exhibit10-8_080609.htm


EXHIBIT 10.8

 





EXECUTION VERSION 









$565,000,000





Wendy’s/Arby’s Restaurants, LLC





10.0% Senior Notes Due 2016









PURCHASE AGREEMENT





 June 18, 2009









Credit Suisse Securities (USA) LLC

Banc of America Securities LLC

Citigroup Global Markets Inc.,

  As Representatives of the Several Purchasers,

c/o Credit Suisse Securities (USA) LLC

       Eleven Madison Avenue,

New York, N.Y. 10010-3629





Dear Sirs:





1.  Introductory.  Wendy’s International Holdings, LLC (to be renamed Wendy’s/Arby’s Restaurants, LLC), a Delaware limited liability company (the “Company”),
agrees with the several initial purchasers named in Schedule A hereto (the “Purchasers”) subject to the terms and conditions stated herein, to issue and sell to the several Purchasers U.S.$565,000,000 principal amount of its 10.0% Senior Notes Due 2016 (“Offered Securities”) to be issued under an indenture, to be dated as of the Closing Date (the “Indenture”),
between the Company, the Guarantors, (hereinafter defined) and U.S. Bank, National Association, as trustee (the “Trustee”). The Offered Securities will be unconditionally guaranteed as to the payment of principal and interest by each of the Company’s subsidiaries listed on Schedule B hereto (collectively, the “Guarantors” and such guarantees, the “Guarantees”).





The holders of the Offered Securities will be entitled to the registration rights set forth in a registration rights agreement to be dated as of the Closing Date among the Company, the Guarantors and the Purchasers (the “Registration
Rights Agreement”), pursuant to which the Company and the Guarantors will agree to file a registration statement with the Commission registering the resale of the Offered Securities and the related Guarantees under the Securities Act.





Each of the Company and the Guarantors hereby agrees with the several Purchasers as follows:





2.  Representations and Warranties of the Company and the Guarantors.  Each of the Company and the Guarantors represents and warrants to, and agrees with, the several Purchasers that:






	
  
	
(a)  Offering Circulars; Certain Defined Terms.  The Company has prepared or will prepare a Preliminary Offering Circular and a Final Offering Circular.









	
  
	
For purposes of this Agreement:








“Applicable Time” means 3:30 p.m. (New York time) on the date of this Agreement.





“Closing Date” has the meaning set forth in Section 3 hereof.





“Commission” means the Securities and Exchange Commission.








  



  







  












“Exchange Act” means the United States Securities Exchange Act of 1934.





“Final Offering Circular” means the final offering circular relating to the Offered Securities to be offered by the Purchasers that discloses the offering price and
other final terms of the Offered Securities and is dated as of the date of this Agreement (even if finalized and issued subsequent to the date of this Agreement).





“Free Writing Communication” means a written communication (as such term is defined in Rule 405) that constitutes an offer to sell or a solicitation of an offer to buy the Offered Securities and is made by means other than the Preliminary Offering
Circular or the Final Offering Circular.





“General Disclosure Package” means the Preliminary Offering Circular together with any Issuer Free Writing Communication existing at the Applicable Time and the information, if any, distributed at or prior to the Applicable Time, as evidenced by its
being specified in Schedule C hereto.





“Issuer Free Writing Communication” means a Free Writing Communication prepared by or on behalf of the Company, used or referred to by the Company or containing a description of the final terms of the Offered Securities or of their offering, in the
form retained in the Company’s records.





“Preliminary Offering Circular” means the preliminary offering circular, dated June 10, 2009, 2009, relating to the Offered Securities to be offered by the Purchasers.





“Rules and Regulations” means the rules and regulations of the Commission.





“Securities Act” means the United States Securities Act of 1933.





“Securities Laws” means, collectively, the Sarbanes-Oxley Act of 2002 (“Sarbanes-Oxley”), the Securities Act, the Exchange Act, the Rules and Regulations, the auditing principles,
rules, standards and practices applicable to auditors of “issuers” (as defined in Sarbanes-Oxley) promulgated or approved by the Public Company Accounting Oversight Board.





“Supplemental Marketing Material” means any Issuer Free Writing Communication other than any Issuer Free Writing Communication specified in Schedule C hereto, which has been approved by the Company, including, the electronic Bloomberg roadshow slides
and the accompanying audio recordings.





Unless otherwise specified, a reference to a “rule” is to the indicated rule under the Securities Act.






	
  
	
(b)  Disclosure.  As of the date of this Agreement, the Final Offering Circular does not, and as of the Closing Date, the Final Offering Circular will not, include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they
were made, not misleading.  At the Applicable Time, and as of the Closing Date, neither (i) the General Disclosure Package, nor (ii) the Supplemental Marketing Material, when considered, as an aggregate, together with the General Disclosure Package, included, or will include, any untrue statement of a material fact or omitted, or will omit, to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.  The
preceding two sentences do not apply to statements in or omissions from the Preliminary or Final Offering Circular, the General Disclosure Package or any Supplemental Marketing Material based upon written information furnished to the Company by any Purchaser through the Representatives specifically for use therein, it being understood and agreed that the only such information is that described as such in Section 8(b) hereof.









	
  
	
(c)  Good Standing of the Company and the Guarantors. The Company and each Guarantor has been duly organized or incorporated and is existing and in good standing under the laws of the jurisdiction of its organization or incorporation, with power and authority (corporate











  



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and other) to own its properties and conduct its business as described in the General Disclosure Package; and the Company and each Guarantor is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification except for when failure to be qualified or good standing would not, individually
or in the aggregate, result in a material adverse effect on the condition (financial or otherwise), results of operations, business or properties of the Company, the Guarantors and their respective subsidiaries taken as a whole (“Material Adverse Effect”).









	
  
	
(d)  Subsidiaries.  Each “significant subsidiary”, as such term is defined in Rule 1-02(w) of Regulation S-X of the Company and each significant subsidiary, as such term is defined in Item 1-02(w) of Regulation S-X of the Guarantors has been duly incorporated and is existing
and in good standing under the laws of the jurisdiction of its incorporation, with power and authority (corporate and other) to own its properties and conduct its business as described in the General Disclosure Package; and each significant subsidiary of the Company and each significant subsidiary of the Guarantors is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification
except for when failure to be qualified or good standing would not constitute a Material Adverse Effect; all of the issued and outstanding capital stock of each significant subsidiary of the Company and each significant subsidiary of the Guarantors has been duly authorized and validly issued and is fully paid and nonassessable; and except as described in the General Disclosure Package or the Final Offering Circular, and except for any such liens, encumbrances, defects incurred pursuant to the Credit Agreement,
the capital stock of each significant subsidiary owned by the Company or each Guarantor, directly or through significant subsidiaries, is owned free from liens, encumbrances and defects.









	
  
	
(e)  Corporate Structure.  The entities listed on Schedule D hereto are the only subsidiaries, direct or indirect, of the Company.









