<PAGE> 1
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
/X/ QUARTERLY REPORT PURSUANT TO 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
For the quarterly period ended September 29, 1996
------------------
OR
/ / TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the transition period from to
------------ -------------
Commission File Number 1-8116
------
WENDY'S INTERNATIONAL, INC.
- --------------------------------------------------------------------------------
(Exact name of Registrant as specified in its charter)
OHIO 31-0785108
- --------------------------------- ------------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification on Number)
P.O. BOX 256, 4288 WEST DUBLIN-GRANVILLE ROAD, DUBLIN, OHIO 43017-0256
- --------------------------------------------------------------------------------
(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code 614-764-3100
-------------
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the Registrant was
required to file such reports) and (2) has been subject to such filing
requirements for the past 90 days. YES X NO .
--- ---
Indicate the number of shares outstanding in each of the issuer's classes of
common stock, as of the latest practicable date.
CLASS OUTSTANDING AT NOVEMBER 1, 1996
- --------------------------------- -------------------------------
Common shares, $.10 stated value 129,341,000 shares
Exhibit index on page 15.
1 of 326
<PAGE> 2
<TABLE>
<CAPTION>
WENDY'S INTERNATIONAL, INC. AND SUBSIDIARIES
INDEX
PAGES
-----
<S> <C>
PART I: Financial Information
Item 1. Financial Statements:
Consolidated Statement of Income for the quarters
and year-to-date periods ended
September 29, 1996, and October 1, 1995 3 - 4
Consolidated Balance Sheet as of September 29, 1996
and December 31, 1995 5 - 6
Consolidated Statement of Cash Flows for the
year-to-date periods ended September 29, 1996, and 7
October 1, 1995
Notes to the Consolidated Financial Statements 8 - 9
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of
Operations 10 - 12
PART II: Other Information
Item 6 13
Signature 14
Index to Exhibits 15
Exhibit 4(a) Indenture for subordinated debt securities between the
company and NBD Bank, as trustee 16 - 102
Exhibit 4(b) First Supplemental Indenture between the company and NBD
Bank 103 - 159
Exhibit 4(c) Amended and Restated Declaration of Trust of Wendy's
Financing I 160 - 269
Exhibit 4(d) Certificate P-1 Evidencing Trust Preferred Securities of
Wendy's Financing I 270 - 283
Exhibit 4(e) Certificate P-2 Evidencing Trust Preferred Securities of
Wendy's Financing I 284 - 290
Exhibit 4(f) Preferred Securities Guarantee Agreement for the benefit of
the holders of trust preferred securities of Wendy's Financing I 291 - 313
Exhibit 4(g) 5% Convertible Subordinated Debenture of the company 314 - 324
Exhibit 11 - Computation of Net Income Per Share 325 - 326
</TABLE>
2
<PAGE> 3
<TABLE>
<CAPTION>
WENDY'S INTERNATIONAL, INC. AND SUBSIDIARIES
PART I: FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
CONSOLIDATED STATEMENT OF INCOME
(Unaudited)
(In thousands except per share data)
QUARTER ENDED QUARTER ENDED
SEPTEMBER 29 OCTOBER 1
1996 1995
-------- ------
<S> <C> <C>
REVENUES
Retail sales..................................... $420,580 $378,642
Franchise revenues............................... 85,995 72,900
------- -------
506,575 451,542
-------- --------
COSTS AND EXPENSES
Cost of sales.................................... 259,746 230,836
Company restaurant operating
costs.......................................... 99,953 88,045
Operating costs.................................. 14,672 14,686
General and administrative
expenses....................................... 31,929 30,122
Depreciation and amortization
of property and equipment...................... 22,475 20,330
Other expenses (income).......................... 545 (1,102)
Special charges.................................. - 11,100
Interest, net.................................... 928 2,362
---- ------
430,248 396,379
-------- --------
INCOME BEFORE INCOME TAXES........................... 76,327 55,163
INCOME TAXES......................................... 29,386 18,926
------- -------
NET INCOME........................................... $ 46,941 $ 36,237
======== ========
PRIMARY EARNINGS PER COMMON SHARE.................... $.36 $.30
==== ====
FULLY DILUTED EARNINGS PER COMMON SHARE.............. $.36 $.29
==== ====
DIVIDENDS PER COMMON SHARE .......................... $.06 $.06
==== ====
PRIMARY SHARES....................................... 132,333 122,513
======= =======
FULLY DILUTED SHARES................................. 132,554 130,643
======= =======
</TABLE>
The accompanying notes are an integral part of the Consolidated Financial
Statements.
3
<PAGE> 4
<TABLE>
WENDY'S INTERNATIONAL, INC. AND SUBSIDIARIES
PART I: FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
CONSOLIDATED STATEMENT OF INCOME
(Unaudited)
<CAPTION>
(In thousands except per share data)
YEAR-TO-DATE ENDED YEAR-TO-DATE ENDED
SEPTEMBER 29 OCTOBER 1
1996 1995
-------- ------
REVENUES
<S> <C> <C>
Retail sales..................................... $1,170,083 $1,092,114
Franchise revenues............................... 238,286 194,806
-------- --------
1,408,369 1,286,920
---------- ----------
COSTS AND EXPENSES
Cost of sales.................................... 728,690 663,045
Company restaurant operating
costs.......................................... 284,170 259,863
Operating costs.................................. 39,404 42,108
General and administrative
expenses....................................... 96,748 96,179
Depreciation and amortization
of property and equipment...................... 66,103 59,342
Other expenses (income).......................... (69) (1,072)
Special charges.................................. - 27,287
Interest, net.................................... 5,194 8,131
------ ------
1,220,240 1,154,883
--------- ---------
INCOME BEFORE INCOME TAXES........................... 188,129 132,037
INCOME TAXES......................................... 72,430 40,125
------- -------
NET INCOME........................................... $ 115,699 $ 91,912
========= ========
PRIMARY EARNINGS PER COMMON SHARE.................... $.90 $.76
==== ====
FULLY DILUTED EARNINGS PER COMMON SHARE.............. $.89 $.74
==== ====
DIVIDENDS PER COMMON SHARE........................... $.18 $.18
==== ====
PRIMARY SHARES....................................... 128,358 121,604
======= =======
FULLY DILUTED SHARES................................. 131,643 129,793
======= =======
</TABLE>
The accompanying notes are an integral part of the Consolidated Financial
Statements.
4
<PAGE> 5
<TABLE>
<CAPTION>
WENDY'S INTERNATIONAL, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEET
(In thousands)
SEPTEMBER 29 DECEMBER 31
1996 1995
------------ -------
(Unaudited)
ASSETS
<S> <C> <C>
CURRENT ASSETS
Cash and cash equivalents............. $ 271,558 $ 206,127
Short-term investments, at market..... 5,387 7,682
Accounts receivable, net.............. 54,003 49,555
Notes receivable, net................. 8,181 12,272
Deferred income taxes................. 15,102 18,389
Inventories and other................. 33,887 27,254
------- -------
388,118 321,279
-------- --------
PROPERTY AND EQUIPMENT, AT COST........... 1,626,310 1,527,568
Accumulated depreciation and
amortization........................ (530,347) (520,824)
--------- ---------
1,095,963 1,006,744
COST IN EXCESS OF NET ASSETS
ACQUIRED, NET......................... 51,693 42,927
DEFERRED INCOME TAXES..................... 18,461 19,233
OTHER ASSETS.............................. 154,272 118,978
-------- --------
$1,708,507 $1,509,161
========== ==========
</TABLE>
The accompanying notes are an integral part of the Consolidated Financial
Statements.
5
<PAGE> 6
<TABLE>
<CAPTION>
WENDY'S INTERNATIONAL, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEET
(In thousands)
SEPTEMBER 29 DECEMBER 31
1996 1995
------------ -------
(Unaudited)
<S> <C> <C>
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES
Accounts and drafts payable...................... 74,160 $ 108,182
Accrued expenses:
Salaries and wages............................ 18,088 23,158
Taxes......................................... 18,784 20,828
Insurance..................................... 30,126 29,320
Other......................................... 29,042 24,207
Income taxes..................................... 16,093 (2,516)
Due to officer................................... - 63,221
Current portion of long-term
obligations..................................... 6,509 29,469
------ ------
192,802 295,869
-------- --------
LONG-TERM OBLIGATIONS
Term debt........................................ 197,336 297,029
Capital leases................................... 40,239 40,200
------- -------
237,575 337,229
-------- --------
DEFERRED INCOME TAXES................................ 47,279 47,853
OTHER LONG-TERM LIABILITIES.......................... 10,853 9,431
------ -----
TOTAL LIABILITIES 488,509 690,382
------- -------
COMMITMENTS AND CONTINGENCIES
COMPANY-OBLIGATED MANDATORILY REDEEMABLE
CONVERTIBLE PREFERRED SECURITIES OF WENDY'S
FINANCING I.......................................... 200,000 -
SHAREHOLDERS' EQUITY
Preferred stock,
Authorized: 250,000 shares
Common stock, $.10 stated value
Authorized: 200,000,000 shares
Issued: 112,784,000 and
103,993,000 shares, respectively............... 11,278 10,399
Capital in excess of stated value................ 306,936 199,804
Retained earnings................................ 707,089 614,799
Unrealized loss on investments................... (1,315) (1,504)
Translation adjustments.......................... (2,278) (3,007)
-------- -------
1,021,710 820,491
Treasury stock at cost: 129,000 shares (1,712) (1,712)
------- -------
1,019,998 818,779
---------- --------
$1,708,507 $1,509,161
========== ==========
</TABLE>
The accompanying notes are an integral part of the Consolidated Financial
Statements.
6
<PAGE> 7
<TABLE>
<CAPTION>
WENDY'S INTERNATIONAL, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF CASH FLOWS
(Unaudited)
(In thousands)
YEAR-TO-DATE ENDED YEAR-TO-DATE ENDED
SEPTEMBER 29 OCTOBER 1
1996 1995
-------- ------
<S> <C> <C>
NET CASH PROVIDED BY OPERATING
ACTIVITIES....................................... $ 136,764 $130,847
--------- --------
CASH FLOW FROM INVESTING ACTIVITIES
Proceeds from asset dispositions................. 76,091 32,835
Capital expenditures............................. (206,283) (142,364)
Acquisition of franchises........................ (31,573) (38,676)
Proceeds from marketable securities.............. 2,484 18,180
Other investing activities....................... (479) (5,619)
------ --------
Net cash used in investing activities.......... (159,760) (135,644)
--------- --------
CASH FLOWS FROM FINANCING ACTIVITIES
Proceeds from issuance of convertible
preferred securities, net...................... 195,500 -
Proceeds from issuance of common stock........... 7,360 14,675
Principal payments on long-term
obligations.................................... (27,803) (55,303)
Dividends paid on common shares.................. (23,409) (18,377)
(Payment) loan due officer, net.................. (63,221) 10,422
--------- -------
Net cash from (used in) financing activities... 88,427 (48,583)
------- --------
INCREASE (DECREASE) IN CASH AND CASH
EQUIVALENTS...................................... 65,431 (53,380)
CASH AND CASH EQUIVALENTS AT BEGINNING OF
PERIOD......................................... 206,127 119,639
-------- --------
CASH AND CASH EQUIVALENTS AT END OF PERIOD........... $ 271,558 $ 66,259
========= ========
SUPPLEMENTAL DISCLOSURES OF CASH FLOW
INFORMATION
Interest paid.................................... $18,349 $14,855
Interest received................................ 9,477 7,725
Income taxes paid................................ 46,005 34,583
Debt converted to common stock................... 99,915 75
Capital lease obligations incurred............... 495 -
Acquisition of franchises:
Fair value of assets acquired, net............... 36,221 40,221
Cash paid........................................ 31,573 38,676
Liabilities assumed.............................. 4,648 1,851
</TABLE>
The accompanying notes are an integral part of the Consolidated Financial
Statements.
7
<PAGE> 8
WENDY'S INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
NOTE 1. MANAGEMENT'S STATEMENT
- ------------------------------------
In the opinion of management the accompanying unaudited financial
statements contain all adjustments (all of which are normal and recurring
in nature) necessary to present fairly the financial position of Wendy's
International, Inc. and Subsidiaries (the company) at September 29, 1996
and December 31, 1995 and the results of operations for the quarters and
year-to-date periods ended September 29, 1996 and October 1, 1995 and cash
flows for the year-to-date periods ended September 29, 1996 and October 1,
1995. The Notes to the Consolidated Financial Statements which are
contained in the 1995 Form 10-K should be read in conjunction with these
Consolidated Financial Statements.
NOTE 2. CONVERTIBLE PREFERRED SECURITIES
- ----------------------------------------------
In September 1996, Wendy's Financing I issued 4,000,000 shares of $2.50
Term Convertible Securities, Series A (the Trust Preferred Securities).
Wendy's Financing I (the Trust), a statutory business trust, is a
wholly-owned consolidated subsidiary of Wendy's International, Inc.
(Wendy's) with the Trust's sole asset being $202,020,050 aggregate
principal amount of 5% Convertible Subordinated Debentures due September
15, 2026 of Wendy's (the Trust Debenture). The Trust Preferred Securities
are non-voting (except in limited circumstances), pay quarterly
distributions at an annual rate of 5%, carry a liquidation value of $50 per
share and are convertible into Wendy's common shares at any time prior to
the close of business on September 15, 2026 at the option of the holder.
The Trust Preferred Securities are convertible into Wendy's common shares
at the rate of 1.8932 common shares for each Trust Preferred Security
(equivalent to a conversion price of $26.41 per common share). Wendy's has
executed a Guarantee with regard to the Trust Preferred Securities. The
Guarantee, when taken together with Wendy's obligations under the Trust
Debenture, the indenture pursuant to which the Trust Debenture was issued,
and the applicable trust document, provides a full and unconditional
guarantee of the Trust's obligations under the Trust Preferred Securities.
The net proceeds of the offering will be used for general corporate
purposes including the acquisition and development of restaurants, and may
include the repayment of existing indebtedness.
NOTE 3. ACQUISITIONS AND DISPOSITIONS
- -------------------------------------------
In the first quarter of 1996 and 1995, 11 restaurants were franchised for a
pretax gain of $4.2 million and nine restaurants for a pretax gain of
$657,000, respectively. During the second quarter of 1996 and 1995, the
company franchised 64 restaurants for a pretax gain of $25 million and 26
restaurants for a pretax gain of $9.9 million, respectively. During the
third quarter of 1996 and 1995, the company franchised 41 restaurants for a
pretax gain of $14.8 million and 25 restaurants for a pretax gain of $5.6
million, respectively.
In the first quarter of 1996, the company acquired 40 Roy Rogers
restaurants in the New York and New Jersey areas for $17.8 million. The
company intends to convert these sites to Wendy's restaurants.
During the second quarter of 1996, the company acquired 11 restaurants in
the Massachusetts market for approximately $11 million, and 41 restaurants
in the New York market for approximately $21 million. During the second
quarter of 1995, the company acquired 34 restaurants in the Little Rock
market for approximately $37 million.
8
<PAGE> 9
NOTE 4. INCOME TAXES
- ---------------------
During the third quarter of 1995, the rates at which deferred state and
local income taxes are being provided were reduced to reflect the current
estimate of the rate and jurisdictions in which the future liabilities are
expected to be settled. Income taxes in the second quarter of 1995 reflect
the benefit of a reduction in the valuation allowance related to excess
capital allowances and net operating loss carryovers of a Canadian
subsidiary of $6.6 million. A partnership agreement was executed between
Wendy's and Tim Hortons establishing "TIMWEN Partnership" for purposes of
accelerating the development of combination units of Wendy's and Tim
Hortons in Canada. The reduction in the valuation allowance reflects the
recognition of all remaining tax benefits pursuant to the success of the
Canadian reorganization and the profitability of Canadian operations.
NOTE 5. SUBSEQUENT EVENTS
- --------------------------
In October 1996, the company signed a purchase agreement to acquire 52
Wendy's franchised restaurants from Volunteer Capital Corp. Also in
October, the company signed a purchase agreement to acquire 45 Hardee's
restaurants (from Hardee's Food Systems). The company plans to convert 10
of these sites to Wendy's restaurants and up to 35 sites to Tim Hortons.
Both transactions are expected to close during the fourth quarter. In
November, the company announced a letter of intent was signed to acquire 37
Rax Restaurants in Ohio and West Virginia. The company plans to convert at
least 30 of these sites to Tim Hortons and to develop at least four
Wendy's-Horton combination units.
9
<PAGE> 10
WENDY'S INTERNATIONAL, INC. AND SUBSIDIARIES
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS
---------------------
The company recorded net income of $46.9 million for the third quarter ended
September 29, 1996, versus $36.2 million for the third quarter ended October 1,
1995. Net income for the year-to-date period was $115.7 million for 1996
compared with $91.9 million for 1995. The 1995 results included an after-tax
non-recurring charge of $6.2 million ($.04 per share), and $15.1 million ($.11
per share) for the third quarter and year to date, respectively. This charge
represents the profit sharing distribution of Hortons income and, in the third
quarter, charges for environmental reserves and accrued expenses related to
determining the level of reserves required.
RETAIL SALES
- ------------
Retail sales increased 11.1% for the third quarter of 1996 compared with the
third quarter of 1995. This was primarily a result of an 8.8% increase in
average domestic Wendy's net sales. Year-to-date retail sales increased $78.0
million in 1996 compared with 1995 reflecting additional domestic and
international restaurants open and a 2.4% increase in average Wendy's domestic
net sales. Retail sales also increased in both the quarter and year-to-date
periods due to increased warehouse sales for Hortons which reflect the growth of
franchise restaurants, as well as increased average store sales. Selling prices
increased .6% for Wendy's company-operated domestic restaurants during the
current year.
The improvement in average domestic net sales was a result of the value menu
strategy, such as the 5-piece Chicken Nuggets, the addition of the Spicy Chicken
sandwich to the permanent menu, solid restaurant operations, and effective
marketing campaigns. Additionally, average sales improved due to the impact of
two markets purchased with average sales substantially above the company
average.
