragraph
in respect of Letters of Credit is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including any amendment, renewal or
extension of any Letter of Credit or the occurrence and continuance of a Default
or reduction or termination of the Commitments, and that each such payment shall
be made without any offset, abatement, withholding or reduction
whatsoever.

     

    3.5.           Reimbursement.  If the Issuing Lender shall make any L/C
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such
L/C Disbursement by paying to the Agent an amount equal to such L/C Disbursement
not later than 2:00 p.m., New York City time, on the date that such L/C
Disbursement is made, if the Borrower shall have received notice of such L/C
Disbursement prior to 10:00 a.m., New York City time, on such date, or, if such
notice has not been received by the Borrower prior to such time on such date,
then not later than 2:00 p.m., New York City time, on (i) the Business Day that
the Borrower receives notice of such L/C Disbursement, if such notice is
received on such day prior to 10:00 a.m., New York City time, or (ii) if clause
(i) above does not apply, the Business Day immediately following the day that
the Borrower receives such notice, if such notice is not received prior to such
time on the day of receipt; provided that the Borrower may, subject to the
conditions to borrowing set forth herein, request in accordance with Sections
2.8 and 2.9 that such payment be financed with a Floating Rate
Advance in an equivalent amount and, to the extent so financed, the Borrower's
obligation to make such payment shall be discharged and replaced by the
resulting Floating Rate Advance.  If the Borrower fails to make such
payment when due, the Agent shall notify each L/C Lender of the applicable L/C
Disbursement, the payment then due from the Borrower in respect thereof and such
L/C Lender's L/C  Percentage thereof.  Promptly following
receipt of such notice, each L/C Lender shall pay to the Agent its L/C
Percentage of the payment then due from the Borrower, in the same manner as
provided in Section 2.8 with respect to Loans made by such Lender (and Section 2.8 shall apply, mutatis mutandis, to the payment
obligations of the L/C Lenders), and the Agent shall promptly pay to the Issuing
Lender the amounts so received by it from the L/C Lenders.  Promptly
following receipt by the Agent of any payment from the Borrower pursuant to this
paragraph, the Agent shall distribute such payment to the Issuing Lender or, to
the extent that Lenders have made payments pursuant to this paragraph to
reimburse the Issuing Lender, then to such L/C Lenders and the Issuing Lender as
their interests may appear.  Any payment made by a L/C Lender pursuant
to this paragraph to reimburse the Issuing Lender for any L/C Disbursement
(other than the funding of Floating Rate Advances as contemplated above) shall
not constitute a Loan and shall not relieve the Borrower of its obligation to
reimburse such L/C Disbursement.

     

    3.6.           Obligations
Absolute.  The Borrower's obligation to reimburse L/C
Disbursements as provided in Section
3.5 shall be absolute, unconditional and irrevocable, and
shall be performed strictly in accordance with the terms of this Agreement under
any and all circumstances whatsoever and irrespective of (i) any lack of
validity or enforceability of any Letter of Credit or this Agreement, or any
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    provision therein, (ii) any draft or other document
presented under a Letter of Credit proving to be forged, fraudulent or invalid
in any respect or any statement therein being untrue or inaccurate in any
respect, (iii) payment by the Issuing Lender under a Letter of Credit against
presentation of a draft or other document that does not comply with the terms of
such Letter of Credit, or (iv) any other event or circumstance whatsoever,
whether or not similar to any of the foregoing, that might, but for the
provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Borrower's obligations
hereunder.  Neither the Agent, the L/C Lenders nor the Issuing Lender,
nor any of their Related Parties, shall have any liability or responsibility for
any action taken or omitted by such Person in connection with the issuance or
transfer of any Letter of Credit or any payment or failure to make any payment
thereunder (irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication under or
relating to any Letter of Credit (including any document required to make a
drawing thereunder), any error in interpretation of any technical terms or any
consequence arising from causes beyond the control of such Person; provided that
the foregoing shall not be construed to excuse the Issuing Lender from liability
to the Borrower to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by the Borrower to the
extent permitted by applicable law) suffered by the Borrower that are caused by
the Issuing Lender's failure to exercise care when determining whether drafts
and other documents presented under a Letter of Credit comply with the terms
thereof.  The parties hereto expressly agree that, in the absence of
gross negligence or wilful misconduct on the part of the Issuing Lender (as
finally determined by a court of competent jurisdiction), the Issuing Lender
shall be deemed to have exercised care in each such determination.  In
furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented which appear on their
face to be in substantial compliance with the terms of a Letter of Credit, the
Issuing Lender may, in its sole discretion, either accept and make payment upon
such documents without responsibility for further investigation, regardless of
any notice or information to the contrary, or refuse to accept and make payment
upon such documents if such documents are not in strict compliance with the
terms of such Letter of Credit.

     

    3.7.           Disbursement
Procedures.  The
Issuing Lender shall, promptly following its receipt thereof, examine all
documents purporting to represent a demand for payment under a Letter of
Credit.  The Issuing Lender shall promptly notify the Agent and the
Borrower by telephone (confirmed by telecopy) of such demand for payment and
whether the Issuing Lender has made or will make an L/C Disbursement thereunder;
provided that any failure to give or delay in giving such notice shall not
relieve the Borrower of its obligation to reimburse the Issuing Lender and the
Lenders with respect to any such L/C Disbursement.

     

    3.8.           Interim
Interest.  If the Issuing Lender shall make any L/C
Disbursement, then, unless the Borrower shall reimburse such L/C Disbursement in
full on the date such L/C Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such L/C Disbursement is
made to but excluding the date that the Borrower reimburses such L/C
Disbursement, at the rate per annum then applicable to Floating Rate Advances;
provided that, if the Borrower fails to reimburse such L/C Disbursement when due
pursuant to Section
3.5, then Section
2.12 shall apply.  Interest accrued pursuant to
this paragraph shall be for the account of the Issuing Lender, except that interest accrued on and after the date of payment by any
L/C Lender pursuant to Section
3.5 to reimburse the Issuing Lender shall be for the
account of such L/C Lender to the extent of such
payment.

     

    3.9.           Replacement of
the Issuing Lender.  An Issuing Lender may be replaced at any time
by written agreement among the Borrower, the Agent, the replaced Issuing Lender
and the successor Issuing Lender.  The Agent shall notify the L/C
Lenders of any such replacement of the Issuing Lender.  At the time
any such replacement shall become effective, the Borrower shall pay all unpaid
fees accrued for the account of the replaced Issuing Lender pursuant to Section
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    replacement, (i) the successor Issuing Lender shall have
all the rights and obligations of the Issuing Lender under this Agreement with
respect to Letters of Credit to be issued thereafter and (ii) references herein
to the term "Issuing Lender" shall be deemed to refer to such successor or to
any previous Issuing Lender, or to such successor and all previous Issuing
Lender, as the context shall require.  After the replacement of an
Issuing Lender hereunder, the replaced Issuing Lender shall remain a party
hereto and shall continue to have all the rights and obligations of an Issuing
Lender under this Agreement with respect to Letters of Credit issued by it prior
to such replacement, but shall not be required to issue additional Letters of
Credit.

     

    3.10.           Fees and Other
Charges.

     

    3.10.1               The
Borrower will pay a fee, following receipt of an invoice or other appropriate
documentation, on all outstanding Letters of Credit at a per annum rate equal to
the Applicable Margin then in effect with respect to Eurodollar Loans, shared
pursuant to their L/C Percentage among the L/C Lenders and payable quarterly in
arrears on each Payment Date after the issuance date.  In addition,
the Borrower shall pay, following receipt of an invoice or other appropriate
documentation, to the Issuing Lender for its own account a fronting fee of 0.25%
per annum on the undrawn and unexpired amount of each Letter of Credit, payable
quarterly in arrears on each Payment Date after the issuance date.

     

    3.10.2               In
addition to the foregoing fees, the Borrower shall pay or reimburse the Issuing
Lender, following receipt of an invoice or other appropriate documentation, for
such normal and customary costs and expenses as are incurred or charged by the
Issuing Lender in issuing, negotiating, effecting payment under, amending or
otherwise administering any Letter of Credit.

     

    ARTICLE IV

     

    YIELD
PROTECTION; TAXES

     

    4.1.           Yield
Protection.  If, on or after the Closing Date, the adoption
of or any change in any Requirement of Law (excluding Certificates of
Incorporation and By-Laws or other organizational or governing documents) (other
than a change in tax law, as to which Section
4.5, shall govern) or in the interpretation or application
thereof or compliance by any Lender with any request or directive (whether or
not having the force of law, but excluding any regulation, policy, guideline,
directive or interpretation relating to taxes, as to which Section
4.5 shall govern) from any Governmental Authority charged
with the interpretation or administration thereof, or compliance by any Lender
or applicable Lending Installation with any request or directive (whether or not
having the force of law) of any such Governmental Authority:

     

    4.1.1               imposes
or increases or deems applicable any reserve, assessment, insurance charge,
special deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender or any applicable Lending
Installation (other
than reserves and assessments taken into account in determining the interest
rate applicable to Eurodollar Advances), or

     

     

    4.1.2               imposes
any other condition the result of which is to increase the cost to any Lender or
any applicable Lending Installation of making, funding or maintaining its
Commitment or Eurodollar Loans or reduces any amount receivable by any Lender or
any applicable Lending Installation in connection with its Commitment,
Eurodollar Loans or requires any Lender or any applicable Lending Installation
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    by
reference to the amount of Commitment or Eurodollar Loans held or interest
received by it, by an amount deemed material by such Lender,

     

    and the result of any of the foregoing is to increase the
cost to such Lender or applicable Lending Installation of making or maintaining
its Eurodollar Loans or Commitment or to reduce the return received by such
Lender or applicable Lending Installation in connection with such Eurodollar
Loans or Commitment, then, within thirty (30) days of demand, accompanied by the
written statement required by Section
4.6, by such Lender, the Borrower shall pay such Lender such
additional amount or amounts as will compensate such Lender for such increased
cost or reduction in amount received; provided, that
the Borrower shall not be required to compensate a Lender under this Section for
any increased costs or reductions incurred more than ninety (90) days prior to
the date that such Lender notifies the Borrower in writing of such increased
costs or reductions and of such Lender’s intention to claim compensation
therefor; provided, further, that
if such adoption or such change giving rise to such increased costs or reduction
is retroactive, such 90¬day period shall be extended to include the period of
retroactive effect.

     

    4.2.           Changes in
Capital Adequacy Regulations.  If a Lender determines the amount of capital
required or expected to be maintained by such Lender, any Lending Installation
of such Lender or any corporation controlling such Lender is increased as a
result of a Change, then, within thirty (30) days of demand, accompanied by the
written statement required by Section
4.6, by such Lender, the Borrower shall pay such Lender the
amount necessary to compensate for any shortfall in the rate of return on the
portion of such increased capital which such Lender determines is attributable
to this Agreement, its extensions of credit or its commitment to extent credit
hereunder (after taking into account such Lender’s policies as to capital
adequacy); provided, that
the Borrower shall not be required to pay to such Lender such additional amounts
under this Section for any amount incurred as a result of such Change more than
one hundred eighty (180) days prior to the date that such Lender notifies the
Borrower in writing of such Change and of such Lender’s intention to claim
compensation therefor; provided, further, that
if such Change giving rise to such amounts is retroactive such 180-day period
shall be extended to include the period of retroactive effect.  “Change” means
(i) any change after the Closing Date in the Risk-Based Capital Guidelines or
(ii) any adoption of, or change in, or change in the interpretation or
administration of any other Requirement of Law (excluding Certificates of
Incorporation and By-Laws or other organizational or governing documents)
(whether or not having the force of law) after the Closing Date which affects
the amount of capital required or expected to be maintained by any Lender or any
Lending Installation or any corporation controlling any
Lender.  “Risk-Based Capital
Guidelines” means (i) the risk-based capital guidelines in effect in the
United States on the Closing Date, including transition rules, and (ii) the
corresponding capital regulations promulgated by regulatory authorities outside
the United States implementing the July 1988 report of the Basle Committee on
Banking Regulation and Supervisory Practices Entitled “International Convergence
of Capital Measurements and Capital Standards,” including transition rules, and
any amendments to such regulations adopted (and adopted by or applicable to such
Lender) prior to the Closing Date or implementing the November 2005 report of
the Basle Committee on Banking Regulation and Supervisory Practices Entitled
“International Convergence of Capital Measurements and Capital Standards - A
Revised Framework,” including transition rules, and any amendments to such
regulations adopted (and adopted by or applicable to such Lender) prior to the
Closing Date.

     

    4.3.           Availability of Types of
Advances.

     

    4.3.1               If
any Lender determines that maintenance of its Eurodollar Loans at a suitable
Lending Installation would violate any applicable law, rule, regulation, or
directive, whether or not having the force of law; or

     

    
      
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    4.3.2               if
the Required Lenders determine that deposits of a type and maturity appropriate
to match fund Eurodollar Advances are not available,

     

    then the Agent shall suspend the availability of Eurodollar
Advances and require any affected Eurodollar Advances to be repaid or converted
to Floating Rate Advances on the respective last days of the then current
Interest Periods with respect to such Loans or within such earlier period as
required by law, subject to the payment of any funding indemnification amounts
required by Section
4.4.

     

    4.4.           Funding
Indemnification.  If
any payment of a Eurodollar Advance occurs on a date which is not the last day
of the applicable Interest Period, whether because of acceleration, prepayment
or otherwise, or a Eurodollar Advance is not made or continued, or a Floating
Rate Advance is not converted into a Eurodollar Advance, in any such case, on
the date specified by the Borrower for any reason other than default by the
Agent or the Lenders, or a Eurodollar Advance is not prepaid on the date
specified by the Borrower for any reason, the Borrower will indemnify each
Lender for any loss or cost incurred by it resulting therefrom, including,
without limitation, any loss or cost in liquidating or employing deposits
acquired to fund or maintain such Eurodollar Advance.

     

    4.5.           Taxes.

     

    4.5.1               Subject
to Section
4.5.6, all payments by the Borrower to or for the account of any
Lender or the Agent hereunder or under any Note shall be made free and clear of
and without deduction for any and all Taxes.  If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder to any Lender or the Agent, (a) subject to Section
4.5.6, the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section
4.5) such Lender or the Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been made,
(b) the Borrower shall make such deductions, (c) the Borrower shall pay the full
amount deducted to the relevant authority in accordance with applicable law and
(d) the Borrower shall furnish to the Agent the original or a certified copy of
a receipt evidencing payment thereof (or such other proof of payment reasonably
acceptable to the Agent) within thirty (30) days after such payment is
made.

     

    4.5.2               In
addition, the Borrower shall pay any present or future stamp or documentary
taxes and any other excise or property taxes, charges or similar levies which
arise from any payment made hereunder or under any Note or from the execution or
delivery of, or otherwise with respect to, this Agreement or any Note (“Other
Taxes”).

     

    4.5.3               Subject
to Section
4.5.6, the Borrower shall indemnify the Agent and each Lender
for the full amount of Taxes or Other Taxes (including any Taxes or Other Taxes
imposed on amounts payable under this Section
4.5) paid by the Agent or such Lender as a result of any
obligation of the Borrower hereunder or under any Note and any penalties,
interest and reasonable expenses (other than penalties, interest and expenses
caused by the gross negligence or willful misconduct of the Agent or such
Lender) arising therefrom or with respect thereto.  Payments due
under this indemnification shall be made within thirty (30) days of the date the
Agent or such Lender makes demand therefor pursuant to Section
4.6.

     

    4.5.4               Each
Lender shall indemnify the Agent within ten (10) days after demand therefor, for
the full amount of any Excluded Taxes attributable to such Lender that


     

    
      
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    are
payable or paid by the Agent, and reasonable expenses arising therefrom or with
respect thereto, whether or not such Excluded Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority.  A
certificate as to the amount of such payment or liability delivered to any
Lender by the Agent shall be conclusive absent manifest error.

     

    4.5.5               Without
limiting the generality of the foregoing, in the event that a Lender is not a
“United States Person” as defined in Section 7701(a)(30) of the Code (a “Non-U.S.
Lender”), such Non-U.S. Lender shall, to the extent it is legally
entitled to do so, deliver to the Borrower and the Agent (in such number of
copies as shall be requested by the recipient) on or prior to the date on which
such Non-U.S. Lender becomes a Lender under this Agreement (and from time to
time thereafter upon the request of the Borrower or the Agent), whichever of the
following is applicable:

     

    
      	
               
      

            	
              (A)

            	
              duly
      completed copies of Internal Revenue Service Form W-8BEN claiming
      eligibility for benefits of an income tax treaty to which the United
      States of America is a party,

            


    

     

    
      	
               
      

            	
              (B)

            	
              duly
      completed copies of Internal Revenue Service Form
  W-8ECI,

            


    

     

    
      	
               
      

            	
              (C)

            	
              in
      the case of a Foreign Lender claiming the benefits of the exemption for
      portfolio interest under Section 881(c) of the Code, (x) a certificate
      substantially in the Form of Exhibit
      H to the effect that (i) such Foreign Lender is not (A) a “bank”
      within the meaning of Section 881(c)(3)(A) of the Code, (B) a “10 percent
      shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of
      the Code, and (C) a “controlled foreign corporation” described in Section
      881(c)(3)(C) of the Code, and (ii) the interest payments in question are
      not effectively connected with the United States trade or business
      conducted by such Lender (a “U.S. Tax
      Compliance Certificate”) and (y) duly completed copies of Internal
      Revenue Service Form W-8BEN,

            


    

     

    
      	
               
      

            	
              (D)

            	
              to
      the extent a Non-U.S. Lender is not the beneficial owner (for example,
      where the Non-U.S. Lender is a partnership or participating Lender
      granting a typical participation), an Internal Revenue Service Form
      W-8IMY, accompanied by a Form W-8ECI, W-8BEN, U.S. Tax Compliance
      Certificate, Form W-9, and/or other certification documents from each
      beneficial owner, as applicable; provided,
      that, if the Non-U.S. Lender is a partnership (and not a participating
      Lender) and one or more beneficial owners of such Non-U.S. Lender are
      claiming the portfolio interest exemption, such Non-U.S. Lender may
      provide a
      U.S. Tax Compliance Certificate on behalf of each such beneficial owner,
      or

            


    

     

    
      	
               
      

            	
              (E)

            	
              any
      other form prescribed by applicable law as a basis for claiming exemption
      from or a reduction in United States federal withholding tax duly
      completed together with such supplementary documentation as may be
      prescribed by 

            


    

     

    
      
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                           applicable law to permit the
Borrower to determine the withholding or deduction required to be made.

     

    Each
Lender agrees that if any form or certification it previously delivered expires
or becomes obsolete or inaccurate in any respect, it shall promptly update or
replace such form or certification or promptly notify Borrower and the Agent in
writing of its legal inability to do so.

     

    4.5.6               Notwithstanding
anything to the contrary in this Section
4.5, for any period during which a Lender or the Agent has
failed to provide the Borrower with an appropriate form pursuant to Section
4.5.5 (unless such failure is due to a change in treaty,
law or regulation, or any change in the interpretation or administration thereof
by any Governmental Authority, occurring subsequent to the date on which a form
originally was required to be provided that renders such Lender or Agent legally
unable to provide an appropriate form pursuant to Section 4.5.5 (including any updated or replacement form) and such
Lender or Agent has notified the Borrower and Agent in writing of such legal
inability), such Lender or the Agent shall not be entitled to gross up or
indemnification under this Section
4.5 with respect to Taxes imposed by the United States as
a result of such failure; provided, that,
should a Non-U.S. Lender which is otherwise exempt from or subject to a reduced
rate of withholding tax become subject to Taxes because of its failure to
deliver a form required under Section
4.5.5 above, the Borrower shall take such steps as such
Non-U.S Lender shall reasonably request (and at such Non-U.S. Lender’s sole
expense) to assist such Non-U.S. Lender to recover such Taxes to the extent that
such steps do not adversely affect the Borrower or its Affiliates.


     

    4.5.7               If
the U.S. Internal Revenue Service or any other Governmental Authority of the
United States or any other country or any political subdivision thereof asserts
a claim that the Agent did not properly withhold tax from amounts paid to or for
the account of any Lender (because the appropriate form was not delivered or
properly completed, because such Lender failed to notify the Agent of a change
in circumstances which rendered its exemption from withholding ineffective, or
for any other reason), such Lender shall indemnify the Agent fully for all
amounts paid, directly or indirectly, by the Agent as tax, withholding therefor,
or otherwise, including penalties and interest, and including taxes imposed by
any jurisdiction on amounts payable to the Agent under this subsection, together
with all costs and expenses related thereto (including attorneys fees and time
charges of attorneys for the Agent, which attorneys may be employees of the
Agent).  The obligations of the Lenders under this Section
4.5.7 shall survive the payment of the Obligations and
termination of this Agreement.

     

    4.5.8               If
a Lender or Agent determines, in its reasonable discretion, that it is entitled
to a refund (whether by way of direct refund, credit, offset or otherwise) in
respect of any Taxes or Other Taxes, which refund is attributable to amounts
paid or indemnified by the Borrower pursuant to this Section
4.5, such Lender or Agent shall apply for such
refund.  Within thirty (30) days of receipt or deemed receipt of such
refund (whether by way of direct
refund, credit, offset or otherwise), such Lender or Agent shall pay to the
Borrower an amount equal to such refund (net of any reasonable out-of-pocket
expenses incurred by such person in obtaining such refund).  In the
event such Lender or Agent is required to repay such refund to the relevant
taxing authority, the Borrower agrees to return the refund to such Lender or
Agent.  This paragraph shall not be construed to require the Agent,
the Issuing Lender or any Lender to make available its Tax returns (or any other
information relating to its taxes that it deems confidential) to the Borrower or
any other Person.

     

    
      
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    4.6.           Lender
Statements; Survival of Indemnity.  Each Lender shall deliver a written statement
of such Lender to the Borrower (with a copy to the Agent) as to the amount due,
if any, under Section
4.1, 4.2, 4.4 or 4.5.  Such written statement shall set forth in
reasonable detail the calculations upon which such Lender determined such amount
and shall be final, conclusive and binding on the Borrower in the absence of
manifest error.  Determination of amounts payable under such Sections
in connection with a Eurodollar Loan shall be calculated as though each Lender
funded its Eurodollar Loan through the purchase of a deposit of the type and
maturity corresponding to the deposit used as a reference in determining the
Eurodollar Rate applicable to such Loan, whether in fact that is the case or
not.  Unless otherwise provided herein, the amount specified in the
written statement of any Lender shall be payable on demand after receipt by the
Borrower of such written statement.  The obligations of the Borrower
under Sections
4.1, 4.2, 4.4 and 4.5 shall survive payment of the Obligations and
termination of this Agreement.