	
  
	
(f)  Indenture; Offered Securities.  The Indenture has been duly and validly authorized by the Company and the Guarantors and, when duly executed and delivered by the Company and the Guarantors (assuming the due authorization, execution and delivery thereof by the Trustee), will be a legally binding and valid obligation of the Company, enforceable
against it in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles. The Indenture, when executed and delivered, will conform in all material respects to the description thereof in the General Disclosure Package and the Final Offering Circular.   The Offered Securities have been duly and validly authorized for issuance
and sale to the Purchasers by the Company. When the Offered Securities are issued and executed by the Company, authenticated by the Trustee and delivered by the Company against payment therefor by the Purchasers in accordance with the terms of this Agreement and the Indenture, the Offered Securities will be legally binding and valid obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.  The Offered Securities, when issued, authenticated and delivered, will conform in all material respects to the description thereof in the General Disclosure Package and the Final Offering Circular.









	
  
	
(g)  Trust Indenture Act.  On the Closing Date, the Indenture will conform in all material respects to the requirements of the United States Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and the rules and regulations of the Commission applicable to
an indenture which is qualified thereunder.









	
  
	
(h)  No Finder’s Fee.  Except as disclosed in the General Disclosure Package, there are no contracts, agreements or understandings between the Company and any person that would give rise to a valid claim against the Company or any Purchaser for a brokerage commission, finder’s fee or other like payment in connection with the
issuance of the Offered Securities.











  



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(i)  Registration Rights Agreement.  The Registration Rights Agreement has been duly authorized by the Company and the Guarantors; and, when the Registration Rights Agreement has been duly executed and delivered by the Company and the Guarantors, and assuming the due authorization, execution and delivery by the Representatives, will be the
valid and legally binding obligations of the Company and the Guarantors, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations.









	
  
	
(j)  Exchange Securities.  On the Closing Date, the Exchange Securities will have been duly authorized by the Company; and when the Exchange Securities are issued and executed by the Company and authenticated by the Trustee in accordance with the terms of the Exchange Offer and the Indenture and delivered by the Company, the Exchange Securities
will be entitled to the benefits of the Indenture and will be the valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.









	
  
	
(k)  Guarantee.  The Guarantee to be endorsed on the Offered Securities by each Guarantor has been duly authorized by such Guarantor; and, when the Offered Securities are issued and executed by the Company and authenticated by the Trustee in accordance with the terms of the Indenture and delivered by the Company against payment pursuant
to this Agreement, the Guarantee of each Guarantor endorsed thereon will have been duly executed and delivered by each such Guarantor, will conform to the description thereof contained in the Final Offering Circular and will constitute valid and legally binding obligations of such Guarantor, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to
general equity principles.  The Guarantee to be endorsed on the Exchange Securities by each Guarantor has been duly authorized by such Guarantor; and, when issued, will have been duly executed and delivered by each such Guarantor and will conform, in all material respects, to the description thereof contained in the Final Offering Circular.  When the Exchange Securities have been issued and executed by the Company and authenticated by the Trustee in accordance with the terms of the Exchange
Offer and the Indenture and delivered by the Company, the Guarantee of each Guarantor endorsed thereon will constitute valid and legally binding obligations of such Guarantor, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.









	
  
	
(l)  No Registration Rights.  There are no contracts, agreements or understandings between the Company or any Guarantor and any person granting such person the right to require the Company or such Guarantor to file a registration statement under the Securities Act with respect to any securities of the Company or such Guarantor or to require
the Company or such Guarantor to include such securities with the Offered Securities and Guarantees registered pursuant to any Registration Statement.









	
  
	
(m)  Absence of Further Requirements.  Assuming the accuracy of, and the compliance with, the representations, warranties and agreements set forth in Section 4 of this Agreement and except as disclosed in the General Disclosure Package, no consent, approval, authorization, or order of, or filing or registration with, any person (including
any governmental agency or body or any court) by the Company or by the Guarantors is required for the consummation of the transactions contemplated by this Agreement, the Indenture and the Registration Rights Agreement in connection with the offering, issuance and sale of the Offered Securities and the Guarantees by the Company and the Guarantors except for the order of the Commission declaring











  



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effective the Exchange Offer Registration Statement or, if required, the Shelf Registration Statement (each as defined in the Registration Rights Agreement).









	
  
	
(n)  Title to Property.  Except as disclosed in the General Disclosure Package and except as would not constitute a Material Adverse Effect, the Company, the Guarantors and their respective subsidiaries have good and valid title to all real properties and all other properties and assets owned by them, in each case free from liens, charges,
encumbrances and defects (a “Lien”) that would materially affect the value thereof or materially interfere with the use made or to be made thereof by them except as are permitted under the Indenture; and except as disclosed in the General Disclosure Package and except as would not constitute a Material Adverse Effect, the Company, the Guarantors and their respective subsidiaries hold any material leased real or personal property under valid and enforceable leases with no terms or provisions that would
materially interfere with the use made or to be made thereof by them.









	
  
	
(o)  Absence of Defaults and Conflicts Resulting from Transaction. Except as set forth in the General Disclosure Package and assuming the accuracy of, and the compliance with, the representations, warranties and agreements set forth in Section 4 of this Agreement, the execution, delivery and performance of the Indenture, this Agreement and the Registration
Rights Agreement, and the issuance and sale of the Offered Securities and Guarantees and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default or a Debt Repayment Triggering Event (as defined below) under, or result in the imposition of any Lien upon any property or assets of the Company, the Guarantors or any of their respective subsidiaries pursuant to, (i) the organizational documents of the Company, the Guarantors
or any of their respective subsidiaries, (ii) any statute, any rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Company, the Guarantors or any of their respective subsidiaries or any of their properties, or (iii) any agreement or instrument to which the Company, the Guarantors or any of their respective subsidiaries is a party or by which the Company, the Guarantors or any of their respective subsidiaries is bound or to which any of the
properties of the Company, the Guarantors or any of their respective subsidiaries is subject except, in the cases of clauses (ii) and (iii), for such breach, violation, default of a Debt Repayment Triggering Event or Lien that would not constitute a Material Adverse Effect; a “Debt Repayment Triggering Event” means any event or condition that gives, or with the giving of notice or lapse of time would give, the holder of any note, debenture, or
other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Guarantors or any of their respective subsidiaries.









	
  
	
(p)  Absence of Existing Defaults and Conflicts.  None of the Company, the Guarantors or their respective subsidiaries is in violation of their respective organizational documents or in default (or with the giving of notice or lapse of time would be in default) under any existing obligation agreement, covenant or condition contained in any
indenture, loan agreement, mortgage, lease or other agreement or instrument to which any of them is a party or by which any of them is bound or to which any of the properties of any of them is subject, except such defaults that would not, individually or in the aggregate, result in a Material Adverse Effect.  The agreements listed in Schedule E are the only material agreements of the Company and the Guarantors.









	
  
	
(q)  Authorization of Agreement.  This Agreement has been duly authorized, executed and delivered by the Company and the Guarantors.









	
  
	
(r)  Possession of Licenses and Permits.  The Company, the Guarantors and their respective subsidiaries possess, and are in compliance with the terms of, all adequate certificates, authorizations, franchises, licenses and permits (“Licenses”) necessary or material to the
conduct of the business now conducted as described in the General Disclosure Package except as would not constitute a Material Adverse Effect and have not received any written notice of proceedings











  



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relating to the revocation or modification of any Licenses, which proceeding could reasonably be expected individually or in the aggregate to result in a Material Adverse Effect.









	
  
	
(s)  Absence of Labor Dispute.  No labor dispute with the employees of the Company or the Guarantor or any of their respective subsidiaries exists or, to the knowledge of the Company or the Guarantors, is imminent, in each case, that would have a Material Adverse Effect.









