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This excerpt taken from the WEN 8-K filed Dec 27, 2007. Voided Payment”),
then to the extent of such Voided Payment that portion of the Series B Claims
which had been previously satisfied by such Voided Payment shall be revived
and continue in full force and effect as if such Voided Payment had never been
made, and this Section 2
shall be reinstated with respect to such Voided Payment.
(h) Without the necessity of any reservation of rights against or any notice to or further assent by any Series A Holder, (i) any demand for payment of any Series B Claims made by the Series B Holders may be rescinded in whole or in part by the Series B Holders, (ii) the Series B Holders may exercise or refrain from exercising any rights and/or remedies against any Note Party and others, if any, liable under the Series B Claims, and (iii) the Series B Claims and any agreement or instrument evidencing, securing, or otherwise relating to the Series B Claims (including, without limitation, the Series B Note Documents), or any collateral security therefor or guaranty thereof or other right of any nature with respect thereto, may be amended, extended, modified, continued, accelerated, compromised, waived, surrendered or released by the Series B Holders in any manner the Series B Holders deem in their 8 best interests, all without impairing, abridging, releasing or affecting in any manner the subordination of the Series A Claims to the Series B Claims provided for herein. Without limiting the foregoing, each Series A Holder waives any and all notice of the creation, amendment, restatement, extension, acceleration, compromise, continuation, waiver, surrender, release or modification of any nature of the Series B Claims, or the Series B Note Documents, and notice of or proof of reliance by any Series B Holder upon the subordination provided for herein. (i) All Series A Note Documents shall bear a legend disclosing the existence of this Agreement in form and substance substantially similar to the following; provided that any such legend shall be removed following the Repriority Event: REFERENCE IS MADE TO THE INTERCREDITOR AGREEMENT DATED AS OF DECEMBER 21, 2007 (AS AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, THE “INTERCREDITOR AGREEMENT”), AMONG TRIARC DEERFIELD HOLDINGS, LLC, JONATHAN W. TRUTTER, PAULA HORN AND THE JOHN K. BRINCKERHOFF AND LAURA R. BRINCKERHOFF REVOCABLE TRUST, AS HOLDERS OF THE SERIES A NOTES (AS DEFINED THEREIN), SACHS CAPITAL MANAGEMENT LLC, SPENSYD ASSET MANAGEMENT LLLP AND SCOTT A. ROBERTS, AS HOLDERS OF THE SERIES B NOTES (AS DEFINED THEREIN), TRIARC DEERFIELD HOLDINGS, LLC, AS COLLATERAL AGENT, DEERFIELD & COMPANY LLC AND DEERFIELD CAPITAL CORP. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THIS INSTRUMENT IS SUBJECT TO THE PROVISIONS OF THE INTERCREDITOR AGREEMENT. IN THE EVENT OF ANY CONFLICT OR INCONSISTENCY BETWEEN THE PROVISIONS OF THE INTERCREDITOR AGREEMENT AND THIS INSTRUMENT, THE PROVISIONS OF THE INTERCREDITOR AGREEMENT SHALL CONTROL. (j) Any financing statements filed while this Section 2 is in effect shall be filed for purposes of perfecting the Series B Liens before any financing statement is filed for purposes of perfecting the Series A Liens.
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