     

    4.7.           Alternative
Lending Installation.  To the extent reasonably possible, each Lender
shall designate an alternate Lending Installation with respect to its Eurodollar
Loans to reduce any liability of the Borrower to such Lender under Sections
4.1, 4.2 and 4.5 or to avoid the unavailability of Eurodollar Advances
under Section
4.3.1, so long as such designation is not, in the judgment of
such Lender, disadvantageous to such Lender.  A Lender’s designation
of an alternative Lending Installation shall not affect the Borrower’s rights
under Section
2.22 to replace a Lender.

     

    ARTICLE V

     

    CONDITIONS
PRECEDENT

     

    5.1.           Closing
Date.  The
agreement of each Lender to make the initial extension of credit requested to be
made by it is subject to the satisfaction, prior to or concurrently with the
making of such extension of credit on the Closing Date, of the following
conditions precedent:

     

    5.1.1               The
Agent shall have received (i) this Agreement, executed and delivered by the
Agent, Holdings, the Borrower and each Person listed on Schedule
1.1B, (ii) the Guarantee and Collateral Agreement, executed and delivered
by Holdings, the Borrower and each Subsidiary Guarantor and (iii) an
Acknowledgement and Consent in the form attached to the Guarantee and Collateral
Agreement as Annex I, executed and delivered by each Issuer (as defined therein)
constituting a Subsidiary of a Loan Party (other than WNAP), if any, that is not
a Loan Party.

     

    5.1.2               The
Lenders shall have received (i) the Pro Forma Balance Sheet, (ii) audited
consolidated financial statements of the Borrower for the 2005, 2006 and 2007
fiscal years, (iii) no later than fifteen (15) days prior to the Closing Date,
unaudited interim consolidated financial statements of Borrower for the fiscal
quarter ended September 30, 2008 and unaudited consolidated financial statements
for the same period of the prior fiscal year, and (iv) promptly after available
to management, monthly financial data generated by the
Borrower’s internal accounting system for use by senior management for the
months of September 2008, October 2008 and November 2008 and such financial
statements or financial data, received pursuant to clauses (iii) and (iv) above,
shall not, in the reasonable judgment of the Lenders, reflect any material
adverse change in the consolidated financial condition of the Borrower, as
reflected in the model and marketing materials posted on Intralinks and made
generally available to prospective lenders.

     

    
      
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    5.1.3               The
Lenders shall have received reasonably satisfactory quarterly projections
through 2009 and annual projections through 2011, prepared on a pro forma basis
after giving effect to the Triarc Acquisition.

     

    5.1.4               All
governmental and third party approvals necessary in connection with the
continuing operations of the Group Members and the transactions contemplated
hereby shall have been obtained on reasonably satisfactory terms and be in full
force and effect.  There shall not be any action, investigation,
litigation or proceeding pending or threatened in any court or before any
arbitrator or Governmental Authority that could reasonably be expected to have a
Material Adverse Effect or a material adverse effect on the transactions
contemplated hereby.

     

    5.1.5               The
Agent shall have received the results of a recent lien search in each of the
jurisdictions where assets of the Loan Parties are located, and such search
shall reveal no liens on any of the assets of the Loan Parties except for liens
permitted by Section
7.19 or discharged on or prior to the Closing Date
pursuant to documentation satisfactory to the Agent.

     

    5.1.6               The
Lenders and the Agent shall have received all fees required to be paid to them
on the Closing Date, and all expenses for which invoices have been presented
(including the reasonable fees and expenses of legal counsel), on or before the
Closing Date.  All such amounts will be paid with proceeds of Loans
made on the Closing Date and will be reflected in the funding instructions given
by the Borrower to the Agent on or before the Closing Date.

     

    5.1.7               The
Agent shall have received (i) the certificates representing the shares of
Capital Stock pledged pursuant to the Guarantee and Collateral Agreement,
together with an undated stock power for each such certificate executed in blank
by a duly authorized officer of the pledgor thereof and (ii) each promissory
note (if any) pledged to the Agent pursuant to the Guarantee and Collateral
Agreement endorsed (without recourse) in blank (or accompanied by an executed
transfer form in blank) by the pledgor thereof.

     

    5.1.8               Each
document (including any Uniform Commercial Code financing statement) required by
the Security Documents or under law or reasonably requested by the Agent to be
filed, registered or recorded in order to create in favor of the Collateral
Agent, for the benefit of the Secured Parties, a perfected Lien on the
Collateral described therein, prior and superior in right to any other Person
(other than with respect to Liens expressly permitted by Section
7.19), shall be in proper form for filing, registration or
recordation.

     

    5.1.9               The
Agent shall have received a solvency certificate from an Authorized Officer of
the Borrower.

     

    5.1.10               The
Agent shall have received insurance certificates satisfying the requirements of
Section
5.2 of the Guarantee and Collateral Agreement.

     

    5.1.11               The
Agent shall have received copies of the articles of incorporation of each Loan
Party, together with all amendments, and a certificate of good standing, each
certified by the appropriate governmental officer in its jurisdiction of
incorporation.

     

    5.1.12               The
Agent shall have received copies, certified by the Secretary or Assistant
Secretary of each Loan Party, of such Loan Party’s Board of Directors’
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     and
of resolutions or actions of any other body authorizing the execution of the
Loan Documents to which such Loan Party is a party.

     

    5.1.13               The
Agent shall have received an incumbency certificate, executed by the Secretary
or Assistant Secretary of each Loan Party, which shall identify by name and
title and bear the signatures of the officers of such Loan Party who executed
the Loan Documents to which such Loan Party is a party, upon which certificate
the Agent and the Lenders shall be entitled to rely until informed of any change
in writing by such Loan Party.

     

    5.1.14               The
Agent shall have received a certificate of the Borrower executed by an
Authorized Officer of the Borrower, stating that on the Closing Date (a) no
Default or Unmatured Default has occurred and is continuing and (b) all of the
representations and warranties contained in ARTICLE
VI are true and correct in all
material respects as of the Closing Date (including, without limitation, the
representation and warranty set forth in Section
6.5 regarding the absence of a material adverse
change).

     

    5.1.15               The
Agent shall have received written opinions of (a) the Borrower’s
and its Subsidiaries’ counsel, Paul, Weiss, Rifkind, Wharton & Garrison LLP,
in substantially the form of Exhibit
A and (b) the legal
opinion of local counsel in each of Ohio, Florida and Vermont and of such other
special and local counsel as may be required by the Agent, in each case, in form
and substance reasonably satisfactory to the Agent and addressed to the Agent
and the Lenders.

     

    5.1.16               The
Agent shall have received any Notes requested by a Lender pursuant to Section
2.14 payable to the order of each such requesting
Lender.

     

    5.1.17               The
Agent shall have received evidence reasonably satisfactory to the Agent that the
Loans shall have received a rating from both Moody’s and S&P.

     

    5.1.18               The
Agent shall have received information provided by the Borrower as required by
the Patriot Act, including the identity of the Borrower, the name and address of
the Borrower and other information that will allow the Agent or any Lender, as
applicable, to identify the Borrower in accordance with the Patriot
Act.

     

    5.2.           Each
Advance.  The
Lenders shall not be required to make any Advance unless on the applicable
Borrowing Date:

     

    5.2.1               There
exists no Default or Unmatured Default.

     

    5.2.2               The
representations and warranties contained in ARTICLE
VI are true and correct in all
material respects as of such Borrowing Date except to the extent any such
representation or warranty is stated to relate solely to an earlier date, in
which case such representation or warranty shall have been true and correct in
all material respects on and as of such earlier date.

     

    Each Borrowing Notice with respect to each such Advance
shall constitute a representation and warranty by the Borrower that the
conditions contained in Sections
5.2.1 and 5.2.2 have been satisfied.

     

    
      
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    ARTICLE VI

     

    REPRESENTATIONS
AND WARRANTIES

     

    Holdings and the Borrower hereby jointly and severally
represent and warrant to the Agent and each Lender as of each of (i) the Closing
Date and (ii) each date as required by Section
5.2 that:

     

    6.1.           Existence and
Standing.  Each
Group Member is a corporation, partnership or limited liability company duly
incorporated or organized, as the case may be, validly existing and (to the
extent such concept applies to such entity) in good standing under the laws of
its jurisdiction of incorporation or organization and has all requisite
authority to conduct its business in each jurisdiction in which its business is
conducted, except where the failure to have such authority could not reasonably
be expected to have a Material Adverse Effect.

     

    6.2.           Authorization
and Validity.  Each
Loan Party has the power and authority and legal right to execute and deliver
the Loan Documents to which such Loan Party is a party and to perform its
obligations thereunder.  The execution and delivery by each Loan Party
of the Loan Documents to which such Loan Party is a party and the performance of
its obligations thereunder have been duly authorized by corporate, partnership
or limited liability company proceedings, and the Loan Documents to which such
Loan Party is a party constitute legal, valid and binding obligations of such
Loan Party enforceable against such Loan Party in accordance with their terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors’ rights generally and by equitable principles (regardless of whether
enforcement is sought in equity or at law).

     

    6.3.           No Conflict;
Government Consent.  Neither
the execution and delivery by the Loan Parties of the Loan Documents, nor the
consummation of the transactions therein contemplated, nor compliance with the
provisions thereof will violate (i) any law, rule, regulation, order, writ,
judgment, injunction, decree or award binding on any Group Member or (ii) any
Group Member’s articles or certificate of incorporation, partnership agreement,
certificate of partnership, articles or certificate of organization, by-laws, or
operating or other organizational agreement, as the case may be, or (iii) the
provisions of any Contractual Obligation to which any Group Member is a party or
is subject, or by which it, or its Property, is bound, or conflict with or
constitute a default thereunder, except where such violation, conflict or
default could not reasonably be expected to have a Material Adverse Effect, or
result in, or require, the creation or imposition of any Lien in or on the
Property of any Group Member pursuant to the terms of any such Contractual
Obligation.  No order, consent, adjudication, approval, license,
authorization, or validation of, or filing, recording or registration with, or
exemption by, or other action in respect of any Governmental Authority which has
not been obtained by any Loan Party, is required to be obtained by any Loan
Party in connection with the execution and delivery of the Loan Documents, the
borrowings under this Agreement, the payment and performance by any Loan Party
of the Obligations or the legality, validity, binding effect or, subject to
Section 8.16 of the Guarantee and Collateral Agreement, enforceability of any of
the Loan Documents.

     

    6.4.           Financial
Statements.  (a)
The unaudited pro forma consolidated balance sheet of the Borrower and its
consolidated Subsidiaries as at September 29, 2008 (including the notes thereto)
(the “Pro Forma
Balance Sheet”), copies of which have heretofore been furnished to each
Lender, has been prepared giving effect (as if such events had occurred on such
date) to (i) the consummation of the Triarc Acquisition
and (ii) the payment of fees and expenses in connection with the
foregoing.  The Pro Forma Balance Sheet has been prepared based on the
information available to the Borrower as of the date of delivery thereof, and
presents fairly on a pro forma basis the estimated financial position of
Borrower and its consolidated Subsidiaries as at September 29, 2008, assuming
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    preceding
sentence had actually occurred at such date; provided, however, that
the Pro Forma Balance Sheet shall include management’s good faith estimate of
any adjustments for purchase price accounting in connection with the Triarc
Acquisition.

     

    (b) The audited consolidated balance sheets of the Borrower
and its consolidated Subsidiaries as at January 1, 2006, December 31, 2006 and
December 30, 2007, and the related consolidated statements of income and of cash
flows for the fiscal years ended on such dates, reported on by and accompanied
by an unqualified report from the Borrower’s auditors, present fairly the
consolidated financial condition of the Borrower and its consolidated
Subsidiaries as at such date, and the consolidated results of its operations and
its consolidated cash flows for the respective fiscal years then
ended.  The unaudited consolidated balance sheet of the Borrower and
its consolidated Subsidiaries as at September 28, 2008, and the related
unaudited consolidated statements of income and cash flows for the nine-month
period ended on such date, present fairly the consolidated financial condition
of the Borrower and its consolidated Subsidiaries as at such date, and the
consolidated results of its operations and its consolidated cash flows for the
nine-month period then ended (subject to normal year end audit
adjustments).  All such financial statements, including the related
schedules and notes thereto, have been prepared in accordance with GAAP applied
consistently throughout the periods involved (except as approved by the
aforementioned firm of accountants and disclosed therein).  No Group
Member has any material Guarantee Obligations, Contingent Obligations,
liabilities for taxes, or any long term leases or unusual forward or long term
commitments, including any interest rate or foreign currency swap or exchange
transaction or other obligation in respect of derivatives, that, in each case,
are required to be disclosed under GAAP but are not reflected in most recent
unaudited and audited financial statements referred to in this paragraph (other
than the Obligations of the Loan Parties) or provided pursuant to Section
7.1, as the case may be.  During the period from
December 30, 2007 to and including the date hereof there has been no Disposition
by any Group Member of any material part of their business or Property, taken as
a whole (other than the Triarc Acquisition).

     

    6.5.           Material
Adverse Change.  Since the most recent audited financial
statements referred to in Section
6.4 or provided pursuant to Section
7.1.1, as the case may be, there has been no change in the
business, Property, condition (financial or otherwise) or results of operations
of the Borrower and its Subsidiaries, taken as a whole, which has had or could
reasonably be expected to have a Material Adverse Effect.

     

    6.6.           Taxes.  Each
Group Member has filed or caused to be filed all material United States federal
tax returns and all other material tax returns which are required to be filed
and has paid all taxes due pursuant to said returns or pursuant to any material
assessment received by it, except (i) such taxes, if any, which are being
contested or will be contested in good faith and as to which adequate reserves
have been provided on the books of the relevant Group Member in accordance with
Agreement Accounting Principles or (ii) where the failure to file such return or
pay such taxes could not reasonably be expected to have a Material Adverse
Effect.  No tax liens have been filed and no claims are being asserted
in writing with respect to any such taxes which in either case could reasonably
be expected to have a Material Adverse Effect, except any such liens or claims
with respect to taxes which are being contested or will be contested in good
faith and as to which adequate reserves have been provided on the books of the
relevant Group Member in accordance with Agreement Accounting
Principles.  The charges, accruals and reserves on the books of each
Group Member in respect of any taxes are adequate in accordance with Agreement
Accounting Principles.

     

    6.7.           Litigation.  There
is no litigation, arbitration, governmental investigation, proceeding or inquiry
pending or, to the knowledge of any Authorized Officer of Holdings or the
Borrower, threatened against or affecting any Group Member which could
reasonably be expected to have a Material Adverse Effect or which seeks to
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    arbitration,
governmental investigation, proceeding or inquiry is reasonably likely to be
determined adversely to such Group Member, and provided
further that such proviso will not apply as of the Closing
Date.

     

    6.8.           Material
Subsidiaries.  Schedule
6.8 contains an accurate list of all Material
Subsidiaries of any Loan Party as of the Closing Date, setting forth their
respective jurisdictions of organization and the percentage of each class of
Capital Stock owned directly or indirectly by any Loan Party.  All of
the issued and outstanding shares of Capital Stock of the Borrower and each
Material Subsidiary have been (to the extent such concepts are relevant with
respect to such ownership interests) duly authorized and issued and are fully
paid and non-assessable.  There are no outstanding subscriptions,
options, warrants, calls, rights or other agreements or commitments (other than
Compensatory Awards) of any nature relating to any Capital Stock of the Borrower
or any Material Subsidiary, except as permitted by the Loan
Documents.

     

    6.9.           Employee
Benefit Plans.  (a)
Except as set forth on Schedule
6.9 or could not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect: (i) each Group Member and each of
its Controlled Group members is in compliance with the applicable provisions of
ERISA and the provisions of the Code relating to Plans and the regulations and
published interpretations thereunder; (ii) no ERISA Event has occurred; (iii)
the present value of all accumulated benefit obligations under each Plan (based
on the assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed by more than a material amount the
fair market value of the assets of such Plan allocable to such accrued benefits;
and (iv) the present value of all accumulated benefit obligations of all
underfunded Plans (based on the assumptions used for purposes of Statement of
Financial Accounting Standards No. 87) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed by more than a
material amount the fair market value of the assets of all such underfunded
Plans.

     

    (b)  Except
as, in the aggregate, could not reasonably be expected to have a Material
Adverse Effect: (i) all employer and employee contributions required by
applicable law or by the terms of any Foreign Benefit Arrangement or Foreign
Plan have been made, or, if applicable, accrued in accordance with normal
accounting practices; (ii) the accrued benefit obligations of each Foreign Plan
(based on those assumptions used to fund such Foreign Plan) with respect to all
current and former participants do not exceed the assets of such Foreign Plan by
more than a material amount; (iii) each Foreign Plan that is required to be
registered has been registered and has been maintained in good standing with
applicable regulatory authorities; and (iv) each such Foreign Benefit
Arrangement and Foreign Plan is in compliance (A) with all material provisions
of applicable law and all material applicable regulations and published
interpretations thereunder with respect to such Foreign Benefit Arrangement or
Foreign Plan and (B) with the terms of such plan or arrangement.

     

    6.10.           Accuracy of
Information.  No
written information, exhibits or reports (other than projections and pro forma
financial information) furnished by or on behalf of any Loan Party to the Agent
or to any Lender in connection with the negotiation of, or compliance with, the
Loan Documents (taken as a whole), as of the date furnished, contains any
material misstatement of fact or omit to state a material fact or any fact
necessary to make the statements contained therein not materially misleading in
light of the circumstances and purposes for which such information was provided
at such time.  The projections and pro forma financial information
contained in the materials referenced above are based upon good faith estimates
and assumptions believed by management of the Borrower to be reasonable at the
time made,
it being recognized by the Lenders that such financial information as it relates
to future events is not to be viewed as fact and that actual results during the
period or periods covered by such financial information may differ from the
projected results set forth therein by a material amount.  As of the
Closing Date, there is no fact known to any Loan Party that could reasonably be
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    Material
Adverse Effect that has not been expressly disclosed herein, in the other Loan
Documents or in any other documents, certificates and statements furnished to
the Agent and the Lenders for use in connection with the transactions
contemplated hereby and by the other Loan Documents.

     

    6.11.           Regulations of
the Board.  No Group Member is engaged principally, or as
one of its important activities, in the business of extending credit for the
purpose, whether immediate, incidental or ultimate of buying or carrying Margin
Stock, and Margin Stock constitutes less than 25% of the value of those assets
of the Group Members which are subject to any limitation on sale, pledge, or
other restriction hereunder.  No part of the proceeds of any Loans,
and no other extensions of credit hereunder, will be used (a) for “buying” or
“carrying” any Margin Stock for any purpose that violates any provision of the
regulations of the Board or (b) for any purpose that violates any applicable
provision of the regulations of the Board.  If reasonably requested by
any Lender or the Agent, the Borrower will furnish to the Agent and each Lender
a statement to the foregoing effect in conformity with the requirements of FR
Form G-3 or FR Form U 1, as applicable, referred to in Regulation
U.  Except as set forth on Schedule
6.11, no Loan Party is subject to regulation under any
Requirement of Law (other than Regulation X of the Board) that limits its
ability to incur Indebtedness.

     

    6.12.           Compliance
With Laws.  Each
Group Member has complied with all applicable Requirements of Law of any
domestic or foreign Governmental Authority having jurisdiction over the conduct
of their respective businesses or the ownership of their respective Property,
including, without limitation, Environmental Laws, except where failure to so
comply could not reasonably be expected to result in a Material Adverse
Effect.

     

    6.13.           Environmental
Matters.  Except
as, in the aggregate, could not reasonably be expected to have a Material
Adverse Effect:

     

    6.13.1               the
facilities and properties owned, leased or operated by any Group Member (the
“Properties”) do
not contain, and have not previously contained, any Materials of Environmental
Concern in amounts or concentrations or under circumstances that constitute or
constituted a violation of, or could reasonably be expected to give rise to
liability under, any Environmental Law;

     

    6.13.2               no
Group Member has received or is aware of any notice of violation, alleged
violation, non-compliance, liability or potential liability regarding
environmental matters or compliance with Environmental Laws with regard to any
of the Properties or the business operated by any Group Member (the “Business”), nor
does Holdings or the Borrower have knowledge or reason to believe that any such
notice will be received or is being threatened;

     

    6.13.3               Materials
of Environmental Concern have not been transported or disposed of from the
Properties in violation of, or in a manner or to a location that could
reasonably be expected to give rise to liability under, any Environmental
Law;

     

    6.13.4               no
judicial proceeding or governmental or administrative action is pending or, to
the knowledge of Holdings and the Borrower, threatened, under any Environmental
Law to which any Group Member is or will be named as a party with respect to the
Properties or the Business, nor are there any consent decrees or other decrees,
consent orders,
administrative orders or other orders, or, to the knowledge of Holdings and the
Borrower, other administrative or judicial requirements outstanding under any
Environmental Law with respect to the Properties or the
Business;

     

    
      
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    6.13.5               there
has been no release or threat of release of Materials of Environmental Concern
at or from the Properties, or arising from or related to the operations of any
Group Member in connection with the Properties or otherwise in connection with
the Business, in violation of or in amounts or in a manner that could reasonably
be expected to give rise to liability under Environmental Laws;

     

    6.13.6               the
Business, the Properties and all operations at the Properties are in compliance,
and have at all prior times been in compliance, with all applicable
Environmental Laws; and

     

    6.13.7               no
Group Member has assumed or retained any liability of any other Person under or
related to any Environmental Laws.

     

    6.14.           Investment
Company Act.  No
Group Member is an “investment company” or a company “controlled” by an
“investment company”, within the meaning of the Investment Company Act of 1940,
as amended.

     

    6.15.           Public Utility
Holding Company Act.  No
Group Member is a “holding company” or a “subsidiary company” of a “holding
company”, or an “affiliate” of a “holding company” or of a “subsidiary company”
of a “holding company”, within the meaning of the Public Utility Holding Company
Act of 2005.

     

    6.16.           Insurance.  The
Borrower maintains, and has caused each Restricted Subsidiary to maintain,
insurance on such of their respective Property in such amounts and against such
risks (and with such risk retention) as the Borrower, in the exercise of its
reasonable judgment, deems necessary or appropriate.

     

    6.17.           No Default or
Unmatured Default.  No
Group Member is in default under or with respect to any of its Contractual
Obligations in any respect that could reasonably be expected to have a Material
Adverse Effect.  No Default or Unmatured Default has occurred and is
continuing.

     

    6.18.           Ownership of
Property; Liens.  Each Group Member has title in fee simple to,
or a valid leasehold interest in, all its real property, and good title to, or a
valid leasehold interest in, all its other Property, and none of such property
is subject to any Lien except as permitted by Section
7.19.  Schedule
6.18 lists all of the real property owned by the Borrower
and its Restricted Subsidiaries and used in the Business.