	
  
	
(t)  Possession of Intellectual Property.  The Company, the Guarantors and their respective subsidiaries own, possess, lease or can acquire on reasonable terms, adequate trademarks, trade names and other rights to inventions, know how, patents, copyrights, confidential information and other intellectual property (collectively, “intellectual
property rights”) necessary to conduct the business now operated by them except as would not constitute a Material Adverse Effect, or presently employed by them, and have not received any written notice of infringement of or conflict with asserted rights of others with respect to any intellectual property rights, which infringement or conflict could reasonably be expected individually or in the aggregate to result in a Material Adverse Effect.









	
  
	
(u)  Environmental Laws.  Except as disclosed in the General Disclosure Package, none of the Company, the Guarantors or their respective subsidiaries is in violation of any statute, any rule, regulation, decision or order of any governmental agency or body or any court, domestic or foreign, relating to the use, disposal or release of hazardous
or toxic substances or relating to the protection or restoration of the environment or human exposure to hazardous or toxic substances (collectively, “environmental laws”), owns or operates any real property contaminated with any substance that is subject to any environmental laws, is liable for any off site disposal or contamination pursuant to any environmental laws, or is subject to any claim relating to any environmental laws, which violation,
contamination, liability or claim would individually or in the aggregate have a Material Adverse Effect; and the Company is not aware of any pending investigation which might lead to such a claim.









	
  
	
(v) Accurate Disclosure.  The statements in the General Disclosure Package and the Final Offering Circular under the headings “Business-Legal Proceedings” and “Business- Governmental Regulations” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair
summaries in all material respects of such legal matters, agreements, documents or proceedings and present the information required to be shown.









	
  
	
(w)  Absence of Manipulation. None of the Company, the Guarantors and their respective affiliates has, either alone or with one or more other persons, bid for or purchased for any account in which it or any of its affiliates had a beneficial interest any Offered Securities or attempted to induce any person to purchase any Offered Securities.









	
(x)
	
Internal Controls and Compliance with the Sarbanes-Oxley Act.  Except as set forth in the General Disclosure Package, the Company, the Guarantors and their respective subsidiaries in all material respects are in compliance with Sarbanes-Oxley.  The Company and the Guarantors are subject to a system of internal controls maintained by Wendy’s/Arby’s
Group, Inc., including, but not limited to, disclosure controls and procedures, internal controls over accounting matters and financial reporting, an internal control audit function and legal and regulatory compliance controls (collectively, “Internal Controls”), are sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with U.S. Generally Accepted Accounting Principles and to maintain accountability for assets, (iii) access to assets is permitted only in accordance with management’s general or specific authorization and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.











  



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(y)  Litigation.  Except as disclosed in the General Disclosure Package, there are no pending actions, suits or proceedings (including any inquiries or investigations by any court or governmental agency or body, domestic or foreign) against or affecting the
Company, the Guarantors, any of their respective subsidiaries or any of their respective properties, which actions, suits or proceedings (including any inquiries or investigations by any court or governmental agency or body, domestic or foreign) could reasonably be expected individually or in the aggregate to result in a Material Adverse Effect, and no such actions, suits or proceedings (including any inquiries or investigations by any court or governmental agency or body, domestic or foreign) to the Company’s
or the Guarantors’ knowledge, are threatened or contemplated.






	
  
	
(z)  Financial Statements.  The historical financial statements included in the General Disclosure Package present fairly in all material respects the financial position of the Company, the Guarantors and their respective consolidated subsidiaries as of the
dates shown and their results of operations and cash flows for the periods shown, and such financial statements have been prepared in conformity with the generally accepted accounting principles in the United States applied on a consistent basis; and the assumptions used in preparing the pro forma financial statements included in the General Disclosure Package provide a reasonable basis for presenting the significant effects directly
attributable to the transactions or events described therein, the related pro forma adjustments give appropriate effect to those assumptions, and the pro forma columns therein reflect the proper application of those adjustments to the corresponding historical financial statement amounts.









	
  
	
(aa)  No Material Adverse Change in Business.  Except as disclosed in the General Disclosure Package, since the end of the period covered by the latest unaudited financial statements included in the General Disclosure Package (i) there has been no change, nor any development or event involving a prospective change, in the condition
(financial or otherwise), results of operations, business or properties of the Company, the Guarantors and their respective subsidiaries, taken as a whole, that has had a Material Adverse Effect; (ii) except as disclosed in or contemplated by the General Disclosure Package, there has been no dividend or distribution of any kind declared, paid or made by the Company or the Guarantors on any class of their capital stock and
(iii) except as disclosed in or contemplated by the General Disclosure Package, there has been no material adverse change in the capital stock, short-term indebtedness, long-term indebtedness, net current assets or net assets of the Company, the Guarantors and their respective subsidiaries.









	
  
	
(bb)  Investment Company Act. Neither the Company nor any Guarantor is an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the United States Investment Company Act of 1940 (the “Investment Company
Act”); and neither the Company nor any Guarantor is and, after giving effect to the offering and sale of the Offered Securities and the application of the proceeds thereof as described in the General Disclosure Package, will be an “investment company” as defined in the Investment Company Act.









	
  
	
(cc)  Regulations T, U, X.  Neither the Company nor any Guarantor nor any of their respective subsidiaries nor any agent thereof  (other than the Purchasers, as to whom the Company makes no representations) acting on their behalf has taken, and none of them will take, any action that might cause this Agreement or the issuance or
sale of the Offered Securities to violate Regulation T, Regulation U or Regulation X of the Board of Governors of the Federal Reserve System.









	
  
	
(dd)  Ratings.  Except as described in the General Disclosure Package and the announcements by each of Standard & Poor’s Ratings Service and Moody’s Investors Service prior to the date hereof, no “nationally recognized statistical rating organization” as such term is defined for purposes of Rule 436(g)(2)
(i) has imposed (or has informed the Company or any Guarantor that it is considering imposing) any condition (financial or otherwise) on the Company’s or any Guarantor’s retaining any rating assigned to the Company or any Guarantor or











  



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any securities of the Company or any Guarantor or (ii) has indicated to the Company or any Guarantor that it is considering any of the actions described in Section 7(b)(ii) hereof.









	
  
	
(ee)  Class of Securities Not Listed.  No securities of the same class (within the meaning of Rule 144A(d)(3)) as the Offered Securities are listed on any national securities exchange registered under Section 6 of the Exchange Act or quoted in a U.S. automated inter-dealer quotation system.









	
  
	
(ff)  No Registration.  Assuming the accuracy of, compliance by the Purchasers with the representations, warranties and agreements set forth in Section 4 of the Agreement, and assuming compliance by holders of the Offered Securities with the transfer restrictions thereof, the offer and sale of the Offered Securities in the manner contemplated
by this Agreement will be exempt from the registration requirements of the Securities Act by reason of Section 4(2) thereof, Rule 144A and Regulation S thereunder; and it is not necessary to qualify an indenture in respect of the Offered Securities under the Trust Indenture Act.