Average net sales per domestic Wendy's restaurant for the quarters and
year-to-date periods ended September 29, 1996 and October 1, 1995 were as
follows:
<TABLE>
<CAPTION>
%
Third Quarter % Year-to-Date Increase
1996 1995 INCREASE 1996 1995 (DECREASE)
---- ---- --------- ---- ---- ----------
<S> <C> <C> <C> <C> <C> <C>
Company............... $282,800 $260,000 8.8 $784,600 $766,000 2.4
Franchise............. 263,200 250,950 4.9 734,350 739,600 (.7)
Total Domestic........ 268,650 253,550 5.9 748,600 747,250 .2
</TABLE>
The number of systemwide restaurants open as of September 29, 1996 and October
1, 1995 was as follows:
<TABLE>
<CAPTION>
1996 1995
---- ----
<S> <C> <C>
Company............................... 1,296 1,290
Franchise............................. 3,545 3,297
----- ----
Total Wendy's......................... 4,841 4,587
===== =====
Total Hortons......................... 1,323 1,117
===== =====
</TABLE>
10
<PAGE> 11
COST OF SALES AND RESTAURANT OPERATING COSTS
- --------------------------------------------
The domestic company operating margin decreased in the third quarter 1996 to
14.3% versus 16.0% for 1995, and decreased to 13.4% for the year-to-date 1996
versus 15.6% in 1995. Food costs showed increases for chicken, bacon and
tomatoes in the quarter and year-to-date periods. Restaurant labor reflected
inflation in the restaurant labor wage rate. Restaurant operating costs
increased, as a percent of retail sales, for the year-to-date period due to
average sales not being enough to leverage most operating costs. Utilities,
salaries and rent were also higher throughout 1996.
FRANCHISE REVENUES
- ------------------
Royalties before reserve provisions increased $4.5 million and $7.5 million in
the third quarter and year-to-date 1996, respectively, compared with 1995. The
quarter improvement was primarily a result of an increase in franchise
restaurants open, and an increase in franchise domestic average net sales of
4.9%. Average franchise domestic net sales were down .7% for the year-to-date
1996 compared with 1995. Reserves provided for in the third quarter 1996 were
$432,000 while $500,000 was recorded as a reserve reversal in 1995. Reserves of
$432,000 were provided for year-to-date 1996 versus reserves of $1.9 million for
1995.
Gains from franchising Wendy's restaurants increased $9.2 million to $14.8
million, and $27.8 million to $44.0 million in the current quarter and year to
date, respectively. Rental income increased $3.5 million and $10.4 million in
the current quarter and year to date, respectively, primarily reflecting
additional restaurants being leased to franchisees.
GENERAL AND ADMINISTRATIVE EXPENSES
- -----------------------------------
While general and administrative expenses were higher in total this year than in
1995, as a percent of total revenues they were reduced .4% and .6% in the third
quarter and year to date, respectively. This reflects revenues growing faster
than general and administrative expenses. In addition, in 1995 there was an
accrual throughout the year for a Hortons retirement plan expense amounting to
$3.6 million for which no similar expense applies in 1996 and future years. In
1996, reserves originally provided for possible environmental issues related to
Hortons were reduced $3.7 million to reflect current estimates. Also in the
year-to-date 1996, there was a reduction in management bonus expense compared to
1995.
SPECIAL CHARGES
- ---------------
Special charges in 1995 represent the profit sharing contributions made to the
sole shareholder of Hortons and, in the third quarter of 1995, environmental
reserve contingencies and accrued expenses related to determining the level of
these reserves. As a result of the merger of Hortons and Wendy's in December
1995, the charges for profit sharing contributions no longer apply in 1996 or
future years.
INCOME TAXES
- ------------
Income taxes in the third quarter of 1995 reflect a reduction in deferred state
and local income tax rates to reflect the current estimate of the rate and
jurisdictions in which future liabilities are expected to be settled. In the
second quarter of 1995 income taxes reflect the benefit of a reduction in the
valuation allowance related to excess capital allowances and net operating loss
carryovers of a Canadian subsidiary of $6.6 million. The effective income tax
rates were 38.5% in 1996 versus 34.3% and 30.4% in the third quarter 1995 and
year-to-date 1995, respectively.
11
<PAGE> 12
FINANCIAL CONDITION
-------------------
The company's financial condition remains solid at the end of the third quarter
of 1996. In September 1996, the company, through its wholly-owned subsidiary
Wendy's Financing I, issued $200 million in convertible preferred securities.
The debt to equity and debt to total capitalization ratios were 19% and 16%,
respectively, at September 29, 1996. These compare to a debt to equity ratio and
debt to total capitalization ratio of 41% and 29%, respectively, at fiscal
year-end 1995. The improvement in these ratios reflects the issuance of the
convertible preferred securities. The $100 million 7% convertible debentures
which were outstanding at year-end 1995 were converted to common stock in April
1996, which significantly improved the ratios. Year-to-date capital expenditures
amounted to $206.3 million for 1996 compared to $142.4 million for 1995.
The company intends to use the proceeds of the convertible preferred securities
for general corporate purposes, including the acquisition and/or development of
restaurants, and may include the repayment of existing indebtedness. Currently
the proceeds are invested in short-term securities.
OUTLOOK
-------
The company continues to employ its strategies as outlined in the company's
1995 Annual Report. As was expected, competition in the quick-service
restaurant industry has been intense and will remain so in the foreseeable
future. Pressure on retail sales and operating margins is continuing in 1996.
Emphasis continues to be on solid restaurant operations, new products,
effective marketing, new restaurant development, and the overall financial
health of the entire system. The company anticipates that approximately 700 to
750 new restaurants will be opened or under construction systemwide (both
company and franchise) during 1996. Cash flow from operations, cash and
investments on hand, possible asset sales, and cash available through existing
revolving credit agreements and new revolving credit agreements which the
company believes it could execute should help provide for projected cash
requirements.
SAFE HARBOR STATEMENT
---------------------
Except for historical information, statements in this Form 10-Q are
forward-looking and involve risks and uncertainties including, but not limited
to, continuation of intense competition in the industry, weather, changes in
economic conditions, consumer preference and spending patterns, consumer
perceptions of food safety, inflation, labor and benefit costs, legal claims,
the continued ability of the company and its franchisees to obtain suitable
locations and financing for new restaurant development, government initiatives
such as new taxes or wage rates, and other factors set forth in Exhibit 99 to
the company's Form 10-K filed with the Securities and Exchange Commission on
April 1, 1996.
12
<PAGE> 13
WENDY'S INTERNATIONAL, INC. AND SUBSIDIARIES
PART II: OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K.
(a) Index to Exhibits on Page 15.
(b) The company filed two Reports on Form 8-K during the third quarter 1996.
The Form 8-K filed July 23, 1996, announced that the company's Chairman of
the Board, James W. Near, had died the previous day after suffering a
heart attack. A copy of a press release issued July 23, 1996, was
attached. The Form 8-K filed September 13, 1996, contained an exhibit
which was the form of Underwriting Agreement relating to the Term
Convertible Securities, Series A, issued by Wendy's Financing I, a
Delaware statutory business trust.
13
<PAGE> 14
WENDY'S INTERNATIONAL, INC. AND SUBSIDIARIES
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
WENDY'S INTERNATIONAL, INC.
---------------------------
(Registrant)
Date: 11/12/96 /s/ JOHN K. CASEY
--------------------- ------------------------------
John K. Casey
Vice Chairman and Chief
Financial Officer
14
<PAGE> 15
<TABLE>
<CAPTION>
WENDY'S INTERNATIONAL, INC. AND SUBSIDIARIES
INDEX TO EXHIBITS
Exhibit
Number Description Page No.
------ ----------- --------
<S> <C> <C>
4(a) Indenture for subordinated 16 - 102
debt securities between the
company and NBD Bank, as trustee
4(b) First Supplemental Indenture 103 - 159
between the company and
NBD Bank
4(c) Amended and Restated Declaration 160 - 269
of Trust of Wendy's Financing I
4(d) Certificate P-1 Evidencing Trust 270 - 283
Preferred Securities of Wendy's
Financing I
4(e) Certificate P-2 Evidencing Trust 284 - 290
Preferred Securities of Wendy's
Financing I
4(f) Preferred Securities Guarantee 291 - 313
Agreement for the benefit of the
holders of trust preferred
securities of Wendy's Financing I
4(g) 5% Convertible Subordinated 314 - 324
Debenture of the company
11 Computation of Net 325 - 326
Income Per Common Share.
</TABLE>
15
<PAGE> 1
Exhibit 4(a)
- --------------------------------------------------------------------------------
WENDY'S INTERNATIONAL, INC.
TO
NBD BANK
Trustee
---------------------
INDENTURE
Dated as of September 16, 1996
---------------------
- --------------------------------------------------------------------------------
<PAGE> 2
Wendy's International, Inc.
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO SECTIONS 310 THROUGH 318,
INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939:
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
<S> <C>
section 310(a)(1) ................................................................ 609
(a)(2) ................................................................ 609
(a)(3) ................................................................ Not Applicable
(a)(4) ................................................................ Not Applicable
(b) ................................................................ 608
610
section 311(a) ................................................................ 613
(b) ................................................................ 613
section 312(a) ................................................................ 701
702
(b) ................................................................ 702
(c) ................................................................ 702
section 313(a) ................................................................ 703
(b) ................................................................ 703
(c) ................................................................ 703
(d) ................................................................ 703
section 314(a) ................................................................ 704
(a)(4) ................................................................ 101
1004
(b) ................................................................ Not Applicable
(c)(1) ................................................................ 102
(c)(2) ................................................................ 102
(c)(3) ................................................................ Not Applicable
(d) ................................................................ Not Applicable
(e) ................................................................ 102
section 315(a) ................................................................ 601
(b) ................................................................ 602
(c) ................................................................ 601
(d) ................................................................ 601
(e) ................................................................ 514
section 316(a) ................................................................ 101
(a)(1)(A) ................................................................ 502
512
(a)(1)(B) ................................................................ 513
(a)(2) ................................................................ Not Applicable
(b) ................................................................ 508
(c) ................................................................ 104
section 317(a)(1) ................................................................ 503
(a)(2) ................................................................ 504
(b) ................................................................ 1003
section 318(a) ................................................................ 107
</TABLE>
- ------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
RECITALS OF THE COMPANY ................................................................................. 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION................................................ 1
SECTION 101. Definitions................................................................................. 1
Act............................................................................... 2
Affiliate......................................................................... 2
Authenticating Agent.............................................................. 2
Board of Directors................................................................ 2
Board Resolution.................................................................. 2
Business Day...................................................................... 2
Commission........................................................................ 2
Common Securities................................................................. 2
Common Securities Guarantee....................................................... 3
Common Stock...................................................................... 3
Company........................................................................... 3
Company Request; Company Order.................................................... 3
Corporate Trust Office............................................................ 3
Corporation....................................................................... 3
Covenant Defeasance............................................................... 3
Debt.............................................................................. 3
Declaration....................................................................... 4
Defaulted Interest................................................................ 4
Defeasance........................................................................ 4
Depositary........................................................................ 4
Domestic Subsidiary............................................................... 4
Event of Default.................................................................. 4
Exchange Act...................................................................... 4
Expiration Date................................................................... 4
Global Security................................................................... 4
Guarantor......................................................................... 4
Holder............................................................................ 4
Indenture......................................................................... 4
Institutional Trustee............................................................. 4
Interest.......................................................................... 5
Interest Payment Date............................................................. 5
Investment Company Act............................................................ 5
Maturity.......................................................................... 5
</TABLE>
<PAGE> 4
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Notice of Default................................................................. 5
Officers' Certificate............................................................. 5
Opinion of Counsel................................................................ 5
Original Issue Discount Security.................................................. 5
Outstanding....................................................................... 5
Paying Agent...................................................................... 6
Person............................................................................ 6
Place of Payment.................................................................. 6
Predecessor Security.............................................................. 6
Preferred Securities.............................................................. 7
Preferred Securities Guarantee.................................................... 7
Redemption Date................................................................... 7
Redemption Price.................................................................. 7
Regular Record Date............................................................... 7
Responsible Officer............................................................... 7
Securities........................................................................ 7
Securities Act.................................................................... 7
Security Register and Security Registrar.......................................... 7
Senior Indebtedness............................................................... 7
Special Record Date............................................................... 8
Stated Maturity................................................................... 8
Subsidiary........................................................................ 8
Trust Indenture Act............................................................... 8
Trust Securities.................................................................. 8
Trust Securities Guarantees....................................................... 8
Trustee........................................................................... 8
U.S. Government Obligation........................................................ 8
Vice President.................................................................... 8
Wendy's Trust..................................................................... 9
SECTION 102. Compliance Certificates and Opinions........................................................ 9
SECTION 103. Form of Documents Delivered to Trustee...................................................... 9
SECTION 104. Acts of Holders; Record Dates............................................................... 10
SECTION 105. Notices, Etc., to Trustee and Company....................................................... 12
SECTION 106. Notice to Holders; Waiver................................................................... 12
SECTION 107. Conflict with Trust Indenture Act........................................................... 13
SECTION 108. Effect of Headings and Table of Contents.................................................... 13
SECTION 109. Successors and Assigns...................................................................... 13
SECTION 110. Separability Clause......................................................................... 13
SECTION 111. Benefits of Indenture....................................................................... 13
SECTION 112. Governing Law............................................................................... 14
SECTION 113. Legal Holidays.............................................................................. 14
</TABLE>
-ii-
<PAGE> 5
<TABLE>
<CAPTION>
PAGE
----
ARTICLE TWO
SECURITY FORMS
<S> <C>
SECTION 201. Forms Generally............................................................................. 14
SECTION 202. Form of Trustee's Certificate of Authentication............................................. 14
SECTION 203. Form of Legend for Global Securities........................................................ 15
SECTION 204. Form of Conversion Notice................................................................... 15
SECTION 205. Securities in Global Form................................................................... 15
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series........................................................ 16
SECTION 302. Denominations............................................................................... 19
SECTION 303. Execution, Authentication, Delivery and Dating.............................................. 20
SECTION 304. Temporary Securities........................................................................ 21
SECTION 305. Registration, Registration of Transfer and Exchange......................................... 21
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities............................................ 23
SECTION 307. Payment of Interest; Interest Rights Preserved.............................................. 24
SECTION 308. Persons Deemed Owners....................................................................... 25
SECTION 309. Cancellation................................................................................ 26
SECTION 310. Computation of Interest..................................................................... 26
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture..................................................... 26
SECTION 402. Application of Trust Money.................................................................. 28
</TABLE>
-iii-
<PAGE> 6
<TABLE>
<CAPTION>
PAGE
----
ARTICLE FIVE
REMEDIES
<S> <C>
SECTION 501. Events of Default........................................................................... 28
SECTION 502. Acceleration of Maturity; Rescission and Annulment.......................................... 30
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee........................................................................... 31
SECTION 504. Trustee May File Proofs of Claim............................................................ 32
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities........................................................................ 32
SECTION 506. Application of Money Collected.............................................................. 32
SECTION 507. Limitation on Suits......................................................................... 33
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.............................................................. 34
SECTION 509. Restoration of Rights and Remedies.......................................................... 34
SECTION 510. Rights and Remedies Cumulative.............................................................. 34
SECTION 511. Delay or Omission Not Waiver................................................................ 34
SECTION 512. Control by Holders.......................................................................... 35
SECTION 513. Waiver of Past Defaults..................................................................... 35
SECTION 514. Undertaking for Costs....................................................................... 36
SECTION 515. Waiver of Usury, Stay or Extension Laws..................................................... 36
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities......................................................... 36
SECTION 602. Notice of Defaults.......................................................................... 36
SECTION 603. Certain Rights of Trustee................................................................... 37
SECTION 604. Not Responsible for Recitals or Issuance of Securities...................................... 38
SECTION 605. May Hold Securities......................................................................... 38
SECTION 606. Money Held in Trust......................................................................... 38
SECTION 607. Compensation and Reimbursement.............................................................. 38
SECTION 608. Conflicting Interests....................................................................... 39
SECTION 609. Trustee Eligibility......................................................................... 39
SECTION 610. Resignation and Removal; Appointment of Successor........................................... 39
SECTION 611. Acceptance of Appointment by Successor...................................................... 41
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business.......................................................................... 42
SECTION 613. Preferential Collection of Claims Against Company........................................... 42
SECTION 614. Appointment of Authenticating Agent......................................................... 42
</TABLE>
-iv-
<PAGE> 7
<TABLE>
<CAPTION>
PAGE
----
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
<S> <C>
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders........................................................................... 44
SECTION 702. Preservation of Information; Communications to Holders...................................... 44
SECTION 703. Reports by Trustee.......................................................................... 45
SECTION 704. Reports by Company.......................................................................... 45
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain
Terms............................................................................. 46
SECTION 802. Successor Substituted....................................................................... 46
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.......................................... 47
SECTION 902. Supplemental Indentures With Consent of Holders............................................. 48
SECTION 903. Execution of Supplemental Indentures........................................................ 50
SECTION 904. Effect of Supplemental Indentures........................................................... 50
SECTION 905. Conformity with Trust Indenture Act......................................................... 50
SECTION 906. Reference in Securities to Supplemental Indentures.......................................... 50
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest................................................. 51
SECTION 1002. Maintenance of Office or Agency............................................................ 51
SECTION 1003. Money for Securities Payments to be Held in Trust.......................................... 51
SECTION 1004. Statement by Officers as to Default........................................................ 52
SECTION 1005. Existence.................................................................................. 53
SECTION 1006. Maintenance of Properties.................................................................. 53
SECTION 1007. Payment of Taxes and Other Claims.......................................................... 53
SECTION 1008. Waiver of Certain Covenants................................................................ 53
SECTION 1009. Covenants as to Wendy's Trusts............................................................. 54
</TABLE>
-v-
<PAGE> 8
<TABLE>
<CAPTION>
PAGE
----
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
<S> <C>
SECTION 1101. Applicability of Article................................................................... 54
SECTION 1102. Election to Redeem; Notice to Trustee...................................................... 54
SECTION 1103. Selection by Trustee of Securities to be Redeemed.......................................... 55
SECTION 1104. Notice of Redemption....................................................................... 56
SECTION 1105. Deposit of Redemption Price................................................................ 57
SECTION 1106. Securities Payable on Redemption Date...................................................... 57
SECTION 1107. Securities Redeemed in Part................................................................ 57
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article................................................................... 58
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities...................................... 58
SECTION 1203. Redemption of Securities for Sinking Fund.................................................. 58
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. Company's Option to Effect Defeasance or Covenant
Defeasance........................................................................ 59
SECTION 1302. Defeasance and Discharge................................................................... 59
SECTION 1303. Covenant Defeasance........................................................................ 60
SECTION 1304. Conditions to Defeasance or Covenant Defeasance............................................ 60
SECTION 1305. Deposited Money and U.S. Government Obligations to
be Held in Trust; Miscellaneous Provisions........................................ 62
SECTION 1306. Reinstatement.............................................................................. 63
ARTICLE FOURTEEN
CONVERSION OF SECURITIES
SECTION 1401. Applicability of Article................................................................... 63
SECTION 1402. Exercise of Conversion Privilege........................................................... 63
SECTION 1403. No Fractional Shares....................................................................... 65
SECTION 1404. Adjustment of Conversion Price............................................................. 65
SECTION 1405. Notice of Certain Corporate Actions........................................................ 66
SECTION 1406. Reservation of Shares of Common Stock...................................................... 67
</TABLE>
-vi-
<PAGE> 9
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
SECTION 1407. Payment of Certain Taxes upon Conversion................................................... 67
SECTION 1408. Nonassessability........................................................................... 67
SECTION 1409. Effect of Consolidation or Merger on Conversion Privilege.................................. 67
SECTION 1410. Duties of Trustee Regarding Conversion..................................................... 68
SECTION 1411. Repayment of Certain Funds upon Conversion................................................. 69
ARTICLE FIFTEEN
SUBORDINATION OF SECURITIES
SECTION 1501. Securities Subordinate to Senior Indebtedness.............................................. 69
SECTION 1502. Payment Over of Proceeds Upon Dissolution, Etc............................................. 69
SECTION 1503. Prior Payment to Senior Indebtedness Upon
Acceleration of Securities........................................................ 71
SECTION 1504. No Payment When Senior Indebtedness in Default............................................. 71
SECTION 1505. Payment Permitted in Certain Situations.................................................... 72
SECTION 1506. Subrogation to Rights of Holders of Senior Indebtedness.................................... 72
SECTION 1507. Provisions Solely to Define Relative Rights................................................ 72
SECTION 1508. Trustee to Effectuate Subordination........................................................ 73
SECTION 1509. No Waiver of Subordination Provisions...................................................... 73
SECTION 1510. Notice to Trustee.......................................................................... 73
SECTION 1511. Reliance on Judicial Order or Certificate of Liquidating Agent............................. 74
SECTION 1512. Trustee Not Fiduciary for Holders of Senior Indebtedness................................... 75
SECTION 1513. Rights of Trustee as Holder of Senior Indebtedness,
Preservation of Trustee's Rights.................................................. 75
SECTION 1514. Article Applicable to Paying Agents........................................................ 75
SECTION 1515. Certain Conversions Deemed Payment......................................................... 75
</TABLE>
-vii-
<PAGE> 10
INDENTURE, dated as of September 16, 1996, between Wendy's
International, Inc., a corporation duly organized and existing under the laws of
the State of Ohio (herein called the "Company"), having its principal office at
P.O. Box 256, 4288 West Dublin-Granville Road, Dublin, Ohio 43017-0256, and NBD
Bank, a banking corporation duly organized and existing under the laws of the
State of Michigan, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
subordinated debentures, notes or other evidences of indebtedness (herein called
the "Securities"), to be issued in one or more series as in this Indenture
provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of a series thereof,
as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting
<PAGE> 11
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted at the date of such computation;
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case
may be, of this Indenture; and
(5) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"Commission" means the Securities and Exchange Commission, from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Securities" means undivided beneficial interests in the assets
of a Wendy's Trust which rank pari passu with Preferred Securities issued by
such Wendy's Trust; provided, however, that upon the occurrence of an Event of
Default, the rights of holders of Common Securities to payment in respect to
distributions and payments upon liquidation, redemption and otherwise are
subordinated to the rights of holders of Preferred Securities.