     

    6.19.           Intellectual
Property.  Each Group Member owns or has the right to use
all Intellectual Property that is material to its business as currently
conducted, free of all Liens, except permitted by Section
7.19, and takes reasonable actions to protect and maintain such
Intellectual Property.  On the date hereof, all material Intellectual
Property owned by each Group Member is valid, unexpired and enforceable, and has
not been abandoned.  To the knowledge of Holdings and the Borrower,
the current operation of the business of each Group Member and each Group
Member’s use of its Intellectual Property does not infringe or violate the
Intellectual Property rights of any other Person in any material respect, and to
the knowledge of Holdings and the Borrower, the material Intellectual Property
owned by the Group Members is not being infringed or violated by any other
Person in any material respect.  No holding or decision has been
rendered by any Governmental Authority, and no claim, action or proceeding
is pending, that limits, cancels or questions the validity, enforceability,
ownership or use of, or any Group Member’s rights in, any Intellectual Property
owned or exclusively licensed by any Group Member in any respect that could
reasonably be expected to have a Material Adverse Effect, and Holdings and the
Borrower know of no valid basis for same.

     

    
      
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    6.20.           Labor
Matters.  Except
as, in the aggregate, could not reasonably be expected to have a Material
Adverse Effect:  (a) there are no strikes or other labor disputes
against any Group Member pending or, to the knowledge of Holdings or the
Borrower, threatened; (b) hours worked by and payment made to employees of each
Group Member have not been in violation of the Fair Labor Standards Act or any
other applicable Requirement of Law dealing with such matters; and (c) all
payments due from any Group Member on account of employee health and welfare
insurance have been paid or accrued as a liability on the books of the relevant
Group Member.

     

    6.21.           Use of
Proceeds.  The
proceeds of the Loans and the Letters of Credit shall be used to finance the
working capital needs and general corporate purposes of the Borrower and its
Subsidiaries.

     

    6.22.           Security
Documents.

     

    6.22.1               The
Guarantee and Collateral Agreement is effective to create in favor of the
Collateral Agent, for the benefit of the Secured Parties, a legal, valid and
enforceable security interest in the Collateral described therein and proceeds
thereof.  In the case of the Pledged Stock described in the Guarantee
and Collateral Agreement, when stock certificates representing such Pledged
Stock are delivered to the Collateral Agent, and in the case of the other
Collateral described in the Guarantee and Collateral Agreement, when financing
statements and other filings specified on Schedule
6.22.1 in appropriate form are filed in the offices
specified on Schedule
6.22.2 and other actions described on Schedule
6.22.1 are taken, the Guarantee and Collateral Agreement
shall constitute, except as provided in Schedule 6.22.1, a fully perfected Lien on, and security interest in, all
right, title and interest of the Loan Parties in such Collateral and the
proceeds thereof, as security for the Obligations, in each case prior and
superior in right to any other Person (except, in the case of Collateral other
than Pledged Stock, Liens permitted by Section
7.19).

     

    6.22.2               Each
of the Mortgages is effective to create in favor of the Collateral Agent, for
the benefit of the Secured Parties, a legal, valid and enforceable Lien on the
Mortgaged Properties described therein and proceeds thereof, and when the
Mortgages are filed in the offices specified on Schedule
6.22.2, each such Mortgage shall constitute a fully perfected
Lien on, and security interest in, all right, title and interest of the Loan
Parties in the Mortgaged Properties and the proceeds thereof, as security for
the Obligations, in each case prior and superior in right to any other
Person.  

     

    6.23.           Solvency.  As
of the Closing Date, each Loan Party is and, after giving effect to the
incurrence of all Indebtedness and obligations being incurred in connection
herewith, will be Solvent.  The Loan Parties, taken as a whole, are
Solvent.

     

    6.24.           Regulation
H.  No
Mortgage encumbers improved real property that is located in an area that has
been identified by the Secretary of Housing and Urban Development as an area
having special flood hazards and in which flood insurance has been made
available under the National Flood Insurance Act of 1968.

     

    6.25.           Certain Documents.  The
Borrower has delivered to the Agent a complete and correct copy of the Senior
Note Indentures, including any amendments, supplements or modifications with
respect to any of the foregoing.

     

    6.26.           Unrestricted
Subsidiaries.  As
of the September 28, 2008, the aggregate amount of revenues of all Unrestricted
Subsidiaries listed on Schedule
1.1F does not exceed $250,000,000 and the aggregate amount of total
assets of all Unrestricted Subsidiaries listed on Schedule
1.1F does not exceed $60,000,000.

     

    
      
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    6.27.           Triarc
Aquisition.  The
acquisition of the Borrower by WAG has been consummated.

     

    6.28.           Underwriting
Insurance Policies.  No
Group Member (other than Scioto Insurance Company) is underwriting any insurance
policy.

     

    6.29.           Compliance
with OFAC Rules and Regulations.  None
of Holdings, Borrower or any of their respective Subsidiaries (i) is a
Sanctioned Person, (ii) has any of its assets in Sanctioned Countries, or (iii)
derives any of its operating income from investments in, or transactions with
Sanctioned Persons or Sanctioned Countries.  No part of the proceeds of any
Loan hereunder will be used directly or indirectly to fund any operations in,
finance any investments or activities in or make any payments to, a Sanctioned
Person or a Sanctioned Country.  If Holdings or the Borrower has
knowledge that any of clauses (i), (ii), or (iii) above become applicable to
them or any of their respective Subsidiaries, the Borrower shall,
within five (5) business days of obtaining such knowledge, provide the
Agent with a written notice thereof.

     

    6.30.           Foreign Assets
Control Regulations, Etc..  No
Group Member is in violation of (a) any of the foreign assets control
regulations of the United States Treasury Department (31 CFR, Subtitle B,
Chapter V, as amended) or any enabling legislation or executive order relating
thereto or (b) the Patriot Act.  No Group Member (i) is a blocked
person described in Section 1 of the Anti-Terrorism Order or (ii) to the best of
Borrower’s or Holdings’ knowledge, engages in any dealings or transactions, or
is otherwise associated, with any such blocked person.

     

    ARTICLE VII

     

    COVENANTS

     

    During
the term of this Agreement, unless the Required Lenders shall otherwise consent
in writing, Holdings and the Borrower hereby jointly and severally agree
that:

     

    7.1.           Financial and
Collateral Reporting.  Borrower
will furnish to the Agent (for further distribution by the Agent to the
Lenders):

     

    7.1.1               Within
ninety (90) days after the close of each of its fiscal years, financial
statements prepared in accordance with GAAP on a consolidated basis for itself
and its Subsidiaries, including a balance sheet as of the end of such period, a
statement of income and a statement of cash flows, setting forth in each case in
comparative form the figures for the previous year, accompanied by an audit
report, without a “going concern” or like qualification or exception, or
qualification arising out of the scope of the audit, of a nationally recognized
firm of independent public accountants with respect to such consolidated
financial statements.

     

    7.1.2               On
the date that is the earlier of (i) the date on which Borrower’s financial
statements shall have been filed with the Security Exchange Commission and (ii)
the day which is fifty-five (55) days after the close of the first three (3)
quarterly periods of each of its fiscal years, for itself and its Subsidiaries,
a consolidated unaudited balance sheet as at the close of each such period and a
consolidated statement of income and consolidated statement of cash flows, in
each case, for the period from the beginning of such fiscal year to the end of
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    the
previous year, all prepared in accordance with GAAP and certified by an
Authorized Financial Officer that, to the best of his or her knowledge, such
financial statements are prepared in accordance with Agreement Accounting
Principles and are fairly stated in all material respects, subject to the
absence of footnote disclosure and normal year-end audit
adjustments.

     

    7.1.3               If
outstanding Loans exceed 25% of the Aggregate Commitment for a period of 30
consecutive days, as soon as available, but in any event not later than thirty
(30) days after the end of such fiscal month period during which such period of
30 consecutive days concluded, monthly management reports detailing period and
year to date Income from Continuing Operations, Consolidated Indebtedness and
Consolidated EBITDAR, certified by an Authorized Financial Officer that, to the
best of his or her knowledge, such financial data are prepared in accordance
with past business practice.

     

    7.1.4               Together
with the financial statements required under Sections
7.1.1 and 7.1.2, a compliance certificate in substantially the form of
Exhibit
B signed by an Authorized Financial Officer (i) showing financial data
and calculations in reasonable detail (including itemized Pro Forma Adjustments)
to determine compliance with Sections
7.23 and
7.24 of this Agreement and the baskets set forth in Sections
7.11, 7.17 and 7.18 of this Agreement and stating that such data and
computations are complete and correct in all material respects, (ii) solely in
the case of a compliance certificate delivered in connection with the financial
statements required under Section
7.1.1, identifying all then existing Material Subsidiaries, and
(iii) stating that no Default or Unmatured Default exists, or if any Default or
Unmatured Default exists, stating the nature and status thereof (it being
understood and agreed that the calculations set forth in such compliance
certificate, other than any pro forma adjustments, shall be prepared in
accordance with Agreement Accounting Principles).

     

    7.1.5               As
soon as possible and in any event within thirty (30) days after an Authorized
Officer of the Borrower or any of its Subsidiaries obtains knowledge that any
Reportable Event has occurred with respect to any Plan, a statement, signed by
an Authorized Officer of the Borrower, describing said Reportable Event and the
action which the Borrower proposes to take with respect thereto.

     

    7.1.6               As
soon as possible and in any event within ten (10) days after receipt by an
Authorized Officer of the Borrower, a copy of (a) any notice or claim to the
effect that any Group Member is or may be liable to any Person as a result of
the release by any Group Member, or any other Person of any toxic or hazardous
waste or substance into the environment, and (b) any notice alleging any
violation of any Environmental Laws or any federal, state or local health or
safety law or regulation by any Group Member, which in the case of either clause
(a) or (b), could reasonably be expected to have a Material Adverse
Effect.

     


    7.1.7               Promptly
after the filing of any registration statement or annual, quarterly, monthly or
other regular report or any special report on Form 8-K which any Group Member
files with the Securities and Exchange Commission, including, without
limitation, any certification or other filing required by Sections 302 and 906
of the Sarbanes-Oxley Act of 2002 and all rules and regulations related thereto,
notice that such filings have been made.

     

    
      
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    7.1.8               Promptly
after an Authorized Officer of the Borrower obtains knowledge thereof, notice of
any upgrading or downgrading of the rating of the Borrower’s commercial paper or
senior unsecured long-term debt by Moody’s or S&P.

     

    7.1.9               As
soon as available, and in any event no later than forty-five (45) days after the
end of each fiscal year of the Borrower, a detailed consolidated budget for each
quarter of the following fiscal year (including a projected consolidated balance
sheet of the Borrower and its Subsidiaries as of the end of the following fiscal
year, the related consolidated statements of projected cash flow and projected
income and a description of the underlying assumptions applicable thereto), and,
as soon as available, significant revisions, if any, of such budget and
projections with respect to such fiscal year, which projections shall in each
case be accompanied by a certificate of an Authorized Officer stating that such
projections are based on reasonable estimates, information and assumptions and
that such Authorized Officer has no reason to believe that such projections are
incorrect or misleading in any material respect.

     

    7.1.10               No
later than five (5) Business Days or, if impractical, such shorter time as
reasonably determined by the Borrower, prior to the effectiveness thereof,
copies of substantially final drafts of any proposed amendment, supplement,
waiver or other modification with respect to the Senior Note
Indentures.

     

    7.1.11               Simultaneously
with the delivery of the financial statements referred to in Section
7.1.1, a detailed itemization of each of the Borrower’s and its
Subsidiaries’ fee owned restaurant sites with respect to which the Agent has
retained a Mortgage required by Section
7.12 or 7.10 specifying, for each such property, the address
thereof, the Trailing 12-month Sales and the Trailing 12-month Cash
Flow.

     

    7.1.12               Such
other information regarding the financial position or business of any Group
Member as the Agent or any Lender (acting through the Agent) may from time to
time reasonably request.

     

    7.2.           Use of
Proceeds.  Borrower
will, and will cause each Restricted Subsidiary to, use the proceeds of the
Advances for general corporate purposes, including without limitation commercial
paper liquidity support, and for Permitted Acquisitions and Restricted Payments
permitted hereunder.  The Borrower shall use the proceeds of the
Advances in compliance with all applicable Requirement of Law and any such use
shall not result in a violation of any such Requirement of Law, including,
without limitation, (i) Regulations U and X, and (ii) the Securities Act of
1933, as amended, the Securities Exchange Act of 1934, as amended, and the
Sarbanes-Oxley Act of 2002, as amended, in each case, including all rules and
regulations promulgated thereunder.  Without in any way limiting the
foregoing, the Borrower will not, nor will it permit any Restricted Subsidiary
to, use any of the proceeds of the Advances to purchase or carry any Margin
Stock; provided,
however, that the Borrower may use proceeds of the Advances for the
repurchase of the Borrower’s Capital Stock for retirement to the extent such
repurchase is exempt from Regulation U.

     

    7.3.           Notice of Default.  The
Borrower will, upon an Authorized Officer of the Borrower obtaining knowledge
thereof, give prompt notice in writing to the Agent (for itself and the Lenders)
of:

     

    7.3.1               the
occurrence of any Default or Unmatured Default;

     

    7.3.2               any
(i) default or event of default by a Group Member under any Contractual
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    Material
Adverse Effect, or (ii) litigation, investigation or proceeding that may exist
at any time between any Group Member and any Governmental Authority that could
reasonably be expected to have a Material Adverse Effect;

     

    7.3.3               any
litigation or proceeding affecting any Group Member (i) in which the aggregate
stated amount of such claim is $25,000,000 which is not covered by insurance (it
being understood that notice of any litigation or proceeding referred to in this
clause (i) shall only be required on a quarterly basis contemporaneously with
the delivery of any financial statements pursuant to Section
7.1.1 or 7.1.2, as the case may be, unless such litigation or proceeding
could reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect), (ii) in which injunctive or similar relief is sought
and could reasonably be excepted to have a Material Adverse Effect, or (iii)
which relates to any Loan Document;

     

    7.3.4               an
ERISA Event, as soon as possible and in any event within thirty (30) days after
any Loan Party knows or has reason to know thereof; and

     

    7.3.5               any
development or event that has had or could reasonably be expected to have a
Material Adverse Effect.

     

    Each notice pursuant to this Section
7.3 shall be accompanied by a statement of an Authorized
Officer setting forth details of the occurrence referred to therein and stating
what action the relevant Group Member proposes to take with respect
thereto.

     

    7.4.           Conduct of
Business.

     

    7.4.1               The
Borrower will, and will cause each Restricted Subsidiary to substantially
continue to engage in the restaurant operating and/or franchising business, any
other franchising business or any other business conducted by the Borrower or
any of its Subsidiaries on the Closing Date, or in each case, any Related
Business.

     

    7.4.2               Holdings
and the Borrower will, and will cause each Restricted Subsidiary to, do all
things necessary to remain duly incorporated or organized, validly existing and
(to the extent such concept applies to such entity) in good standing as a
corporation, partnership or limited liability company in its jurisdiction of
incorporation or organization, as the case may be, and maintain all requisite
authority to conduct its business in each jurisdiction in which its business is
conducted, except, in the case of a Restricted Subsidiary, where the failure to
do so would not reasonably be expected to have a Material Adverse Effect, and
except as otherwise permitted by the terms of this Agreement.

     

    7.5.           Taxes.  Holdings
and the Borrower will, and will cause each Restricted Subsidiary to, file or
cause to be filed all material United States federal tax returns and all other
material tax returns which are required to be filed and will, and will cause
each Restricted Subsidiary to, pay all taxes due pursuant to said returns or
pursuant to any material assessment received by it, except (i) such taxes, if
any, which are
then being contested in good faith and as to which adequate reserves will have
been provided on the books of the relevant Group Member in accordance with
Agreement Accounting Principles or (ii) where the failure to file such return or
pay such taxes could not reasonably be expected to have a Material Adverse
Effect.

     

    7.6.           Insurance.  Holdings
and the Borrower will, and will cause each Restricted Subsidiary to, maintain
with financially sound and reputable insurance companies insurance on their
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    in
at least such amounts and against at least such risks (but including in any
event public liability, product liability and business interruption) as are
usually insured against by companies engaged in the same or a similar
business.

     

    7.7.           Maintenance of
Rights; Compliance with Laws and
Contractual Obligations.  Holdings
and the Borrower will, and will cause each Restricted Subsidiary to, (i) take
all reasonable action to maintain all rights, privileges and franchises
necessary or desirable in the normal conduct of its business, except as
otherwise permitted by this Agreement and except to the extent that failure to
do so could not reasonably be expected to have a Material Adverse Effect; (ii)
comply with all Contractual Obligations and Requirements of Law, including,
without limitation, all Environmental Laws, except to the extent that failure to
comply therewith could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect; and (iii) pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be, all its
material obligations of whatever nature, except where (x) the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided on
the books of the relevant Group Member or (y) the failure to do so could not
reasonably be expected to have a Material Adverse Effect.

     

    7.8.           Maintenance of
Properties.  Holdings and the Borrower will, and will cause
each Restricted Subsidiary to, cause all material property necessary in the
conduct of the business of any Group Member to be maintained and kept in good
condition, repair and working order (ordinary wear and tear and damage due to
casualty excepted) and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Borrower may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent Holdings, the Borrower or any Restricted
Subsidiary from (i) discontinuing the operation or maintenance of any of such
properties if such discontinuance is, in the reasonable business judgment of the
Borrower, desirable in the conduct of the business of any Group Member, or
otherwise the failure to do so could not reasonably be expected to have a
Material Adverse Effect or (ii) consummating any transaction permitted by Section
7.16 or
7.17.

     

    7.9.           Inspection;
Keeping of Books and Records.  Holdings
and the Borrower will, and will cause each Restricted Subsidiary to, permit the
Agent and the Lenders, by their respective representatives and agents, to
inspect any of the Property, books and financial records of Holdings, the
Borrower and each Restricted Subsidiary, to examine and make copies of the books
of accounts and other financial records of Holdings, the Borrower and each
Restricted Subsidiary, and to discuss the affairs, finances and accounts of
Holdings, the Borrower and each Restricted Subsidiary with, and to be advised as
to the same by, their respective officers and employees, at such reasonable
times during normal, non-peak business hours and intervals as the Agent may
reasonably request and having due regard for, and with minimal disruption of,
the ongoing business of the Group Members; provided, that
prior to the occurrence and continuation of a Default, (i) the Agent and the
Lenders shall be limited (in the aggregate) to one such inspection or visit in
each fiscal year of the Borrower, (ii) no such inspection or visit shall be
required at any time that the Aggregate Outstanding Credit Exposure equals zero,
(iii) no Group Member shall be responsible for the costs and expenses incurred
by the Agent, any Lender, or their representatives in connection
with such inspection or visit and (iv) the Agent and each Lender, as applicable,
shall give the Borrower not less than five (5) Business Days’ prior written
notice of its intent to conduct such inspection or visit.  Holdings
and the Borrower shall, and cause each Restricted Subsidiary to, keep and
maintain, in all material respects, books of record and account in which entries
in conformity with Agreement Accounting Principles (or in case of Scioto
Insurance Company and Oldemark LLC, in conformity with Vermont’s statutory basis
of accounting) shall be made of all dealings and transactions in relation to
their respective businesses and activities.

     

    
      
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    7.10.           Additional
Collateral, etc.

     

    7.10.1               Upon
receipt of the restaurant site itemization referred to in Section
7.1.11, the
Agent shall calculate the ratio of (i) the aggregate Trailing 12-month Cash Flow
(as specified on such itemization) of the restaurant sites upon which a
perfected Lien of first-priority has been granted in favor of the Collateral
Agent, for the benefit of the Secured Parties (or will be granted pursuant to
Section
7.12), to (ii) the Aggregate Commitment (the
“Collateral
Coverage Ratio”).  To
the extent that the Collateral
Coverage Ratio is less than 18%, the Agent may, in is sole discretion,
request that the Borrower grant, or cause any of its Restricted Subsidiaries to
grant, a Lien on additional restaurant sites which are fee-owned and operated by
the Borrower or any Restricted Subsidiary such that the Collateral
Coverage Ratio is restored to 20%.  The Agent and the Borrower
shall within 30 days mutually agree upon the designation of such additional
restaurant sites which are fee-owned and operated by the Borrower or any of its
Restricted Subsidiaries and on which a Lien shall be granted.  If such
an agreement cannot be reached within this period, the Agent shall, in its sole
discretion, designate such additional restaurant sites which are fee-owned and
operated by the Borrower or any of its Restricted Subsidiaries (excluding
restaurant sites which are put up for sale by the Borrower in good
faith).  In designating such additional restaurant sites which are
fee-owned and operated by the Borrower or any of its Restricted Subsidiaries,
the Agent shall use reasonable efforts to minimize the Borrower’s and its
Restricted Subsidiaries’ out-of-pocket costs, including (without limitation)
mortgage recording taxes and title insurance premiums.  Upon any such
designation, the applicable Group Members
owning such restaurant
sites shall promptly, but not later than 90 days (or within such longer
period as agreed thereto by the Agent, in its sole discretion, but in any event
no later than within 150 days) thereafter, (i) execute and deliver a first
priority Mortgage, in favor of the Collateral Agent, for the benefit of the
Secured Parties, covering such real properties,
(ii) if requested by the Collateral Agent, provide the Secured Parties with (x)
title and extended coverage insurance covering such real property in an amount
at least equal to 110% of the Real Estate Fair Value of such real properties
(or such other amount as shall be reasonably specified by the Collateral Agent)
together
with such title endorsements as may be reasonably requested by the Collateral
Agent, provided, however, that for any jurisdiction wherein a zoning endorsement
is unavailable or the cost of the issuance of the zoning endorsement for such
real property is calculated as a percentage of the premium for the applicable
title insurance policy, in lieu of such zoning endorsement, the applicable Group
Member shall deliver a zoning compliance report or a letter from the applicable
municipality which demonstrates that the current use of such real property is in
compliance with applicable zoning requirements and (A) a
Survey certified to the Collateral Agent and the Title Insurance Company in a
manner satisfactory to them, dated a date reasonably satisfactory to the
Collateral Agent and the Title Insurance Company by an independent professional
licensed land surveyor reasonably satisfactory to the Collateral Agent and the
Title Insurance Company, or (B) in
the absence of a Survey, the title and extended coverage insurance shall not
contain a general survey exception and shall contain, to the extent available in
the particular jurisdiction and applicable to the particular
property,a
survey endorsement, an access endorsement, a contiguity endorsement and a
comprehensive endorsement, and (y) any consents or estoppels reasonably deemed
necessary or advisable by the Collateral Agent in connection with such Mortgage,
each of the foregoing in form and
substance reasonably satisfactory to the Collateral Agent and (iii) if requested
by the Collateral Agent, deliver to the Collateral Agent legal opinions relating
to the matters described above, which opinions shall be in form and substance,
and from counsel, reasonably satisfactory to the Collateral Agent.