	
  
	
(gg)  No General Solicitation; No Directed Selling Efforts.  Neither the Company, nor any Guarantor, nor any of their respective affiliates, nor any person acting on its or their behalf (other than the Purchasers, as to whom the Company makes no representations) (i) has, within the six-month period prior to the date hereof, offered
or sold in the United States or to any U.S. person (as such terms are defined in Regulation S under the Securities Act) the Offered Securities or any security of the same class or series as the Offered Securities or (ii) has offered or will offer or sell the Offered Securities (A) in the United States by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) or (B) with respect to any such securities sold in reliance on Rule 903 of Regulation
S (“Regulation S”) under the Securities Act, by means of any directed selling efforts within the meaning of Rule 902(c) of Regulation S.  The Company, the Guarantors, their respective affiliates and any person acting on its or their behalf (other than the Purchasers, as to whom the Company makes no representations) have complied and will comply with the offering restrictions requirement of Regulation S. Neither the Company
nor any Guarantor has entered and neither the Company nor any Guarantor will enter into any contractual arrangement with respect to the distribution of the Offered Securities except for this Agreement and the Registration Rights Agreement.









	
  
	
(hh) FCPA.  Neither the Company, the Guarantors nor any of their significant subsidiaries nor, to the knowledge of the Company or the Guarantors, any director, officer, agent, employee or affiliate of the Company, the Guarantors or any of their significant subsidiaries is aware of or has taken any action, directly or indirectly, that would result
in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything
of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and the Company, the Guarantors, their significant subsidiaries and, to the knowledge of the Company or the Guarantors, their affiliates have conducted their businesses in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected
to continue to ensure, continued compliance therewith and neither the Company, the Guarantors nor any of their significant subsidiaries nor, to the knowledge of the Company or the Guarantors, any director, officer, agent, employee or affiliate of the Company, the Guarantors or any of their significant subsidiaries or has otherwise made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment.









	
  
	
(ii) Money Laundering Laws.  The operations of the Company, the Guarantors and their significant subsidiaries are and have been conducted at all times in material compliance with applicable financial record keeping and reporting requirements of the Currency and Foreign











  



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Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before
any court or governmental agency, authority or body or any arbitrator involving the Company, the Guarantor or any of their significant subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.









	
  
	
(jj)  OFAC. Neither the Company, the Guarantors nor any of their significant subsidiaries nor, to the knowledge of the Company or the Guarantors, any director, officer, agent, employee or affiliate of the Company, the Guarantors or any of their significant subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department (“OFAC”).








(kk)  Taxes.  The Company, the Guarantors and their respective subsidiaries have filed all federal, state, local and non-U.S. tax returns that are required to be filed or have requested extensions thereof (except in any case in which the failure so to file
would not have a Material Adverse Effect); and, except as set forth in the General Disclosure Package, the Company, the Guarantors and their respective subsidiaries have paid all taxes (including any assessments, fines or penalties) required to be paid by them, except for any such taxes, assessments, fines or penalties currently being contested in good faith or as would not, individually or in the aggregate, have a Material Adverse Effect.





(ll)  Insurance.  The Company, the Guarantors and their respective subsidiaries are insured by insurers with appropriately rated claims paying abilities against such losses and risks and in such amounts as are prudent and customary for the businesses in which
they are engaged except in any case where the failure to be so insured would not have a Material Adverse Effect; all material policies of insurance insuring the Company, the Guarantors or any of their respective subsidiaries or their respective businesses, assets, employees, officers and directors are in full force and effect except in any case where such failure would not have a Material Adverse Effect; the Company, the Guarantors and their respective subsidiaries are in compliance with the terms of such policies
and instruments in all material respects; and there are no claims by the Company, the Guarantors or any of their respective subsidiaries under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause except as would not result in a Material Adverse Effect; neither the Company, the Guarantors nor any such subsidiary has been refused any insurance coverage sought or applied for; and neither the Company nor any such subsidiary has any
reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have a Material Adverse Effect, except as set forth in or contemplated in the General Disclosure Package.





3.  Purchase, Sale and Delivery of Offered Securities.  On the basis of the representations, warranties and agreements and subject to the terms and conditions set forth herein, the Company agrees
to sell to the several Purchasers, and each of the Purchasers agrees, severally and not jointly, to purchase from the Company, at a purchase price of 95.433% of the principal amount thereof plus accrued interest, if any, from June 23, 2009 to the Closing Date (as hereinafter defined), the respective principal amounts of Securities set forth opposite the names of the several Purchasers in Schedule A hereto.





The Company will deliver the Offered Securities to or as instructed by the Representatives for the accounts of the several Purchasers in a form reasonably acceptable to the Representatives against payment of the purchase price by the Purchasers in Federal (same day) funds
by wire transfer to an account at a bank acceptable to the Representatives drawn to the order of the Company at the office of Davis Polk & Wardwell, 450 Lexington Avenue, New York, New York 10017, at 9:30 A.M., New York time, on June 23, 2009, or at such other time not later than seven full business days thereafter as the Representatives and the Company determine, such time being herein referred to as the “Closing Date”. The Offered Securities








  



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so to be delivered or evidence of their issuance will be made available for checking at the above office of Davis Polk & Wardwell at least 24 hours prior to the Closing Date.






	
  
	
4.  Representations by Purchasers; Resale by Purchasers.  (a)    Each Purchaser severally represents and warrants to the Company and the Guarantors that it is an “accredited investor” within the meaning of Regulation D under the Securities Act.









	
  
	
(b)  Each Purchaser severally acknowledges that the Offered Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Regulation S or pursuant to an exemption from the registration requirements of the Securities Act. Each Purchaser severally represents and agrees that
it has offered and sold the Offered Securities, and will offer and sell the Offered Securities (i) as part of its distribution at any time and (ii) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 of Regulation S or Rule 144A. Accordingly, neither such Purchaser nor its affiliates, nor any persons acting on its or their behalf, have engaged or will engage in any directed selling efforts with respect to the Offered Securities, and
such Purchaser, its affiliates and all persons acting on its or their behalf have complied and will comply with the offering restrictions requirement of Regulation S and Rule 144A. Each Purchaser severally agrees that, at or prior to confirmation of sale of the Offered Securities, other than a sale pursuant to Rule 144A, such Purchaser will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases the Offered Securities from it during the restricted
period a confirmation or notice to substantially the following effect:









	
  
	
“The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the “Securities Act”) and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the date of the commencement of the offering and the closing date, except
in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meanings given to them by Regulation S.”
	 








	
  
	
Terms used in this subsection (b) have the meanings given to them by Regulation S.









	
  
	
(c)  Each Purchaser severally represents and agrees that it and each of its affiliates has not entered and will not enter into any contractual arrangement with respect to the distribution of the Offered Securities except for any such arrangements with the other Purchasers or affiliates of the other Purchasers or with the prior written consent of the Company and the Guarantors.









	
  
	
(d)  Each Purchaser severally represents and agrees that it and each of its affiliates will not offer or sell the Offered Securities in the United States by means of any form of general solicitation or general advertising within the meaning of Rule 502(c), including, but not limited to (i) any advertisement, article, notice or other communication published in any newspaper, magazine or similar media
or broadcast over television or radio, or (ii) any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. Each Purchaser severally represents and agrees, with respect to resales made in reliance on Rule 144A of any of the Offered Securities, to deliver either with the confirmation of such resale or otherwise prior to settlement of such resale a notice to the effect that the resale of such Offered Securities has been made in reliance upon the exemption from
the registration requirements of the Securities Act provided by Rule 144A.









