Wendy's International (WEN)

In this Agreement, in the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each mean “to but excluding” and the word “through” means “to and including.”

(a)       Except as set forth below, all accounting terms not specifically defined herein shall be construed in accordance with GAAP and all accounting determinations required to be made pursuant hereto (including for purpose of measuring compliance with Article V) shall, unless expressly otherwise provided herein, be made in accordance with GAAP.

(b)       If any change in the accounting principles used in the preparation of the most recent Financial Statements referred to in Section 6.1 is hereafter required or permitted by the rules, regulations, pronouncements and opinions of the Financial Accounting Standards Board or the American Institute of Certified Public Accountants (or any successors thereto) and such change is adopted by Ultimate Parent Co-Borrower or any of its Subsidiaries with the agreement of Borrower’s Accountants and results in a change in any of the calculations required by Article V or VIII that would not have resulted had such accounting change not occurred, the parties hereto agree to enter into negotiations in good faith in order to amend such provisions so as to equitably reflect such change such that the criteria for evaluating compliance with such covenants shall be the same after such change as if such change had not been made; provided, however, that no change in GAAP that would affect a calculation that measures compliance with any covenant contained in Article V or VIII shall be given effect until such provisions are amended to reflect such changes in GAAP.

(c)       For purposes of making all financial calculations to determine compliance with Article V, all components of such calculations (other than Capital Expenditures) shall be determined on a Pro Forma Basis.

Each Loan Party acknowledges and agrees that it was represented by counsel in connection with the execution and delivery of the Loan Documents to which it is a party, that it and its counsel reviewed and participated in the preparation and negotiation hereof and thereof and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in the interpretation hereof or thereof.

(a)       The terms “herein,” “hereof,” “hereto” and “hereunder” and similar terms refer to this Agreement as a whole and not to any particular Article, Section, subsection or clause of this Agreement.

(b)       Unless otherwise expressly indicated herein, (i) references in this Agreement to an Exhibit, Schedule, Article, Section, clause or subclause refer to the appropriate Exhibit or Schedule to, or Article, Section, clause or subclause of this Agreement and (ii) the words “above” and “below,” when following a reference to a clause or a subclause of any Loan Document, refer to a clause or subclause within, respectively, the same Section or clause.

(c)       Each agreement defined in this Article I shall include all appendices, exhibits and schedules thereto. Unless the prior written consent of the Requisite Lenders or any Agent is required hereunder for an amendment, restatement, supplement or other modification to any such agreement and such consent is not obtained, or unless otherwise provided, references in this Agreement to such agreement shall be to such agreement as so amended, restated, supplemented or modified from time to time.

(d)       References in this Agreement to any Requirement of Law shall be to such Requirement of Law as amended or modified from time to time and to any successor legislation thereto, in each case as in effect at the time any such reference is operative.

(e)       The term “including” when used in any Loan Document means “including without limitation” except when used in the computation of time periods.

(f)        The terms “Lender,” “Revolving Credit Lender,” “Term Loan Lender,” “Issuer,” “Agent,” “Collateral Agent,” “Administrative Agent,” “Syndication Agents” and “Documentation Agents” include, without limitation, their respective successors.

(g)       Upon the appointment of any successor Administrative Agent pursuant to Section 10.7, references to Citicorp in Section 10.4 and to Citibank in the definitions of Base Rate and Eurodollar Rate shall be deemed to refer to the financial institution then acting as the Administrative Agent or one of its Affiliates if it so designates.

(h)       The words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

Upon the satisfaction of the conditions set forth in Section 3.4, (i) this Agreement shall be deemed to amend, restate and supersede the Original Credit Agreement, except that the grants of security interests and Liens under and pursuant to the Loan Documents shall continue unaltered to secure, guarantee, support and otherwise benefit the Obligations under and as defined in the Original Credit Agreement and shall be extended to secure, guarantee, support and otherwise benefit the Obligations as provided herein and in the other Loan Documents and each other Loan Document shall continue in full force and effect in accordance with its terms except as expressly amended thereby or hereby and the parties hereto hereby ratify and confirm the terms thereof as being in full force and effect and unaltered by this Agreement, (ii) for the purposes hereof, all Obligations, including all Loans and Letters of Credit, under the Original Credit Agreement and the other Loan Documents shall continue as outstanding Obligations under this Agreement except as expressly modified by this Agreement and shall be governed in all respects by this Agreement and the other Loan Documents, it being agreed and understood that this Agreement does not constitute a novation, satisfaction, payment or reborrowing of any Obligation under the Original Credit Agreement or any other Loan Document, nor does it operate as a waiver of any right, power or remedy of any Lender under any Loan Document, (iii) all references to the Original Credit Agreement in any Loan Document or other document or instrument delivered in connection therewith shall be deemed to refer to this Agreement and the provisions hereof and (iv) the Obligations under this Agreement shall continue to be secured by the Collateral Documents.