     

    
      
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    7.10.2               From
time to time, each Group Member shall have the right to request a release of the
Lien on one or more restaurant sites which are fee-owned and operated by the
Borrower or any of its Restricted Subsidiaries to the extent that in exchange a
perfected Lien of first priority has been granted to the Collateral Agent, for
the benefit of the Secured Parties, in one or more restaurant sites which are
fee-owned and operated by the Borrower or any of its Restricted Subsidiaries,
reasonably acceptable to the Agent, so long as (i) the
Borrower has delivered to the Agent a certificate signed by an Authorized
Financial Officer certifying that (x) after giving effect to such an exchange,
the Collateral
Coverage Ratio equals or exceeds 20% and (y) the
Trailing 12-month Cash Flow of the restaurant sites upon which a perfected Lien
of first-priority has been granted pursuant to
this paragraph is no less than the Trailing 12-month Cash Flow of the
restaurant sites which are being replaced, and (ii) the
applicable Group Members owning such replacement sites shall have (x)
executed and delivered a first priority Mortgage, in favor of the Collateral
Agent, for the benefit of the Secured Parties, covering such real properties,
(y) if
requested by the Collateral Agent, provided the Secured Parties with (A) title
and extended coverage insurance covering such real properties in an amount at
least equal to 110% of the Real Estate Fair Value of such real properties (or
such other amount as shall be reasonably specified by the Collateral Agent)
together
with such title endorsements as may be reasonably requested by the Collateral
Agent, provided, however, that for any jurisdiction wherein a zoning endorsement
is unavailable or the cost of the issuance of the zoning endorsement for such
real property is calculated as a percentage of the premium for the applicable
title insurance policy, in lieu of such zoning endorsement, the applicable Group
Member shall deliver a zoning compliance report or a letter from the applicable
municipality which demonstrates that the current use of such real property is in
compliance with applicable zoning requirements, as well as (aa) a Survey
certified to the Collateral Agent and the Title Insurance Company in a manner
satisfactory to them, dated a date reasonably satisfactory to the Collateral
Agent and the Title Insurance Company by an independent professional licensed
land surveyor reasonably satisfactory to the Collateral Agent and the Title
Insurance Company, or (bb) in the absence of a Survey, the title and extended
coverage insurance shall not contain a general survey exception and shall
contain, to the extent available in the particular jurisdiction and applicable
to the particular property, a survey endorsement, an access endorsement, a
contiguity endorsement and a
comprehensive endorsement, and (B) any
consents or estoppels reasonably deemed necessary or advisable by the Collateral
Agent in connection with such Mortgages, each of the foregoing in form and
substance reasonably satisfactory to the Collateral Agent and (z) if
requested by the
Collateral Agent, delivered to the Collateral Agent legal opinions relating to
the matters described above, which opinions shall be in form and substance, and
from counsel, reasonably satisfactory to the Collateral Agent.  If the
conditions listed in the preceding sentence are met, the Agent shall instruct
the Collateral Agent to release the Lien on such fee-owned restaurant sites
which are being replaced.


    
          
7.10.3               If
with respect to any Mortgaged Property (i) the applicable Group Member neither
delivers a Survey complying with the requirements of Section
7.12.2(i),
nor delivers each of the title
endorsements referred to in Section
7.12.2(ii) with
respect to the Collateral Agent’s title insurance policy issued with respect to
such Mortgaged Property (such Mortgaged Property being referred to as a
“Non-Survey Property”),
and (ii) either (x) the Agent determines or becomes aware that the applicable
restaurant building is not located on the land that is covered by the Collateral
Agent’s title insurance policy issued with respect to such Non-Survey Property,
or (y) (A) a third party makes a title claim with respect to such
Non-Survey Property
and (B) as a result thereof the applicable Group Member is no longer able to
operate the restaurant located on such Non-Survey Property,  

    

     

    
      
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    and
(C) the existence and potential adverse affect of such title claim would have
been disclosed by a Survey of such Non-Survey Property,
then, the Agent may, in its sole discretion, request that the Borrower grant, or
cause any of its Restricted Subsidiaries to grant, a Lien on additional
restaurant sites which are fee-owned and operated by the Borrower or any
Restricted Subsidiary such that (aa) after giving effect thereto (excluding
the Trailing 12-month Cash Flow of such
Non-Survey
Property), the Collateral Coverage Ratio equals or exceeds 20% and (bb) the
Trailing 12-month Cash Flow of the restaurant sites upon which a perfected Lien
of first-priority has been granted pursuant to this paragraph is no less than
the Trailing 12-month Cash Flow of the Non-Survey
Property.  The Agent and the Borrower shall within 30 days mutually
agree upon the designation of such additional restaurant sites which are
fee-owned and operated by the Borrower or any of its Restricted Subsidiaries and
on which a Lien shall be granted.  If such an agreement cannot be
reached within this period, the Agent shall, in its sole discretion, designate
such additional restaurant sites which are fee-owned and operated by the
Borrower or any of its Restricted Subsidiaries (excluding restaurant sites which
are put up for sale by the Borrower in good faith).  In designating
such additional restaurant sites which are fee-owned and operated by the
Borrower or any of its Restricted Subsidiaries, the Agent shall use reasonable
efforts to minimize the Borrower’s and its Restricted Subsidiaries’
out-of-pocket costs, including (without
limitation) mortgage
recording taxes and title insurance premiums.  Upon any such
designation, the applicable Group Members owning such restaurant sites shall
promptly, but not later than 90 days (or within such longer period as agreed
thereto by the Agent, in its sole discretion, but in any event no later than
within 150 days) thereafter, (i) execute and deliver a first priority
Mortgage, in favor of the Collateral Agent, for the benefit of the
Secured Parties,
covering such real properties, (ii) if requested by the Collateral Agent,
provide the Secured Parties with (x) title and extended coverage insurance
covering such real properties in an amount at least equal to 110% of the Real
Estate Fair Value of such real property (or such other amount as shall be
reasonably specified by the Collateral Agent) together
with such title endorsements as may be reasonably requested by the Collateral
Agent, provided, however, that for any jurisdiction wherein a zoning endorsement
is unavailable or the cost of the issuance of the zoning endorsement for such
real property is calculated as a percentage of the premium for the applicable
title insurance policy, in lieu of such zoning endorsement, the applicable Group
Member shall deliver a zoning compliance report or a letter from the applicable
municipality which demonstrates that the current use of such real property is in
compliance with applicable zoning requirements, as well as (A) a Survey
certified to the Collateral Agent and the Title Insurance Company in a manner
satisfactory to them, dated a date reasonably satisfactory to the Collateral
Agent and the Title Insurance Company by an independent professional licensed
land surveyor reasonably satisfactory to the Collateral Agent and the Title
Insurance Company, or (B) in the absence of a Survey, the title and extended
coverage insurance shall not contain a general survey exception and shall
contain, to the extent available in the particular jurisdiction and applicable
to the particular property, a survey endorsement, an access endorsement, a
contiguity endorsement and a comprehensive endorsement, and (y) any consents or
estoppels reasonably deemed necessary or advisable by
the Collateral Agent in connection with such Mortgage, each of the foregoing in
form and substance reasonably satisfactory to the Collateral Agent and (iii) if
requested by the Collateral Agent, deliver to the Collateral Agent legal
opinions relating to the matters described above, which opinions shall be in
form and substance, and from counsel, reasonably satisfactory to the Collateral
Agent.  If the conditions listed in this Section are met, the
Agent shall instruct the Collateral Agent to release the Lien on such fee-owned
restaurant sites which are being
replaced.

     

    
      
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    7.10.4               With
respect to any new Material Subsidiary that is a Domestic Subsidiary created or
acquired after the Closing Date by any Group Member (which, for the purposes of
this paragraph, shall include (x) any existing Material Subsidiary that ceases
to be a Foreign Subsidiary and (y) any Immaterial Subsidiary that is designated
as Subsidiary Guarantor), promptly (i) execute and deliver to the Collateral
Agent such amendments to the Guarantee and Collateral Agreement necessary or
advisable to grant to the Collateral Agent, for the benefit of the Secured
Parties, a perfected first priority security interest in the Capital Stock of
such new Subsidiary that is owned by any Group Member, (ii) deliver to the
Collateral Agent the certificates representing such Capital Stock, together with
undated stock powers, in blank, executed and delivered by a duly authorized
officer of the relevant Group Member, (iii) cause such new Subsidiary (A) to
become a party to the Guarantee and Collateral Agreement, (B) to take such
actions necessary or advisable to grant to the Collateral Agent, for the benefit
of the Secured Parties, a perfected first priority security interest in the
Collateral described in the Guarantee and Collateral Agreement with respect to
such new Subsidiary, including the filing of Uniform Commercial Code financing
statements in such jurisdictions as may be required by the Guarantee and
Collateral Agreement or by law or as may be requested by the Collateral Agent
and (C) to deliver to the Collateral Agent a closing certificate of such
Subsidiary, substantially in the form satisfactory to the Collateral Agent, with
appropriate insertions and attachments, and (iv) if requested by the Collateral
Agent, deliver to the Collateral Agent legal opinions relating to the matters
described above, which opinions shall be in form and substance, and from
counsel, reasonably satisfactory to the Collateral Agent.

     

    7.11.           Designation of
Unrestricted Subsidiaries.  At any time after the Closing Date, the
Borrower may, in addition to the Unrestricted Subsidiaries listed on Schedule
1.1F on the Closing Date, designate any Restricted Subsidiary as an
Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted
Subsidiary upon prior written notice to the Agent; provided that
(a) Subsidiaries of the Borrower that are not Material Subsidiaries shall be the
only Subsidiaries eligible to be designated as Unrestricted Subsidiaries on
Schedule
1.1F or pursuant to this Section
7.11, (b) in the case of designation of any Subsidiary as an
Unrestricted Subsidiary, immediately before and after giving effect to such
designation, (i) no Default or Unmatured Default shall have occurred and be
continuing and (ii) the Borrower shall be in compliance with the covenants set
forth in Sections
7.23 and 7.24 (it being understood that as a condition precedent to
the effectiveness of any such designation, the Borrower shall deliver to the
Agent a certificate of an Authorized Officer setting forth in reasonable detail
the calculations demonstrating such compliance), (c) no Subsidiary may be
designated an Unrestricted Subsidiary if it owns any Capital Stock of, or holds
any Indebtedness of, any other Restricted Subsidiary, (d) if a Subsidiary is
being designated as an Unrestricted Subsidiary hereunder, (i) the sum of (A) the
net tangible assets of such Subsidiary as of such date of designation (the
“Designation
Date”), as set forth on such Subsidiary’s most recent balance sheet, plus
(B) the aggregate amount of total assets of all Unrestricted Subsidiaries listed
on Schedule
1.1F on the Closing Date that are still Unrestricted Subsidiaries as of
the Designation Date plus (C) the aggregate amount of total assets of all
Unrestricted Subsidiaries designated as Unrestricted Subsidiaries pursuant to
this Section
7.11 prior to the Designation Date (in each case measured
as of such Designation Date) and that are still Unrestricted Subsidiaries as of
the Designation Date shall not exceed $75,000,000 and (ii)
the sum of (A) the revenues contributed by such Subsidiary as of the Designation
Date, plus (B) the aggregate amount of revenues contributed by all Unrestricted
Subsidiaries listed on Schedule
1.1F on the Closing Date that are still Unrestricted Subsidiaries as of
the Designation Date plus (C) the aggregate amount of total revenues of all
Unrestricted Subsidiaries designated as Unrestricted Subsidiaries pursuant to
this Section
7.11 prior to the Designation Date (in each case measured
as of the Designation Date) and that are still Unrestricted Subsidiaries as of
the Designation Date shall not exceed $275,000,000, and (e) the Borrower shall
have delivered to the Agent a certificate of an Authorized Officer certifying
compliance with the provisions of this Section
7.11 

     

    
      
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    setting forth in reasonable detail the computations
necessary to determine such compliance.  Notwithstanding the
foregoing, the designation of any Restricted Subsidiary as an Unrestricted
Subsidiary after the Closing Date shall constitute an investment by the Group
Members, as applicable, therein at the Designation Date in an amount equal to
the net book value of the applicable parties’ investment therein.  Any
Subsidiary of an Unrestricted Subsidiary shall automatically be deemed to be an
Unrestricted Subsidiary.  The designation of any Unrestricted
Subsidiary as a Restricted Subsidiary shall constitute (i) the incurrence at the
time of designation of all investments, Indebtedness and Liens of such
Subsidiary existing at such time and (ii) a return on any investment by the
Borrower or any Restricted Subsidiary in Unrestricted Subsidiaries pursuant to
the preceding sentence in an amount equal to the fair market value at the date
of such designation of the Borrower’s and its Restricted Subsidiaries’ (as
applicable) investment in such Subsidiary.

     

    7.12.           Mortgages.  Within
90 days (or within such longer period as agreed thereto by the Agent, in its
sole discretion, but in any event no later than within 150 days) after the
Closing Date, the Agent shall have received the following documents with respect
to the Mortgaged Properties:

     

     

    7.12.1               The
Agent shall have received a Mortgage with respect to each Mortgaged Property,
executed and delivered by a duly authorized officer of each party
thereto.

     

    7.12.2               If
requested by the Collateral Agent, the Agent shall have received, and the title
insurance company issuing the policy referred to in Section
7.12.3 (the “Title Insurance
Company”) shall have received either (i) maps or plats of an as-built
survey (each a “Survey”) of the
sites of the Mortgaged Properties certified to the Collateral Agent and the
Title Insurance Company in a manner satisfactory to them, dated a date
reasonably satisfactory to the Collateral Agent and the Title Insurance Company
by an independent professional licensed land surveyor reasonably satisfactory to
the Collateral Agent and the Title Insurance Company, or (ii) in the absence of
a Survey for any Mortgaged Property, the title insurance policy delivered
pursuant to Section
7.12.3 shall not contain a general survey exception and
shall contain, to the extent available in the particular jurisdiction and
applicable to the particular property, a survey endorsement, an access
endorsement, a contiguity endorsement, and a
comprehensive endorsement; provided, that the Borrower shall not be in default
of this Section
7.12.2 if the Borrower fails to satisfy clauses (i) or (ii)
in respect of any one or more Mortgaged Properties, then in such event the
provisions of Section
7.10.3 shall apply with respect to such Mortgaged
Properties.

     

    7.12.3               The
Agent shall have received in respect of each Mortgaged Property a mortgagee’s
title insurance policy (or policies) or marked up unconditional binder for such
insurance, in each case covering such Mortgaged Property in an amount at least
equal to 110% of the Real Estate Fair Value of such Mortgaged Property (or such
other amount as shall be reasonably specified by the Collateral Agent) and
otherwise in form and substance reasonably satisfactory to the Collateral
Agent.  Each such
policy shall include such title endorsements
(excluding, with respect to any Mortgaged Property, the title
endorsements referenced in Section
7.12.2(ii) in
the event that Section
7.10.3 is applicable to such Mortgaged Property) as may be
reasonably requested by the Collateral Agent, provided, however, that
(1)
for any
jurisdiction wherein a zoning endorsement is unavailable or the cost of the
issuance of the zoning endorsement for the applicable Mortgaged Property is
calculated as a percentage of the premium for the applicable title insurance
policy, in lieu of such zoning endorsement, the applicable Group Member shall
use
commercially reasonable efforts to deliver a
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    which
demonstrates that the current use of such Mortgaged Property is in compliance
with applicable zoning requirements, and (2) in no
event shall the Borrower be required to obtain a new Survey in order to procure
the issuance of a zoning endorsement.  The
Agent shall have received evidence reasonably satisfactory to it that all
premiums in respect of each such policy, all charges for mortgage recording tax,
and all related expenses, if any, have been
paid.

     

    7.12.4               With
respect to each Mortgaged Property which is located in a “special flood hazard
area” (A) a policy of flood insurance that (1) covers any parcel of improved
real property that is encumbered by any Mortgage (2) is written in an amount not
less than the outstanding principal amount of the Indebtedness secured by such
Mortgage that is reasonably allocable to such real property or the maximum limit
of coverage made available with respect to the particular type of property under
the National Flood Insurance Act of 1968, whichever is less, and (3) has a term
ending not later than the maturity of the Indebtedness secured by such Mortgage
and (B) confirmation that the Borrower has received the notice required pursuant
to Section 208(e)(3) of Regulation H.

     

    7.12.5               The
Agent shall have received a copy of all recorded documents referred to, or
listed as exceptions to title in, the title policy or policies referred to in
Section
7.12.3 and a copy of all other material documents affecting
the Mortgaged Properties.

     

    7.13.           Environmental
Laws.  Holdings
and the Borrower will, and will cause each Restricted Subsidiary
to:

     

    7.13.1               comply
in all material respects with, and use commercially reasonable efforts to ensure
compliance in all material respects by all tenants and subtenants, if any, with,
all applicable Environmental Laws, and obtain and comply in all material
respects with and maintain, and use commercially reasonable efforts to ensure
that all tenants and subtenants obtain and comply in all material respects with
and maintain, any and all licenses, approvals, notifications, registrations or
permits required by applicable Environmental Laws except to the extent failure
to do so could not reasonably be expected to have a Material Adverse
Effect.

     

    7.13.2               conduct
and complete all investigations, studies, sampling and testing, and all
remedial, removal and other actions required under Environmental Laws and
promptly comply in all material respects with all lawful orders and directives
of all Governmental Authorities regarding Environmental Laws except to the
extent failure to do so could not reasonably be expected to have a Material
Adverse Effect..

     

    7.14.           Dividends.  Each
of Holdings and the Borrower shall not, and shall not permit any of its
Restricted Subsidiaries to, declare or pay any dividend (other than dividends
payable solely in common stock of the Person making such dividend) on, or make
any payment on account of, or set apart assets for a sinking or other analogous
fund for, the purchase, redemption, defeasance, retirement or other acquisition
of, any Capital Stock of any Group Member, whether now or hereafter outstanding,
or make any other distribution in respect thereof, either directly or
indirectly, whether in cash or property or in obligations of any Group Member
(collectively, “Restricted
Payments”), except that:

     

    7.14.1               any
Restricted Subsidiary may make Restricted Payments to the Borrower or any
Subsidiary Guarantor;

     

    
      
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    7.14.2               any
Restricted Subsidiary which is not a Subsidiary Guarantor may make Restricted
Payments to any Restricted Subsidiary which is not a Subsidiary
Guarantor;

     

    7.14.3               the
Borrower may pay dividends to Holdings to permit Holdings to pay operating
expenses not to exceed in any fiscal year an amount equal to $500,000;


     

    7.14.4               Holdings,
the Borrower and each Restricted Subsidiary may pay dividends and make other
payments or distributions permitted under Section
7.20.3 or Section
7.20.5;

     

    7.14.5               any
Group Member or any of its Control Group members may pay dividends on or award
dividend equivalent rights in respect of Compensatory Awards in the ordinary
course of business and consistent with the past practices; and

     

    7.14.6               the
Borrower may make Restricted Payments in any fiscal year in an amount not to
exceed (i) $5,000,000 plus (ii) the Available Amount (it being understood that
the Borrower shall determine whether any such Restricted Payment is being made
pursuant to clause (i) or clause (ii) of this Section
7.14.6 at the time such Restricted Payment is made), so long
as, after giving effect to such Restricted Payment, (x) no Default or Unmatured
Default shall have occurred and be continuing, (y) outstanding Loans shall not
exceed 20% of the Aggregate Commitment, and (z) the Leverage Ratio for the
period of the four consecutive fiscal quarters of the Borrower most recently
ended prior to such Restricted Payment for which financial statements have been
delivered shall not exceed, with respect to any period ending on or before
December 31, 2009, 3.50 to 1.00, with respect to any period ending on or before
December 31, 2010 but after December 31, 2009, 2.75 to 1.00, or with respect to
any period ending after December 31, 2010, but ending on or before the Facility
Termination Date, 2.25 to 1.0.

     

    7.15.           Indebtedness.  Each
of Holdings and the Borrower shall not, and shall not permit any of its
Restricted Subsidiaries to, create, incur, assume or suffer to exist any
Indebtedness, except:

     

    7.15.1               Indebtedness
of any Loan Party pursuant to any Loan Document;

     

    7.15.2               Indebtedness
of (a) the Borrower to any Restricted Subsidiary and of any Subsidiary Guarantor
to the Borrower or any Restricted Subsidiary and (b) any Subsidiary that is not
a Subsidiary Guarantor to (i) any other Subsidiary that is not a Guarantor or
(ii) the Borrower or any Subsidiary Guarantor, in the case of clause (ii), in an
aggregate principal amount not to exceed $10,000,000 at any one time
outstanding; provided that
any such Indebtedness of a Loan Party to a Subsidiary that is not a Loan Party
shall be subordinated to the Obligations on terms reasonably satisfactory to the
Agent;

     

    7.15.3               Guarantee
Obligations incurred in the ordinary course of business (i) by the Borrower or
any of its Restricted Subsidiaries of obligations of any Subsidiary Guarantor;
(ii) by any Restricted Subsidiary that is not a Subsidiary Guarantor of any
obligations
of any other Restricted Subsidiary that is not a Subsidiary Guarantor or (iii)
by the Borrower or any Restricted Subsidiary of the obligations of any
Subsidiary that is not a Subsidiary Guarantor; provided that,
in the case of clause (iii), such other obligations shall not exceed $10,000,000
at any time outstanding;

     

    7.15.4               Indebtedness
outstanding on the date hereof and listed on Schedule
7.15 and any refinancings, refundings, renewals or
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    maturity
of or increasing the principal amount thereof (other than with respect to
capitalized interest or fees thereon));

     

    7.15.5               Indebtedness
arising under any performance or surety bond entered into in the ordinary course
of business;

     

    7.15.6               Rate
Management Obligations under Rate Management Transactions permitted by Section
7.21;

     

    7.15.7               contingent
indemnification obligations of the Borrower and any Restricted Subsidiary to
financial institutions, in each case to the extent in the ordinary course of
business and on terms and conditions which are within the general parameters
customary in the banking industry, entered into to obtain cash management
services or deposit account overdraft protection services (in amount similar to
those offered for comparable services in the financial industry) or other
services in connection with the management or opening of deposit accounts or
incurred as a result of endorsement of negotiable instruments for deposit or
collection purposes and other customary, contingent loss indemnification
obligations of the Borrower and its Subsidiaries incurred in the ordinary course
of business;

     

    7.15.8               contingent
liabilities of the Borrower or any Restricted Subsidiary in respect of any
purchase price adjustment, earn-out provision or any non-competition or
consulting agreement or deferred compensation agreement, in each case, owing in
connection with the Triarc Acquisition or any Permitted
Acquisition;

     

    7.15.9               Indebtedness
owing to the issuer of any insurance policy by the Person purchasing such policy
for the benefit of the Borrower and its Restricted Subsidiaries for the purpose
of financing the purchase of such policy by the Borrower or any of its
Restricted Subsidiaries, in an aggregate outstanding principal amount not to
exceed the premiums owed under such policy;

     

    7.15.10                         Indebtedness
of Holdings in connection with loans by the Borrower permitted by Section
7.18.14;

     

    7.15.11                         Indebtedness
of any Foreign Subsidiary incurred in the ordinary course of business not to
exceed $10,000,000 at any time outstanding;

     

    7.15.12                         Indebtedness
permitted to be incurred pursuant to Section
7.26; and

     

    7.15.13                         additional
Indebtedness of the Borrower or any of its Restricted Subsidiaries so long as
the Borrower shall be in compliance, after giving effect to such incurrence of
Indebtedness, with the Leverage Ratio and Coverage Ratio, recomputed as at the
last day of the most recently ended fiscal quarter of the Borrower for which the
relevant information is available as if such incurrence of Indebtedness had
occurred on the first day of each relevant period for testing such
compliance.