	
  
	
(e) In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each of the Purchasers severally represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant











  



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Implementation Date”) it has not made and will not make an offer of Offered Securities to the public in that Relevant Member State prior to the publication of a prospectus in relation to the Offered Securities which has been approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant
Member State, all in accordance with the Prospectus Directive, except that it may, with effect from and including the Relevant Implementation Date, make an offer of Offered Securities to the public in that Relevant Member State at any time:








(i)       to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities;





(ii)       to any legal entity which has two or more of (A) an average of at least 250 employees during the last financial year; (B) a total balance sheet of more than €43,000,000 and (C) an annual net turnover of more than €50,000,000,
as shown in its last annual or consolidated accounts; or






	
  
	
(iii)
	
to fewer than 100 natural or legal persons (other than qualified investors as defined in the Prospectus Directive) subject to obtaining the prior consent of the manager for any such offer; or








(iv)       in any other circumstances which do not require the publication by the Company of a prospectus pursuant to Article 3 of the Prospectus Directive.





For the purposes of this provision, the expression an “offer of Offered Securities to the public” in relation to any Offered Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms
of the offer and the Offered Securities to be offered so as to enable an investor to decide to purchase or subscribe the Offered Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State and the expression “Prospectus Directive” means Directive 2003/71/EC and includes any relevant implementing measure in each Relevant Member State.






	
  
	
(f) Each of the Purchasers severally represents and agrees that








(i)       it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received
by it in connection with the issue or sale of the Offered Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company or the Guarantors; and





(iii)       it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Offered Securities in, from or otherwise involving the United Kingdom.





5.  Certain Agreements of the Company and each Guarantor.  The Company and each Guarantor agrees with the several Purchasers that:






	
  
	
(a)  Amendments and Supplements to Offering Circulars.  The Company and the Guarantors will promptly advise the Representatives of any proposal to amend or supplement the Preliminary or Final Offering Circular and will not effect such amendment or supplementation without the Representatives’ consent, which consent shall not be unreasonably
delayed or withheld. If, at any time prior to the completion of the resale of the Offered Securities by the Purchasers, there occurs an event or development as a result of which any document included in the Preliminary or Final Offering Circular, the General Disclosure Package or any Supplemental Marketing Material, if republished immediately following such event or development, included or











  



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would include an untrue statement of a material fact or omitted or would omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, the Company and the Guarantors promptly will notify the Representatives of such event and promptly will prepare and furnish, at its own expense, to the Purchasers and the dealers and
to any other dealers at the request of the Representatives, an amendment or supplement which will correct such statement or omission. Neither the Representatives’ consent to, nor the Purchasers’ delivery to offerees or investors of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 7.









	
  
	
(b)  Furnishing of Offering Circulars.  The Company and the Guarantors will furnish to the Representatives copies of the Preliminary Offering Circular, each other document comprising a part of the General Disclosure Package, the Final Offering Circular, all amendments and supplements to such documents and each item of Supplemental Marketing
Material, in each case as soon as available and in such quantities as the Representatives reasonably request.  At any time when the Company is not subject to Section 13 or 15(d), the Company and the Guarantors will promptly furnish or cause to be furnished to the Representatives (and, upon request, to each of the other Purchasers) and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders
and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities.  The Company will pay the expenses of printing and distributing to the Purchasers all such documents.









	
  
	
(c)  Blue Sky and Other Qualifications.  The Company and the Guarantors will use commercially reasonable efforts to arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as the Representatives reasonably
designate and will continue such qualifications in effect so long as required for the resale of the Offered Securities by the Purchasers, provided that the Company will not be required to qualify as a foreign corporation or to file a general consent to service of process in any such state.









	 	
(d)  Transfer Restrictions.  During the period of one year after the Closing Date, the Company will, upon request, furnish to the Representatives, each of the other Purchasers and any holder of Offered Securities a copy of the restrictions on transfer applicable to the Offered Securities.









	
  
	
(e)  No Resales by Affiliates.  During the period of one year after the Closing Date, the Company will not, and will not permit any of its affiliates (as defined in Rule 144) to, resell any of the Offered Securities that have been reacquired by any of them other than pursuant to Rule 144(d) or an effective registration statement.









	
  
	
(f)  Payment of Expenses.  The Company and the Guarantors will pay all expenses incidental to the performance of their respective obligations under this Agreement, the Indenture and the Registration Rights Agreement, including but not limited to (i) the fees and expenses of the Trustee and its professional advisers; (ii) all expenses in
connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities and, as applicable, the Exchange Securities (as defined in the Registration Rights Agreement), the printing of this Agreement, the Registration Rights Agreement, the Offered Securities, the Indenture, the Preliminary Offering Circular, any other documents comprising any part of the General Disclosure Package, the Final Offering Circular, all amendments and supplements thereto, each item of Supplemental
Marketing Material and any other document relating to the issuance, offer, sale and delivery of the Offered Securities and as applicable, the Exchange Securities; (iii) any reasonable and documented expenses (including reasonable and documented fees and disbursements of counsel to the Purchasers) incurred in connection with qualification of the Offered Securities or the Exchange Securities for sale under the laws of such jurisdictions in the United States and Canada as the Representatives designate and the preparation
and printing of memoranda relating











  



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thereto, (iv) any fees charged by investment rating agencies for the rating of the Offered Securities and (v) reasonable expenses incurred in distributing the Preliminary Offering Circular, any other documents comprising any part of the General Disclosure Package, the Final Offering Circular (including any amendments and supplements thereto) and any Supplemental Marketing Material to the Purchasers.  The
Company and the Guarantors will also pay or reimburse the Purchasers (to the extent incurred by them) for costs and expenses of the Purchasers and the Company’s officers and employees and any other expenses of the Purchasers, the Company and the Guarantors relating to investor presentations on any “road show” in connection with the offering and sale of the Offered Securities including, without limitation, any travel expenses of the Company’s and the Guarantors’ officers and employees
and any other expenses of the Company and the Guarantors including the chartering of airplanes.  The Purchasers will pay all expenses of counsel to the Purchasers.









	
  
	
(g)  Use of Proceeds.  The Company will use the net proceeds received in connection with this offering in the manner described in the “Use of Proceeds” section of the General Disclosure Package and, except as disclosed in the General Disclosure Package, the Company does not intend to use any of the proceeds from the sale of the
Offered Securities hereunder to repay any outstanding debt owed to any affiliate of any Purchaser.









	
  
	
(h)  Absence of Manipulation.  In connection with the offering, until the Representatives shall have notified the Company and the other Purchasers of the completion of the resale of the Offered Securities, neither the Company, the Guarantors nor any of their affiliates will, either alone or with one or more other persons, bid for or purchase
for any account in which it or any of its affiliates has a beneficial interest any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it nor any of their affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price of, the Offered Securities.