-2-
<PAGE> 12
"Common Securities Guarantee" means any Guarantee that the Company
enters into that operates directly or indirectly for the benefit of holders of
Common Securities of a Wendy's Trust.
"Common Stock" includes any shares or stock of any class of the Company
which has no preference in respect of dividends or of amounts payable in the
event of any voluntary or involuntary liquidation, dissolution or winding up of
the Company and which is not subject to redemption by the Company. Subject to
the anti-dilution provisions of any convertible Security, however, shares of
Common Stock of the Company issuable on conversion of a Security shall include
only shares of the class designated as Common Stock of the Company at the date
of any supplemental indenture, Board Resolution or other instrument authorizing
such Security or shares of any class of classes resulting from any
reclassification or reclassifications thereof and which have no preference in
respect of the payment of dividends or the distribution of assets upon any
voluntary or involuntary liquidation, dissolution or winding-up of the Company
and which are not subject to redemption by the Company, provided that if at any
time there shall be more than one such resulting class, the shares of each such
class then so issuable shall be substantially in the proportion which the total
number of shares of such class resulting from all such reclassifications bears
to the total number of shares of such classes resulting from all such
reclassifications.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Corporate Trust Office" means the designated office of the Trustee at
which at any particular time its corporate trust business shall be administered.
"Corporation" means a corporation, association, company, joint-stock
company or business trust.
"Covenant Defeasance" has the meaning specified in Section 1303.
"Debt" means (without duplication and without regard to any portion of
principal amount that has not accrued and to any interest component thereof
(whether accrued or imputed) that is not due and payable) with respect to any
Person, whether recourse is to all or a portion of the assets of such Person and
whether or not contingent, (i) every obligation of such Person for money
borrowed; (ii) every obligation of such Person evidenced by bonds, debentures,
notes or other similar instruments, including obligations incurred in connection
with the acquisition of property, assets or businesses; (iii) every
reimbursement obligation of such Person with respect to letters of credit,
bankers' acceptances or similar facilities issued for the account of such
Person; (iv) every obligation of such Person issued or assumed as the deferred
purchase price of property
-3-
<PAGE> 13
or services (but excluding trade accounts payable or accrued liabilities arising
in the ordinary course of business); (v) every capital lease obligation of such
Person; and (vi) every obligation of the type referred to in clauses (i) through
(v) of another Person and all dividends of another Person the payment of which,
in either case, such Person has guaranteed or is responsible or liable, directly
or indirectly, as obligor or otherwise.
"Declaration", with respect to a Wendy's Trust, means the Amended and
Restated Declaration of Trust of such Wendy's Trust.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to Securities of any series issuable
in whole or in part in the form of one or more Global Securities, a clearing
agency registered under the Exchange Act that is designated to act as Depositary
for such Securities as contemplated by Section 301.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 104.
"Global Security" means a Security that evidences all or part of the
Securities of any series and bears the legend set forth in Section 203 (or such
legend as may be specified as contemplated by Section 301 for such Securities).
"Guarantor" means Wendy's International Inc., an Ohio corporation, in
its capacity as guarantor under any Trust Securities Guarantees.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 301.
"Institutional Trustee" has the meaning set forth in the Declaration of
the applicable Wendy's Trust.
-4-
<PAGE> 14
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Investment Company Act" means the Investment Company Act of 1940 and
any statute successor thereto, in each case as amended from time to time.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in
Section 501(5).
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, the President or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Company, and delivered to the Trustee. One of the officers
signing an Officers' Certificate given pursuant to Section 1004 shall be the
principal executive, financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(1) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided that, if
such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(3) Securities as to which Defeasance has been effected
pursuant to Section 1302; and
-5-
<PAGE> 15
(4) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date, (A) the principal amount of an Original Issue
Discount Security which shall be deemed to be Outstanding shall be the amount of
the principal thereof which would be due and payable as of such date upon
acceleration of the Maturity thereof to such date pursuant to Section 502, (B)
if, as of such date, the principal amount payable at the Stated Maturity of a
Security is not determinable, the principal amount of such Security which shall
be deemed to be Outstanding shall be the amount as specified or determined as
contemplated by Section 301, (C) the principal amount of a Security denominated
in one or more foreign currencies or currency units which shall be deemed to be
Outstanding shall be the U.S. dollar equivalent, determined as of such date in
the manner provided as contemplated by Section 301, of the principal amount of
such Security (or, in the case of a Security described in Clause (A) or (B)
above, of the amount determined as provided in such Clause), and (D) Securities
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor shall be disregarded and deemed not to
be Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent, waiver or other action, only Securities which the Trustee
actually knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, bank, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of and any premium and
interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in
-6-
<PAGE> 16
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall
be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen
Security.
"Preferred Securities" means undivided beneficial interests in the
assets of a Wendy's Trust which rank pari passu with Common Securities issued by
such Wendy's Trust; provided, however, that upon the occurrence of an Event of
Default, the rights of holders of Common Securities to payment in respect to
distributions and payments upon liquidation, redemption and otherwise are
subordinated to the rights of holders of Preferred Securities.
"Preferred Securities Guarantee" means any Guarantee that the Guarantor
may enter into with NBD Bank or other Persons that operates directly or
indirectly for the benefit of holders of Preferred Securities of such Wendy's
Trust.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the
president, any vice president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, the cashier, any assistant cashier, any
trust officer or assistant trust officer, the controller or any assistant
controller or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of his knowledge of and familiarity with
the particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" means the principal of (and premium, if any) and
interest, if any (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Company to the
extent that such claim for post-petition interest is
-7-
<PAGE> 17
allowed in such proceeding), on Debt, whether incurred on or prior to the date
of this Indenture or thereafter incurred, unless in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, it is provided
that such obligations are not superior in right or payment to the Securities, or
to other Debt which is pari passu with, or subordinated to the Securities;
provided, however, that Senior Indebtedness shall not be deemed to include the
Securities.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trust Securities" means Common Securities and Preferred Securities of
a Wendy's Trust.
"Trust Securities Guarantees" means the Common Securities Guarantee and
the Preferred Securities Guarantee.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"U.S. Government Obligation" has the meaning specified in Section 1304.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
-8-
<PAGE> 18
"Wendy's Trust" means each of Wendy's Trust I and II, each, a Delaware
statutory business trust.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (except for certificates
provided for in Section 1004) shall include,
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
-9-
<PAGE> 19
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Indenture to be given, made or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand,
-10-
<PAGE> 20
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Indenture to be given, made or taken by Holders of Securities
of such series, provided that the Company may not set a record date for, and the
provisions of this paragraph shall not apply with respect to, the giving or
making of any notice, declaration, request or direction referred to in the next
paragraph. If any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities of the relevant series on such record date, and no other
Holders, shall be entitled to take the relevant action, whether or not such
Holders remain Holders after such record date; provided that no such action
shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Company from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be canceled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Company, at its own expense, shall cause notice
of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Trustee in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to join
in the giving or making of (1) any Notice of Default, (2) any declaration of
acceleration referred to in Section 502, (3) any request to institute
proceedings referred to in Section 507(2) or (4) any direction referred to in
Section 512, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Trustee from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be canceled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Trustee, at the Company's expense, shall cause
notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Company in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record dates may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day; provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in
-11-
<PAGE> 21
writing, and to each Holder of Securities of the relevant series in the manner
set forth in Section 106, on or prior to the existing Expiration Date. If an
Expiration Date is not designated with respect to any record date set pursuant
to this Section, the party hereto which set such record date shall be deemed to
have initially designated the 180th day after such record date as the Expiration
Date with respect thereto, subject to its right to change the Expiration Date as
provided in this paragraph. Notwithstanding the foregoing, no Expiration Date
shall be later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Administration.
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument or at any
other address previously furnished in writing to the Trustee by the
Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such
-12-
<PAGE> 22
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act which is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
-13-
<PAGE> 23
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the law of the State of New York.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
(other than a provision of any Security which specifically states that such
provision shall apply in lieu of this Section)) payment of interest or principal
(and premium, if any) need not be made at such Place of Payment on such date,
but may be made on the next succeeding Business Day at such Place of Payment
with the same force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in such form as shall be
established by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or Depositary therefor or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution thereof. If the form of Securities of any series
is established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
SECTION 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially
the following form:
-14-
<PAGE> 24
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
NBD Bank, as Trustee
By
----------------------------
Authorized Officer
SECTION 203. Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 301 for the
Securities evidenced thereby, every Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
SECTION 204. Form of Conversion Notice.
The form of conversion notice for the conversion of Securities into
shares of Common Stock or other securities of the Company shall be in
substantially the form included with the applicable form of Securities as shall
be established pursuant to Section 201 hereinabove.
SECTION 205. Securities in Global Form.
If Securities of any series are issuable as Global Securities, as
specified as contemplated by Section 301, then, notwithstanding the provisions
of Section 301, any such Security shall represent such of the Outstanding
Securities of such series as shall be specified therein and may provide that it
shall represent the aggregate amount of Outstanding Securities of such series
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities of such series represented thereby may from time to time be reduced
to reflect exchanges. Any endorsement of a Global Security to reflect the
amount, or any increase or decrease in the
-15-
<PAGE> 25
amount, of Outstanding Securities of such series represented thereby shall be
made by the Trustee in such manner and upon instructions given by such Person or
Persons as shall be specified therein or in the Company Order to be delivered to
the Trustee pursuant to Section 303 or Section 304. Subject to the provisions of
Section 303 and, if applicable, Section 304, the Trustee shall deliver and
redeliver any Global Security in the manner and upon instructions given by the
Person or Persons specified therein or in the applicable Company Order. If a
Company Order pursuant to Section 303 or 304 has been, or simultaneously is,
delivered, any instructions by the Company with respect to endorsement or
delivery or redelivery of a Global Security shall be in writing but need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Global Security if such Security was never issued and
sold by the Company and the Company delivers to the Trustee the Global Security
with written instructions (which need not comply with Section 102 and need not
be accompanied by an Opinion of Counsel) with regard to the reduction in the
principal amount of Securities represented thereby, together with the written
statement contemplated by the last sentence of Section 303.
Notwithstanding the provisions of Sections 201 and 307, unless
otherwise specified as contemplated by Section 301, payment of principal of and
any premium and interest on any Global Security shall be made to the Person or
Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided in
the preceding paragraph, the Company, the Trustee and any agent of the Company
and the Trustee shall treat a Person as the Holder of such principal amount of
Outstanding Securities represented by a Global Security as shall be specified in
a written statement of the Holder of such Global Security.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other
series);
-16-
<PAGE> 26
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906 or 1107
and except for any Securities which, pursuant to Section 303, are
deemed never to have been authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the
series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest;
(4) the date or dates on which the principal of any Securities
of the series is payable;
(5) the rate or rates at which any Securities of the series
shall bear interest, if any, the date or dates from which any such
interest shall accrue, the Interest Payment Dates on which any such
interest shall be payable and the Regular Record Date for any such
interest payable on any Interest Payment Date;
(6) the place or places where the principal of and any premium
and interest on any Securities of the series shall be payable or where
the Securities of the series may be surrendered for conversion or
exchange;
(7) the period or periods within which, the price or prices at
which and the terms and conditions upon which any Securities of the
series may be redeemed, in whole or in part, at the option of the
Company and, if other than by a Board Resolution, the manner in which
any election by the Company to redeem the Securities shall be
evidenced;
(8) the obligation, if any, of the Company to redeem or
purchase any Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of the Holder thereof and the
period or periods within which, the price or prices at which and the
terms and conditions upon which any Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
(9) the right, if any, to extend the interest payment periods
in respect of the Securities of the series and the duration of such
extension;
(10) the terms of any right to convert or exchange Securities
of the series, either at the election of the Holder thereof or the
Company, into or for shares of Common Stock of the Company or other
securities or property, including, without limitation, the period or
periods within which and the price or prices (including adjustments
thereto) at which any Securities of the series shall be converted or
exchanged, in whole or in part and any other provision in addition to
or in lieu of those set forth in this Indenture;
-17-
<PAGE> 27
(11) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which any Securities of the
series shall be issuable;
(12) if the amount of principal of or any premium or interest
on any Securities of the series may be determined with reference to an
index or pursuant to a formula, the manner in which such amounts shall
be determined;
(13) if other than the currency of the United States of
America, the currency, currencies or currency units in which the
principal of or any premium or interest on any Securities of the series
shall be payable and the manner of determining the equivalent thereof
in the currency of the United States of America for any purpose,
including for purposes of the definition of "Outstanding" in Section
101;
(14) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the
Company or the Holder thereof, in one or more currencies or currency
units other than that or those in which such Securities are stated to
be payable, the currency, currencies or currency units in which the
principal of or any premium or interest on such Securities as to which
such election is made shall be payable, the periods within which and
the terms and conditions upon which such election is to be made and the
amount so payable (or the manner in which such amount shall be
determined);
(15) if other than the entire principal amount thereof, the
portion of the principal amount of any Securities of the series which
shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 502;
(16) if the principal amount payable at the Stated Maturity of
any Securities of the series will not be determinable as of any one or
more dates prior to the Stated Maturity, the amount which shall be
deemed to be the principal amount of such Securities as of any such
date for any purpose thereunder or hereunder, including the principal
amount thereof which shall be due and payable upon any Maturity other
than the Stated Maturity or which shall be deemed to be Outstanding as
of any date prior to the Stated Maturity (or, in any such case, the
manner in which such amount deemed to be the principal amount shall be
determined);
(17) if applicable, that the Securities of the series, in
whole or any specified part, shall be defeasible pursuant to Section
1302 or Section 1303 or both such Sections and, if other than by a
Board Resolution, the manner in which any election by the Company to
defease such Securities shall be evidenced;
(18) if applicable, that any Securities of the series shall be
issuable in whole or in part in the form of one or more Global
Securities and, in such case, the respective Depositaries for such
Global Securities, the form of any legend or legends which shall be
-18-
<PAGE> 28
borne by any such Global Security in addition to or in lieu of that set
forth in Section 203 and any circumstances in addition to or in lieu of
those set forth in Clause (2) of the last paragraph of Section 305 in
which any such Global Security may be exchanged in whole or in part for
Securities registered, and any transfer of such Global Security in
whole or in part may be registered, in the name or names of Persons
other than the Depositary for such Global Security or a nominee
thereof;
(19) any addition to or change in the Events of Default which
applies to any Securities of the series and any change in the right of
the Trustee or the requisite Holders of such Securities to declare the
principal amount thereof due and payable pursuant to Section 502;
(20) any addition to or change in the covenants set forth in
Article Ten which applies to Securities of the series;
(21) any restriction or condition on the transferability of
the Securities;
(22) the subordination terms of the Securities of the series;
and
(23) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted
by Section 901(5)).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to the Board Resolution referred to above and (subject to Section 303) set
forth, or determined in the manner provided, in the Officers' Certificate
referred to above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 302. Denominations.