     

    7.16.           Merger;
Dissolution.  Each
of Holdings and the Borrower shall not, and shall not permit any of its
Restricted Subsidiaries to, merge or consolidate with or into any other Person,
liquidate, wind-up, dissolve or convey, lease, sell, transfer or otherwise
dispose of, in one transaction or a series of transactions, all or substantially
all of its consolidated business or Property, whether now or hereafter acquired,
except:

     

    
      
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    7.16.1               any
Restricted Subsidiary of the Borrower may be merged or consolidated with or into
the Borrower (provided that
the Borrower shall be the continuing or surviving corporation) or with or into
any Subsidiary Guarantor (provided that
the Subsidiary Guarantor shall be the continuing or surviving
corporation);

     

    7.16.2               any
Restricted Subsidiary of the Borrower that is not a Subsidiary Guarantor may be
merged or consolidated with or into any Restricted Subsidiary that is not a
Subsidiary Guarantor;

     

    7.16.3               any
Restricted Subsidiary of the Borrower may convey, sell, lease, transfer or
otherwise dispose of all or substantially all of its business or Property to the
Borrower or any Subsidiary Guarantor;

     

    7.16.4               any
Restricted Subsidiary that is not a Subsidiary Guarantor may convey, sell,
lease, transfer or otherwise dispose of all or substantially all of its business
or Property to any other Restricted Subsidiary that is not a Subsidiary
Guarantor;

     

    7.16.5               any
Restricted Subsidiary that is not a Material Subsidiary may liquidate, wind-up
or dissolve;

     

    7.16.6               any
Investment expressly permitted by Section
7.18 may be structured as a merger, consolidation or
amalgamation; and

     

    7.16.7               Dispositions
permitted by Section
7.17.

     

    7.17.           Sale of
Assets; Casualty
Events.

     

    7.17.1               Each
of Holdings and the Borrower shall not, and shall not permit any of its
Restricted Subsidiaries to Dispose of any Property that is not Real Estate
Collateral, whether now owned or hereafter acquired, or, in the case of any
Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s
Capital Stock to any Person, except:

     

    
      	
               
      

            	
              (i)

            	
              Dispositions
      of inventory in the ordinary course of
business;

            


    

     

    
      	
               
      

            	
              (ii)

            	
              Dispositions of
      assets, issuance or sale of Capital Stock by (x) the Borrower or
      any other Loan Party to any other Loan Party, (y) any Restricted
      Subsidiary that is not a Loan Party to the Borrower or to any
      other Restricted Subsidiary or (z) the Borrower or any other Loan
      Party to any other Restricted Subsidiary that is not a Loan Party, in each
      case, to the extent not otherwise prohibited by this Agreement; provided
      that, in the case of clause (z), such Dispositions shall not exceed
      $5,000,000;

            


    

     

    
      	
               
      

            	
              (iii)

            	
              Dispositions,
      in the ordinary course of business of the Borrower or any Restricted
      Subsidiary, of obsolete property or property no longer used in the
      business of the Borrower or its Restricted
  Subsidiaries;

            


    

     

    
      	
               
      

            	
              (iv)

            	
              Dispositions or issuances or sales of Capital Stock
      permitted under Section
      7.14 or Section
      7.18;

            


    

     

     

    
      
        
        

      

      
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              (v)

            	
              Dispositions
      of restaurants (including the Disposition of real property and other
      related Property) to franchisees of the Borrower or a Restricted
      Subsidiary or to a joint venture or partnership of which the Borrower or a
      Restricted Subsidiary holds an equity or partnership
    interest;

            


    

     

    
      	
               
      

            	
              (vi)

            	
              sales of loans made by the Borrower or any of its
      Restricted Subsidiaries to franchisees to the extent such loans are
      permitted by Section
      7.18;

            


    

     

    
      	
               
      

            	
              (vii)

            	
              Dispositions
      of Cash Equivalent Investments in the ordinary course of
      business;

            


    

     

    
      	
               
      

            	
              (viii)

            	
              the
      discount or write-off of accounts receivable overdue by more than 90 days
      or the sale of any such accounts receivable for the purpose of collection
      to any collection agency, in each case in the ordinary course of
      business;

            


    

     

    
      	
               
      

            	
              (ix)

            	
              licenses
      and sublicenses of Intellectual Property rights to any Person in the
      ordinary course of business;

            


    

     

    
      	
               
      

            	
              (x)

            	
              a
      true lease or sublease of any property not constituting
      Indebtedness;

            


    

     

    
      	
               
      

            	
              (xi)

            	
              the liquidation, dissolution, consolidation or merger
      of any Subsidiary of the Borrower, to the extent such liquidation,
      dissolution, consolidation or merger is permitted pursuant to Section
      7.16;

            


    

     

    
      	
               
      

            	
              (xii)

            	
              sale and leaseback transactions permitted by Section
      7.26;

            


    

     

    
      	
               
      

            	
              (xiii)

            	
              Dispositions of Property permitted by Section
      7.19; and

            


    

     

    
      	
               
      

            	
              (xiv)

            	
              any other Disposition of Property by Holdings, the
      Borrower or any Restricted Subsidiary, provided
      that (i) Holdings, the Borrower or such Restricted Subsidiary, as the
      case may be, receives consideration at least equal to the fair market
      value (such fair market value to be determined on the date of
      contractually agreeing to such Disposition), as determined in good faith
      by an Authorized Officer, of the property or asset subject to such
      Disposition; (ii) 70% of the consideration from such Disposition received
      by the Borrower or such Subsidiary, as the case may be, is in the form of
      cash or Cash Equivalents; (iii) the aggregate amount of all such
      Dispositions shall not exceed $95,000,000 during the term of this
      Agreement and (iv) the Borrower shall be in compliance, on a pro forma
      basis after giving effect to such Disposition, with the covenant contained
      in Section
      7.23,
      recomputed as at the last day of the most recently ended fiscal quarter of
      the Borrower for which the relevant information is available as if such
      Disposition had occurred on the first day of each relevant period for
      testing such compliance.

            


    

     

    
      7.17.2    Subject to the right to substitute Real Estate Collateral
pursuant to Section
7.10.2 (in which case this Section
7.17.2 shall not apply), each of Holdings and the Borrower
shall not, and shall not permit any of its Restricted Subsidiaries to Dispose of
any Real Estate Collateral, whether now owned or hereafter acquired, to any
Person (other than the Borrower or any Subsidiary Guarantor)
unless

    

     

    
      
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      (i)

              	 

                 

              	
                Holdings, the Borrower or such Restricted Subsidiary,
      as the case may be, receives consideration at least equal to the fair
      market value (such fair market value to be determined on the date of
      contractually agreeing to such Disposition), as determined in good faith
      by an Authorized Officer, of the property or asset subject to such
      Disposition;

                 

              
	
                 (ii)

              	 	
                70%
      of the consideration from such Disposition received by the Borrower or
      such Subsidiary, as the case may be, is in the form of cash or Cash
      Equivalents; and

                 

              
	
                 (iii) 

              	
                 

              	within ten (10) Business Days of Holdings, the
      Borrower or any Restricted Subsidiary receiving any Net Cash Proceeds in
      excess of $1,000,000 in the aggregate during any fiscal year as a result
      of any such Disposition of Real Estate Collateral, the relevant Person
      shall (x) either (A) cause 100% of the amount of such Net Cash Proceeds of
      such Disposition exceeding $1,000,000 in the aggregate during such fiscal
      year (“Excess Net Cash
      Proceeds”) to be applied toward the permanent reduction of the
      Commitments and the prepayment of Loans as set forth in Section
      2.18;
      (B) deposit such Excess Net Cash Proceeds into a segregated collateral
      account, under the sole control of the Agent, that includes only proceeds
      from Dispositions of Real Estate Collateral and Casualty Events involving
      Real Estate Collateral and interest earned thereon (“Collateral
      Account”) and is free from all other Liens (other than Liens in
      favor of the Secured Parties), all on terms and pursuant to arrangements
      reasonably satisfactory to the Agent in its reasonable determination
      (which may include, at the Agent’s reasonable request, customary officer’s
      certificates and opinions of counsel and shall include release provisions
      requiring the Agent to release deposits in the Collateral Account as
      requested to permit the Borrower or its Subsidiaries to apply such Excess
      Net Cash Proceeds in the manner described in the immediately succeeding
      paragraph below, unless a Default has occurred and is continuing) or (C)
      invest Excess Net Cash Proceeds of such Disposition in Additional Assets
      constituting Real Estate Collateral and (y) cause any non-cash
      consideration received in connection with any such Disposition to be
      subjected to a perfected first-priority security interest as Collateral
      under the Security Documents to secure the Obligations on terms and
      pursuant to arrangements reasonably satisfactory to the Agent in its
      reasonable determination (which may include, at the Agent’s reasonable
      request, customary officer’s certificates and legal
      opinions).  So long as no Default has occurred and is
      continuing, an amount equal to 100% of the Excess Net Cash Proceeds
      deposited into the Collateral Account may be withdrawn by the Borrower (or
      such Subsidiary, as the case may be) to be invested by the Borrower or
      such Subsidiary in Additional Assets constituting Real Estate Collateral
      to be owned by the Borrower or a Subsidiary Guarantor within 365 days of
      the date of the receipt of Excess Net Cash Proceeds with respect to the
      related Disposition, and the Agent shall promptly be granted a perfected
      first-priority security interest on all such Additional Assets as
      Collateral under the Security Documents to secure the Obligations on terms
      and pursuant to arrangements reasonably satisfactory to the Agent in its
      reasonable determination (which may include, at the Agent’s reasonable
      request, customary officer’s certificates and legal
      opinions).  If the Borrower shall determine that it will not or
      does not intend to use any amount then deposited in the Collateral Account
      to invest, or to have a Subsidiary invest, in Additional Assets, such amount
      shall be applied toward the prepayment of the Loans (and reduction of the
      Commitments) in accordance with Section
      2.18.


      

    

     

    To the extent any Real Estate Collateral is Disposed of as
permitted by this Section
7.17 to any Person other than Holdings, the Borrower or
any Restricted Subsidiary (other than any Foreign Subsidiary), such Collateral
shall be sold free and clear of the Liens created by the Loan


     

    
      
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    Documents, and the Agent shall be authorized to take any
actions deemed appropriate in order to effect the foregoing.

     

    7.17.3                      In
the event of a Casualty Event involving Real Estate Collateral, the Net Proceeds
(excluding Net Cash Proceeds less than or equal to $1,000,000 in the aggregate
during any fiscal year) of any such Casualty Event shall be deemed Excess Net
Cash Proceeds received upon a Disposition of Real Estate Collateral and such
Excess Net Cash Proceeds shall be utilized in accordance with Section
7.17.2(iii).

     

    7.18.           Investments
and Acquisitions.  Each
of Holdings and the Borrower shall not, and shall not permit any of its
Restricted Subsidiaries to, make or suffer to exist any Investments or to become
a partner in any partnership or joint venture, or to make any Acquisition of any
Person, except:

     

    7.18.1               cash
and Cash Equivalent Investments

     

    7.18.2               other
Investments in existence on the Closing Date and described on Schedule
7.18;

     

    7.18.3               Investments
consisting of (a) intercompany asset dispositions to the extent permitted by
Section
7.17 and
(b) intercompany loans and advances permitted by Section
7.15;

     

    7.18.4               extensions
of trade credit in the ordinary course of business;

     

    7.18.5               Guarantee
Obligations permitted by Section
7.15 and Rate Management Transactions permitted by Section
7.21;

     

    7.18.6               loans
and advances to employees of any Group Member in the ordinary course of business
(including for travel, entertainment and relocation expenses) in an aggregate
amount for all Group Members not to exceed $2,500,000 at any one time
outstanding;

     

    7.18.7               intercompany
Investments by any Group Member in the Borrower or any Person that, prior to
such investment, is a Subsidiary Guarantor;

     

    7.18.8               Investments
in trade receivables or received in connection with the bankruptcy or
reorganization of suppliers and customers and in settlement of delinquent
obligations of, and other disputes with, customers and suppliers arising in the
ordinary course of business;

     

    7.18.9              Investments
consisting of deposit accounts maintained by the Borrower and its Restricted
Subsidiaries in the ordinary course of business;


    7.18.10            Investments
consisting of partnership or other equity interests in any partnership, joint
venture or other Person so long as such partnership, joint venture or Person is
in a line of business that does not violate the terms or provisions of Section
7.4.1;

     

    7.18.11            acquisitions
meeting the following requirements or otherwise approved by the Required Lenders
(each such Acquisition constituting a “Permitted
Acquisition”):

     

    
      
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              (a)

            	
              no
      Default or Unmatured Default shall have occurred and be continuing or
      would result from such Acquisition or the incurrence of any Indebtedness
      in connection therewith and, both before and immediately after giving
      effect to such Acquisition, all of the representations and warranties
      contained herein shall be true and correct in all material respects,
      unless such representation and warranty is made as of a specific date, in
      which case, such representation or warranty shall be true and correct in
      all material respects as of such date;
and

            


    

     

    
      	
               
      

            	
              (b)

            	
              the
      purchase is consummated pursuant to a negotiated acquisition agreement on
      a non-hostile basis and approved by the target company’s board of
      directors (and shareholders, if necessary) prior to the consummation of
      the Acquisition; and

            


    

     

    
      	
               
      

            	
              (c)

            	
              the Borrower shall be in compliance, on a pro forma
      basis after giving effect to such acquisition, with the covenants
      contained in Section
      7.23 and Section
      7.24, in each case recomputed as at the last day of the
      most recently ended fiscal quarter of the Borrower for which the relevant
      information is available as if such acquisition had occurred on the first
      day of each relevant period for testing such compliance;
      and

            


    

     

    
      	
               
      

            	
              (d)

            	
              the aggregate consideration for all acquisitions
      pursuant to this Section
      7.18.11 shall not exceed $75,000,000;
      and

            


    

     

    
      	
               
      

            	
              (e)

            	
              the business being acquired shall be in a line of
      business permitted under Section
      7.4.1; and

            


    

     

    7.18.12                         Investments
in Unrestricted Subsidiaries or Restricted Subsidiaries which are not Subsidiary
Guarantors in an aggregate amount (valued at cost) not to exceed $5,000,000 at
any time outstanding;

     

    7.18.13                         so
long as no Default or Unmatured Default has occurred and is continuing at the
time of such Investment, in addition to Investments otherwise expressly
permitted by this Section, Investments by the Borrower or any of its Restricted
Subsidiaries in an aggregate amount (valued at cost) not to exceed $15,000,000
at any time outstanding;

     

    7.18.14                         so
long as no Default or Unmatured Default has occurred and is continuing at the
time of such Investment, loans to Holdings in an aggregate amount not to exceed
$10,000,000 at any time outstanding;

     

    7.18.15                         Investments
(including an investment in any Unrestricted Subsidiary) with the proceeds (in
the form of cash or other property) contributed to the Borrower in exchange for
common equity; and

     

    7.18.16                         Investments
for the purpose of purchasing loan obligations of franchisees of the Borrower to
the extent they are guaranteed by the Borrower and accounted for as contingent
obligations on the balance sheet of the Borrower delivered pursuant to Section 5.1.2 in an aggregate
amount (valued at cost) not to exceed $15,000,000 at any time
outstanding.

     

    7.19.           Liens.  Each
of Holdings and the Borrower shall not, and shall not permit any of its
Restricted Subsidiaries to, create, incur, or suffer to exist any Lien in, of or
on the Property of the Borrower or any of its Restricted Subsidiaries,
except:

     

    
      
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    7.19.1               the
interest of a lessor under a Capitalized Lease or otherwise securing Capitalized
Lease Obligations;

     

    7.19.2               Liens
existing on the Closing Date and described in Schedule
7.19;

     

    7.19.3               Liens
for taxes, assessments or governmental charges or levies on its Property if the
same shall not at the time be delinquent or thereafter can be paid without
penalty, or are being contested in good faith and by appropriate proceedings and
for which adequate reserves in accordance with Agreement Accounting Principles
shall have been set aside on its books;

     

    7.19.4               Liens
imposed by law, such as landlords’ carriers’, materialmen’s, processors’,
warehousemen’s and mechanics’ liens and other similar liens arising in the
ordinary course of business which secure payment of obligations not more than
sixty (60) days past due or which are being contested in good faith by
appropriate proceedings and for which adequate reserves in accordance with
Agreement Accounting Principles shall have been set aside on its
books;

     

    7.19.5               Liens
arising out of pledges or deposits under worker’s compensation laws,
unemployment insurance, old age pensions, or other social security or retirement
benefits, or similar legislation;

     

    7.19.6               deposits
to secure the performance of bids, trade contracts (other than for borrowed
money), leases, statutory obligations, surety, indemnity and appeal and release
bonds, performance bonds and other obligations of a like nature incurred in the
ordinary course of business;

     

    7.19.7               easements,
reservations, rights-of-way, restrictions, survey exceptions, encroachments,
covenants, minor defects, irregularities and other similar encumbrances as to
real property of the Borrower and its Restricted Subsidiaries which customarily
exist on properties of corporations engaged in similar activities and similarly
situated and which do not materially detract from the value of the property
subject thereto or interfere with the conduct of the business of the Borrower or
such Restricted Subsidiary conducted at the property subject
thereto;

     

    7.19.8               Liens
existing on property or assets at the time of acquisition thereof by the
Borrower or a Restricted Subsidiary, provided that
(i) such Liens existed at the time of such acquisition and were not created in
anticipation thereof; and (ii) any such Lien does not encumber any other
property or assets (other than additions thereto and property in replacement or
substitution thereof);

     

    7.19.9               Liens
existing on property or assets of a Person which becomes a Restricted Subsidiary
of the Borrower; provided that
(i) such Liens existed at the time such Person became a Restricted Subsidiary
and were not created in anticipation thereof, and (ii) any
such Lien does not encumber any other property or assets (other than additions
thereto and property in replacement or substitution
thereof);

     

    7.19.10            Liens
arising by reason of any judgment, decree or order of any court or other
Governmental Authority or in connection with arbitration proceedings, if
appropriate legal proceedings are being diligently prosecuted and shall not have
been finally terminated or the period within which such proceedings may be
initiated shall not have expired, in an 

     

    
      
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    aggregate amount not to exceed, when taken together with
all Liens securing bonds to stay judgments or in connection with appeals as
permitted by Section
7.19.5, $25,000,000 at any time outstanding;

     

    7.19.11                         purchase
money Liens (including Liens to which any property is subject at the time of
acquisition thereof) securing purchase money Indebtedness (other than
Capitalized Leases) incurred by the Borrower or any of its Restricted
Subsidiaries after the Closing Date to finance the acquisition or construction
of assets used in its business, if (i) at the time of such incurrence, no
Default or Unmatured Default has occurred and is continuing or would result from
such incurrence, (ii) such Indebtedness has a scheduled maturity and is not due
on demand, (iii) such Indebtedness does not exceed the lower of the fair market
value or the cost of the applicable fixed assets and related fees and expenses
on the date acquired and (iv) such Indebtedness does not exceed $80,000,000 in
the aggregate at any time outstanding; provided that
such Liens shall not apply to any Property of the Borrower or its Restricted
Subsidiaries other than that financed (including improvements thereto) and
insurance proceeds thereof;

     

    7.19.12                         the
title of a lessor in or to Property subject to an operating lease or subject to
a Sale and Leaseback Transaction permitted under Sections
7.15, 7.17 and 7.26;

     

    7.19.13                         Liens
from time to time created pursuant to this Agreement or the Security
Documents;

     

    7.19.14                         municipal
and zoning ordinances, which are not violated in any material respect by the
existing improvements and the present use made by the Borrower or any Restricted
Subsidiary of real property;

     

    7.19.15                         customary
rights of set off, revocation, refund or chargeback under deposit agreements or
under the Uniform Commercial Code of banks or other financial institutions where
the Borrower or its Restricted Subsidiaries maintains deposits in the ordinary
course of business permitted by this Agreement;

     

    7.19.16                         Liens
arising from the granting of a license or sublicense of Intellectual Properties
rights to any person in the ordinary course of business of the Borrower and its
Restricted Subsidiaries;

     

    7.19.17                         Liens
attaching solely to cash earnest money deposits made by the Borrower or any of
its Restricted Subsidiaries in connection with any letter of intent or purchase
agreement entered into by it in connection with a Permitted
Acquisition;

     

    7.19.18                         Liens
deemed to exist in connection with repurchase agreements and other similar
Investments to the extent such Investments are permitted under Section
7.18;

     

    7.19.19                         Liens
arising by operation of law on insurance policies and proceeds thereof to secure
premiums thereunder;

     

    7.19.20                         any
extension, renewal or replacement (or successive extensions, renewals or
replacements) in whole or in part of any Lien referred to in any other
subsection in this Section
7.19, provided, however, that
the principal amount of Indebtedness secured thereby shall not exceed the
principal amount of Indebtedness so secured prior to such extension, renewal or
replacement and that such extension, renewal or replacement Lien


     

    
      
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    shall be limited to all or a part of the assets which
secured the Lien so extended, renewed or replaced (plus improvements and
construction on such real property);

     

    7.19.21                         Liens
arising out of conditional sale, title retention, consignment or similar
arrangements for the sale of goods entered into in the ordinary course of
business and consistent with past practices

     

    7.19.22                         Liens
arising from the filing of UCC financing statements solely as a precautionary
measure in connection with operating leases or consignment of
goods;

     

    7.19.23                         Liens
securing Indebtedness permitted by Section
7.15.11; and

     

    7.19.24                         other
Liens securing Indebtedness in an aggregate amount not to exceed $25,000,000 at
any time outstanding.

