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These excerpts taken from the WEN 10-Q filed May 7, 2009. Collateral”:
(a) all
Accounts;
(b) all
Chattel Paper;
(c) all
Deposit Accounts;
(d) all
Documents;
(e) all
Equipment;
(f) all
General Intangibles;
(g) all
Instruments;
(h) all
Intellectual Property, other than intent-to-use applications until such
applications mature into registered trademarks;
(i) all
Inventory;
(j) all
Investment Property;
(k) all
Letter-of-Credit Rights;
(l) all
Vehicles;
(m) the
Commercial Tort Claims described on Schedule 13 to the
Perfection Certificate or of which the Collateral Agent is notified pursuant to
Section 4.10;
(n) to
the extent determined to be the property of any Grantor, the Escrow Account and
all interests in items in the Escrow Account;
(o) all
Supporting Obligations; -9-
(p) all
books and records pertaining to the other property described in this Section 2.1;
(q) all
property of any Grantor held by the Collateral Agent (including in its capacity
as Escrow Agent under the Escrow Agreement) or any other Secured Party,
including all property of every description, in the possession or custody of or
in transit to the Collateral Agent or such Secured Party for any purpose,
including safekeeping, collection or pledge, for the account of such Grantor or
as to which such Grantor may have any right or power;
(r) all
other Goods and personal property of such Grantor, whether tangible or
intangible and wherever located; and
(s) to
the extent not otherwise included, all Proceeds of any of the
foregoing;
provided, however, (i) that
“Collateral” shall not include any Excluded Property and (ii) that if and when
any property shall cease to be Excluded Property, such property shall be deemed
at all times from and after the date of the Original Security Agreement to
constitute Collateral.
In
addition, notwithstanding any of the other provisions set forth in this Article II or
anything else contained in this Agreement or any other Loan Document, the amount
of all Secured Obligations secured by the Limited Entities’ assets shall not at
any time in the aggregate exceed the lesser of (i) $200,000,000 and (ii) 90% of
the excess, as reflected on the Limited Entities’ most recent audited financial
statements as of the date of determination of the Limited Entities’ liabilities
hereunder, of the Limited Entities’ total assets (including any note receivable
from an affiliate, but only to the extent that a demand on such note receivable
has been made and has been satisfied since the date of the Limited Entities’
most recent audited financial statements) over the Limited Entities’ total
liabilities.
Notwithstanding
anything herein or in any other Loan Document to the contrary, it is hereby
acknowledged and agreed that (a) the perfection and priority of the security
interests granted by the Limited Entities, (b) the delivery of any Collateral by
the Limited Entities to the Collateral Agent and (c) if it would result in an
impairment of surplus of the Limited Entities to the extent that the surplus is
less than the amount prescribed by the Vermont Commissioner pursuant to Section
6004(b) of Title 8 of the Vermont Statutes Annotated, the enforcement of rights
and remedies of the Secured Parties are, in each case, subject to the prior
consent of the Vermont Commissioner.
Each
Grantor that is not a New Entity hereby confirms its mortgage, pledge,
hypothecation and grant of a security interest in all of its right title and
interest in the Collateral to the Collateral Agent for the benefit of the
Secured Parties pursuant to the Original Security Agreement. Each
Grantor, as collateral security for the full, prompt and complete payment and
performance when due (whether at stated maturity, by acceleration or otherwise)
of the Secured Obligations of such Grantor, hereby mortgages, pledges and
hypothecates to the Collateral Agent for the benefit of the Secured Parties, and
grants to the Collateral Agent for the benefit of the Se-
-10-
cured
Parties a lien on and security interest in, all of its right, title and interest
in, to and under the Collateral; provided, however, that if
and when any property of a Grantor that at any time constituted Excluded
Property becomes Collateral, the Collateral Agent shall have, and at all times
from and after the date of the Original Security Agreement, be deemed to have
had, a lien on and security interest in such property.
This
Agreement amends and restates the Original Security Agreement. The
obligations of the Grantors under the Original Security Agreement and the grant
of security interest in the Collateral by the Grantors under the Original
Security Agreement shall continue under this Agreement and shall not in any
event be terminated, extinguished or annulled, but shall hereafter be governed
by this Agreement. It is understood and agreed that the Original
Security Agreement is being amended and restated by entry into this Agreement by
the consent of the Requisite Lenders under the Original Credit Agreement in
accordance with Section 7.1 of the
Original Security Agreement and in connection with their approval of the
amendment and restatement of the Original Credit Agreement on the Restatement
Effective Date. All references in other Loan Documents to the
“Security Agreement” shall refer to this Agreement.
Notwithstanding
any of the other provisions set forth in this Article II or anything else
contained in this Agreement or any other Loan Document, the aggregate amount of
all Secured Obligations secured under the Collateral Documents by Principal
Property (as defined in each Senior Note Indenture) or any shares of capital
stock or evidences of Indebtedness (as defined in each Senior Note Indenture)
issued by any Domestic Subsidiary (as defined in each Senior Note Indenture) and
owned by Wendy’s International, Inc. or any Domestic Subsidiary (as defined in
each Senior Note Indenture) (collectively, the “ Collateral”). Payments
with respect to the Collateral are or hereafter may be made to the
Account. You, the Company and the Collateral Agent are entering into
this letter agreement to perfect the security interests of the Collateral Agent
in the Account.