The Securities of each series shall be issuable only in registered form
without coupons and only in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such specified denomination
with respect to the Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any integral multiple thereof.
-19-
<PAGE> 29
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its President or one of
its Vice Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. If the
form or terms of the Securities of the series have been established by or
pursuant to one or more Board Resolutions as permitted by Sections 201 and 301,
prior to authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating,
(1) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 201, that such
form has been established in conformity with the provisions of this
Indenture;
(2) if the terms of such Securities have been established by
or pursuant to Board Resolution as permitted by Section 301, that such
terms have been established in conformity with the provisions of this
Indenture; and
(3) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute 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.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver
-20-
<PAGE> 30
the Officers' Certificate otherwise required pursuant to Section 301 or the
Company Order and Opinion of Counsel otherwise required pursuant to such
preceding paragraph at or prior to the authentication of each Security of such
series if such documents are delivered at or prior to the authentication upon
original issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 309, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and of
like tenor and aggregate principal amount. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series and tenor.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Company
-21-
<PAGE> 31
in a Place of Payment being herein sometimes collectively referred to as the
"Security Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities and of
transfers of Securities. The Trustee is hereby appointed "Security Registrar"
for the purpose of registering Securities and transfers of Securities as herein
provided. The Security Registrar shall be entitled to the rights and protections
extended to the Trustee hereunder.
Upon surrender for registration of transfer of any Security of a series
at the office or agency of the Company in a Place of Payment for that series,
the Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new Securities
of the same series, of any authorized denominations and of like tenor and
aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations and of
like tenor and aggregate principal amount, upon surrender of the Securities to
be exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
If the Securities of any series (or of any series and specified tenor)
are to be redeemed in part, the Company shall not be required (A) to issue,
register the transfer of or exchange any Securities of that series (or of that
series and specified tenor, as the case may be) during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of any such Securities selected for redemption under Section 1103 and
ending at the close of business on the day of such mailing, or (B) to register
the transfer of or exchange any Security so selected for redemption in whole or
in part, except the unredeemed portion of any Security being redeemed in part.
-22-
<PAGE> 32
The provisions of Clauses (1), (2), (3) and (4) below shall apply only
to Global Securities:
(1) Each Global Security authenticated under this Indenture
shall be registered in the name of the Depositary designated for such
Global Security or a nominee thereof and delivered to such Depositary
or a nominee thereof or custodian therefor, and each such Global
Security shall constitute a single Security for all purposes of this
Indenture.
(2) Notwithstanding any other provision in this Indenture, no
Global Security may be exchanged in whole or in part for Securities
registered, and no transfer of a Global Security in whole or in part
may be registered, in the name of any Person other than the Depositary
for such Global Security or a nominee thereof unless (A) such
Depositary (i) has notified the Company that it is unwilling or unable
to continue as Depositary for such Global Security or (ii) has ceased
to be a clearing agency registered under the Exchange Act, (B) there
shall have occurred and be continuing an Event of Default with respect
to such Global Security or (C) there shall exist such circumstances, if
any, in addition to or in lieu of the foregoing as have been specified
for this purpose as contemplated by Section 301.
(3) Subject to Clause (2) above, any exchange of a Global
Security for other Securities may be made in whole or in part, and all
Securities issued in exchange for a Global Security or any portion
thereof shall be registered in such names as the Depositary for such
Global Security shall direct.
(4) Every Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global
Security or any portion thereof, whether pursuant to this Section,
Section 304, 306, 906 or 1107 or otherwise, shall be authenticated and
delivered in the form of, and shall be, a Global Security, unless such
Security is registered in the name of a Person other than the
Depositary for such Global Security or a nominee thereof.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
-23-
<PAGE> 33
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
or the Trustee may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such series and the
date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the
-24-
<PAGE> 34
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be
given to each Holder of Securities of such series in the manner set
forth in Section 106, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
In the case of any Security which is converted into Common Stock of the
Company after any Regular Record Date and on or prior to the next succeeding
Interest Payment Date (other than any Security whose Maturity is prior to such
Interest Payment Date), interest whose Stated Maturity is on such Interest
Payment Date shall be payable on such Interest Payment Date notwithstanding such
conversion, and such interest (whether or not punctually paid or duly provided
for) shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on such Regular
Record Date. Except as otherwise expressly provided in the immediately preceding
sentence, in the case of any Security which is converted, interest whose Stated
Maturity is after the date of conversion of such Security shall not be payable.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such
-25-
<PAGE> 35
Security is registered as the owner of such Security for the purpose of
receiving payment of principal of and any premium and (subject to Section 307)
any interest on such Security and for all other purposes whatsoever, whether or
not such Security be overdue, and neither the Company, the Trustee nor any agent
of the Company or the Trustee shall be affected by notice to the contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly canceled by it. The Company may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may
deliver to the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the Company
has not issued and sold, and all Securities so delivered shall be promptly
canceled by the Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section, except as
expressly permitted by this Indenture. All canceled Securities held by the
Trustee shall be disposed of as directed by a Company Order.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and
delivered (other than (i) Securities which have been
destroyed, lost or stolen and which have been
-26-
<PAGE> 36
replaced or paid as provided in Section 306 and (ii)
Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one
year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee
in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose money in an amount sufficient
to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for
cancellation, for principal and any premium and interest to
the date of such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
rights of the Trustee under Sections 507(3), 601 and 603, the obligations of the
Company to the Trustee under Section 607, the obligations of the Trustee to any
Authenticating Agent under Section 614 and, if money shall have been deposited
with the Trustee pursuant to subclause (B) of Clause (l) of this Section, the
obligations of the Trustee under Section 402 and the last paragraph of Section
1003 shall survive.
-27-
<PAGE> 37
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
1003, all money deposited with the Trustee pursuant to Section 401 shall be held
in trust and applied by it, in accordance with the provisions of the Securities
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee. Money
deposited pursuant to this Section not in violation of this Indenture shall not
be subject to claims of the holders of Senior Indebtedness under Article Fifteen
hereof.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest upon any Security
of that series when it becomes due and payable, and continuance of such
default for a period of 30 days (whether or not such payment is
prohibited by the subordination provisions set forth in Article Fifteen
hereof); provided, however, that a valid extension of an interest
payment period by the Company in accordance with the terms of any
indenture supplemental hereto shall not constitute a default in the
payment of interest for this purpose; or
(2) default in the payment of the principal of or any premium
on any Security of that series at its Maturity (whether or not such
payment is prohibited by the subordination provisions set forth in
Article Fifteen hereof); or
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series; or
(4) if the Securities of that series are convertible or
exchangeable into or for shares of Common Stock of the Company or other
securities, cash or other property pursuant to any supplemental
indenture, Board Resolution or other instrument authorizing Securities
of that series, failure by the Company to convert such Securities
(whether or not such conversion or exchange is prohibited by the
subordination provisions set forth in Article Fifteen hereof); or
-28-
<PAGE> 38
(5) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of series of
Securities other than that series), and continuance of such default or
breach for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 10% in principal
amount of the Outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(6) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under any applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
days; or
(7) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by
it to the entry of a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case
or proceeding against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable
Federal or State law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator other similar
official of the Company or of any substantial part of its property, or
the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally
as they become due, or the taking of corporate action by the Company in
furtherance of any such action; or
(8) in the event Securities of that series are issued to a
Wendy's Trust or a trustee of such trust in connection with the
issuance of Trust Securities by such Wendy's Trust, such Wendy's Trust
shall have voluntarily or involuntarily dissolved, wound-up its
business or otherwise terminated its existence except in connection
with (A) the distribution of Securities of that series to holders of
Trust Securities in liquidation of their interest in such Wendy's
Trust, (B) the redemption of all of the outstanding Trust
-29-
<PAGE> 39
Securities of such Wendy's Trust or (C) certain mergers, consolidations
or amalgamations, each as permitted by the Declaration of such Wendy's
Trust; or
(9) any other Event of Default provided with respect to
Securities of that series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default
specified in Section 501(6) or 501(7)) with respect to Securities of any series
at the time Outstanding occurs and is continuing, then in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount of all
the Securities of that series (or, if any Securities of that series are Original
Issue Discount Securities, such portion of the principal amount of such
Securities as may be specified by the terms thereof) to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable; provided, however, that the
Holders of a majority in aggregate principal amount of Securities of such series
then Outstanding may rescind or annul such declaration and its consequences by
objecting in writing within 30 days of such declaration. If an Event of Default
specified in Section 501(6) or 501(7) with respect to Securities of any series
at the time Outstanding occurs, the principal amount of all the Securities of
that series (or, if any Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be
specified by the terms thereof) shall automatically, and without any declaration
or other action on the part of the Trustee or any Holder, become immediately due
and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that
series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than
by such declaration of acceleration and any interest thereon
at the rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities, and
-30-
<PAGE> 40
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of
that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities and if such Securities are held by a
Wendy's Trust or a trustee of such trust, without duplication of any other
amounts paid by such Wendy's Trust or trustee in respect thereof, upon overdue
installments of interest at the rate per annum expressed in such Securities;
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
-31-
<PAGE> 41
SECTION 504. Trustee May File Proof of Claim.
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official and be a member of a creditors'
or other similar committee.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 607;
-32-
<PAGE> 42
SECOND: To the payment of all Senior Indebtedness of the Company to the
extent required by Article Fifteen hereof;
THIRD: To the payment of the amounts then due and unpaid for principal
of and any premium and interest on the Securities in respect of which
or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts
due and payable on such Securities for principal and any premium and
interest, respectively; and
FOURTH: To the payment of the remainder, if any, to the Company.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
-33-
<PAGE> 43
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, but subject to
Article Fifteen of this Indenture, the Holder of any Security shall have the
right, which is absolute and unconditional, to receive payment of the principal
of and any premium and (subject to Section 307) interest on such Security on the
respective Stated Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement of
any such payment, and such rights shall not be impaired without the consent of
such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
-34-
<PAGE> 44
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
(2) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in connection therewith, and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of or any premium or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected;
provided, however, that if the Securities of such series are held by a Wendy's
Trust or a trustee of such trust, such waiver or modification to such waiver
shall not be effective until the holders of a majority in liquidation preference
of Trust Securities of the applicable Wendy's Trust shall have consented to such
waiver or modification to such waiver; provided, further, that if the consent of
the Holder of each Outstanding Security of such series is required, such waiver
shall not be effective until each holder of the Trust Securities of the
applicable Wendy's Trust shall have consented to such waiver.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
-35-
<PAGE> 45
SECTION 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Company.
SECTION 515. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series,
the Trustee shall give the Holders of Securities of such series notice of such
default as and to the extent provided by the
-36-
<PAGE> 46
Trust Indenture Act; provided, however, that in the case of any default of the
character specified in Section 501(5) with respect to Securities of such series,
no such notice to Holders shall be given until at least 60 days after the
occurrence thereof. For the purpose of this Section, the term "default" means
any event which is, or after notice or lapse of time or both would become, an
Event of Default with respect to Securities of such series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order,
and any resolution of the Board of Directors shall be sufficiently
evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(4) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(5) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney; and
-37-
<PAGE> 47
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable
-38-
<PAGE> 48
compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its failure to act in accordance with its obligations
under the Trust Indenture Act or its bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense arising out of or in connection
with the acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance of any of
its powers or duties hereunder, except any such loss, liability or
expense as may be attributable to the Trustee's failure to act in
accordance with its obligations under the Trust Indenture Act or its
bad faith.
SECTION 608. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to
Securities of more than one series.
SECTION 609. Trustee Eligibility.
There shall at all times be one (and only one) Trustee hereunder with
respect to the Securities of each series, which may be Trustee hereunder for
Securities of one or more other series. Each Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and that has a
combined capital and surplus of at least $50,000,000. If any such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the purposes of
this Section and to the extent permitted by the Trust Indenture Act, the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee with respect to the Securities of any
series shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 610. Resignation and Removal, Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
-39-
<PAGE> 49
The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (A) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (B) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of
such series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 611, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the
successor
-40-
<PAGE> 50
Trustee appointed by the Company. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Company or the
Holders and accepted appointment in the manner required by Section 611, any
Holder who has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series to all Holders
of Securities of such series in the manner provided in Section 106. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or
-41-
<PAGE> 51
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in the
first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Trustee may be merged or converted or with
which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any Person
succeeding to all or substantially all the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such Person
shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto. In case any Securities shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series issued upon original
issue and upon exchange, registration of transfer or
-42-
<PAGE> 52
partial redemption thereof or pursuant to Section 306, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a Person organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by Federal or State authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any Person into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which such Authenticating Agent shall be
a party, or any Person succeeding to the corporate agency or corporate trust
business of an Authenticating Agent, shall continue to be an Authenticating
Agent, provided such Person shall be otherwise eligible under this Section,
without the execution or filing of any paper or any further act on the part of
the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 106 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
-43-
<PAGE> 53
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
NBD Bank, as Trustee
By
-----------------------------
As Authenticating Agent
By
-----------------------------
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(1) semi-annually, not later than January 31 and July 31 in
each year, a list, in such form as the Trustee may reasonably require,
of the names and addresses of the Holders of Securities of each series
as of the preceding January 15 or July 15, as the case may be, and
(2) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in
-44-
<PAGE> 54
Section 701 and the names and addresses of Holders received by the Trustee in
its capacity as Security Registrar. The Trustee may destroy any list furnished
to it as provided in Section 701 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
SECTION 703. Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission.
-45-
<PAGE> 55
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company or convey, transfer or lease its
properties and assets substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into
another Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the Person formed by such
consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be a
corporation, partnership or trust, shall be organized and validly
existing under the laws of the United States of America, any State
thereof or the District of Columbia and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee,
in form satisfactory to the Trustee, the due and punctual payment of
the principal of and any premium and interest on all the Securities and
the performance or observance of every covenant of this Indenture on
the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of the Company or
any Subsidiary as a result of such transaction as having been incurred
by the Company or such Subsidiary at the time of such transaction, no
Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have happened and be
continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with much transaction,
such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
SECTION 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety in accordance with
Section 801, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
-46-
<PAGE> 56
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein, and thereafter, except in the case
of a lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the
benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
(3) to add any additional Events of Default for the benefit of
the Holders of all or any series of Securities (and if such additional
Events of Default are to be for the benefit of less than all series of
Securities, stating that such additional Events of Default are
expressly being included solely for the benefit of such series); or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate
the issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest coupons, or
to permit or facilitate the issuance of Securities in uncertificated
form; or
(5) to add to, change or eliminate any of the provisions of
this Indenture in respect of one or more series of Securities, provided
that any such addition, change or elimination (A) shall neither (i)
apply to any Security of any series created prior to the execution of
such supplemental indenture and entitled to the benefit of such
provision nor (ii) modify the rights of the Holder of any such Security
with respect to such provision or (B) shall become effective only when
there is no such Security Outstanding; or
-47-
<PAGE> 57
(6) to establish the form or terms of Securities of any series
as permitted by Sections 201 and 301; or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611; or
(8) to make provision with respect to the conversion rights of
Holders pursuant to the requirements of Article Fourteen hereof,
including providing for the conversion of the Securities into any
security or property (other than the Common Stock of the Company); or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture, provided that such
action pursuant to this Clause (9) shall not adversely affect the
interests of the Holders of Securities of any series in any material
respect.
SECTION 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or reduce the amount of the
principal of an Original Issue Discount Security or any other Security
which would be due and payable upon a declaration of acceleration of
the Maturity thereof pursuant to Section 502, or adversely affect any
right of repayment at the option of a Holder of any Security, or reduce
the amount of, or postpone the date fixed for, the payment of any
sinking fund or analogous obligation, or change any Place of Payment
where, or the coin or currency in which, any Security or any premium or
interest thereon is payable, or impair the right to institute suit for
the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption
Date), or
-48-
<PAGE> 58
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513
or Section 1008, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes in
the references to "the Trustee" and concomitant changes in this Section
and Section 1008, or the deletion of this proviso, in accordance with
the requirements of Sections 611 and 901(7), or
(4) make any change that adversely affects the right to
convert any Security of any series as provided in Article Fourteen
hereof or pursuant to Section 301 (except as permitted by Section 901)
or decrease the conversion rate or increase the conversion price of any
such Security of such series, or
(5) make any change in Article Fifteen hereof that adversely
affects the rights of any Holders of Outstanding Securities of such
series.
If the Securities of such series are held by a Wendy's Trust or a trustee of
such trust, such supplemental indenture shall not be effective until the holders
of a majority in liquidation preference of Trust Securities of the applicable
Trust shall have consented to such supplemental indenture; provided, that if the
consent of the Holder of each Outstanding Security of such series is required,
such supplemental indenture shall not be effective until each holder of the
Trust Securities of the applicable Wendy's Trust shall have consented to such
supplemental indenture.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
-49-
<PAGE> 59
SECTION 903. Execution of Supplemental Indentures.
Prior to executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trust created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon an Opinion
of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
-50-
<PAGE> 60
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of that series in accordance with the terms of
the Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer, exchange or conversion and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
SECTION 1003. Money for Securities Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of or any
premium or interest on any Securities of
-51-
<PAGE> 61
that series, deposit with a Paying Agent a sum sufficient to pay such amount,
such sum to be held as provided by the Trust Indenture Act, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will (1) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, upon the written request of the Trustee, forthwith
pay to the Trustee all sums held in trust by such Paying Agent for payment in
respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough of
Manhattan, The City of New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company. The Paying Agent shall be entitled to the rights
and protections extended to the Trustee hereunder.
SECTION 1004. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be
in
-52-
<PAGE> 62
default, specifying all such defaults and the nature and status thereof of which
they may have knowledge.
SECTION 1005. Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
SECTION 1006. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent the Company from discontinuing the
operation or maintenance of any of such properties if such discontinuance is, in
the judgment of the Company, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material respect to
the Holders.