     

    In addition to the foregoing, neither the Borrower nor any
of its Restricted Subsidiaries shall become a party to any agreement, note,
indenture or other instrument, which would prohibit the creation of a Lien on
any of their properties or other assets, whether now owned or hereinafter
acquired, in favor of the Collateral Agent for the benefit of itself and the
Secured Parties to secure their Obligations under the Loan Documents, except the
Senior Note Indentures, agreements and instruments relating to purchase money
Indebtedness, Capitalized Lease Obligations and any other Indebtedness secured
solely by the assets financed with such Indebtedness and the proceeds thereof
(including insurance proceeds) and the accessions and attachments thereto, and
agreements relating to Indebtedness permitted to be incurred pursuant to Section
7.15.11 to the extent such prohibition is limited to property
and assets owned by Foreign Subsidiaries and agreements and instruments relating
to Liens permitted pursuant to Sections
7.19.6, 7.19.8, 7.19.9, 7.19.12 and 7.19.15.

     

    7.20.           Transactions
with Affiliates.  Holdings
and the Borrower will not, and will not permit any Restricted Subsidiaries to,
enter into any material transaction (including, without limitation, the purchase
or sale of any Property or service) with, or make any payment or transfer to,
any Affiliate (other than Holdings, the Borrower or Restricted Subsidiaries)
except upon fair and reasonable terms no less favorable to Holdings, the
Borrower or such Restricted Subsidiary than Holdings, the Borrower or such
Restricted Subsidiary would obtain in a comparable arm’s-length
transaction.  Notwithstanding the foregoing, the following shall be
permitted:

     

    7.20.1               expense
reimbursement, indemnities, salaries and other director or employee compensation
(including expense reimbursement, indemnities and Compensatory Awards) to
current or former employees, consultants, advisors, officers or directors of
Holdings,
the Borrower or any Restricted Subsidiaries in the ordinary course of
business and consistent with prior practices;

    
 

    7.20.2               transactions
with customers, clients, suppliers, joint venture partners or purchasers or
sellers of goods and services, in each case in the ordinary course of business
and otherwise not prohibited by the Loan Documents;

     

    7.20.3               payments
for the provision of legal, accounting, and financial reporting, treasury and
financial planning, tax and other management and administrative services to the
extent (x) attributable to the operations, administration or management of, or
incurred on behalf of or for the benefit of, Holdings, the Borrower, any
Restricted Subsidiaries or WAG in its capacity as the parent of Holdings and
deducted from revenues in determining Consolidated Net Income, (y) incurred in
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    exceed in any fiscal year an amount equal to $75,000,000;
provided
that Holdings, the Borrower or any Restricted Subsidiaries may enter into any
services agreement consistent with the provisions of this Section
7.20.3;

     

    7.20.4               employment,
secondment, compensation, indemnification, noncompetition or confidentiality
arrangements with current or former officers, employees, consultants, advisors
or directors of Holdings, the Borrower or any Restricted Subsidiary entered into
in the ordinary course of business;

     

    7.20.5               Holdings,
the Borrower and any Restricted Subsidiaries may make payments to the direct or
indirect parent of Holdings (and the Borrower and any Restricted Subsidiaries
may make payments to each other and to Holdings and to any other direct or
indirect subsidiary of Holdings) for the taxes (including any interest,
penalties or expenses related thereto) attributable to Holdings, the Borrower or
any Restricted Subsidiaries but not payable directly by Holdings, the Borrower
or any Restricted Subsidiaries (regardless of whether or not such amounts are
payable as taxes by the direct or indirect parent of Holdings) either because
(a) Holdings, the Borrower or any Restricted Subsidiaries are members of a
consolidated, combined or similar tax group of which a direct or indirect parent
of Holdings is the common parent or (b) Holdings is a disregarded entity for
applicable tax purposes, in an amount not to exceed the taxes that would have
been payable by Holdings, the Borrower or any Restricted Subsidiaries on a
stand-alone basis or as a stand-alone group consisting of Holdings, the Borrower
and/or any Restricted Subsidiaries (as the case may be), in each case as
determined in Holdings’ reasonable discretion; provided, that
Holdings, the Borrower or any Restricted Subsidiaries, at the sole discretion of
Holdings, may enter into any tax sharing agreement consistent with the
provisions of this Section
7.20.5 with
any Person with which Holdings, the Borrower or any Restricted Subsidiaries are
required or permitted to file a consolidated, combined or similar tax return or
with which Holdings, the Borrower or any Restricted Subsidiaries are part of a
consolidated, combined or similar group for tax purposes and make payments
pursuant thereto;

     

    7.20.6               transactions
listed on Schedule
7.20;

     

    7.20.7               dividends,
distributions and other payments permitted under Section
7.14; and

     

    7.20.8               Investments
permitted under Sections
7.18.6, 7.18.12, 7.18.14 and 7.18.15.

     

    7.21.               Rate Management
Transactions.  The
Borrower will not, nor will it permit any Restricted Subsidiary to, enter into
or remain liable upon any Rate Management Transaction except for those entered
into in the ordinary course of business for bona fide hedging purposes and not
for speculative purposes.

     

    7.22.           Subsidiary
Covenants.  Except for any of the following permitted
elsewhere under this Agreement, the Borrower will not, and will not permit any
Restricted Subsidiary to, create or otherwise cause to become effective any
consensual encumbrance or restriction of any kind on the ability of any
Restricted Subsidiary (a) to pay dividends or make any other distribution on its
stock or other ownership interests, (b) to pay any Indebtedness or other
obligation owed to the Borrower or any other Restricted Subsidiary, (c) to make
loans or advances or other Investments in the Borrower or any other Restricted
Subsidiary or (d) to sell, transfer or otherwise convey any of its property to
the Borrower or any other Restricted Subsidiary, in each case, other than (i)
restrictions imposed by this Agreement, (ii) customary

     

    
      
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     restrictions and conditions contained in agreements
relating to the sale of a Subsidiary, assets, Capital Stock or other equity
interests pending such sale, provided that
such restrictions and conditions apply only to the Subsidiary, assets, Capital
Stock or other equity interests that is to be sold and such sale shall be
permitted hereunder, (iii) restrictions imposed on Foreign Subsidiaries by
agreements relating to Indebtedness permitted to be incurred under Section
7.15.11 to the extent such restrictions are limited
to  such Foreign Subsidiaries and their property and assets, (iv)
restrictions on cash or other deposit or net worth requirements imposed by
customers or contracts entered into in the ordinary course of business or
restrictions imposed by applicable law, (v) restrictions imposed by the holder
of a Lien permitted by Section
7.19, solely on the transfer of assets subject thereto, (vi)
any encumbrance or restriction with respect to a Restricted Subsidiary of the
Borrower pursuant to an agreement relating to any Indebtedness issued or
incurred by such Restricted Subsidiary on or prior to the date on which such
Restricted Subsidiary became a Restricted Subsidiary of the Borrower or was
acquired by the Borrower and outstanding on such date, (vii) any such
encumbrance or restriction consisting of customary non-assignment provisions in
leases, licenses, joint venture agreements or similar agreements, to the extent
such provisions restrict the transfer of or interests in the lease, license,
joint venture agreement or similar agreement, as applicable, and (viii)
restrictions imposed by law or contained in agreements described on Schedule
7.22.

     

    7.23.           Maximum
Consolidated Indebtedness to Adjusted
EBITDA.  The
Borrower will not permit the ratio (the “Leverage
Ratio”), determined as of the end of each of its fiscal quarters for the
then most-recently ended four fiscal quarters, of (i) Consolidated Indebtedness
to (ii) Adjusted EBITDA, to be greater than or equal to (A) 3.75 to 1.00 00 for
any period ending on or before December 31, 2009; (B) 3.00 to 1.00 for any
period ending on or before December 31, 2010 but after December 31, 2009; and
(C) 2.50 to 1.00 for any period ending on or before December 31, 2011 but after
December 31, 2010.  For purposes of this Section, Adjusted EBITDA
shall be calculated in accordance with the Pro Forma Adjustments.

     

    7.24.           Minimum Fixed
Charge Coverage Ratio.  The
Borrower will not permit the ratio (the “Coverage
Ratio”), determined as of the end of each of its fiscal quarters for the
then most-recently ended four fiscal quarters, of (i) Consolidated EBITDAR to
(ii) the sum of (x) Consolidated Rental Expense plus (y) Consolidated Interest
Expense, to be less than or equal to (A) 2.15 to 1.00 for any period ending on
or before December 31, 2009; (B) 2.35 to 1.00 for any period ending on or before
December 31, 2010 but after December 31, 2009; and (C) 2.50 to 1.00 for any
period ending on or before December 31, 2011 but after December 31,
2010.  For purposes of this Section, Consolidated EBITDAR,
Consolidated Rental Expense and Consolidated Interest Expense shall be
calculated in accordance with the Pro Forma Adjustments.

     

    7.25.           Modifications of Certain Debt
Instruments.  Each
of Holdings and the Borrower shall not, and shall not permit any of its
Restricted Subsidiaries to, amend, modify, waive or otherwise change, or consent
or agree to any amendment, modification, waiver or other change to, any of the
terms of the Senior Notes or the 2025 Debentures (other than any such amendment,
modification, waiver or other change that (i) (x) would extend the maturity or
reduce the amount of any payment of principal thereof or reduce the rate or
extend any date for payment of interest thereon and (y) does not involve the
payment of a consent fee; or (ii) would not materially and adversely affect the
Agent and the Lenders).

     

    7.26.           Sale and
Leaseback Transactions.  Each
of Holdings and the Borrower shall not, and shall not permit any of its
Restricted Subsidiaries to, enter into any Sale and Leaseback Transaction; provided that
such Sale Leaseback Transactions in an amount of up to $30,000,000 in the
aggregate during the term of this Agreement may be consummated by the Borrower
and its Restricted Subsidiaries.

     

    
      
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    7.27.           Capital
Expenditures.  Each
of Holdings and the Borrower shall not, and shall not permit any of its
Restricted Subsidiaries to, make any Capital Expenditure, except Capital
Expenditures of the Borrower and its Restricted Subsidiaries not exceeding
$150,000,000 in any fiscal year; provided, that
(a) up to 50% of any such amount referred to above, if not so expended in the
fiscal year for which it is permitted, may be carried over for expenditure in
the next succeeding fiscal year and (b) Capital Expenditures made pursuant to
this Section during any fiscal year shall be deemed made, first,
in respect of amounts permitted for such fiscal year as provided above and,
second,
in respect of amounts carried over from the prior fiscal year pursuant to clause
(a) above.

     

    7.28.           Organizational
Separateness.  Each of Holdings and the Borrower shall not,
and shall not permit any of its Restricted Subsidiaries to, take any action that
would cause any creditor of such Person to reasonably believe that such creditor
is relying on the credit of Arby’s and its Subsidiaries.  In
furtherance thereof, but without limitation, Holdings and the Borrower shall,
and shall cause its Restricted Subsidiaries to, (a) maintain separate books,
records and separate bank accounts in their own names; (b) act solely in their
own names or the names of their managers and through authorized officers and
agents; (c) not make or agree to make any payment to a creditor of Arby’s or any
of its Subsidiaries in its capacity as such; (d) not commingle any money of
Arby’s and its Subsidiaries with any money of Holdings and its Subsidiaries; and
(e) not take any action, or conduct its affairs in a manner, which could
reasonably be expected to result in the separate corporate existence of Arby’s
and its Subsidiaries from Holdings and its Subsidiaries being
ignored.  Notwithstanding the forgoing, nothing in this Section
7.28 shall apply in respect of any Plan, any Foreign Plan,
any Foreign Benefit Arrangement or any Compensatory Award or shall prohibit
Holdings, the Borrower or any Restricted Subsidiary from entering into
agreements or arrangements permitted by Section
7.20.

     

    7.29.           Changes in
Fiscal Periods.  Each
of Holdings and the Borrower shall not, and shall not permit any of its
Restricted Subsidiaries to, permit the fiscal year of the Borrower to end on a
day other than the Sunday closest to December 31 or change the Borrower’s method
of determining fiscal quarters.

     

    7.30.           Payments for
Consent.  Each
of Holdings and the Borrower shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, pay or cause to be paid any
consideration to or for the benefit of any Lender for or as an inducement to any
consent, waiver or amendment of any of the terms or provisions of this Agreement
unless such consideration is offered to be paid to all Lenders that consent,
waive or agree to amend in the time frame set forth in the solicitation
documents relating to such consent, waiver or agreement.

     

    7.31.           Underwriting
of Insurance Policies.  Each
of Holdings and the Borrower shall not, and shall not permit any of its
Restricted Subsidiaries to, (i) underwrite new insurance policies or (ii) except
as required by law or regulation, amend, modify, waive or otherwise change, or
consent or agree to any amendment,
modification, waiver or other change to, any of the terms of any insurance
policy underwritten by Holdings or any of its Subsidiaries that would extend the
expiration date of such insurance policy or increase the amount of coverage
thereunder.

     

    7.32.           Pledge of WNAP
Interests.  Each
of Holdings and the Borrower shall not, and shall not permit any Restricted
Subsidiary to, pledge, collaterally assign or otherwise encumber any interest in
the Capital Stock of WNAP to
any Person other than the Secured Parties pursuant to the Guarantee and
Collateral Agreement.

     

    
      
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    ARTICLE VIII

     

    DEFAULTS

     

    The
occurrence of any one or more of the following events shall constitute a
Default:

     

    8.1           Any
representation or warranty made or deemed made by or on behalf of any Loan Party
to the Lenders or the Agent under or in connection with this Agreement, any Loan
or any certificate or written information delivered in connection with this
Agreement or any other Loan Document shall be false in any material respect on
the date as of which made or deemed made.

     

    8.2           Nonpayment
of (i) principal of any Loan or Reimbursement Obligation when due, or (ii)
interest upon any Loan or any Reimbursement Obligation, or any fee or other
Obligations under any of the Loan Documents within five (5) days after the same
becomes due.

     

    8.3           The
breach by the Borrower or Holdings of any of the terms or provisions of Sections
7.3.1, 7.4.2, 7.10 (other than Section
7.10.4), 7.12 or
7.14 through 7.29, 7.31
or, by any Loan Party, Section
5.5 and the proviso of Section
6.3(a) of the Guarantee and Collateral Agreement.

     

    8.4           The
breach by the Borrower or Holdings (other than a breach which constitutes a
Default under another Section of this ARTICLE
VIII) of any of the terms or provisions of
this Agreement which is not remedied within thirty (30) days after the earlier
to occur of (i) the date on which the Agent or any Lender sends written notice
thereof to the Borrower or (ii) the date on which an Authorized Officer of the
Borrower has actual knowledge of such breach.

     

    8.5           (i)
Failure of any Group Member to pay when due (after giving effect to any
applicable grace period) any Material Indebtedness; (ii) the default by any
Group Member in the performance (beyond the applicable grace period with respect
thereto, if any) of any term, provision or condition contained in any Material
Indebtedness Agreement, or any other event shall occur or condition exist, the
effect of which default, event or condition is to cause, or to permit the
holder(s) of such Material Indebtedness or the lender(s) under any Material
Indebtedness Agreement to cause, such Material Indebtedness to become due prior
to its stated maturity or any commitment to lend under any Material Indebtedness
Agreement to be terminated prior to its stated expiration date; (iii) any
Material Indebtedness of any Group Member shall be declared to be due and
payable or required to be prepaid or repurchased (other than by a regularly
scheduled payment) prior to the stated maturity thereof; or (iv) any Group
Member shall not pay, or admit in writing its inability to pay, its debts
generally as they become due.

     

    8.6           Any
Group Member (excluding any Immaterial Subsidiary) shall (i) have an order for
relief entered with respect to it under the Federal bankruptcy laws as now or
hereafter in effect, (ii) make an assignment for the benefit of creditors, (iii)
apply for, seek, consent to, or acquiesce in, the appointment of a receiver,
custodian, trustee, examiner, liquidator or similar official for it or for all
or any substantial
part of its Property, (iv) institute any proceeding seeking an order for relief
under the Federal bankruptcy laws as now or hereafter in effect or seeking to
adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up,
liquidation, reorganization, arrangement, adjustment or composition of it or its
debts under any law relating to bankruptcy, insolvency or reorganization or
relief of debtors or fail to file an answer or other pleading denying the
material allegations of any such proceeding filed against it, (v) take any
corporate or partnership action to authorize or effect any of the foregoing
actions set forth in this Section
8.6 or (vi) fail to contest in good faith any appointment or proceeding
described in Section
8.7.

     

    
      
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    8.7           Without
the application, approval or consent of any Group Member, a receiver, trustee,
examiner, liquidator or similar official shall be appointed for any Group Member
(excluding any Immaterial Subsidiary) or for all or any substantial part of its
Property, or a proceeding described in Section
8.6(iv) shall be instituted against any Group Member (excluding any
Immaterial Subsidiary) and such appointment continues undischarged or such
proceeding continues undismissed or unstayed for a period of sixty (60)
consecutive days.

     

    8.8           Any
court, government or governmental agency shall condemn, seize or otherwise
appropriate, or take custody or control of, all or any substantial part of the
Property of any Group Member which, when taken together with all other Property
of Group Members so condemned, seized, appropriated, or taken custody or control
of, during the twelve-month period ending with the month in which any such
action occurs, constitutes a substantial part of the Property of all Group
Members, taken as a whole. 

     

    8.9           Any
Group Member shall fail within forty-five (45) days to pay, bond or otherwise
discharge one or more judgments or orders for the payment of money in excess of
$25,000,000 (or the equivalent thereof in currencies other than Dollars) in the
aggregate, which judgment(s), in any such case, is/are not stayed on appeal or
otherwise being appropriately contested in good faith and with respect to which
adequate reserves have been set aside on its books in accordance with
GAAP.

     

    8.10           (i)
Any ERISA Event shall have occurred; (ii) a trustee shall be appointed by a
United States district court to administer any Plan, (iii) the PBGC shall
institute proceedings to terminate any Plan; (iv) any Group Member or any of its
Controlled Group members shall have been notified by the sponsor of a
Multiemployer Plan that it has incurred or will be assessed withdrawal liability
to such Multiemployer Plan and such entity does not have reasonable grounds for
contesting such withdrawal liability or is not contesting such withdrawal
liability in a timely and appropriate manner; or (v) any other event or
condition shall occur or exist with respect to a Plan; and in each case in
clauses (i) through (v) above, such event or condition, together with all other
such events or conditions, if any, could reasonably be expected to result in a
Material Adverse Effect.

     

    8.11           Any
Change in Control shall occur.

     

    8.13           Any
Loan Document (other than any Security Document) shall cease, for any reason, to
be in full force or effect other than in accordance with its terms or any action
shall be taken by any Loan Party to discontinue or to assert the invalidity or
unenforceability of any Loan Document.

     

    8.14           Any
of the Security Documents shall cease, for any reason, to be in full force and
effect other than in accordance with its terms, or any Loan Party shall so
assert, or any Lien created by any of the Security Documents shall cease to be
enforceable and of the same effect and priority purported to be created thereby
(except as permitted by the Security Documents).

     

    8.15           The
guarantee contained in Section
2 of the Guarantee and Collateral Agreement shall cease, for any reason,
to be in full force and effect other than in accordance with its terms or any
Loan Party shall so assert; or

     

    8.16           Holdings
shall (i) conduct, transact or otherwise engage in, any material business or
operations other than those incidental or related to its ownership of the
Capital Stock of the Borrower and its status as a holding company, (ii) incur,
create, assume or suffer to exist any Indebtedness, except (w) nonconsensual
obligations imposed by operation of law, (x) obligations pursuant to the Loan
Documents to which it is a party, (y) obligations with respect to its Capital
Stock and (z) Indebtedness permitted to be incurred under this Agreement, or
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    assets (excluding cash and Cash Equivalent
Investments) other than the ownership of shares of Capital Stock of the Borrower
and making or owning other Investments permitted under this Agreement and
activities related hereto and thereto; provided
that, notwithstanding the foregoing, Holdings may enter into a services
agreement as contemplated in Section
7.20.3 and a tax sharing
agreement as contemplated in Section
7.20.5.

     

    ARTICLE IX

     

    ACCELERATION,
WAIVERS, AMENDMENTS AND REMEDIES

     

    9.1.           Acceleration.  If
any Default described in Section
8.6 or 8.7
occurs with respect to any Group Member (excluding any Immaterial Subsidiary),
the obligations of the Lenders to make any extension of credit hereunder shall
automatically terminate and the Loans (with accrued interest thereon) and all
other amounts owing under this Agreement and the other Loan Documents (including
all amounts of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required
thereunder) shall immediately become due and payable without any election or
action on the part of the Agent or any Lender.  If any other Default
occurs, the Required Lenders (or the Agent with the consent of the Required
Lenders) may terminate or suspend the obligations of the Lenders to make any
extension of credit hereunder, or declare the Loans (with accrued interest
thereon) and all other amounts owing under this Agreement and the other Loan
Documents (including all amounts of L/C Obligations, whether or not the
beneficiaries of the then outstanding Letters of Credit shall have presented the
documents required thereunder) to be due and payable, or both, whereupon the
Obligations shall become immediately due and payable, without presentment,
demand, protest or notice of any kind, all of which the Borrower hereby
expressly waives.  With respect to all Letters of Credit with respect
to which presentment for honor shall not have occurred at the time of an
acceleration pursuant to this paragraph, the Borrower shall at such time deposit
in a cash collateral account opened by the Agent an amount equal to the
aggregate then undrawn and unexpired amount of such Letters of
Credit.  Amounts held in such cash collateral account shall be applied
by the Agent to the payment of drafts drawn under such Letters of Credit, and
the unused portion thereof after all such Letters of Credit shall have expired
or been fully drawn upon, if any, shall be applied to repay other obligations of
the Borrower hereunder and under the other Loan Documents.  After all
such Letters of Credit shall have expired or been fully drawn upon, all
Reimbursement Obligations shall have been satisfied and all other obligations of
the Borrower hereunder and under the other Loan Documents shall have been paid
in full, the balance, if any, in such cash collateral account shall be returned
to the Borrower (or such other Person as may be lawfully entitled
thereto).

     

    If,
after acceleration of the maturity of the Obligations or termination of the
obligations of the Lenders to make any extension of credit hereunder as a result
of any Default (other than any Default as described in Section
8.6 or 8.7
with respect to the Borrower) and before any judgment or decree for the payment
of the Obligations due shall have been obtained or entered, the Required Lenders
(in their sole discretion)
shall so direct, the Agent shall, by notice to the Borrower, rescind and annul
such acceleration and/or termination.