	
  
	
(i) Restriction on Sale of Securities.  For a period of 45 days after the date hereof, neither the Company nor any Guarantor will, directly or indirectly, take any of the following actions with respect to any United States dollar-denominated debt securities issued or guaranteed by the Company or such Guarantor and having a maturity of more than one
year from the date of issue or any securities convertible into or exchangeable or exercisable for any of such securities (“Lock-Up Securities”):  (i) offer, sell, issue, contract to sell, pledge or otherwise dispose of Lock-Up Securities, (ii) offer, sell, issue, contract to sell, contract to purchase or grant any option, right or warrant to purchase Lock-Up Securities, (iii) enter into any swap, hedge or any other agreement
that transfers, in whole or in part, the economic consequences of ownership of Lock-Up Securities (other than the hedging of the interest rate of the Lock-Up Securities), (iv) establish or increase a put equivalent position or liquidate or decrease a call equivalent position in Lock-Up Securities within the meaning of Section 16 of the Exchange Act or (iv) except as contemplated by the Registration Rights Agreement, file with the Commission a registration statement under the Securities Act relating
to Lock-Up Securities or publicly disclose the intention to take any such action, without the prior written consent of the Representatives.  Neither the Company nor any Guarantor will at any time directly or indirectly, take any action referred to in clauses (i) through (iv) above with respect to any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act or the safe harbor of Regulation S thereunder
to cease to be applicable to the offer and sale of the Offered Securities.








6.  Free Writing Communications.  (a) Issuer Free Writing Communications.  The Company and each Guarantor each represents and agrees that, unless it obtains the prior
consent of the Representatives, and each Purchaser represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Offered Securities that would constitute an Issuer Free Writing Communication.








  



- 13 -







  








(b)  Term Sheets.  The Company consents to the use by any Purchaser of a Free Writing Communication that (i) contains only (A) information describing the preliminary terms of the Offered
Securities or their offering or (B) information that describes the final terms of the Offered Securities or their offering and that is included in or is subsequently included in the Final Offering Circular, including by means of a pricing term sheet in the form of Annex A hereto, or (ii) does not contain any material information about the Company or any Guarantor or their securities that was provided by or on behalf of the Company or any Guarantor, it being understood and agreed that the Company and
each Guarantor shall not be responsible to any Purchaser for liability arising from any inaccuracy in such Free Writing Communications referred to in clause (i) or (ii) as compared with the information in the Preliminary Offering Circular, the Final Offering Circular or the General Disclosure Package.





7.  Conditions of the Obligations of the Purchasers.  The obligations of the several Purchasers to purchase and pay for the Offered Securities will be subject to the accuracy of the representations
and warranties of the Company and the Guarantors herein (as though made on the Closing Date), to the accuracy of the statements of officers of the Company and the Guarantors made pursuant to the provisions hereof, to the performance by the Company and the Guarantors of their obligations hereunder and to the following additional conditions precedent:






	
  
	
(a) Accountants’ Comfort Letter.  The Purchasers shall have received a letter, dated respectively, the date hereof on the General Disclosure Package and the Closing Date on the Final Offering Circular, of Deloitte & Touche LLP in form and substance reasonably satisfactory to the Purchasers concerning the financial information with respect
to the Company set forth in the General Disclosure Package.  The Purchasers shall have received a letter, dated respectively, the date hereof on the General Disclosure Package and the Closing Date on the Final Offering Circular, of PricewaterhouseCoopers LLP in form and substance reasonably satisfactory to the Purchasers concerning the financial information with respect to Wendy’s International, Inc. set forth or incorporated by reference in the General Disclosure Package.









	
  
	
(b)  No Material Adverse Change.  Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or otherwise), results of operations, business or properties of the Company, the Guarantors and their respective
subsidiaries taken as a whole which, in the reasonable judgment of the Representatives, is material and adverse and makes it impractical or inadvisable to market the Offered Securities; (ii) except as otherwise disclosed in the General Disclosure Package and the announcements by each of Standard & Poor’s Ratings Service and Moody’s Investors Service prior to the date hereof, any downgrading in the rating of any
debt securities of the Company or any Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g)), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company or any Guarantor (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Company or any Guarantor
has been placed on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls the effect of which is such as to make it, in the reasonable judgment of the Representatives, impractical to market or to enforce contracts for the sale of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market, (iv) any suspension or material limitation of trading in securities generally on the
New York Stock Exchange, or any setting of minimum or maximum prices for trading on such exchange; (v) any banking moratorium declared by any U.S. federal or New York authorities; (vi) any major disruption of settlements of securities, payment, or clearance services in the United States or (vii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the reasonable 











  



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judgment of the Representatives, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency is such as to make it in the reasonable judgment of the Representatives impractical or inadvisable to market the Offered Securities or to enforce contracts for the sale of the Offered Securities.

 


	
  
	
(c)  Opinions of Counsel for Company.  The Purchasers shall have received opinions, dated the Closing Date in the forms attached as Annex A, of Paul, Weiss, Rifkind, Wharton & Garrison LLP, counsel for the Company and the Guarantors, and in the forms attached as Annex B for the local counsels specified in Schedule F.









	
  
	
(d)  Opinion of Counsel for Purchasers.  The Purchasers shall have received from Davis Polk & Wardwell, counsel for the Purchasers, such opinion or opinions, dated the Closing Date, with respect to such matters as the Representatives may require, and the Company and the Guarantors shall have furnished to such counsel such documents as
they request for the purpose of enabling them to pass upon such matters.









	
  
	
(e) Officers’ Certificate.  The Purchasers shall have received certificates, dated the Closing Date, of an executive officer of the Company and the Guarantors and a principal financial or accounting officer of the Company and the Guarantors in which such officers shall state that the representations and warranties of the Company and the Guarantors
in this Agreement are true and correct, that the Company and the Guarantors have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date, and that, subsequent to the respective dates of the most recent financial statements in the General Disclosure Package there has been no material adverse change in the condition (financial or otherwise), results of operations, business or properties of the Company, the Guarantors and their
respective subsidiaries taken as a whole except as set forth in the General Disclosure Package or as described in such certificate.









	
  
	
(f) Registration Rights Agreement.  The Purchasers shall have received a counterpart of the Registration Rights Agreement that shall have been executed and delivered by a duly authorized officer of the Company and each of the Guarantors.









	
  
	
(g) Credit Agreement.  The Amended and Restated Credit Agreement, dated of March 11, 2009, as amended, among Wendy’s International, Inc., the Company, Arby’s Restaurant Group, Inc., Arby’s Restaurant Holdings, LLC, Triarc Restaurant Holdings, LLC, the Lenders and Issuers party thereto, Citicorp North America, Inc., as administrative
agent and collateral agent, Bank of America, N.A. and Credit Suisse, Cayman Islands Branch, as co-syndication agents, Wachovia Bank, National Association, SunTrust Bank and GE Capital Franchise Finance Corporation, as co-documentation agents, Citigroup Global Markets Inc., Banc of America Securities LLC and Credit Suisse, Cayman Islands Branch, as joint lead arrangers and joint book-running managers (the “Credit Agreement”) shall have been amended
on the terms set forth in the General Disclosure Package.








Documents described as being “in the agreed form” are documents which are in the forms which have been initialed for the purpose of identification by Davis Polk & Wardwell, copies of which are held by the Company, the Guarantors and the Representatives,
with such changes as the Representatives may approve.





The Company and the Guarantors will furnish the Purchasers with the conformed copies of such opinions, certificates, letters and documents required hereunder as the Purchasers reasonably request.  The Representatives may in their sole discretion waive on behalf
of the Purchasers compliance with any conditions to the obligations of the Purchasers hereunder, whether in respect of an Optional Closing Date or otherwise.