SECTION 1007. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 1008. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 301 for
Securities of such series, the Company may, with respect to the Securities of
any series, omit in any particular
-53-
<PAGE> 63
instance to comply with any term, provision or condition set forth in any
covenant provided pursuant to Section 301(20), 901(2) or 901(6) for the benefit
of the Holders of such series or in any of Sections 1006, 1007 and 1009, if
before the time for such compliance the Holders of at least a majority in
principal amount of the Outstanding Securities of such series shall, by Act of
such Holders, either waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and effect.
SECTION 1009. Covenants as to Wendy's Trusts.
In the event Securities are issued to a Wendy's Trust or a trustee of
such trust in connection with the issuance of Trust Securities by such Wendy's
Trust, for so long as such Trust Securities remain outstanding, the Company will
(1) maintain 100% direct or indirect ownership of the Common Securities of such
Wendy's Trust; provided, however, that any permitted successor of the Company
under the Indenture may succeed to the Company's ownership of the Common
Securities, (2) use its reasonable efforts to cause such Wendy's Trust (A) to
remain a statutory business trust, except in connection with a distribution of
Securities of such series to the holders of Trust Securities in liquidation of
such Wendy's Trust, the redemption of all of the Trust Securities of such
Wendy's Trust, or certain mergers, consolidations or amalgamations, each as
permitted by the Declaration of such Wendy's Trust, and (B) to continue to be
classified as a grantor trust for United States federal income tax purposes and
(3) to use its reasonable efforts to cause each holder of Trust Securities to be
treated as owning an undivided beneficial interest in the Securities of such
series.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for such Securities) in
accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by a Board Resolution or in another manner specified as contemplated by Section
301 for such Securities. In case of any redemption at the election of the
Company of less than all the Securities of any series
-54-
<PAGE> 64
(including any such redemption affecting only a single Security), the Company
shall, at least 60 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date, of the principal amount of Securities of such
series to be redeemed and, if applicable, of the tenor of the Securities to be
redeemed. In the case of any redemption of Securities prior to the expiration of
any restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to be Redeemed.
If less than all the Securities of any series are to be redeemed
(unless all the Securities of such series and of a specified tenor are to be
redeemed or unless such redemption affects only a single Security), the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of a portion of the principal amount of any Security of such series,
provided that the unredeemed portion of the principal amount of any Security
shall be in an authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security. If less than all the Securities of
such series and of a specified tenor are to be redeemed (unless such redemption
affects only a single Security), the particular Securities to be redeemed shall
be selected not more than 60 days prior to the Redemption Date by the Trustee,
from the Outstanding Securities of such series and specified tenor not
previously called for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption as aforesaid and, in case of any Securities
selected for partial redemption as aforesaid, the principal amount thereof to be
redeemed.
The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
If Securities of any series selected for partial redemption are
converted in part before termination of the conversion right with respect to the
portion of the Securities of such series so selected, the converted portion of
the Securities of such series shall be deemed (so far as may be) to be the
portion selected for redemption. Securities (or portions thereof) which have
been converted during a selection of Securities of such series to be redeemed
shall be treated by the Trustee as Outstanding for the purpose of such
selection. In any case where more than one Security of such series is registered
in the same name, the Trustee in its discretion may treat the aggregate
principal amount so registered as if it were represented by one Security of such
series.
-55-
<PAGE> 65
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
consisting of more than a single Security are to be redeemed, the
identification (and, in the case of partial redemption of any such
Securities, the principal amounts) of the particular Securities to be
redeemed and, if less than all the Outstanding Securities of any series
consisting of a single Security are to be redeemed, the principal
amount of the particular Security to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after
said date,
(5) the place or places where each such Security is to be
surrendered for payment of the Redemption Price,
(6) that the redemption is for a sinking fund, if such is the
case, and
(7) if applicable, the conversion rate or price, the date on
which the right to convert the Securities of such series to be redeemed
will terminate and the place or places where such Securities may be
surrendered for conversion.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
-56-
<PAGE> 66
SECTION 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
If any Security called for redemption is converted into Common Stock of
the Company, any money deposited with the Trustee or with any Paying Agent or so
segregated and held in trust for the redemption of such Security shall (subject
to any right of the Holder of such Security or any Predecessor Security to
receive interest as provided in the last paragraph of Section 307) be paid to
the Company upon Company Request or, if then held by the Company, shall be
discharged from such trust.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, installments of interest whose Stated Maturity is
on or prior to the Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and of like tenor, of
any authorized
-57-
<PAGE> 67
denomination as requested by such Holder, in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Security so
surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of any series except as otherwise specified as
contemplated by Section 301 for such Securities.
The minimum amount of any sinking fund payment provided for by the
terms of any Securities is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of such Securities is herein referred to as an "optional sinking fund
payment". If provided for by the terms of any Securities, the cash amount of any
sinking fund payment may be subject to reduction as provided in Section 1202.
Each sinking fund payment shall be applied to the redemption of Securities as
provided for by the terms of such Securities.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to any Securities of such series required to be made
pursuant to the terms of such Securities as and to the extent provided for by
the terms of such Securities; provided that the Securities to be so credited
have not been previously so credited. The Securities to be so credited shall be
received and credited for such purpose by the Trustee at the Redemption Price,
as specified in the Securities so to be redeemed, for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for such
Securities pursuant to the terms of such Securities, the portion thereof, if
any, which is to be satisfied by payment of cash and the portion thereof, if
any,
-58-
<PAGE> 68
which is to be satisfied by delivering and crediting Securities pursuant to
Section 1202 and will also deliver to the Trustee any Securities to be so
delivered. Not less than 30 days prior to each such sinking fund payment date,
the Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have Section 1302
or Section 1303 applied to any Securities or any series of Securities, as the
case may be, designated pursuant to Section 301 as being defeasible pursuant to
such Section 1302 or 1303, in accordance with any applicable requirements
provided pursuant to Section 301 and upon compliance with the conditions set
forth below in this Article. Any such election shall be evidenced by a Board
Resolution or in another manner specified as contemplated by Section 301 for
such Securities.
SECTION 1302. Defeasance and Discharge.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, the
Company shall be deemed to have been discharged from its obligations with
respect to such Securities as provided in this Section on and after the date the
conditions set forth in Section 1304 are satisfied (hereinafter called
"Defeasance"). For this purpose, such Defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness represented by such
Securities and to have satisfied all its other obligations under such Securities
and this Indenture insofar as such Securities are concerned (and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging the
same), subject to the following which shall survive until otherwise terminated
or discharged hereunder: (1) the rights of Holders of such Securities to
receive, solely from the trust fund described in Section 1304 and as more fully
set forth in such Section, payments in respect of the principal of and any
premium and interest on such Securities when payments are due, (2) the Company's
obligations with respect to such Securities under Sections 304, 305, 306, 1002
and 1003, (3) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and (4) this Article. Subject to compliance with this Article, the
Company may exercise its option (if any) to have this Section applied to any
Securities notwithstanding the prior exercise of its option (if any) to have
Section 1303 applied to such Securities.
-59-
<PAGE> 69
SECTION 1303. Covenant Defeasance.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, (1)
the Company shall be released from its obligations under Sections 1006, 1007 and
1009, and any covenants provided pursuant to Section 301(20), 901(2) or 901(6)
for the benefit of the Holders of such Securities and (2) the occurrence of any
event specified in Sections 501(5) (with respect to any of Sections 1006, 1007
and 1009, and any such covenants provided pursuant to Section 301(20), 901(2) or
901(6)) and 501(9) shall be deemed not to be or result in an Event of Default,
in each case with respect to such Securities as provided in this Section on and
after the date the conditions set forth in Section 1304 are satisfied
(hereinafter called "Covenant Defeasance"). For this purpose, such Covenant
Defeasance means that, with respect to such Securities, the Company may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such specified Section (to the extent so specified
in the case of Section 501(5) and 501(8)), whether directly or indirectly by
reason of any reference elsewhere herein to any such Section or by reason of any
reference in any such Section to any other provision herein or in any other
document, but the remainder of this Indenture and such Securities shall be
unaffected thereby.
SECTION 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section
1302 or Section 1303 to any Securities or any series of Securities, as the case
may be:
(1) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee which satisfies the
requirements contemplated by Section 609 and agrees to comply with the
provisions of this Article applicable to it) as trust funds in trust
for the purpose of making the following payments, specifically pledged
as security for, and dedicated solely to, the benefits of the Holders
of such Securities, (A) money in an amount, or (B) U.S. Government
Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment,
money in an amount, or (C) a combination thereof, in each case
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or any such other qualifying trustee) to pay
and discharge, the principal of and any premium and interest on such
Securities on the respective Stated Maturities, in accordance with the
terms of this Indenture and such Securities. As used herein, "U.S.
Government Obligation" means (x) any security which is (i) a direct
obligation of the United States of America for the payment of which the
full faith and credit of the United States of America is pledged or
(ii) an obligation of a Person controlled or supervised by and acting
as an agency or instrumentality of the United States of America the
payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either
case (i) or (ii), is not callable or redeemable at the
-60-
<PAGE> 70
option of the issuer thereof, and (y) any depository receipt issued by
a bank (as defined in Section 3(a)(2) of the Securities Act) as
custodian with respect to any U.S. Government Obligation which is
specified in Clause (x) above and held by such bank for the account of
the holder of such depository receipt, or with respect to any specific
payment of principal of or interest on any U.S. Government Obligation
which is so specified and held, provided that (except as required by
law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any amount
received by the custodian in respect of the U.S. Government Obligation
or the specific payment of interest evidenced by such depository
receipt.
(2) In the event of an election to have Section 1302 apply to
any Securities or any series of Securities, as the case may be, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since the
date of this instrument, there has been a change in the applicable
Federal income tax law, in either case (A) or (B) to the effect that,
and based thereon such opinion shall confirm that, the Holders of such
Securities will not recognize gain or loss for Federal income tax
purposes as a result of the deposit, Defeasance and discharge to be
effected with respect to such Securities and will be subject to Federal
income tax on the same amounts, in the same manner and at the same
times as would be the case if such deposit, Defeasance and discharge
were not to occur.
(3) In the event of an election to have Section 1303 apply to
any Securities or any series of Securities, as the case may be, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of such Securities will not recognize gain
or loss for Federal income tax purposes as a result of the deposit and
Covenant Defeasance to be effected with respect to such Securities and
will be subject to Federal income tax on the same amounts, in the same
manner and at the same times as would be the case if such deposit and
Covenant Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an
Officer's Certificate to the effect that neither such Securities nor
any other Securities of the same series, if then listed on any
securities exchange, will be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to such Securities
or any other Securities shall have occurred and be continuing at the
time of such deposit or, with regard to any such event specified in
Sections 501(6) and (7), at any time on or prior to the 90th day after
the date of such deposit (it being understood that this condition shall
not be deemed satisfied until after such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming all Securities are in default within the
meaning of such Act).
-61-
<PAGE> 71
(7) Such Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute a default under, any other
agreement or instrument to which the Company is a party or by which it
is bound.
(8) Such Defeasance or Covenant Defeasance shall not result in
the trust arising from such deposit constituting an investment company
within the meaning of the Investment Company Act unless such trust
shall be registered under such Act or exempt from registration
thereunder.
(9) The Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that all
conditions precedent with respect to such Defeasance or Covenant
Defeasance have been complied with.
(10) No default in the payment of the principal of and any
premium and interest on any Senior Indebtedness beyond any applicable
grace period shall have occurred and be continuing.
(11) No other default with respect to any Senior Indebtedness
shall have occurred and be continuing and shall have resulted in the
acceleration of such Senior Indebtedness.
SECTION 1305. Deposited Money and U.S. Government Obligations to be Held in
Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee or other qualifying trustee (solely for purposes of this
Section and Section 1306, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 1304 in respect of any
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any such Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Holders of such
Securities, of all sums due and to become due thereon in respect of principal
and any premium and interest, but money so held in trust need not be segregated
from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1304 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or U.S. Government
-62-
<PAGE> 72
Obligations held by it as provided in Section 1304 with respect to any
Securities which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect the Defeasance or Covenant Defeasance, as the case may be,
with respect to such Securities.
SECTION 1306. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 1302 or 1303 shall be revived and reinstated as
though no deposit had occurred pursuant to this Article with respect to such
Securities, until such time as the Trustee or Paying Agent is permitted to apply
all money held in trust pursuant to Section 1305 with respect to such Securities
in accordance with this Article; provided, however, that if the Company makes
any payment of principal of or any premium or interest on any such Security
following such reinstatement of its obligations, the Company shall be subrogated
to the rights (if any) of the Holders of such Securities to receive such payment
from the money so held in trust.
ARTICLE FOURTEEN
CONVERSION OF SECURITIES
SECTION 1401. Applicability of Article.
The provisions of this Article shall be applicable to the Securities of
any series which are convertible into shares of Common Stock of the Company, and
the issuance of such shares of Common Stock upon the conversion of Securities of
such series, except as otherwise specified as contemplated by Section 301 for
the Securities of such series. The terms and provisions applicable to the
conversion of Securities of any series into securities of the Company (other
than Common Stock) shall, if applicable, be set forth in an Officers'
Certificate or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of such series in accordance with Section 301.
SECTION 1402. Exercise of Conversion Privilege.
In order to exercise a conversion privilege, the Holder of a Security
of any series with such a privilege shall surrender such Security to the Company
at the office or agency maintained for that purpose pursuant to Section 1002,
accompanied by written notice to the Company that the Holder elects to convert
such Security or a specified portion thereof. Such notice shall also
-63-
<PAGE> 73
state, if different from the name and address of such Holder, the name or names
(with address) in which the certificate or certificates for shares of Common
Stock which shall be issuable on such conversion shall be issued. Securities of
such series surrendered for conversion shall (if so required by the Company or
the Trustee) be duly endorsed by or accompanied by instruments of transfer in
forms satisfactory to the Company and the Trustee duly executed by the Holder or
its attorney duly authorized in writing; and, if expressly specified, as
contemplated by Section 301, to be applicable to any series of Securities,
Securities of such series so surrendered for conversion during the period from
the close of business on any Regular Record Date to the opening of business on
the next succeeding Interest Payment Date (excluding Securities or portions
thereof called for redemption during such period) shall also be accompanied by
payment in funds acceptable to the Company of an amount equal to the interest
payable on such Interest Payment Date on the principal amount of such Security
then being converted, and such interest shall be payable to such Holder
notwithstanding the conversion of such Security, subject to the provisions of
Section 307 relating to the payment of Defaulted Interest by the Company. As
promptly as practicable after the receipt of such notice and of any payment
required pursuant to a Board Resolution and, subject to Section 301, set forth,
or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto setting forth the
terms of the Securities and the surrender of such Securities in accordance with
such reasonable regulations as the Company may prescribe, the Company shall
issue and shall deliver, at the office or agency at which such Security is
surrendered, to such Holder or on its written order, a certificate or
certificates for the number of full shares of Common Stock issuable upon the
conversion of such Security (or specified portion thereof), in accordance with
the provisions of such Board Resolution, Officers' Certificate or supplemental
indenture, and cash as provided therein in respect of any fractional share of
such Common Stock otherwise issuable upon such conversion. Such conversion shall
be deemed to have been effected immediately prior to the close of business on
the date on which such notice and such payment, if required, shall have been
received in proper order for conversion by the Company and such Security shall
have been surrendered as aforesaid (unless such Holder shall have so surrendered
such Security and shall have instructed the Company to effect the conversion on
a particular date following such surrender and such Holder shall be entitled to
convert such Security on such date, in which case such conversion shall be
deemed to be effected immediately prior to the close of business on such date)
and at such time the rights of the Holder of such Security as such Security
Holder shall cease and the person or persons in whose name or names any
certificate or certificates for shares of Common Stock of the Company shall be
issuable upon such conversion shall be deemed to have become the holder or
holders of record of the shares represented thereby. Except as set forth above
and subject to the final paragraph of Section 3.7, no payment or adjustment
shall be made upon any conversion on account of any interest accrued on the
Securities of such series surrendered for conversion or on account of any
dividends on the Common Stock of the Company issued upon such conversion.
In the case of any Security of any series which is converted in part
only, upon such conversion the Company shall execute and the Trustee shall
authenticate and make available for delivery to or on the order of the Holder
thereof, at the expense of the Company, a new Security
-64-
<PAGE> 74
or Securities of such series, of authorized denominations, in aggregate
principal amount equal to the unconverted portion of such Security.
SECTION 1403. No Fractional Shares.
No fractional share of Common Stock of the Company shall be issued upon
conversions of Securities of any series. If more than one Security of such
series shall be surrendered for conversion at one time by the same Holder, the
number of full shares which shall be issuable upon conversion shall be computed
on the basis of the aggregate principal amount of the Securities of such series
(or specified portions thereof to the extent permitted hereby) so surrendered.
If, except for the provisions of this Section 1403, any Holder of a Security or
Securities of such series would be entitled to a fractional share of Common
Stock of the Company upon the conversion of such Security or Securities, or
specified portions thereof, the Company shall pay to such Holder an amount in
cash equal to the current market value of such fractional share computed, (1) if
such Common Stock is listed or admitted to unlisted trading privileges on a
national securities exchange, on the basis of the last reported sale price
regular way on such exchange on the last trading day prior to the date of
conversion upon which such a sale shall have been effected, or (2) if such
Common Stock is not at the time so listed or admitted to unlisted trading
privileges on a national securities exchange, on the basis of the average of the
bid and asked prices of such Common Stock in the over-the-counter market, on the
last trading day prior to the date of conversion, as reported by the National
Quotation Bureau, Incorporated or similar organization if the National Quotation
Bureau, Incorporated is no longer reporting such information, or if not so
available, the fair market price as determined by the Board of Directors. For
purposes of this Section, "trading day" shall mean each Monday, Tuesday,
Wednesday, Thursday and Friday other than any day on which the Common Stock is
not traded on the New York Stock Exchange, or if the Common Stock is not traded
on the New York Stock Exchange, on the principal exchange or market on which the
Common Stock is traded or quoted.
SECTION 1404. Adjustment of Conversion Price.