     

    9.2.           Amendments. Subject to the provisions of this Section
9.2, the Required Lenders (or the Agent with the consent in
writing of the Required Lenders) and the Borrower may enter into agreements
supplemental hereto for the purpose of adding or modifying any provisions to the
Loan Documents or changing in any manner the rights of the Lenders or the
Borrower hereunder or thereunder or waiving any Default hereunder or thereunder;
provided,
however,
that no such supplemental agreement shall, without the consent of each adversely
affected Lender:

     

    
      
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    9.2.1               Extend
the Facility Termination Date or, if different, the final maturity of any Loan,
or postpone any regularly scheduled payment of principal of any Loan, or reduce
or forgive all or any portion of the principal amount thereof or of any
Reimbursement Obligation; or reduce the rate or amount of (or extend the time of
payment for) interest or fees thereon or on any Reimbursement Obligation (other
than a waiver of the application of the default rate of interest pursuant to
Section
2.12).

     

    9.2.2               Reduce
the percentage specified in the definition of “Required Lenders” or any other
percentage of Lenders specified to be the applicable percentage in this
Agreement to act on specified matters or amend the definition of “Pro Rata
Share” or “L/C Percentage”.

     

    9.2.3               Increase
the amount of the Commitment or L/C Commitment of any Lender hereunder (except
as permitted pursuant to Section
2.23), or permit the Borrower to assign all or any portion of
its rights or obligations under this Agreement (except as permitted by Section
13.1).

     

    9.2.4               Amend
this Section
9.2.

     

    9.2.5               Release
all or substantially all of the Collateral or release all or substantially all
of the Guarantors from their obligations under the Guarantee and Collateral
Agreement, except explicitly permitted hereunder.

     

    No amendment of any provision of this Agreement relating to
the Agent or the Issuing Lender shall be effective without the written consent
of the Agent or the Issuing Lender, as applicable.  The Agent may
waive payment of the fee required under Section
13.3.3 without obtaining the consent of any other party to
this Agreement.

     

    9.3.           Preservation
of Rights.  No delay or omission of the Lenders or the
Agent to exercise any right under the Loan Documents shall impair such right or
be construed to be a waiver of any Default or Unmatured Default or an
acquiescence therein, and the making of a Loan or the issuance of a Letter of
Credit notwithstanding the existence of a Default or Unmatured Default or the
inability of the Borrower to satisfy the conditions precedent to such Loan shall
not constitute any waiver or acquiescence.  Any single or partial
exercise of any such right shall not preclude other or further exercise thereof
or the exercise of any other right, and no waiver, amendment or other variation
of the terms, conditions or provisions of the Loan Documents whatsoever shall be
valid unless in writing signed by the Lenders required pursuant to Section
9.2 (or by the Agent with the consent of such requisite
Lenders), and then only to the extent in such writing specifically set
forth.  All remedies contained in the Loan Documents or by law
afforded shall be cumulative and all shall be available to the Agent and the
Lenders until all of the Obligations have been paid in full in
cash.

    
 

    ARTICLE X

     

    GENERAL
PROVISIONS

     

    10.1.           Survival of
Representations.  All
representations and warranties of Holdings and the Borrower contained in this
Agreement shall survive the making of the Loans herein
contemplated.

     

    10.2.           Governmental
Regulation.  Anything
contained in this Agreement to the contrary notwithstanding, no Lender shall be
obligated to extend credit to the Borrower in violation of any limitation or
prohibition provided by any applicable statute or regulation; provided that,
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    fails
to make a Loan or otherwise extend credit to the Borrower pursuant to this
Agreement shall be a Defaulting Lender.

     

    10.3.           Headings.  Section
headings in the Loan Documents are for convenience of reference only, and shall
not govern the interpretation of any of the provisions of the Loan
Documents.

     

    10.4.           Entire
Agreement.  The Loan Documents embody the entire agreement
and understanding among the Loan Parties, the Agent and the Lenders and
supersede all prior agreements and understandings among the Loan Parties, the
Agent and the Lenders relating to the subject matter thereof other than those
contained in the fee letters described in Section
11.13 which shall survive and remain in full force and
effect during the term of this Agreement.

     

    10.5.           Several
Obligations; Benefits of this Agreement.  The respective obligations of the Lenders
hereunder are several and not joint and no Lender shall be the partner or agent
of any other (except to the extent to which the Agent is authorized to act as
such).  The failure of any Lender to perform any of its obligations
hereunder shall not relieve any other Lender from any of its obligations
hereunder.  This Agreement shall not be construed so as to confer any
right or benefit upon any Person other than the parties to this Agreement and
their respective successors and assigns, provided, however, that
the parties hereto expressly agree that the Arrangers shall enjoy the benefits
of the provisions of Sections
10.6, 10.9 and 11.11 to the extent specifically set forth therein and
shall have the right to enforce such provisions on their own behalf and in their
own name to the same extent as if they were parties to this
Agreement.

     

    10.6.           Expenses;
Indemnification.

     

    10.6.1               The
Borrower shall reimburse the Agent and the Arrangers for any reasonable and
documented out-of-pocket costs and expenses (including reasonable and documented
attorneys’ and paralegals’ fees, disbursements and other charges of one counsel
for each applicable jurisdiction) paid or incurred by the Agent or the Arrangers
in connection with the preparation, negotiation, documentation, execution,
syndication, distribution (including, without limitation, via the internet),
review, amendment, modification, waiver and administration of the Loan
Documents.  The Borrower also agrees to reimburse the Agent, the
Arrangers and the Lenders for any reasonable and documented out-of-pocket costs
and expenses (including reasonable and documented attorneys’ and paralegals’
fees, disbursements and other charges of one counsel) paid or incurred by the
Agent, the Arrangers or any Lender in connection with the enforcement of the
Loan Documents.

     

    10.6.2               The
Borrower hereby further agrees to indemnify the Agent, the Arrangers, the L/C
Lenders, each Lender, their respective affiliates, and each of their directors,
officers, agents and employees (each, an “Indemnified
Party”), against all losses, claims, damages, penalties, judgments, costs, liabilities
and expenses (including, without limitation, all reasonable and documented
expenses of litigation or preparation therefor whether or not the Agent, the
Arrangers, any Lender or any affiliate is a party thereto, and all the
reasonable and documented attorneys’ and paralegals’ fees, disbursements and
other charges of one counsel for all affected Indemnified Parties, unless any
affected Indemnified Party shall have reasonably determined that there may be
legal defenses available to it that are different from or additional to those of
the other Indemnified Parties and that a single counsel for all Indemnified
Parties cannot (due to conflicts or otherwise) undertake the pursuit of such
legal defenses, in which event such Indemnified Party shall be entitled to
separate counsel and Borrower agrees to reimburse such Indemnified Party for
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     reasonable and documented attorneys’ and paralegals’
fees, disbursements and other charges of such separate counsel) which any of
them may pay or incur arising out of or relating to this Agreement, the other
Loan Documents, the transactions contemplated hereby or the direct or indirect
application or proposed application of the proceeds of any Loan hereunder except
to the extent that any of the foregoing is found by a court of competent
jurisdiction to have arisen from an Indemnified Party’s gross negligence, bad
faith or willful misconduct.  The obligations of the Borrower under
this Section
10.6 shall survive the termination of this
Agreement.

     

    10.7.           Accounting.  Except as provided to the contrary herein, all
accounting terms used in the calculation of Capital Expenditures and any
financial covenant or test shall be interpreted and all accounting
determinations hereunder in the calculation of Capital Expenditures and any
financial covenant or test shall be made in accordance with Agreement Accounting
Principles, provided that for the purposes of Sections
7.22 and 7.23, “consolidated” with respect to any Person shall mean,
unless expressly stated to be otherwise, such Person consolidated with the other
Group Members and shall not include any Unrestricted Subsidiary, provided
further that the parties acknowledge such definition of “consolidated” is not in
accordance with Agreement Accounting Principles to the extent Unrestricted
Subsidiaries are not consolidated with such Person.  If any changes in
GAAP are hereafter required or permitted and are adopted by the Borrower or any
of its Subsidiaries with the agreement of its independent certified public
accountants and such changes result in a change in the method of calculation of
Capital Expenditures, any of the financial covenants, tests, restrictions or
standards herein or in the related definitions or terms used therein (“Accounting
Changes”), the parties hereto agree, at the Borrower’s request, to enter
into negotiations, in good faith, in order to amend such provisions in a credit
neutral manner so as to reflect equitably such changes with the desired result
that the criteria for evaluating the Borrower’s and its Subsidiaries’ financial
condition shall be the same after such changes as if such changes had not been
made; provided, however, until
such provisions are amended in a manner reasonably satisfactory to the Borrower,
the Agent and the Required Lenders, no Accounting Change shall be given effect
in such calculations.  In the event such amendment is entered into,
all references in this Agreement to Agreement Accounting Principles shall mean
GAAP as of the date of such amendment, subject to further modification in
accordance with this Section
10.7.  Notwithstanding the foregoing, all financial
statements to be delivered by the Borrower pursuant to Section
7.1 shall be prepared in accordance with GAAP as in
effect at such time.

     

    10.8.           Severability
of Provisions.  Any
provision in any Loan Document that is held to be inoperative, unenforceable, or
invalid in any jurisdiction shall, as to that jurisdiction, be inoperative,
unenforceable, or invalid without affecting the remaining provisions in that
jurisdiction or the operation, enforceability, or validity of that provision in
any other jurisdiction, and to this end the provisions of all Loan Documents are
declared to be severable.

     

    10.9.           Nonliability
of Lenders.  The
relationship between the Borrower on the one hand and the Lenders and the Agent
on the other hand shall be solely that of borrower and
lender.  Neither the Agent nor
any Arranger or Lender shall have any fiduciary responsibilities to the
Borrower.  Neither the Agent nor any Arranger or Lender undertakes any
responsibility to the Borrower to review or inform the Borrower of any matter in
connection with any phase of the Borrower’s business or
operations.  The Borrower agrees that neither the Agent, nor any
Arranger or Lender shall have liability to the Borrower (whether sounding in
tort, contract or otherwise) for losses suffered by the Borrower in connection
with, arising out of, or in any way related to, the transactions contemplated
and the relationship established by the Loan Documents, or any act, omission or
event occurring in connection therewith, unless it is determined by a court of
competent jurisdiction that such losses resulted from the gross negligence, bad
faith or willful misconduct of the party from which recovery is
sought.

     

    
      
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    10.10.      Releases of
Guarantees and Liens.

     

    10.10.1                         Notwithstanding
anything to the contrary contained herein or in any other Loan Document, the
Collateral Agent is hereby irrevocably authorized by each Lender (without
requirement of notice to or consent of any Lender except as expressly required
by Section
9.2.5) to take any action requested by the Borrower having the
effect of releasing any Collateral or Guarantee Obligations (and at the
Borrower’s request and expense shall take such action) (i) to the extent
necessary to permit consummation of any transaction not prohibited by any Loan
Document or that has been consented to in accordance with Section
9.2 or (ii) under the circumstances described in Section
9.2.5.  In connection with any Disposition or release
of any Collateral pursuant to the terms of any Loan Document, at the Borrower’s
request and expense, the Agent or Collateral Agent, as applicable, shall
(without recourse and without any representation or warranty) execute and
deliver or cause to be executed and delivered to the Borrower such documents
(including UCC-3 termination statements) as the Borrower may reasonably request
to evidence or effect such release.

     

    10.10.2                         At
such time as the Loans, the Reimbursement Obligations and the other Obligations
under the Loan Documents (other than contingent obligations and obligations
under or in respect of Rate Management Transactions) shall have been paid in
full, the Commitments have been terminated and all Letters of Credit outstanding
shall either be (i) terminated or (ii) cash collateralized on terms reasonably
acceptable to the Agent, the Collateral shall be released from the Liens created
by the Security Documents, and the Security Documents and all obligations (other
than those expressly stated to survive such termination) of the Agent and each
Loan Party under the Security Documents shall terminate, all without delivery of
any instrument or performance of any act by any Person.  In connection
with the repayment of the Loans, the Reimbursement Obligations and the other
Obligations under the Loan Documents, at the Borrower’s request and expense, the
Agent or Collateral Agent, as applicable, shall (without recourse and without
any representation or warranty) execute and deliver or cause to be executed and
delivered to the Borrower such documents (including UCC-3 termination
statements) as the Borrower may reasonably request to evidence or effect such
release and termination.

     

    10.11.    Confidentiality.  Each Lender agrees to hold any confidential
information which it may receive from the Borrower pursuant to this Agreement in
confidence, except for disclosure (i) to its Affiliates and to other Lenders and
their respective Affiliates that agree to be bound by the provisions of this
Section
10.11, for use solely in connection with the transactions
contemplated hereby, (ii) to legal counsel, accountants, and other professional
advisors to such Lender or to a Transferee who need to know such confidential
information for use in evaluation, arranging and making the Loans and Letters of
Credit available to the Borrower, in each case which have been informed as to
the confidential nature of such information and that agree to be bound by the
provisions of this Section
10.11, (iii) upon demand of bank examiners and other officials
having regulatory jurisdiction over it who are informed of the confidential
nature of the information, (iv) to any Person as required
by law, regulation, or legal process, (v) to any Person to the extent required
by order of any court or administrative agency or in connection with any legal
proceeding to which such Lender is a party, (vi) to such Lender’s direct or
indirect contractual counterparties in Rate Management Transactions or to legal
counsel, accountants and other professional advisors to such counterparties, in
each case which have been informed as to the confidential nature of such
information and that agree to be bound by the provisions of this Section
10.11, and (vii) permitted by Section
13.4.

     

    With
respect to disclosures made under clause (iv) and (v) above, each Lender agrees
to give the Borrower written notice to the extent it is legally permitted to do
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    learning
that disclosure must be made, describing the confidential information that will
be disclosed and the approximate date of said disclosure.  Each Lender
understands and agrees that it is responsible for any breach of its
confidentiality obligations contained in this Section by any of its
Affiliates.

     

    10.12.                      Nonreliance.  Each
Lender hereby represents that it is not relying on or looking to any Margin
Stock for the repayment of the Loans or L/C Obligations provided for herein or
as collateral in the extension or maintenance of such extension of
credit.

     

    10.13.                      Disclosure.  The
Borrower and each Lender hereby acknowledge and agree that JPMCB and/or its
Affiliates from time to time may hold investments in, make other extension of
credit to or have other relationships with the Borrower and its
Affiliates.

     

    10.14.                      USA Patriot
Act.  Each
Lender and the Agent (for itself and not on behalf of any other party) hereby
notifies the Borrower that, pursuant to the requirements of the Patriot Act, it
is required to obtain, verify and record information that identifies the
Borrower, which information includes the name and address of the Borrower and
other information that will allow such Lender or the Agent, as applicable, to
identify the Borrower in accordance with the Patriot Act.

     

    10.15.                      Advertising,
Promotion and Marketing.  The
Agent and each Lender listed on Schedule
1.1B may, and the Borrower hereby authorizes the Agent and each such
Lender to, include references to the Borrower and utilize any logo or other
distinctive symbol associated with the Borrower in connection with any closing
announcement, league table or, with the prior written consent of the Borrower,
announcement of participation in the syndication of the Credit
Agreement.

     

    ARTICLE XI

     

    THE
AGENT

     

    11.1.           Appointment;
Nature of Relationship.  JPMCB is hereby appointed by each of the
Lenders as its contractual representative hereunder and under each other Loan
Document, and each of the Lenders irrevocably authorizes the Agent to act as the
contractual representative of such Lender with the rights and duties expressly
set forth herein and in the other Loan Documents.  The Agent agrees to
act as such contractual representative upon the express conditions contained in
this ARTICLE
XI. Notwithstanding the use of the defined
term “Agent,” it is expressly understood and agreed that the Agent shall not
have any fiduciary responsibilities to any Lender by reason of this Agreement or
any other Loan Document and that the Agent is merely acting as the contractual
representative of the Lenders with only those duties as are expressly set forth
in this Agreement and the other Loan Documents.  In its capacity as
the Lenders’ contractual representative, the Agent (i) does not hereby assume
any fiduciary duties to any of the Lenders, (ii) is a “representative” of the
Lenders within the meaning of the term “secured party” as defined in Section
9-102 of the New York Uniform Commercial Code and (iii) is acting as an
independent contractor, the rights and duties of which are limited to those
expressly set forth in this Agreement and the other Loan
Documents.  Each of the Lenders hereby agrees to assert no claim
against the Agent, in its capacity as such, under or in connection with this
Agreement or any other Loan Document on any agency theory or any other theory of
liability for breach of fiduciary duty, all of which claims each Lender hereby
waives.

     

    11.2.           Powers.  The
Agent shall have and may exercise such powers under the Loan Documents as are
specifically delegated to the Agent by the terms of each thereof, together with
such powers as are reasonably incidental thereto.  The Agent shall
have no implied duties to the Lenders, or any obligation to the Lenders to take
any action thereunder except any action specifically provided by the Loan
Documents to be taken by the Agent.

     

    
      
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    11.3.           General
Immunity.  Neither
the Agent nor any of its directors, officers, agents or employees shall be
liable to the Borrower, the Lenders or any Lender for any action taken or
omitted to be taken by it or them hereunder or under any other Loan Document or
in connection herewith or therewith except to the extent such action or inaction
is determined by a court of competent jurisdiction to have arisen from the gross
negligence, bad faith or willful misconduct of such Person.

     

    11.4.           No
Responsibility for Loans, Recitals, etc.  Neither the Agent nor any of its directors,
officers, agents or employees shall be responsible for or have any duty to
ascertain, inquire into, or verify (a) any statement, warranty or representation
made in connection with any Loan Document or any borrowing hereunder; (b) the
performance or observance of any of the covenants or agreements of any obligor
under any Loan Document, including, without limitation, any agreement by an
obligor to furnish information directly to each Lender; (c) the satisfaction of
any condition specified in ARTICLE
V, except receipt of items required to be
delivered solely to the Agent; (d) the existence or possible existence of any
Default or Unmatured Default; (e) the validity, enforceability, effectiveness,
sufficiency or genuineness of any Loan Document or any other instrument or
writing furnished in connection therewith; (f) the value, sufficiency, creation,
perfection or priority of any Lien in any collateral security (if any); or (g)
the financial condition of any Group Member.  The Agent shall have no
duty to disclose to the Lenders information that is not required to be furnished
by the Borrower to the Agent at such time, but is voluntarily furnished by the
Borrower to the Agent (in its individual capacity).

     

    11.5.           Action on
Instructions of Lenders.  The
Agent shall in all cases be fully protected in acting, or in refraining from
acting, hereunder and under any other Loan Document in accordance with written
instructions signed by the Required Lenders (or all of the affected Lenders in
the event and to the extent that this Agreement expressly requires such), and
such instructions and any action taken or failure to act pursuant thereto shall
be binding on all of the Lenders.  The Lenders hereby acknowledge that
the Agent shall be under no duty to take any discretionary action permitted to
be taken by it pursuant to the provisions of this Agreement or any other Loan
Document unless it shall be requested in writing to do so by the Required
Lenders (or all of the affected Lenders in the event and to the extent that this
Agreement expressly requires such). T he Agent shall be fully justified in
failing or refusing to take any action hereunder and under any other Loan
Document unless it shall first be indemnified to its satisfaction by the Lenders
pro rata against any and all liability, cost and expense that it may incur by
reason of taking or continuing to take any such action.

     

    11.6.           Employment of
Agents and Counsel.  The
Agent may execute any of its duties as Agent hereunder and under any other Loan
Document by or through employees, agents, and attorneys-in-fact and shall not be
answerable to the Lenders, except as to money or securities received by it or
its authorized agents, for the default or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care.  The Agent
shall be entitled to advice of counsel concerning the contractual arrangement
between the Agent and the Lenders and all matters pertaining to the Agent’s
duties hereunder and under any other Loan Document.

     

    11.7.           Reliance on Documents;
Counsel.  The
Agent shall be entitled to rely upon any Note, notice, consent, certificate,
affidavit, letter, telegram, statement, paper or document believed by it to be
genuine and correct and to have been signed or sent by the proper Person or
Persons, and, in respect to legal matters, upon the opinion of counsel selected
by the Agent, which counsel may be employees of the Agent.

     

    11.8.           Agent’s
Reimbursement and Indemnification.  The Lenders agree to reimburse and indemnify
the Agent ratably in proportion to the Lenders’ Pro Rata Shares of the Aggregate
Commitment (or, if the Aggregate Commitment has been terminated, of the
Aggregate Outstanding Credit Exposure) (i) subject to Section
3.4, for any amounts not reimbursed by the Borrower for which
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     to reimbursement by the Borrower under the Loan
Documents, (ii) for any other expenses incurred by the Agent on behalf of the
Lenders, in connection with the preparation, execution, delivery, administration
and enforcement of the Loan Documents (including, without limitation, for any
expenses incurred by the Agent in connection with any dispute between the Agent
and any Lender or between two or more of the Lenders) and (iii) for any
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against the Agent in any way relating to or
arising out of the Loan Documents or any other document delivered in connection
therewith or the transactions contemplated thereby (including, without
limitation, for any such amounts incurred by or asserted against the Agent in
connection with any dispute between the Agent and any Lender or between two or
more of the Lenders), or the enforcement of any of the terms of the Loan
Documents or of any such other documents, provided that
(i) no Lender shall be liable for any of the foregoing to the extent any of the
foregoing is found in a final non-appealable judgment by a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of
the Agent and (ii) any indemnification required pursuant to Section
4.5.7 shall, notwithstanding the provisions of this Section
11.8, be paid by the relevant Lender in accordance with the
provisions thereof.  The obligations of the Lenders under this Section
11.8 shall survive payment of the Obligations and
termination of this Agreement.

     

    11.9.           Notice of
Default.  The
Agent shall not be deemed to have knowledge or notice of the occurrence of any
Default or Unmatured Default hereunder unless the Agent has received written
notice from a Lender or the Borrower referring to this Agreement describing such
Default or Unmatured Default and stating that such notice is a “notice of
default”.  In the event that the Agent receives such a notice, the
Agent shall give prompt notice thereof to the Lenders.

     

    11.10.         Rights as a
Lender.  In
the event the Agent is a Lender, the Agent shall have the same rights and powers
hereunder and under any other Loan Document with respect to its Commitment and
its Loans as any Lender and may exercise the same as though it were not the
Agent, and the term “Lender” or “Lenders” shall, at any time when the Agent is a
Lender, unless the context otherwise indicates, include the Agent in its
individual capacity.  The Agent and its Affiliates may accept deposits
from, lend money to, and generally engage in any kind of trust, debt, equity or
other transaction, in addition to those contemplated by this Agreement or any
other Loan Document, with any Group Member in which such Group Member is not
restricted hereby from engaging with any other person.  The Agent, in
its individual capacity, is not obligated to remain a Lender.