8.  Indemnification and Contribution.  (a)  Indemnification of Purchasers.  The Company and the Guarantors will indemnify
and hold harmless each Purchaser, its officers, employees, agents, partners, members, directors and its affiliates and each person, if any, who controls such Purchaser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, an “Indemnified 








  



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Party”), against any and all losses, claims, damages or liabilities, joint or several, to which such Indemnified Party may become subject, under the Securities Act, the Exchange Act, other Federal or state statutory law or regulation or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Preliminary Offering Circular or the Final Offering Circular, in each case as amended or supplemented, or any Issuer Free Writing Communication (including with limitation, any Supplemental Marketing Material), or arise out of or are based upon the omission or alleged omission of a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made, not misleading and will reimburse each Indemnified Party for any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating, preparing or defending against any loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (whether or not such Indemnified Party is a party thereto) whether threatened or commenced and in connection with the enforcement
of this provision with respect to any of the above as such expenses are incurred; provided, however, that the Company and the Guarantors will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the Company by any Purchaser through the Representatives specifically
for use therein, it being understood and agreed that the only such information consists of the information described as such in subsection (b) below.





(b)  Indemnification of Company. Each Purchaser will severally and not jointly indemnify and hold harmless each of the Company, the Guarantors, each of their respective directors and each of their respective
officers and the Guarantors and each person, if any, who controls the Company or such Guarantor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Purchaser Indemnified Party”), against any losses, claims, damages or liabilities to which such Purchaser Indemnified Party may become subject, under the Securities Act, the Exchange Act, other Federal or state statutory law or regulation or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Preliminary Offering Circular or the Final Offering Circular, in each case as amended or supplemented, or any Issuer Free Writing Communication or arise out of or are based upon the omission or the alleged omission of a material
fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company by such Purchaser through the Representatives specifically for use therein, and will reimburse any legal or other expenses reasonably incurred by such
Purchaser Indemnified Party in connection with investigating, preparing or defending against any such loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (whether or not such Purchaser Indemnified Party is a party thereto) whether threatened or commenced based upon any such untrue statement or omission, or any such alleged untrue statement or omission and in connection with the enforcement of this provision with respect to any of the above as such expenses are incurred,
it being understood and agreed that the only such information furnished by any Purchaser consists of the following information in the Preliminary and Final Offering Circular: under the caption “Plan of Distribution” paragraphs three and eleven; provided, however, that the Purchasers shall not be liable for any losses, claims, damages or liabilities arising out of or based upon the Company’s failure to perform its obligations under Section 5(a) of this Agreement.





(c)  Actions against Parties; Notification.  Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under subsection (a) or (b) above, notify the indemnifying party of the commencement thereof; but the failure to notify the indemnifying party shall not relieve it from any liability that it may have under subsection (a) or (b) above except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided further that the failure to notify the indemnifying party shall
not relieve it from any liability that it may have to an indemnified party otherwise than under subsection (a) or (b) above.  In case any such action is brought against any indemnified party and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, 








  



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jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying party will not be liable to such indemnified party under this Section 8 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified party unless such settlement includes (i) an unconditional release of such indemnified party from all liability on any claims that are the subject matter of such action and (ii) does not include a statement as to or an admission of fault, culpability or failure to act by or on behalf of any indemnified party.   If any such proceeding shall be brought or asserted against an indemnified party and it shall have notified
the indemnifying party thereof, the indemnifying party shall retain counsel reasonably satisfactory to the indemnified party (who shall not, without the consent of the indemnified party, be counsel to the indemnifying party) to represent the indemnified party in such proceeding and shall pay the reasonable fees and expenses of such counsel related to such proceeding, as incurred.  In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the contrary, (ii) the indemnifying party has failed within a reasonable time to retain counsel reasonably satisfactory to the indemnified party, (iii) the indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the indemnifying party or (iv) the named parties
in any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interest between them.  It is understood and agreed that the indemnifying party shall not, in connection with any proceeding or related proceeding in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel)
for all indemnified parties, and that all such fees and expenses shall be reimbursed as they are incurred.  Any such separate firm for any Underwriter, its affiliates, directors and officers and any control persons of such Underwriter shall be designated in writing by the Representatives, and any such separate firm for the Company, each of the Guarantors, each of their respective directors, and any control persons of the Company and the Guarantors shall be designated in writing by the Company.  The
indemnifying party shall not be liable for settlement of any proceeding effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with its written consent, or if there is a judgment against an indemnified party in any such proceeding, the indemnifying party agrees to indemnify and hold harmless each indemnified party in the manner set forth above.





(d)  Contribution.  If the indemnification provided for in this Section 8 is unavailable or insufficient to hold harmless an indemnified party under subsection (a) or (b) above, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities referred to in subsection (a) or (b) above (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Guarantors on the one hand and the Purchasers on the other from the offering of the Offered Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company and the Guarantors on the one hand and the Purchasers on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities as well as any other relevant equitable considerations. The relative benefits received by the Company and the Guarantors on the one hand and the Purchasers on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the total discounts and commissions received by the Purchasers from the Company under this Agreement. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company and the Guarantors or the Purchasers and the parties’
relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The amount paid by an indemnified party as a result of the losses, claims, damages or liabilities referred to in the first sentence of this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any action or claim which is the subject of this subsection (d). Notwithstanding the provisions
of this subsection (d), no Purchaser shall be required to contribute any amount in excess of the amount by which the total price at which the Offered Securities








  



- 17 -







  








purchased by it were resold exceeds the amount of any damages which such Purchaser has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. The Purchasers’ obligations in this subsection (d) to contribute are several in proportion to their respective
purchase obligations and not joint.  The Company, the Guarantors and the Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 8(d) were determined by pro rata allocation (even if the Purchasers were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in this Section 8(d).





9.  Default of Purchasers.  If any Purchaser or Purchasers default in their obligations to purchase Offered Securities hereunder and the aggregate principal amount of Offered Securities that
such defaulting Purchaser or Purchasers agreed but failed to purchase does not exceed 10% of the total principal amount of Offered Securities, the Representatives may make arrangements satisfactory to the Company for the purchase of such Offered Securities by other persons, including any of the Purchasers, but if no such arrangements are made by the Closing Date, the non-defaulting Purchasers shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the Offered Securities
that such defaulting Purchasers agreed but failed to purchase. If any Purchaser or Purchasers so default and the aggregate principal amount of Offered Securities with respect to which such default or defaults occur exceeds 10% of the total principal amount of Offered Securities and arrangements reasonably satisfactory to the Representatives and the Company for the purchase of such Offered Securities by other persons are not made within 36 hours after such default, this Agreement will terminate without liability
on the part of any non-defaulting Purchaser or the Company, except as provided in Section 10. As used in this Agreement, the term “Purchaser” includes any person substituted for a Purchaser under this Section. Nothing herein will relieve a defaulting Purchaser from liability for its default.