The conversion price of Securities of any series that is convertible
into Common Stock of the Company shall be adjusted for any stock dividends,
stock splits, reclassification, combinations or similar transactions in
accordance with the terms of the supplemental indenture or Board Resolutions
setting forth the terms of the Securities of such series.
Whenever the conversion price is adjusted, the Company shall compute
the adjusted conversion price in accordance with terms of the applicable Board
Resolution or supplemental indenture and shall prepare an Officers' Certificate
setting forth the adjusted conversion price and showing in reasonable detail the
facts upon which such adjustment is based, and such certificate shall forthwith
be filed at each office or agency maintained for the purpose of conversion of
Securities of such series pursuant to Section 1002 and, if different, with the
Trustee. The Company shall forthwith cause a notice setting forth the adjusted
conversion price to be mailed,
-65-
<PAGE> 75
first class postage prepaid, to each Holder of Securities of such series at its
address appearing on the Security Register and to any conversion agent other
than the Trustee.
SECTION 1405. Notice of Certain Corporate Actions.
In case:
(1) the Company shall declare a dividend (or any other
distribution) on its Common Stock payable otherwise than in cash out of
its retained earnings (other than a dividend for which approval of any
shareholders of the Company is required); or
(2) the Company shall authorize the granting to the holders of
its Common Stock of rights, options or warrants to subscribe for or
purchase any shares of capital stock of any class or of any other
rights (other than any such grant for which approval of any
shareholders of the Company is required); or
(3) of any reclassification of the Common Stock of the Company
(other than a subdivision or combination of its outstanding shares of
Common Stock) or of any consolidation, merger or share exchange to
which the Company is a party and for which approval of any shareholders
of the Company is required, or of the sale of all or substantially all
of the assets of the Company; or
(4) of the voluntary or involuntary dissolution, liquidation
or winding up of the Company;
then the Company shall cause to be filed with the Trustee, and shall cause to be
mailed to all Holders at their last addresses as they shall appear in the
Security Register, at least 20 days (or 10 days in any case specified in clause
(1) or (2) above) prior to the applicable record date hereinafter specified, a
notice stating (A) the date on which a record is to be taken for the purpose of
such dividend, distribution, rights, options or warrants, or, if a record is not
to be taken, the date as of which the holders of Common Stock of record to be
entitled to such dividend, distribution, rights, options or warrants are to be
determined, or (B) the date on which such reclassification, consolidation,
merger, share exchange, sale, dissolution, liquidation or winding up is expected
to become effective, and the date as of which it is expected that holders of
Common Stock of record shall be entitled to exchange their shares of Common
Stock for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, share exchange, sale, dissolution,
liquidation or winding up. If at any time the Trustee shall not be the
conversion agent, a copy of such notice shall also forthwith be filed by the
Company with the Trustee.
-66-
<PAGE> 76
SECTION 1406. Reservation of Shares of Common Stock.
The Company shall at all times reserve and keep available, free from
preemptive rights, out of its authorized but unissued Common Stock or treasury
shares, for the purpose of effecting the conversion of Securities, the full
number of shares of Common Stock of the Company then issuable upon the
conversion of all outstanding Securities of any series that has conversion
rights.
SECTION 1407. Payment of Certain Taxes upon Conversion.
The Company will pay any and all taxes that may be payable in respect
of the issue or delivery of shares of its Common Stock on conversion of
Securities pursuant hereto. The Company shall not, however, be required to pay
any tax which may be payable in respect of any transfer involved in the issue
and delivery of shares of its Common Stock in a name other than that of the
Holder of the Security or Securities to be converted, and no such issue or
delivery shall be made unless and until the person requesting such issue has
paid to the Company the amount of any such tax, or has established, to the
satisfaction of the Company, that such tax has been paid.
SECTION 1408. Nonassessability.
The Company covenants that all shares of Common Stock which may be
issued upon conversion of Securities will upon issue in accordance with the
terms hereof be duly and validly issued and fully paid and nonassessable.
SECTION 1409. Effect of Consolidation or Merger on Conversion Privilege.
Unless otherwise provided as contemplated by Section 301 with respect
to Securities of any series, in case of any consolidation of the Company with,
or merger of the Company into or with any other Person, or in case of any sale
of all or substantially all of the assets of the Company, the Company or the
Person formed by such consolidation or the Person into which the Company shall
have been merged or the Person which shall have acquired such assets, as the
case may be, shall execute and deliver to the Trustee a supplemental indenture
providing that the Holder of each Security then outstanding of any series that
is convertible into Common Stock shall have the right, which right shall be the
exclusive conversion right thereafter available to said Holder (until the
expiration of the conversion right of such Security), to convert such Security
into the kind and amount of shares of stock or other securities or property
(including cash) receivable upon such consolidation, merger or sale by a holder
of the number of shares of Common Stock into which such Security might have been
converted immediately prior to such consolidation, merger or sale, subject to
compliance with the other provisions of this Indenture, such Security and such
supplemental indenture. Such supplemental indenture shall provide for
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in such Security. The above provisions of this Section
shall similarly apply to successive
-67-
<PAGE> 77
consolidations, mergers or sales. Unless otherwise provided as contemplated by
Section 301 with respect to Securities of any series, it is expressly agreed and
understood that anything in this Indenture to the contrary notwithstanding, if,
pursuant to such merger, consolidation or sale, holders of outstanding shares of
Common Stock do not receive shares of common stock of the surviving corporation
but receive other securities, cash or other property or any combination thereof,
Holders of Securities shall not have the right to thereafter convert their
Securities into common stock of the surviving corporation or the corporation
which shall have acquired such assets, but rather, shall have the right upon
such conversion to receive the other securities, cash or other property
receivable by a holder of the number of shares of Common Stock into which the
Securities held by such Holder might have been converted immediately prior to
such consolidation, merger or sale, all as more fully provided in the first
sentence of this Section 1409. Anything in this Section 1409 to the contrary
notwithstanding, the provisions of this Section 1409 shall not apply to a merger
or consolidation of another corporation with or into the Company pursuant to
which both of the following conditions are applicable: (1) the Company is the
surviving corporation and (2) the outstanding shares of Common Stock are not
changed or converted into any other securities or property (including cash) or
changed in number or character or reclassified pursuant to the terms of such
merger or consolidation.
As evidence of the kind and amount of shares of stock or other
securities or property (including cash) into which Securities may properly be
convertible after any such consolidation, merger or sale, or as to the
appropriate adjustments of the conversion prices applicable with respect
thereto, the Trustee shall be furnished with and may accept the certificate or
opinion of an independent certified public accountant with respect thereto; and,
in the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely thereon, and shall not be responsible or accountable to any
Holder of Securities for any provision in conformity therewith or approved by
such independent certified public accountant which may be contained in said
supplemental indenture.
SECTION 1410. Duties of Trustee Regarding Conversion.
Neither the Trustee nor any conversion agent shall at any time be under
any duty or responsibility to any Holder of Securities of any series that is
convertible into Common Stock to determine whether any facts exist which may
require any adjustment of the conversion price, or with respect to the nature or
extent of any such adjustment when made, or with respect to the method employed,
whether herein or in any supplemental indenture (or whether a supplemental
indenture need be entered into), any resolutions of the Board of Directors or
written instrument executed by one or more officers of the Company provided to
be employed in making the same. Neither the Trustee nor any conversion agent
shall be accountable with respect to the validity or value (or the kind or
amount) of any shares of Common Stock, or of any securities or property, which
may at any time be issued or delivered upon the conversion of any Securities and
neither the Trustee nor any conversion agent makes any representation with
respect thereto. Neither the Trustee nor any conversion agent shall be
responsible for any failure of the Company to issue, transfer or deliver any
shares of Common Stock or stock certificates or other securities or
-68-
<PAGE> 78
property upon the surrender of any Security for the purpose of conversion or to
comply with any of the covenants of the Company contained in this Article
Fourteen or in the applicable supplemental indenture, resolutions of the Board
of Directors or written instrument executed by one or more duly authorized
officers of the Company. All Securities delivered for conversion shall be
delivered to the Trustee to be canceled by or at the direction of the Trustee,
which shall dispose of the same as provided in Section 309.
SECTION 1411. Repayment of Certain Funds upon Conversion.
Any funds which at any time shall have been deposited by the Company or
on its behalf with the Trustee or any other paying agent for the purpose of
paying the principal of, and premium, if any, and interest, if any, on any of
the Securities (including funds deposited for the sinking fund referred to in
Article Three hereof) and which shall not be required for such purposes because
of the conversion of such Securities as provided in this Article Fourteen shall
after such conversion be repaid to the Company by the Trustee upon the Company's
written request.
ARTICLE FIFTEEN
SUBORDINATION OF SECURITIES
SECTION 1501. Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder, by the Holder's
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article, the indebtedness represented
by the Security and the payment of the principal of and premium and interest on
each and all of the Securities are hereby expressly made subordinate and junior
in right of payment to the prior payment in full of all Senior Indebtedness of
the Company, whether outstanding at the date of this Indenture or thereafter
incurred. No provision of this Article shall prevent the occurrence of any
default or Event of Default hereunder.
SECTION 1502. Payment Over of Proceeds Upon Dissolution, Etc.
Upon any payment by the Company or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
creditors upon any dissolution or winding-up or liquidation or reorganization of
the Company, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all amounts due upon all Senior Indebtedness
of the Company shall first be paid in full, or payment thereof provided for in
money in accordance with its terms, before any payment is made by the Company on
account of the principal or of any premium or interest on the Securities; and
upon any such dissolution or winding-up or liquidation or reorganization, any
payment by the Company, or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to which
-69-
<PAGE> 79
the Holders of the Securities or the Trustee would be entitled to receive from
the Company, except for the provisions of this Article, shall be paid by the
Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or
other Person making such payment or distribution, or by the Holders of the
Securities or by the Trustee under this Indenture if received by them or it,
directly to the holders of Senior Indebtedness of the Company (pro rata to such
holders on the basis of the respective amounts of Senior Indebtedness held by
such holders, as calculated by the Company) or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing such Senior Indebtedness may have been issued,
as their respective interests may appear, to the extent necessary to pay such
Senior Indebtedness in full, in money or money's worth, after giving effect to
any concurrent payment or distribution to or for the holders of such Senior
Indebtedness, before any payment or distribution is made to the Holders of the
Securities or to the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, prohibited by the foregoing, shall be received by the
Trustee before all Senior Indebtedness of the Company is paid in full, or
provision is made for such payment in money in accordance with its terms, such
payment or distribution shall be held in trust for the benefit of and shall be
paid over or delivered to the holders of such Senior Indebtedness or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior Indebtedness
may have been issued, and their respective interests may appear, as calculated
by the Company, for application to the payment of all Senior Indebtedness of the
Company, as the case may be, remaining unpaid to the extent necessary to pay
such Senior Indebtedness in full in money in accordance with its terms, after
giving effect to any concurrent payment or distribution to or for the benefit of
the holders of such Senior Indebtedness.
For purposes of this Article only, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment which are subordinated
in right of payment to all Senior Indebtedness which may at the time be
outstanding to substantially the same extent as, or to a greater extent than,
the Securities are so subordinated as provided in this Article. The
consolidation of the Company with, or the merger of the Company into, another
Person or the liquidation or dissolution of the Company following the conveyance
or transfer of its properties and assets substantially as an entirety to another
Person upon the terms and conditions set forth in Article Eight shall not be
deemed a dissolution, winding-up, liquidation, reorganization, assignment for
the benefit of creditors or marshaling of assets and liabilities of the Company
for the purposes of this Section if the Person formed by such consolidation or
into which the Company is merged or the Person which acquires by conveyance or
transfer such properties and assets substantially as an entirety, as the case
may be, shall, as a part of such consolidation, merger, conveyance or transfer,
comply with the conditions set forth in Article Eight.
-70-
<PAGE> 80
SECTION 1503. Prior Payment to Senior Indebtedness Upon Acceleration of
Securities.
In the event that any Securities are declared due and payable before
their Stated Maturity, then and in such event the holders of Senior Indebtedness
shall be entitled to receive payment in full of all amounts due or to become due
on or in respect of all Senior Indebtedness or provision shall be made for such
payment in cash, before the Holders of the Securities are entitled to receive
any payment (including any payment which may be payable by reason of the payment
of any other indebtedness of the Company being subordinated to the payment of
the Securities) by the Company on account of the principal of or any premium or
interest on the Securities or on account of the purchase or other acquisition of
Securities; provided, however, that nothing in this Section shall prevent the
satisfaction of any sinking fund payment in accordance with Article Twelve by
delivering and crediting pursuant to Section 1202 Securities which have been
acquired (upon redemption or otherwise) prior to such declaration of
acceleration or which have been converted pursuant to Article Fourteen.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known to the Trustee or, as the case may
be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 1402 would be applicable.
SECTION 1504. No Payment When Senior Indebtedness in Default.
In the event and during the continuation of any default by the Company
in the payment of principal, premium, interest or any other payment due on any
Senior Indebtedness of the Company, as the case may be, beyond any applicable
grace period with respect thereto, or in the event that the maturity of any
Senior Indebtedness of the Company, as the case may be, has been accelerated
because of a default, then, in any such case, no payment shall be made by the
Company with respect to the principal (including redemption and sinking fund
payments) of, or premium, if any, or interest on the Securities until such
default is cured or waived or ceases to exist or any such acceleration or demand
for payment has been rescinded.
In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee when such payment is prohibited by the preceding
paragraph of this Section 1504, such payment shall be paid over or delivered to
the Company.
-71-
<PAGE> 81
SECTION 1505. Payment Permitted in Certain Situations.
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Securities shall prevent (1) the Company, at any time except during
the pendency of any dissolution, winding-up, liquidation or reorganization of
the Company, whether voluntary or involuntary or any bankruptcy, insolvency,
receivership or other proceedings of the Company referred to in Section 1502 or
under the conditions described in Section 1503 or 1504, from making payments at
any time of principal of, or premium, if any, or interest on the Securities, or
(2) the application by the Trustee of any money deposited with it hereunder to
the payment of or on account of the principal of, or premium, if any, or
interest on the Securities or the retention of such payment by the Holders, if,
at the time of such application by the Trustee, it did not have actual knowledge
that such payment would have been prohibited by the provisions of this Article.
SECTION 1506. Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness or the
provision for such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Indebtedness, the rights of the Holders of
Securities shall be subrogated to the extent of the payments or distributions
made to the holders of such Senior Indebtedness pursuant to the provisions of
this Article (equally and ratably with the holders of indebtedness of the
Company which by its express terms is subordinated to indebtedness of the
Company to substantially the same extent as the Securities are subordinated to
the Senior Indebtedness and is entitled to like rights of subrogation) to the
rights of the holders of such Senior Indebtedness to receive payments and
distributions of cash, property and securities applicable to the Senior
Indebtedness until the principal of and any premium and interest on the
Securities shall be paid in full. For purposes of such subrogation, no payments
or distributions to the holders of the Senior Indebtedness of any cash, property
or securities to which the Holders of Securities or the Trustee would be
entitled except for the provisions of this Article, and no payments over
pursuant to the provisions of this Article to or for the benefit of the holders
of Senior Indebtedness by Holders of Securities or the Trustee, shall, as among
the Company, its creditors other than holders of Senior Indebtedness and the
Holders of Securities, be deemed to be a payment or distribution by the Company
to or on account of the Senior Indebtedness.
SECTION 1507. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders of Securities on the one
hand and the holders of Senior Indebtedness on the other hand. Nothing contained
in this Article or elsewhere in this Indenture or in the Securities is intended
to or shall (1) impair, as among the Company, its creditors other than holders
of Senior Indebtedness and the Holders of Securities, the obligation of the
Company, which is absolute and unconditional (and which, subject to the rights
under this Article of the holders of Senior Indebtedness, is intended to rank
equally with all other general obligations of
-72-
<PAGE> 82
the Company), to pay to the Holders of Securities the principal of and any
premium and interest on the Securities as and when the same shall become due and
payable in accordance with their terms; or (2) affect the relative rights
against the Company of the Holders of Securities and creditors of the Company,
as the case may be, other than the holders of Senior Indebtedness; or (3)
prevent the Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, under this Article of the holders of Senior Indebtedness
to receive cash, property and securities otherwise payable or deliverable to the
Trustee or such Holder.
SECTION 1508. Trustee to Effectuate Subordination.
Each Holder of a Security by such Holder's acceptance thereof
authorizes and directs the Trustee on such Holder's behalf to take such action
as may be necessary or appropriate to effectuate the subordination provided in
this Article.
SECTION 1509. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of Securities,
without incurring responsibility to the Holders of Securities and without
impairing or releasing the subordination provided in this Article or the
obligations hereunder of the Holders of Securities to the holders of Senior
Indebtedness do any one or more of the following: (1) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter, Senior
Indebtedness or otherwise amend or supplement in any manner Senior Indebtedness
or any instrument evidencing the same or any agreement under which Senior
Indebtedness is outstanding; (2) sell, exchange, release or otherwise deal with
any property pledged, mortgaged or otherwise securing Senior Indebtedness; (3)
release any Person liable in any manner for the collection of Senior
Indebtedness; and (4) exercise or refrain from exercising any rights against the
Company and any other Person.
SECTION 1510. Notice to Trustee.
The Company shall give prompt written notice to a Responsible Officer
of the Trustee of any fact known to the Company which would prohibit the making
of any payment to or by the
-73-
<PAGE> 83
Trustee in respect of any Securities pursuant to the provisions of this Article.
Notwithstanding the provisions of this Article or any other provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any facts which would prohibit the making of any payment to or by the Trustee in
respect of any Securities pursuant to the provisions of this Article, unless and
until a Responsible Officer of the Trustee shall have received written notice
thereof from the Company or a holder or holders of Senior Indebtedness or from
any trustee therefor; and, prior to the receipt of any such written notice, the
Trustee, subject to the provisions of Section 602, shall be entitled in all
respects to assume that no such facts exist; provided, however, that if the
Trustee shall have not received the notice provided for in this Section at least
two Business Days prior to the date upon which by the terms hereof any money may
become payable for any purpose (including, without limitation, the payment of
the principal of or any premium or interest on any Securities), then, anything
herein contained to the contrary notwithstanding, the Trustee shall have full
power and authority to receive such money and to apply the same to the purposes
for which they were received, and shall not be affected by any notice to the
contrary that may be received by it within two Business Days prior to such date.