The
Company hereby transfers to the Collateral Agent control of the Account and all
funds and other property on deposit therein. By your execution of
this letter agreement, you (i) agree that you shall comply with
instructions originated by the Collateral Agent directing disposition of the
funds in the Account without further consent of the Company and (ii) acknowledge
and agree that the Collateral Agent now has exclusive control of the Account,
that all funds and other property on deposit in the Account shall be transferred
to the Collateral Agent as provided herein, that the Account is being maintained
by you for the benefit of the Collateral Agent and that all amounts and other
property therein are held by you as custodian for the Collateral
Agent.
Except as
provided in clause (d) below, the Account
shall not be subject to deduction, set-off, banker’s lien, counterclaim,
defense, recoupment or any other right in favor of any person or entity other
than the Collateral Agent. By your execution of this letter agreement
you
A1-1
also
acknowledge that, as of the date hereof, you have received no notice of any
other pledge or assignment of the Account and have not executed any agreements
with third parties covering the disposition of funds in the
Account. You agree with the Collateral Agent as follows:
(a) Except
as set forth in clause (b) below, notwithstanding anything to the contrary or
any other agreement relating to the Account, the Account is and shall be
maintained for the benefit of the Collateral Agent and shall be entitled “Citicorp North America, Inc. [name
of Company] Account” and shall be subject to written instructions only
from an authorized officer of the Collateral Agent.
(b) Prior
to the delivery to you of a written notice from the Collateral Agent in the form
of Exhibit A hereto
(a “ These excerpts taken from the WEN 8-K filed Mar 12, 2009. Collateral” means all property and interests in property and proceeds thereof now owned or hereafter acquired by any Loan Party in or upon which a Lien is granted under any Collateral Document.
“ Collateral”). Payments with respect to the Collateral are or hereafter may be made to the Account. You, the Company and the Collateral Agent are entering into this letter agreement to perfect the security interests of the Collateral Agent in the Account.
The Company hereby transfers to the Collateral Agent control of the Account and all funds and other property on deposit therein. By your execution of this letter agreement, you (i) agree that you shall comply with instructions originated by the Collateral Agent directing disposition of the funds in the Account without further consent of the Company and (ii) acknowledge and agree that the Collateral Agent now has exclusive control of the Account, that all funds and other property on deposit in the Account shall be transferred to the Collateral Agent as provided herein, that the Account is being maintained by you for the benefit of the Collateral Agent and that all amounts and other property therein are held by you as custodian for the Collateral Agent. Except as provided in clause (d)below, the Account shall not be subject to deduction, set-off, banker’s lien, counterclaim, defense, recoupment or any other right in favor of any person or entity other than the Collateral Agent. By your execution of this letter agreement you
A1-1
also acknowledge that, as of the date hereof, you have received no notice of any other pledge or assignment of the Account and have not executed any agreements with third parties covering the disposition of funds in the Account. You agree with the Collateral Agent as follows: (a) Except as set forth in clause (b) below, notwithstanding anything to the contrary or any other agreement relating to the Account, the Account is and shall be maintained for the benefit of the Collateral Agent and shall be entitled “Citicorp North America, Inc. [name of Company] Account” and shall be subject to written instructions only from an authorized officer of the Collateral Agent. (b) Prior to the delivery to you of a written notice from the Collateral Agent in the form of Exhibit A hereto (a “ This excerpt taken from the WEN 8-K filed Jan 16, 2009. 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.
“ This excerpt taken from the WEN 10-K filed Mar 1, 2007. Collateral As of December 31, 2006, cash of $9,059,000 secured the notional amount of short-term investment derivatives (see Note 13). In addition, certain preferred shares of CDOs with an aggregate carrying value of $8,156,000 as of December 31, 2006 are pledged as collateral for certain notes payable (see Note 10). This excerpt taken from the WEN 10-K filed Apr 3, 2006. Collateral It is the Company's policy to obtain collateral with a market value equal to or in excess of the contract amount, including accrued interest, under reverse repurchase agreements at the time of executing the transaction. Similarly, the Company provides collateral to counterparties under repurchase agreements. As of January 1, 2006, debt securities and marketable equity securities with an aggregate carrying value of $541,143,000 classified as “Short-term investments pledged as collateral” in the accompanying consolidated balance sheet and restricted cash of $4,056,000 (see Note 7) are pledged as collateral for Repurchase Agreements. In addition, as of January 1, 2006, the Company had received securities with a fair value of $319,141,000, including accrued interest, as collateral for its reverse repurchase agreements of $317,408,000 included in restricted cash and cash equivalents. Of the securities received as collateral by the Company, $317,745,000 was used by the Company to satisfy obligations under securities sold with an obligation to purchase during 2005. Further, as of January 1, 2006, marketable equity securities with an aggregate carrying value of $3,985,000 and restricted cash equivalents of $7,401,000 are pledged as collateral for Short Sales. Restricted cash of $14,938,000 secures the notional amounts of derivatives held in trading portfolios (see Note 13). Restricted cash of $257,000 secures the notional amount of other short-term derivatives (see Note 13). In addition, certain preferred shares of CDOs with an aggregate carrying value of $15,349,000 as of January 1, 2006 are pledged as collateral for certain notes payable (see Note 10). | EXCERPTS ON THIS PAGE:
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