10.  Survival of Certain Representations and Obligations.  The respective indemnities, agreements, representations, warranties and other statements of the Company, the Guarantors or their respective
officers and of the several Purchasers set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation, or statement as to the results thereof, made by or on behalf of any Purchaser, the Company, the Guarantors or any of their respective representatives, officers or directors or any controlling person, and will survive delivery of and payment for the Offered Securities. If this Agreement is terminated pursuant to Section 9 or if for any reason the purchase
of the Offered Securities by the Purchasers is not consummated, the Company and the Guarantors shall remain responsible for the expenses to be paid or reimbursed by it pursuant to Section 5 and the respective obligations of the Company, the Guarantors and the Purchasers pursuant to Section 8 shall remain in effect. If the purchase of the Offered Securities by the Purchasers is not consummated for any reason other than solely because of the termination of this Agreement pursuant to Section 9 or
the occurrence of any event specified in clause (iii), (iv), (v), (vi) or (vii) of Section 7(b), the Company and the Guarantors will reimburse the Purchasers for all documented out-of-pocket expenses (including documented fees and disbursements of counsel) reasonably incurred by them in connection with the offering of the Offered Securities.





11.  Notices.  All communications hereunder will be in writing and, if sent to the Purchasers will be mailed, delivered or telegraphed and confirmed to the Purchasers, c/o
Credit Suisse Securities (USA) LLC,—Eleven Madison Avenue, New York, N.Y. 10010-3629, Attention:  LCD-IBD, or, if sent to the Company or the Guarantors, will be mailed, delivered or telegraphed and confirmed to it at Wendy’s Arby’s Restaurants, LLC, 1155 Perimeter Centre West, Atlanta, GA, 30338 Attention:  Nils Okeson; with a copy to Paul, Weiss, Rifkind, Wharton & Garrison LLP, 1285 Avenue of the Americas, New York, New York, 10019-6064, Attention: Paul D. Ginsberg
and John C. Kennedy provided, however, that any notice to a Purchaser pursuant to Section 8 will be mailed, delivered or telegraphed and confirmed to such Purchaser. 





12.  Successors.  This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the controlling persons referred to in Section 8,
and no other person will have any right or obligation hereunder, except that holders of Offered Securities shall be entitled to enforce the agreements for their benefit contained in the second and third sentences of Section 5(b) hereof against the Company as if such holders were parties thereto.








  



- 18 -







  




 





13.  Representation of Purchasers.  The Representatives will act for the several Purchasers in connection with this purchase, and any action under this Agreement taken by you will be binding
upon all the Purchasers.





14.  Counterparts.  This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and
the same Agreement.





15.  Absence of Fiduciary Relationship.  The Company and the Guarantors acknowledge and agree that:





(a)  No Other Relationship.  The Representatives have been retained solely to act as initial purchaser(s) in connection with the initial purchase, offering and resale of the Offered Securities and that no fiduciary, advisory or agency relationship
between the Company or the Guarantors and the Representatives have been created in respect of any of the transactions contemplated by this Agreement or the Preliminary or Final Offering Circular, irrespective of whether the Representatives have advised or is advising the Company or the Guarantors on other matters;





(b)  Arm’s-Length Negotiations.  The purchase price of the Offered Securities set forth in this Agreement was established by the Company and the Guarantors following discussions and arms-length negotiations with the Representatives and
the Company and the Guarantors are capable of evaluating and understanding and understand and accept the terms, risks and conditions of the transactions contemplated by this Agreement;





(c)  Absence of Obligation to Disclose.  The Company has and the Guarantors have been advised that the Representatives and their affiliates are engaged in a broad range of transactions which may involve interests that differ from those of
the Company or the Guarantors and that the Representatives have no obligation to disclose such interests and transactions to Company or the Guarantors by virtue of any fiduciary, advisory or agency relationship; and





(d)  Waiver.  The Company and the Guarantors waive, to the fullest extent permitted by law, any claims it may have against the Representatives for breach of fiduciary duty or alleged breach of fiduciary duty and agree that the Representatives
shall have no liability (whether direct or indirect) to the Company or the Guarantors in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or in right of the Company, including stockholders, employees or creditors of the Company or the Guarantors.





16.  Applicable Law.  This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York without regard to principles of conflicts of
laws.





The Company and the Guarantors hereby submit to the non-exclusive jurisdiction of the Federal and state courts in the Borough of Manhattan in The City of New York in any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.  The
Company and the Guarantors irrevocably and unconditionally waive any objection to the laying of venue of any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby in Federal and state courts in the Borough of Manhattan in The City of New York and irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such suit or proceeding in any such court has been brought in an inconvenient forum.












  



- 19 -







  












If the foregoing is in accordance with the Purchasers’ understanding of our agreement, kindly sign and return to us one of the counterparts hereof, whereupon it will become a binding agreement between the Company, the Guarantors and the several Purchasers in accordance
with its terms.





Very truly yours,





Wendy’s International Holdings, LLC









By:          /s/ Daniel T. Collins 


	
  
	
Name:
	
Daniel T. Collins





	
  
	
Title:
	
Senior Vice President, Treasurer and 

Assistant Secretary

















	
  
	
Wendy’s International, Inc.





	
  
	
The New Bakery Company of Ohio, Inc.





	
  
	
Wendy’s of Denver, Inc.





	
  
	
Wendy’s of N.E. Florida, Inc.





	
  
	
Wendy’s Old Fashioned Hamburgers of New York, Inc.





	
  
	
BDJ 71112, LLC





	
  
	
Arby’s Restaurant Holdings, LLC





	
  
	
Triarc Restaurant Holdings, LLC





	
  
	
Arby’s Restaurant Group, Inc.





	
  
	
Arby’s Restaurant, LLC





	
  
	
Arby’s, LLC





	
  
	
Wendy’s/Arby’s Support Center, LLC





	
  
	
ARG Services, Inc.





	
  
	
Sybra, LLC





	
  
	
Arby’s IP Holder Trust





	
  
	
RTM Acquisition Company, LLC





	
  
	
RTM, LLC





	
  
	
RTM Partners, LLC





	
  
	
RTM Operating Company, LLC





	
  
	
RTM Development Company, LLC





	
  
	
RTMSC, LLC





	
  
	
RTM Georgia, LLC





	
  
	
RTM Alabama, LLC





	
  
	
RTM West, LLC





	
  
	
RTM Sea-Tac, LLC





	
  
	
RTM Indianapolis, LLC





	
  
	
Franchise Associates, LLC





	
  
	
RTM Savannah, LLC





	
  
	
RTM Gulf Coast, LLC





	
  
	
RTM Portland, LLC





	
  
	
RTM Mid-America, LLC





	
  
	
ARG Resources, LLC








        By:      /s/ Daniel T. Collins 


	
  
	
Name:
	
Daniel T. Collins





	
  
	
Title:
	
Senior Vice President, Treasurer and 

Assistant Secretary




 

 

 

[Signature Page to the Purchase Agreement]





  









  








The foregoing Purchase Agreement

     is hereby confirmed and accepted

     as of the date first above written.





Credit Suisse Securities (USA) LLC








	
 
	
By: /s/ Malcolm Price                  
	  



Name:  Malcolm Price

Title:  Managing Director

 





Banc of America Securities LLC








	
 
	
By: /s/ Michael Grimes             
	 



Name: Michael Grimes

Title: Vice President









Citigroup Global Markets Inc.










	
 
	
By: /s/ David Leland               
	 



Name: David Leland

Title: Director









Acting on behalf of themselves

and as the Representatives

of the several Purchasers

 

 

 

[Signature Page to the Purchase Agreement]