Subject to the provisions of Section 602, the Trustee shall be entitled
to rely on the delivery to it of a written notice by a Person representing
himself to be a holder of Senior Indebtedness (or a trustee therefor) to
establish that such notice has been given by a holder of Senior Indebtedness (or
a trustee therefor). In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any Person as a holder
of Senior Indebtedness to participate in any payment or distribution pursuant to
this Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article, and if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
SECTION 1511. Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee, subject to the provisions of Section 603, and the
Holders of Securities shall be entitled to conclusively rely upon any order or
decree entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding up
or similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit
of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of Securities, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness and other indebtedness of the
Company, as the case may be, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article.
-74-
<PAGE> 84
SECTION 1512. Trustee Not Fiduciary for Holders of Senior Indebtedness.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article, and no implied covenants or
obligations with respect to the holders of such Senior Indebtedness shall be
read into this Indenture against the Trustee. The Trustee shall not be deemed to
owe any fiduciary duty to the holders of Senior Indebtedness and shall not be
liable to any such holders or creditors if it shall in good faith pay over or
distribute to Holders of Securities or to the Company or to any other Person
cash, property or securities to which any holders of Senior Indebtedness shall
be entitled by virtue of this Article or otherwise.
SECTION 1513. Rights of Trustee as Holder of Senior Indebtedness,
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Indebtedness which
may at any time be held by it, to the same extent as any other holder of Senior
Indebtedness and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 607.
SECTION 1514. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee; provided,
however, that Section 1413 shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.
SECTION 1515. Certain Conversions Deemed Payment.
For the purposes of this Article only, (1) the issuance and delivery of
junior securities (or cash paid in lieu of fractional shares) upon conversion of
Securities in accordance with Article Fourteen, or pursuant to the terms set
forth in an Officers' Certificate or established in one or more indentures
supplemental hereto in accordance with Section 301, shall not be deemed to
constitute a payment or distribution on account of the principal of or premium
or interest on Securities or on account of the purchase or other acquisition of
Securities, and (2) the payment,
-75-
<PAGE> 85
issuance or delivery of cash, property or securities (other than junior
securities and cash paid in lieu of fractional shares) upon conversion of a
Security shall be deemed to constitute payment on account of the principal of
such Security. For the purposes of this Section, the term "junior securities"
means (A) shares of any stock of any class of the Company and (B) securities of
the Company which are subordinated in right of payment to all Senior
Indebtedness which may be outstanding at the time of issuance or delivery of
such securities to substantially the same extent as, or to a greater extent
than, the Securities are so subordinated as provided in this Article. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities is
intended to or shall impair, as among the Company, its creditors other than
holders of Senior Indebtedness and the Holders of Securities, the right, which
is absolute and unconditional, of the Holder of any Security to convert such
Security in accordance with Article Fourteen.
-76-
<PAGE> 86
------------------------------------
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
WENDY'S INTERNATIONAL, INC.
By /s/ John K. Casey
---------------------------------
Name: John K. Casey
Title: Vice Chairman and Chief Financial
Officer
NBD BANK,
as Trustee
By /s/ James D. Khami
----------------------------------
Name: James D. Khami
Title: Trust Officer
-77-
<PAGE> 87
STATE OF OHIO )
) ss.:
COUNTY OF FRANKLIN )
On the 17th day of September, 1996, before me personally came John K.
Casey, to me known, who, being by me duly sworn, did depose and say that he/she
is Vice Chairman and CFO of Wendy's International, Inc., one of the corporations
described in and which executed the foregoing instrument; that he/she knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors of
said corporation; and that he/she signed his/her name thereto by like authority.
/s/ Kathleen M. McLaughlin
---------------------------------
STATE OF MICHIGAN )
) ss.:
COUNTY OF WAYNE )
On the 20th day of September, 1996, before me personally came James D.
Khami, to me known, who, being by me duly sworn, did depose and say that he/she
is a Trust Officer of NBD Bank, one of the corporations described in and which
executed the foregoing instrument; that he/she knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that he/she signed his/her name thereto by like authority.
/s/ Amy J. Brehler
---------------------------------
-78-
<PAGE> 1
Exhibit 4(b)
=======================================
FIRST SUPPLEMENTAL INDENTURE
between
Wendy's International, Inc.
and
NBD Bank
Dated as of September 20, 1996
========================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
ARTICLE I
DEFINITIONS
<S> <C>
SECTION 1.1. DEFINITION OF TERMS...............................................................2
ARTICLE II
GENERAL TERMS AND CONDITIONS
OF THE CONVERTIBLE DEBENTURES
SECTION 2.1. DESIGNATION AND PRINCIPAL AMOUNT..................................................4
SECTION 2.2. MATURITY..........................................................................4
SECTION 2.3. FORM AND PAYMENT..................................................................4
SECTION 2.4. GLOBAL DEBENTURE..................................................................5
SECTION 2.5. INTEREST..........................................................................6
SECTION 2.6. ENFORCEMENT RIGHTS................................................................7
ARTICLE III
REDEMPTION OF THE CONVERTIBLE DEBENTURES
SECTION 3.1. SPECIAL EVENT REDEMPTION..........................................................8
SECTION 3.2. OPTIONAL REDEMPTION BY COMPANY....................................................9
SECTION 3.3. NO SINKING FUND..................................................................10
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. EXTENSION OF INTEREST PAYMENT PERIOD.............................................10
SECTION 4.2. NOTICE OF EXTENSION..............................................................11
SECTION 4.3. LIMITATION OF TRANSACTIONS.......................................................11
</TABLE>
ARTICLE V
EXPENSES
i
<PAGE> 3
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 5.1. PAYMENT OF EXPENSES..............................................................12
SECTION 5.2. PAYMENT UPON RESIGNATION OR REMOVAL..............................................13
ARTICLE VI
COVENANT TO LIST ON EXCHANGE
SECTION 6.1. LISTING ON AN EXCHANGE...........................................................13
ARTICLE VII CONVERSION OF CONVERTIBLE DEBENTURES
SECTION 7.1. CONVERSION RIGHTS................................................................14
SECTION 7.2. CONVERSION PROCEDURES............................................................14
SECTION 7.3. CONVERSION PRICE ADJUSTMENTS.....................................................16
SECTION 7.4. ADJUSTMENT OF CONVERSION PRICE -
FUNDAMENTAL CHANGE....................................................................27
SECTION 7.5. NOTICE OF CERTAIN EVENTS.........................................................32
SECTION 7.6. COMPANY TO PROVIDE STOCK.........................................................33
SECTION 7.7. DIVIDEND OR INTEREST REINVESTMENT PLANS
.....................................................................................34
SECTION 7.8. CERTAIN ADDITIONAL RIGHTS........................................................34
SECTION 7.9. PREFERRED STOCK PURCHASE RIGHTS..................................................35
ARTICLE VIII
FORM OF CONVERTIBLE DEBENTURE
SECTION 8.1. FORM OF CONVERTIBLE DEBENTURE....................................................37
ARTICLE IX
ORIGINAL ISSUE OF CONVERTIBLE DEBENTURES
SECTION 9.1. ORIGINAL ISSUE OF CONVERTIBLE DEBENTURES
.....................................................................................51
</TABLE>
ARTICLE X
MISCELLANEOUS
ii
<PAGE> 4
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 10.1. RATIFICATION OF INDENTURE; FIRST
SUPPLEMENTAL INDENTURE CONTROLS.................................................51
SECTION 10.2. TRUSTEE NOT RESPONSIBLE FOR RECITALS
.....................................................................................51
SECTION 10.3. GOVERNING LAW...................................................................51
SECTION 10.4. SEPARABILITY....................................................................52
SECTION 10.5. COUNTERPARTS....................................................................52
</TABLE>
iii
<PAGE> 5
FIRST SUPPLEMENTAL INDENTURE, dated as of September 20, 1996
(the "First Supplemental Indenture"), between Wendy's International, Inc., an
Ohio corporation (the "Company"), and NBD Bank, as trustee (the "Trustee") under
the Indenture dated as of September 16, 1996 between the Company and the Trustee
(the "Indenture").
WHEREAS, the Company executed and delivered the Indenture to
the Trustee to provide for the future issuance of the Company's unsecured
subordinated debt securities to be issued from time to time in one or more
series as might be determined by the Company under the Indenture, in an
unlimited aggregate principal amount which may be authenticated and delivered as
provided in the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to provide for the establishment of a new series of its Securities to be
known as its 5% Convertible Subordinated Debentures (the "Convertible
Debentures"), the form and substance of such Convertible Debentures and the
terms, provisions and conditions thereof to be set forth as provided in the
Indenture and this First Supplemental Indenture;
WHEREAS, Wendy's Financing I, a Delaware statutory business
trust (the "Trust"), has offered to the public $200,000,000 aggregate
liquidation amount of its $2.50 Term Convertible Securities, Series A (the
"Trust Preferred Securities"), representing undivided beneficial interests in
the assets of the Trust and proposes to invest the proceeds from such offering,
together with the proceeds of the issuance and sale by the Trust to the Company
of $2,020,250 aggregate liquidation amount of its Common Securities, in
$202,020,250 aggregate principal amount of the Convertible Debentures; and
WHEREAS, the Company has requested that the Trustee execute
and deliver this First Supplemental Indenture and all requirements necessary to
make this First Supplemental Indenture a valid instrument in accordance with its
terms, and to make the Convertible Debentures, when executed by the Company and
authenticated and delivered by the Trustee, the valid obligations of the
Company, have been performed, and the execution and delivery of this First
Supplemental Indenture has been duly authorized in all respects:
NOW THEREFORE, in consideration of the purchase and acceptance
of the Convertible Debentures by the Holders thereof, and for the purpose of
setting forth, as provided in the Indenture, the form and substance of the
Convertible
1
<PAGE> 6
Debentures and the terms, provisions and conditions thereof, the Company
covenants and agrees with the Trustee as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINITION OF TERMS.
For all purposes of the First Supplemental Indenture, except
as otherwise expressly provided or unless the context otherwise requires:
(a) the terms which are defined in the Indenture have the same
meanings when used in this First Supplemental Indenture;
(b) the terms defined in this Article have the meaning
assigned to them in this Article and include the plural as well as the singular;
(c) all other terms used herein which are defined in the Trust
Indenture Act, whether directly or by reference therein, have the meanings
assigned to them therein;
(d) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States of America, and, except as otherwise herein
expressly provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted in the United States of America
at the date of such computation;
(e) a reference to a Section or Article is to a Section or
Article of this First Supplemental Indenture;
(f) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this First Supplemental Indenture as a whole
and not to any particular Article, Section or other subdivision;
(g) headings are for convenience of reference only and do not
affect interpretation; and
(h) the following terms have the meanings given to them in the
Declaration: (i) Business Day; (ii) Clearing Agency; (iii) Common Stock; (iv)
Trust Preferred Security Certificate; (v) Delaware Trustee; (vi) Dissolution Tax
2
<PAGE> 7
Opinion; (vii) Distribution; (viii) DTC; (ix) Institutional Trustee: (x)
Investment Company Event; (xi) No-Recognition Opinion; (xii) Redemption Tax
Opinion; (xiii) Regular Trustees; (xiv) Special Event; (xv) Tax Event; and (xvi)
Underwriting Agreement.
"ADDITIONAL INTEREST" shall have the meaning set forth in Section 2.5.
"COMPOUNDED INTEREST" shall have the meaning specified in Section 4.1.
"DECLARATION" means the Amended and Restated Declaration of Trust of
Wendy's Financing I, a Delaware statutory business trust, dated as of September
20, 1996.
"DEFERRED INTEREST" has the meaning specified in Section 4.1.
"DISSOLUTION EVENT" means that, as a result of the occurrence and
continuation of a Special Event, the Trust is to be dissolved in accordance with
the Declaration, and the Convertible Debentures held by the Institutional
Trustee are to be distributed to the holders of the Trust Securities issued by
the Trust pro rata in accordance with the Declaration.
"EXTENDED INTEREST PAYMENT PERIOD" has the meaning specified in Section
4.1.
"GLOBAL DEBENTURE" has the meaning specified in Section 2.4.
"MATURITY DATE" means the date on which the Convertible Debentures
mature and on which the principal shall be due and payable together with all
accrued and unpaid interest thereon including Compounded Interest and Additional
Interest, if any.
"NON BOOK-ENTRY TRUST PREFERRED SECURITIES" has the meaning set forth
in Section 2.4.
"OPTIONAL REDEMPTION PRICE" has the meaning specified in Section 3.2.
"TRADING DAY" shall mean a day on which any securities are traded on
the national securities exchange or quotation system used to determine the
Closing Price.
3
<PAGE> 8
"TRUST PREFERRED SECURITIES" has the meaning specified in the recitals
to this First Supplemental Indenture.
ARTICLE II
GENERAL TERMS AND CONDITIONS
OF THE CONVERTIBLE DEBENTURES
SECTION 2.1. DESIGNATION AND PRINCIPAL AMOUNT.
There is hereby authorized a series of Debentures designated the "5%
Convertible Subordinated Debentures," limited in aggregate principal amount to
$202,020,250, which amount shall be as set forth in any written order of the
Company for the authentication and delivery of Convertible Debentures pursuant
to Section 303 of the Indenture.
SECTION 2.2. MATURITY.
The Maturity Date is September 15, 2026.
SECTION 2.3. FORM AND PAYMENT.
Except as provided in Section 2.4, the Convertible Debentures shall be
issued in fully registered certificated form without Coupons in denominations of
$50 in principal amount and integral multiples thereof. Principal and interest
on the Convertible Debentures issued in certificated form will be payable, the
transfer of such Convertible Debentures will be registrable and such Convertible
Debentures will be exchangeable for Convertible Debentures bearing identical
terms and provisions at the office or agency of the Trustee; PROVIDED, HOWEVER,
that payment of interest may be made at the option of the Company by check
mailed to the Holder at such address as shall appear in the Security Register.
Notwithstanding the foregoing, so long as the Holder of any Convertible
Debentures is the Institutional Trustee, the payment of the principal of and
interest (including Compounded Interest and Additional Interest, if any) on such
Convertible Debentures held by the Institutional Trustee will be made at such
place and to such account as may be designated by the Institu tional Trustee.
4
<PAGE> 9
SECTION 2.4. GLOBAL DEBENTURE.
(a) In connection with a Dissolution Event,
(i) the Convertible Debentures in certificated form may be
presented to the Trustee by the Institutional Trustee in exchange for a
global Debenture in an aggregate principal amount equal to the
aggregate principal amount of all outstanding Convertible Debentures (a
"GLOBAL DEBENTURE"), to be registered in the name of DTC, or its
nominee, and delivered by the Trustee to DTC for crediting to the
accounts of its participants pursuant to the instructions of the
Regular Trustees. The Company upon any such presentation shall execute
a Global Debenture in such aggregate principal amount and deliver the
same to the Trustee for authentication and delivery in accordance with
the Indenture and this First Supplemental Indenture. Payments on the
Convertible Debentures issued as a Global Debenture will be made to
DTC; and
(ii) if any Trust Preferred Securities are held in non
book-entry certificated form, any Trust Preferred Security Certificate
which represents Trust Preferred Securities other than Trust Preferred
Securities held by the Clearing Agency or its nominee ("NON BOOK-ENTRY
TRUST PREFERRED SECURITIES") will be deemed to represent beneficial
interests in Convertible Debentures having an aggregate principal
amount equal to the aggregate liquidation amount of the Non Book-Entry
Trust Preferred Securities until such Trust Preferred Security
Certificates are presented to the Security Registrar for transfer or
reissuance at which time such Trust Preferred Security Certificates
will be cancelled and a Debenture, registered in the name of the holder
of the Trust Preferred Security Certificate or the transferee of the
holder of such Trust Preferred Security Certificate, as the case may
be, with an aggregate principal amount equal to the aggregate
liquidation amount of the Trust Preferred Security Certificate
cancelled, will be executed by the Company and delivered to the Trustee
for authentication and delivery in accordance with the Indenture and
this First Supplemental Indenture. On issue of such Convertible
Debentures, Convertible Debentures with an equivalent aggregate
principal amount that were presented by the Institutional Trustee to
the Trustee will be deemed to have been cancelled.
5
<PAGE> 10
(b) A Global Debenture may be transferred, in whole but not in
part, only to another nominee of DTC, or to a successor depositary selected or
approved by the Company or to a nominee of such successor depositary.
SECTION 2.5. INTEREST.
(a) Each Convertible Debenture will bear interest at the rate
of 5% per annum (the "COUPON RATE") from September 20, 1996 until the principal
thereof becomes due and payable, and on any overdue principal and (to the extent
that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at the Coupon Rate, compounded quarterly,
payable (subject to the provisions of Article IV) quarterly in arrears on March
15, June 15, September 15 and December 15 of each year (each, an "INTEREST
PAYMENT DATE"), commencing on December 15, 1996, to the Person in whose name
such Convertible Debenture or any predecessor Convertible Debenture is
registered, at the close of business on the Regular Record Date for such
interest installment, which, in respect of (i) Convertible Debentures of which
the Institutional Trustee is the Holder and the related Trust Preferred
Securities are in book-entry only form or (ii) a Global Debenture, shall be the
close of business on the Business Day next preceding that Interest Payment Date;
PROVIDED, that if the Interest Payment Date is a Redemption Date, then the
record date for the interest payment shall be as of the opening of business on
such day for the purpose of permitting the Holder of a Convertible Debenture to
convert on such record date while continuing to be the record holder for the
interest payment and therefore entitled to receive the interest payment on the
Interest Payment Date notwithstanding conversion on the record date.
Notwithstanding the foregoing sentence, if (i) the Convertible Debentures are
held by the Institutional Trustee and the Trust Preferred Securities are no
longer in book-entry only form or (ii) the Convertible Debentures are not
represented by a Global Debenture, the Company may select a Regular Record Date
for such interest installment which shall be any date at least one Business Day
before an Interest Payment Date.
(b) The amount of interest payable for any period will be
computed on the basis of a 360-day year of twelve 30-day months. Except as
provided in the following sentence, the amount of interest payable for any
period shorter than a full quarterly period for which interest is computed, will
be computed on the basis of the actual number of days elapsed per 30-day month.