     

    11.11.         Lender Credit
Decision.  Each
Lender acknowledges that it has, independently and without reliance upon the
Agent, any Arranger or any other Lender and based on the financial statements
prepared by the Borrower and such other documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this
Agreement and the other Loan Documents.  Each Lender also acknowledges
that it will, independently and without reliance upon the Agent, any Arranger 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
this Agreement and the other Loan Documents.

     

    11.12.       Successor
Agent.  The Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower, such resignation to be
effective upon the appointment of a successor Agent or, if no successor Agent
has been appointed, forty-five (45) days after the retiring Agent gives notice
of its intention to resign.  Upon any such resignation, the Required
Lenders shall have the right to appoint, on behalf of the Borrower and the
Lenders, a successor Agent which, if a Default has not occurred and is
continuing, is satisfactory to the Borrower.  If no successor Agent
shall have been so appointed by the Required Lenders within thirty (30) days
after the resigning Agent’s giving notice of its intention to resign, then the
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    Agent which, if a Default has not occurred and is
continuing, is satisfactory to the Borrower.  Notwithstanding the
previous sentence, the Agent may at any time without the consent of the Borrower
or any Lender, appoint any of its Affiliates which is a commercial bank as a
successor Agent hereunder.  If the Agent has resigned and no successor
Agent has been appointed, the Lenders may perform all the duties of the Agent
hereunder and the Borrower shall make all payments in respect of the Obligations
to the applicable Lender and for all other purposes shall deal directly with the
Lenders.  No successor Agent shall be deemed to be appointed hereunder
until such successor Agent has accepted the appointment.  Any such
successor Agent shall be a commercial bank having capital and retained earnings
of at least $100,000,000.  Upon the acceptance of any appointment as
Agent hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the resigning Agent.  Upon the effectiveness of the resignation of
the Agent, the resigning Agent shall be discharged from its duties and
obligations hereunder and under the Loan Documents.  After the
effectiveness of the resignation of an Agent, the provisions of this ARTICLE
XI shall continue in effect for the
benefit of such Agent in respect of any actions taken or omitted to be taken by
it while it was acting as the Agent hereunder and under the other Loan
Documents.  In the event that there is a successor to the Agent by
merger, or the Agent assigns its duties and obligations to an Affiliate pursuant
to this Section
11.12, then the term “Prime Rate” as used in this Agreement
shall mean the prime rate, base rate or other analogous rate of the new
Agent.

     

    11.13.      Agent and
Arranger Fees.  The
Borrower agrees to pay to the Agent and the Arrangers, for their respective
accounts, the fees agreed to by the Borrower, the Agent and the Arrangers
pursuant to these certain fee letter agreements, each dated October 17, 2008, or
as otherwise agreed from time to time.

     

    11.14.      Delegation to
Affiliates.  The Borrower and the Lenders agree that the
Agent may delegate any of its duties under this Agreement to any of its
Affiliates.  Any such Affiliate (and such Affiliate’s directors,
officers, agents and employees) which performs duties in connection with this
Agreement shall be entitled to the same benefits of the indemnification, waiver
and other protective provisions to which the Agent is entitled under ARTICLE
X and ARTICLE
XI.

     

    11.15.       No Duties
Imposed on Syndication Agent, Co-Documentation Agents or Arrangers.  None of the Persons identified on the cover
page to this Agreement, the signature pages to this Agreement or otherwise in
this Agreement as a “syndication agent,” “documentation agent” or “Arrangers”
shall have any right, power, obligation, liability, responsibility or duty under
this Agreement other than, if such Person is a Lender, those applicable to all
Lenders as such.  Without limiting the foregoing, none of the Persons
identified on the cover page to this Agreement, the signature pages to this
Agreement or otherwise in this Agreement as a “syndication agent,”
“documentation agent” or “Arrangers” shall have or be deemed to have any
fiduciary duty to or fiduciary relationship with any Lender.  In
addition to the agreement set forth in Section
11.15, each of the Lenders acknowledges that it has not relied,
and will not rely,
on any of the Persons so identified in deciding to enter into this Agreement or
in taking or not taking action hereunder.

     

     

    ARTICLE XII

     

    SETOFF;
RATABLE PAYMENTS

     

    12.1.           Setoff.  In
addition to, and without limitation of, any rights of the Lenders under
applicable law, if the Borrower becomes insolvent, however evidenced, or if any
Default under Section
8.2 (whether by acceleration or otherwise) occurs, any and all deposits
(including all account balances, whether provisional or final and whether or not
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    time
held or owing by any Lender or any Affiliate of any Lender to or for the credit
or account of the Borrower may be offset and applied toward the payment of the
Obligations owing to such Lender.

     

    12.2.           Ratable
Payments.  If any Lender, whether by setoff or otherwise,
has payment made to it upon its Loans or L/C Obligations (other than payments
received pursuant to Section
4.1, 4.2, 4.4 or 4.5) in a greater proportion than that received by any other
Lender, such Lender agrees, promptly upon demand, to purchase a portion of the
Loans or L/C Obligations held by the other Lenders so that after such purchase
each Lender will hold its ratable proportion of such Loans or L/C
Obligations.  If any Lender, whether in connection with setoff or
amounts which might be subject to setoff or otherwise, receives collateral or
other protection for its Obligations or such amounts which may be subject to
setoff, such Lender agrees, promptly upon demand, to take such action necessary
such that all Lenders share in the benefits of such collateral ratably in
proportion to their Loans and L/C Obligations.  In case any such
payment is disturbed by legal process, or otherwise, appropriate further
adjustments shall be made.

     

    ARTICLE XIII

     

    BENEFIT
OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS

     

    13.1.           Successors and
Assigns.  The terms and provisions of the Loan Documents
shall be binding upon and inure to the benefit of the Borrower, the Agent and
the Lenders and their respective successors and assigns permitted hereby, except
that (i) the Borrower shall not, except in a merger permitted under Section
7.16, have the right to assign its rights or obligations under
the Loan Documents without the prior written consent of each Lender, (ii) any
assignment by any Lender must be made in compliance with Section
13.3, and (iii) any transfer by Participation must be made in
compliance with Section
13.2.  Any attempted assignment or transfer by any
party not made in compliance with this Section
13.1 shall be null and void, unless such attempted
assignment or transfer is treated as a participation in accordance with Section
13.3.2.  The parties to this Agreement acknowledge that
clause (ii) of this Section
13.1 relates only to absolute assignments and this Section
13.1 does not prohibit assignments creating security
interests, including, without limitation, (x) any pledge or assignment by any
Lender of all or any portion of its rights under this Agreement and any Note to
a Federal Reserve Bank or (y) in the case of a Lender which is a Fund, any
pledge or assignment of all or any portion of its rights under this Agreement
and any Note to its trustee in support of its obligations to its trustee; provided, however, that
no such pledge or assignment creating a security interest shall release the
transferor Lender from its obligations hereunder unless and until the parties
thereto have complied with the provisions of Section
13.3.  The Agent may treat the Person which made any
Loan or which holds any Note as the owner thereof for all purposes hereof unless
and until such Person complies with Section
13.3; provided, however, that
the Agent may in its discretion (but shall not be required to) follow
instructions from the Person which made any Loan or which holds any Note to
direct payments relating to such Loan or Note to another Person.  Any
assignee of the rights to any Loan or any Note agrees by acceptance of such
assignment to be bound by all the terms and provisions of the Loan
Documents.  Any request, authority or consent
of any Person, who at the time of making such request or giving such authority
or consent is the owner of the rights to any Loan (whether or not a Note has
been issued in evidence thereof), shall be conclusive and binding on any
subsequent holder or assignee of the rights to such
Loan.

     

    13.2.           Participations.

     

    13.2.1               Permitted
Participants; Effect.  Any Lender may at any time sell to one
or more banks or other entities (other than a Restricted Entity) (“Participants”)
participating interests in any Loan owing to such Lender, any Note held by such
Lender, any Commitment of such Lender or any other interest of such Lender under
the Loan Documents.  In the event of any such sale by a Lender of
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    Participant,
such Lender’s obligations under the Loan Documents shall remain unchanged, such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, such Lender shall remain the owner of its Loans
and the holder of any Note issued to it in evidence thereof for all purposes
under the Loan Documents, all amounts payable by the Borrower under this
Agreement shall be determined as if such Lender had not sold such participating
interests, and the Borrower and the Agent shall continue to deal solely and
directly with such Lender in connection with such Lender’s rights and
obligations under the Loan Documents.

     

    13.2.2               Voting
Rights.  Each Lender shall retain the sole right to approve,
without the consent of any Participant, any amendment, modification or waiver of
any provision of the Loan Documents other than any amendment, modification or
waiver with respect to any Loan or Commitment in which such Participant has an
interest which would require consent of all of the Lenders pursuant to the terms
of Section
9.2.

     

    13.2.3               Benefit of
Certain Provisions.  The Borrower agrees that each Participant
shall be deemed to have the right of setoff provided in Section
12.1 in respect of its participating interest in amounts
owing under the Loan Documents to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under the Loan
Documents, provided that
each Lender shall retain the right of setoff provided in Section
12.1 with respect to the amount of participating interests
sold to each Participant.  The Lenders agree to share with each
Participant, and each Participant, by exercising the right of setoff provided in
Section
12.1, agrees to share with each Lender, any amount received
pursuant to the exercise of its right of setoff, such amounts to be shared in
accordance with Section
12.2 as
if each Participant were a Lender.  The Borrower further agrees that
each Participant shall be entitled to the benefits of Sections
4.1, 4.2, 4.4 and 4.5 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to Section
13.3; provided that
(i) a Participant shall not be entitled to receive any greater payment under
Section
4.1, 4.2 or 4.5 than the Lender who sold the participating interest
to such Participant would have received had it retained such interest for its
own account, unless the sale of such interest to such Participant is made with
the prior written consent of the Borrower, and (ii) any Participant complies
with the provisions of Section
4.5 to the same extent as if it were a Lender. Each
Lender that sells a participation shall, acting solely for this purpose as an
agent of the Borrower, maintain a register on which it enters the name and
address of each Participant and the principal amounts (and stated interest) of
each participant’s interest in the Loans or other obligations under this
Agreement (the “Participant
Register”).  The entries in the Participant Register shall be
conclusive absent manifest error, and such Lender shall treat each person whose
name is recorded in the Participant Register as the owner of such participation
for all purposes of this Agreement notwithstanding any notice to the
contrary.

     

    13.3.    Assignments.

     

    13.3.1               Permitted
Assignments.  Any Lender may at any time assign to one or more
banks or other entities (other than a Restricted Entity) (“Purchasers”) all
or any part of its rights and obligations under the Loan
Documents.  Such assignment shall be evidenced by an Agreement
substantially in the form of Exhibit
C or in such other form as may be agreed to by the parties thereto (each
such agreement, an “Assignment
Agreement”).  Each such assignment with respect to a Purchaser
which is not a Lender or an Affiliate of a Lender or an Approved Fund shall
either be in an amount equal to the entire applicable Commitment and Loans of
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    long
as no Default has occurred and is continuing, the Borrower, otherwise consent)
be in an aggregate amount not less than $5,000,000.  The amount of the
assignment shall be based on the Commitment or outstanding Loans (if the
Commitment has been terminated) subject to the assignment, determined as of the
date of such assignment or as of the “Trade Date,” if the “Trade Date” is
specified in the Assignment Agreement.

     

    13.3.2               Consents.  The
prior written consent of the Borrower shall be required prior to an assignment
becoming effective unless the Purchaser is a Lender, an Affiliate of a Lender or
an Approved Fund, provided that
the consent of the Borrower shall not be required if a Default has occurred and
is continuing.  The consent of the Agent (and if a L/C Commitment or
L/C Exposure is being assigned, the Issuing Lender) shall be required prior to
an assignment becoming effective unless the Purchaser is a Lender, an Affiliate
of a Lender or an Approved Fund.  Any consent required under this
Section
13.3.2 shall not be unreasonably withheld or
delayed.

     

    13.3.3               Effect;
Effective Date.  Upon (i) delivery to the Agent of an
Assignment Agreement, together with any consents required by Sections
13.3.1 and 13.3.2, and (ii) payment of a $3,500 fee by the assignee or
assignor to the Agent for processing such assignment (unless such fee is waived
by the Agent or unless such assignment is made to such assigning Lender’s
Affiliate or an Approved Fund that is managed or administered by such Lender),
such Assignment Agreement shall become effective on the effective date specified
in such assignment.  The Assignment Agreement shall contain a
representation and warranty by the Purchaser to the effect that none of the
funds, money, assets or other consideration used to make the purchase and
assumption of the Commitment and Loans under the applicable Assignment Agreement
constitutes “plan assets” as defined under ERISA and that the rights, benefits
and interests of the Purchaser in and under the Loan Documents will not be “plan
assets” under ERISA.  On and after the effective date of such
assignment, such Purchaser shall for all purposes be a Lender party to this
Agreement and any other Loan Document executed by or on behalf of the Lenders
and shall have all the rights, benefits and obligations of a Lender under the
Loan Documents, to the same extent as if it were an original party thereto;
provided
that such Purchaser shall not be entitled to receive any amounts under ARTICLE
IV in excess of the amounts that
would have been payable under ARTICLE
IV to the transferor Lender, and the
transferor Lender shall be released with respect to the Commitment and Loans
assigned to such Purchaser without any further consent or action by the
Borrower, the Lenders or the Agent.  In the case of an assignment
covering all of the assigning Lender’s rights, benefits and obligations under
this Agreement, such Lender shall cease to be a Lender hereunder but shall
continue to be entitled to the benefits of, and subject to, those provisions of
this Agreement and the other Loan Documents which survive payment of the
Obligations and termination of the Loan Documents.  Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does not
comply with this Section
13.3 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in
such rights and obligations in accordance with Section
13.2.  Upon the consummation of any assignment to a
Purchaser pursuant to this Section
13.3.3, the transferor Lender, the Agent and the Borrower shall,
if the transferor Lender or the Purchaser desires that its Loans be evidenced by
Notes, make appropriate arrangements so that, upon cancellation and surrender to
the Borrower of the Notes (if any) held by the transferor Lender, new Notes or,
as appropriate, replacement Notes are issued to such transferor Lender, if
applicable, and new Notes or, as appropriate, replacement Notes, are issued to
such Purchaser, in each case in principal amounts reflecting their respective
Commitments (or, if the Facility Termination Date has occurred, their respective
Loans), as adjusted pursuant to such
assignment.

     

    
      
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    13.3.4               Register.  The
Agent, acting solely for this purpose as an agent of the Borrower (and the
Borrower hereby designates the Agent to act in such capacity), shall maintain at
one of its offices in New York a copy of each Assignment and Assumption
delivered to it and a register for the recordation of the names and addresses of
the Lenders, and the Commitments of, and principal amounts of and interest on
the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof
from time to time (the “Register”).  The
entries in the Register shall be conclusive, absent manifest error, and the
Borrower, the Agent and the Lenders may treat each Person whose name is recorded
in the Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the
contrary.  Any assignment of any Loan, whether or not evidenced by a
Note, shall be effective only upon appropriate entries with respect thereto
being made in the Register (and each Note shall expressly so
provide).  Any assignment or transfer of all or part of a Loan
evidenced by a Note shall be registered on the Register only upon surrender for
registration of assignment or transfer of the Note evidencing such Loan,
accompanied by a duly executed Assignment and Assumption; thereupon one or more
new Notes in the same aggregate principal amount shall be issued to the
designated Assignee, and the old Notes shall be returned by the Agent to the
Borrower marked “canceled.”  The Register shall be available for
inspection by the Borrower and any Lender, at any reasonable time and from time
to time upon reasonable prior notice.

     

    13.4.           Dissemination
of Information.  The Borrower authorizes each Lender to
disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a “Transferee”) and
any prospective Transferee any and all information in such Lender’s possession
concerning the creditworthiness of the Loan Parties; provided that
each Transferee and prospective Transferee agrees in writing to be bound by
Section
10.11 of this Agreement.

     

    13.5.           Tax
Certifications.  If any interest in any Loan Document is
transferred to any Transferee the transferor Lender shall cause such Transferee,
concurrently with the effectiveness of such transfer, to comply with the
provisions of Section
4.5.5.

     

    ARTICLE XIV

     

    NOTICES

     

    14.1.           Notices.  Except as otherwise permitted by Section
2.15 with respect to borrowing notices, all notices,
requests and other communications to any party hereunder shall be in writing
(including electronic transmission, facsimile transmission or similar writing)
and shall be given to such party: (x) in the case of the Borrower, the Lenders
or the Agent, at its address or facsimile number set forth on the applicable
Administrative Questionnaire or signature pages hereof (or, with respect to any
Lender which is not a party hereto as of the Closing Date, at its address or
facsimile number set forth in any Assignment Agreement or Commitment and Acceptance) or,
(y) in the case of any party, at such other address or facsimile number as such
party may hereafter specify for the purpose by notice to the Agent and the
Borrower in accordance with the provisions of this Section
14.1.  Each such notice, request or other
communication shall be effective (i) if given by facsimile transmission, when
transmitted to the facsimile number specified in this Section and confirmation
of receipt is received, (ii) if given by mail, 72 hours after such communication
is deposited in the mails with first class postage prepaid, addressed as
aforesaid, or (iii) if given by any other means, when delivered (or, in the case
of electronic transmission, received) at the address specified in this Section;
provided
that notices to the Agent under ARTICLE
II shall not be effective until
received.

     

    
      
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    14.2.           Change of
Address.
The Borrower, the Agent and any Lender may each change the address for service
of notice upon it by a notice in writing to the other parties
hereto.

     

    ARTICLE XV

     

    COUNTERPARTS

     

    This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one agreement, and
any of the parties hereto may execute this Agreement by signing any such
counterpart.  Subject to satisfaction of the conditions precedent in
Section
5.1, this Agreement shall be effective when it has been
executed by Holdings, the Borrower, the Agent and the Lenders and each party has
notified the Agent by facsimile transmission or telephone that it has taken such
action.

     

    ARTICLE XVI

     

    CHOICE
OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL

     

    16.1.           CHOICE
OF LAW.  THE LOAN DOCUMENTS
(OTHER THAN THOSE CONTAINING A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL
BANKS.

     

    16.2.           CONSENT
TO JURISDICTION.  EACH
PARTY HERETO HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY
UNITED STATES FEDERAL OR NEW YORK STATE COURT SITTING IN NEW YORK, NEW YORK IN
ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND
EACH PARTY HERETO HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND
IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF
ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT
IS AN INCONVENIENT FORUM.  NOTHING HEREIN SHALL LIMIT THE RIGHT OF ANY
PARTY TO BRING PROCEEDINGS AGAINST ANOTHER PARTY IN THE COURTS OF ANY OTHER
JURISDICTION.

     

    16.3.           WAIVER
OF JURY TRIAL.  HOLDINGS,
THE BORROWER, THE AGENT AND EACH LENDER HEREBY WAIVE TRIAL BY JURY IN ANY
JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER
SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO,
OR CONNECTED
WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED
THEREUNDER.

     

    
      
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    IN
WITNESS WHEREOF, Holdings, the Borrower, the Lenders and the Agent have executed
this Agreement as of the date first above written.

     

     

    WENDY’S INTERNATIONAL
HOLDINGS, LLC,

    as
Holdings

     

    /s/
Daniel
T. Collins                    

    Name:     Daniel
T. Collins

    Title:       Senior
Vice President, Treasurer and Assistant Secretary

     

    
      
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      WENDY’S INTERNATIONAL,
INC.,

      as
the Borrower

       

      /s/
Daniel
T. Collins                    

      Name:    Daniel
T. Collins

      Title:      Senior
Vice President, Treasurer and Assistant Secretary

       

      Address
for Notices:

       

      Wendy’s
International Inc.

      4288
West Dublin-Granville Road

      P.O.
Box 256

      Dublin,
Ohio 43017-0256

       

      Attention:        Dan
Collins, Treasurer

      Telephone:      (678)
514-4468

      Facsimile:         (678)
514-4119

      E-mail:               Dan.Collins@wendysarbys.com

       

      With
Copy to:        

      Wendy’s/Arby’s
Group, Inc.

      1155
Perimeter Center West

      Atlanta,
GA 30338

       

      Attention:          
Nils Okeson, General Counsel

      Telephone:         (678)
514-4330

      Facsimile:           
(678) 514-5344

      Email:                   Nils.Okeson@wendysarbys.com

       

      
        
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    JPMORGAN CHASE BANK,
N.A.,

    as
Agent and a Lender

     

    /s/
Barry
Bergman                       

    Name:     Barry
Bergman

    Title:       Managing
Director

     

    Address
for Notices:

     

    JPMorgan
Chase Bank, N.A.

    270
Park Avenue

    4th
Floor

    New
York, New York 10017

    Attention:               Mr.
Barry Bergman

    Telephone
No.:      (212) 270-0203

    Telecopy
No. :        (212) 270-3279

    E-mail:                      Barry.Bergman@jpmorgan.com

     

    and

     

    JPMorgan
Chase Bank, N.A.

    Loan
and Agency Services Group

    1111
Fannin

    10th
Floor

    Houston,
Texas 77002

    Attention:                Ms.
Shanida Littlejohn

    Telephone
No.:       (713) 750-3510

    Telecopy
No. :        (713) 750-2782

    E-mail:                      shanida.x.littlejohn@jpmchase.com

     

    
      
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    BANK OF AMERICA,
N.A.,

    as
Syndication Agent and a Lender

     

    /s/
Robert
J. Beckley                      

    Name:     Robert
J. Beckley

    Title:       Managing
Director

    
      
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    WACHOVIA BANK, NATIONAL
ASSOCIATION,

    as
Documentation Agent and a Lender

     

    /s/
Denis
Waltrich                        

    Name:     Denis
Waltrich

    Title:       Vice
President

     

     

    
      
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    FIFTH
THIRD BANK,

    as
a Lender

     

    /s/
Brent
M. Jackson                      

    Name:     Brent
M. Jackson

    Title:       Senior
Vice President

     

     

    
      
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    WELLS FARGO BANK,
NATIONAL ASSOCIATION, as a Lender

     

    /s/
james
nicholas cole                    

    Name:     James
Nicholas Cole

    Title:       Managing
Director

    
      
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    THE
HUNTINGTON NATIONAL BANK,

    as
a Lender

     

    /s/
Jeff
D. Blendick                        

    Name:     Jeff
D. Blendick

    Title:       Vice
President

     

     

    
      
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    NATIONAL
CITY BANK,

    as
a Lender

     

    /s/
Thomas
E. Redmond                       


    Name:     Thomas
E. Redmond

    Title:       Senior
Vice President

     

     

    
      
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    THE
PRIVATE BANK AND TRUST CO.,

    as
a Lender

     

    /s/
Robert
M. Walker                        

    Name:    
Robert M. Walker

    Title:      
Managing Director