In the event that any date on which interest is payable on the Convertible
Debentures is not a Business Day, then payment of interest
6
<PAGE> 11
payable on such date will be made on the next succeeding day which is a Business
Day (and without any interest or other payment in respect of any such delay),
except that, if such Business Day is in the next succeeding calendar year, then
such payment shall be made on the immediately preceding Business Day, in each
case with the same force and effect as if made on such date.
(c) If, at any time while the Institutional Trustee is the
Holder of any Convertible Debentures, the Trust or the Institutional Trustee is
required to pay any taxes, duties, assessments or governmental charges of
whatever nature (other than withholding taxes) imposed by the United States, or
any other taxing authority, then, in any such case, the Company will pay as
additional interest ("ADDITIONAL INTEREST") on the Convertible Debentures held
by the Institutional Trustee, such additional amounts as shall be required so
that the net amounts received and retained by the Trust and the Institutional
Trustee after paying such taxes, duties, assessments or other governmental
charges will be equal to the amounts the Trust and the Institutional Trustee
would have received had no such taxes, duties, assessments or other governmental
charges been imposed.
SECTION 2.6. ENFORCEMENT RIGHTS.
The holders of a majority in liquidation amount of the Trust
Preferred Securities will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Institutional Trustee
or to direct the exercise of any trust or power conferred upon the Institutional
Trustee under the Declaration, including the right to direct the Institutional
Trustee to exercise the remedies available to it as a Holder of the Convertible
Debentures. If the Institutional Trustee fails to enforce its rights under the
Convertible Debentures, a holder of Trust Preferred Securities, to the extent
permitted by law, may institute a legal proceeding directly against the Company
to enforce the Institutional Trustee's rights under the Convertible Debentures
without first instituting any legal proceeding against the Institutional Trustee
or any other person or entity. Notwithstanding the foregoing, if an Event of
Default has occurred and is continuing and such event is attributable to the
failure of the Company to pay interest or principal on the Convertible
Debentures on the date such interest or principal is otherwise payable (or in
the case of redemption, on the redemption date), then the registered holder of
the Trust Preferred Securities may directly institute a proceeding for
enforcement of payment to such holder of the principal of or interest on the
7
<PAGE> 12
Convertible Debentures having a principal amount equal to the aggregate
liquidation amount of the Trust Preferred Securities of such holder (a "Direct
Action") on or after the respective due date specified in the Convertible
Debentures. In connection with such Direct Action, the Company will be
subrogated to the rights of such holder of Trust Preferred Securities under the
Declaration to the extent of any payment made by the Company to such holder of
Trust Preferred Securities in such Direct Action. The holders of Trust Preferred
Securities will not be able to exercise any other remedy available to the
holders of the Convertible Debentures.
ARTICLE III
REDEMPTION OF THE CONVERTIBLE DEBENTURES
SECTION 3.1. SPECIAL EVENT REDEMPTION.
If a Special Event has occurred and is continuing and:
(a) the Company has received a Redemption Tax Opinion;
or
(b) after receiving a Dissolution Tax Opinion, the Trustees
shall have been informed by tax counsel rendering the Dissolution Tax
Opinion that a No-Recognition Opinion cannot be delivered to the Trust,
then, notwithstanding Section 3.2(a) but subject to Section 3.2(b), the Company
shall have the right upon not less than 30 days nor more than 60 days notice to
the Holders of the Convertible Debentures to redeem the Convertible Debentures,
in whole or in part, for cash within 90 days following the occurrence of such
Tax Event (the "90-DAY PERIOD") at a redemption price equal to 100% of the
principal amount to be redeemed plus any accrued and unpaid interest thereon to
the date of such redemption (the "REDEMPTION PRICE"), PROVIDED that if at the
time there is available to the Company or the Trust the opportunity to
eliminate, within the 90-Day Period, the Tax Event by taking some ministerial
action ("MINISTERIAL ACTION"), such as filing a form or making an election, or
pursuing some other similar reasonable measure which has no adverse effect on
the Company, the Trust or the Holders of the Trust Securities issued by the
Trust, the Company shall pursue such Ministerial Action in lieu of redemption,
and, PROVIDED, FURTHER, that the Company shall
8
<PAGE> 13
have no right to redeem the Convertible Debentures while the Trust is pursuing
any Ministerial Action pursuant to its obligations under the Declaration. The
Redemption Price shall be paid prior to 12:00 noon, New York time, on the date
of such redemption or such earlier time as the Company determines, PROVIDED that
the Company shall deposit with the Trustee an amount sufficient to pay the
Redemption Price prior to the redemption date.
SECTION 3.2. OPTIONAL REDEMPTION BY COMPANY.
(a) Subject to the provisions of Section 3.2(b) and to the
provisions of Article Eleven of the Indenture, except as otherwise may be
specified in Section 3.1 or elsewhere in this First Supplemental Indenture, the
Company shall have the right to redeem the Convertible Debentures, in whole or
in part, from time to time, on or after September 17, 2000. Any redemption
pursuant to this paragraph will be made upon not less than 30 days nor more than
60 days notice to the Holder of the Convertible Debentures, at the following
prices (expressed as percentages of the principal amount of the Convertible
Debentures) (the "OPTIONAL REDEMPTION PRICE") together with accrued and unpaid
interest, including Compounded and Additional Interest to, but excluding, the
Redemption Date, if redeemed during the 12-month period beginning September 15:
<TABLE>
<CAPTION>
Year Redemption Price
---- ----------------
<S> <C>
2000 103.00%
2001 102.50
2002 102.00
2003 101.50
2004 101.00
2005 100.50
</TABLE>
and 100% if redeemed on or after September 15, 2006.
If Convertible Debentures are redeemed on any March 15, June
15, September 15, or December 15, accrued and unpaid interest shall be payable
to Holders of record on the relevant record date.
So long as the corresponding Trust Preferred Securities are
outstanding, the proceeds from the redemption of the Convertible Debentures will
be used to redeem Trust Preferred Securities.
If the Convertible Debentures are only partially redeemed
pursuant to this Section 3.2, the Convertible Debentures will be redeemed PRO
RATA or by lot or by any
9
<PAGE> 14
other method utilized by the Trustee. The Optional Redemption Price shall be
paid prior to 12:00 noon, New York time, on the Redemption Date or at such
earlier time as the Company determines provided that the Company shall deposit
with the Trustee an amount sufficient to pay the Optional Redemption Price by
10:00 a.m., New York time, on the date such Optional Redemption Price is to be
paid.
(b) If a partial redemption of the Convertible Debentures
would result in the delisting of the Trust Preferred Securities issued by the
Trust from any national securities exchange or other organization on which the
Trust Preferred Securities are then listed, the Company shall not be permitted
to effect such partial redemption and may only redeem the Convertible Debentures
in whole.
SECTION 3.3. NO SINKING FUND.
The Convertible Debentures are not entitled to the benefit of
any sinking fund.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. EXTENSION OF INTEREST PAYMENT PERIOD.
So long as an Event of Default under Section 501 of the
Indenture shall not have occurred and be continuing, the Company shall have the
right, at any time and from time to time during the term of the Convertible
Debentures, to defer payments of interest by extending the interest payment
period of such Convertible Debentures for a period not exceeding 20 consecutive
quarters (the "EXTENDED INTEREST PAYMENT PERIOD"), during which Extended
Interest Payment Period no interest shall be due and payable; PROVIDED that no
Extended Interest Payment Period may extend beyond the Maturity Date or any
earlier Redemption Date. To the extent permitted by applicable law, interest,
the payment of which has been deferred because of the extension of the interest
payment period pursuant to this Section 4.1, will bear interest thereon at the
Coupon Rate compounded quarterly for each quarter of the Extended Interest
Payment Period ("COMPOUNDED INTEREST"). At the end of the Extended Interest
Payment Period, the Company shall pay all accrued and unpaid interest on the
Convertible Debentures, including any Additional Interest and Compounded
Interest (together, "DEFERRED INTEREST") that shall be payable to the Holders of
the Convertible Debentures in whose names the Convertible Debentures are
registered in the Security Register on the first record date after the end of
the Extended Interest
10
<PAGE> 15
Payment Period. Before the termination of any Extended Interest Payment Period,
the Company may further extend such period, provided that such period together
with all such further extensions thereof shall not exceed 20 consecutive
quarters, or extend beyond the maturity date of the Convertible Debentures. Upon
the termination of any Extended Interest Payment Period and upon the payment of
all Deferred Interest then due, the Company may commence a new Extended Interest
Payment Period, subject to the foregoing requirements. No interest shall be due
and payable during an Extended Interest Payment Period, except at the end
thereof, but the Company may prepay at any time all or any portion of the
interest accrued during an Extended Interest Payment Period.
SECTION 4.2. NOTICE OF EXTENSION.
(a) If the Institutional Trustee is the only registered Holder
of the Convertible Debentures at the time the Company selects an Extended
Interest Payment Period, the Company shall give written notice to the Regular
Trustees, the Institutional Trustee and the Trustee of its selection of such
Extended Interest Payment Period one Business Day before the earlier of (i) the
next succeeding date on which Distributions on the Trust Securities issued by
the Trust are payable, or (ii) the date the Trust is required to give notice of
the record date, or the date such Distributions are payable, to the New York
Stock Exchange or other applicable self-regulatory organization or to holders of
the Trust Preferred Securities issued by the Trust, but in any event at least
one Business Day before such record date.
(b) If the Institutional Trustee is not the only Holder of the
Convertible Debentures at the time the Company selects an Extended Interest
Payment Period, the Company shall give the Holders of the Convertible Debentures
and the Trustee written notice of its selection of such Extended Interest
Payment Period at least 10 Business Days before the earlier of (i) the next
succeeding Interest Payment Date, or (ii) the date the Company is required to
give notice of the record or payment date of such interest payment to the New
York Stock Exchange or other applicable self-regulatory organization or to
Holders of the Convertible Debentures.
(c) The quarter in which any notice is given pursuant to
paragraphs (a) or (b) of this Section 4.2 shall be counted as one of the 20
quarters permitted in the maximum Extended Interest Payment Period permitted
under Section 4.1.
SECTION 4.3. LIMITATION OF TRANSACTIONS.
11
<PAGE> 16
If the Company shall exercise its right to defer payment of
interest as provided in Section 4.1, then (i) the Company shall not declare or
pay any dividend on, make any distributions with respect to, or redeem,
purchase, acquire or make a liquidation payment with respect to, any of its
capital stock (other than (A) purchases or acquisitions of shares of its common
stock in connection with the satis faction by the Company of its obligations
under any employee benefit plans, (B) as a result of a reclassification of its
capital stock or the exchange or conversion of one class or series of its
capital stock for another class or series of its capital stock , (C) the
purchase of fractional interests in shares of its capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged or (D) purchases or acquisitions of shares of Common
Stock to be used in connection with acquisitions of Common Stock by shareholders
pursuant to the Company's dividend reinvestment plan), (ii) the Company shall
not make any payment of interest, principal or premium, if any, on or repay,
repurchase or redeem any debt securities issued by the Company which rank pari
passu with or junior to the Convertible Debentures and (iii) the Company shall
not make any guarantee payment with respect to the foregoing (other than
pursuant to the Guarantee).
ARTICLE V
EXPENSES
SECTION 5.1. PAYMENT OF EXPENSES.
In connection with the offering, sale and issuance of the
Convertible Debentures to the Institutional Trustee and in connection with the
sale of the Trust Securities by the Trust, the Company, in its capacity as
borrower with respect to the Convertible Debentures, shall:
(a) pay all costs and expenses relating to the offering, sale
and issuance of the Convertible Debentures, including commissions to the
underwriters payable pursuant to the Underwriting Agreement and compensation of
the Trustee under the Indenture in accordance with the provisions of Section 607
of the Indenture;
(b) pay all costs and expenses of the Trust (including, but
not limited to, costs and expenses relating to the organization of the Trust,
the fees and expenses of the Institutional Trustee and the Delaware Trustee, the
costs and expenses relating to the operation of the Trust, including without
limitation, costs and expenses of
12
<PAGE> 17
accountants, attorneys, statistical or bookkeeping services, expenses for
printing and engraving and computing or accounting equipment, paying agent(s),
registrar(s), transfer agent(s), duplicating, travel and telephone and other
telecommunications expenses and costs and expenses incurred in connection with
the acquisition, financing, and disposition of Trust assets);
(c) pay all costs and expenses related to the
enforcement by the Institutional Trustee of the rights of
the holders of the Trust Preferred Securities;
(d) be primarily liable for any indemnification
obligations arising with respect to the Declaration; and
(e) pay any and all taxes (other than United States
withholding taxes attributable to the Trust or its assets) and all liabilities,
costs and expenses with respect to such taxes of the Trust.
SECTION 5.2. PAYMENT UPON RESIGNATION OR REMOVAL.
Upon termination of this First Supplemental Indenture or the
Indenture or the removal or resignation of the Trustee pursuant to Section 610
of the Indenture, the Company shall pay to the Trustee all amounts accrued to
the date of such termination, removal or resignation. Upon termination of the
Declaration or the removal or resignation of the Delaware Trustee or the
Institutional Trustee, as the case may be, pursuant to Section 5.07 of the
Declaration, the Company shall pay to the Delaware Trustee or the Institutional
Trustee, and their respective counsel, as the case may be, all amounts accrued
to the date of such termination, removal or resignation.
ARTICLE VI
COVENANT TO LIST ON EXCHANGE
SECTION 6.1. LISTING ON AN EXCHANGE.
If the Convertible Debentures are to be distributed to the
holders of the Trust Preferred Securities issued by the Trust upon a Dissolution
Event, the Company will use its best efforts to list such Convertible Debentures
on the New York Stock Exchange, Inc. or on such other exchange as the Trust
Preferred Securities are then listed.
ARTICLE VII
13
<PAGE> 18
CONVERSION OF CONVERTIBLE DEBENTURES
SECTION 7.1. CONVERSION RIGHTS.
Subject to and upon compliance with the provisions of this
Article VII, the Convertible Debentures are convertible, at the option of the
Holder, at any time through the close of business on September 15, 2026 (or, in
the case of Convertible Debentures called for redemption, prior to the close of
business on the Business Day prior to the corresponding redemption date) into
fully paid and nonassessable shares of Common Stock of the Company at an initial
conversion rate of 1.8932 shares of Common Stock for each $50 in aggregate
principal amount of Convertible Debentures (equal to a conversion price (as
adjusted from time to time, the "Conversion Price") of $26.41 per share of
Common Stock), subject to adjustment as described in this Article VII. A Holder
of Convertible Debentures may convert any portion of the principal amount of the
Convertible Debentures into that number of fully paid and nonassessable shares
of Common Stock obtained by dividing the principal amount of the Convertible
Debentures to be converted by such conversion price. All calculations under this
Article VII shall be made to the nearest cent or to the nearest 1/100th of a
share, as the case may be.
SECTION 7.2. CONVERSION PROCEDURES.
(a) In order to convert all or a portion of the Convertible
Debentures, the Holder thereof shall deliver to the Conversion Agent an
irrevocable Notice of Conversion setting forth the principal amount of
Convertible Debentures to be converted, together with the name or names, if
other than the Holder, in which the shares of Common Stock should be issued upon
conversion and, if such Convertible Debentures are definitive Convertible
Debentures, surrender to the Conversion Agent the Convertible Debentures to be
converted, duly endorsed or assigned to the Company or in blank. In addition, a
holder of Trust Preferred Securities may exercise its right under the
Declaration to convert such Trust Preferred Securities into Common Stock by
delivering to the Conversion Agent an irrevocable Notice of Conversion setting
forth the information called for by the preceding sentence and directing the
Conversion Agent (i) to exchange such Trust Preferred Security for a portion of
the Convertible Debentures held by the Trust (at an exchange rate of $50
principal amount of Convertible Debentures for each Trust Preferred Security)
and (ii) to immediately convert such Convertible Debentures, on behalf of such
holder, into Common Stock of the Company pursuant to this Article VII and, if
such Trust Preferred Securities are in
14
<PAGE> 19
definitive form, surrendering such Trust Preferred Securities, duly endorsed or
assigned to the Company or in blank. So long as any Trust Preferred Securities
are outstanding, the Trust shall not convert any Convertible Debentures except
pursuant to a Notice of Conversion delivered to the Conversion Agent by a holder
of Trust Preferred Securities.
If a Trust Preferred Security is surrendered for conversion
after the close of business on any regular record date for payment of a
Distribution and before the opening of business on the corresponding
Distribution payment date, then, notwithstanding such conversion, the
Distribution payable on such Distribution payment date will be paid in cash to
the person in whose name the Convertible Debenture is registered at the close of
business on such record date, and (other than a Convertible Debenture or a
portion of a Convertible Debenture called for redemption on a redemption date
occurring after such record date and on or prior to such Distribution payment
date) when so surrendered for conversion, the Convertible Debenture must be
accompanied by payment of an amount equal to the Distribution payable on such
Distribution payment date. Except as otherwise provided in the immediately
preceding sentence, in the case of any Convertible Debenture which is converted,
interest whose Maturity Date is after the date of conversion of such Convertible
Debenture shall not be payable, and the Company shall not make nor be required
to make any other payment, adjustment or allowance with respect to accrued but
unpaid interest on the Convertible Debentures being converted, which shall be
deemed to be paid in full. Each conversion shall be deemed to have been effected
immediately prior to the close of business on the day on which the Notice of
Conversion was received (the "CONVERSION DATE") by the Conversion Agent from the
Holder or from a holder of the Trust Preferred Securities effecting a conversion
thereof pursuant to its conversion rights under the Declaration, as the case may
be. The Person or Persons entitled to receive the Common Stock issuable upon
such conversion shall be treated for all purposes as the record holder or
holders of such Common Stock as of the Conversion Date. As promptly as
practicable on or after the Conversion Date, the Company shall issue and deliver
at the office of the Conversion Agent, unless otherwise directed by the Holder
in the Notice of Conversion, a certificate or certificates for the number of
full shares of Common Stock issuable upon such conversion, together with the
cash payment, if any, in lieu of any fraction of any share to the Person or
Persons entitled to receive the same. The Conversion Agent shall deliver such
certificate or certificates to such Person or Persons.
15
<PAGE> 20
(b) The Company's delivery upon conversion of the fixed number
of shares of Common Stock into which the Convertible Debentures are convertible
(together with the cash payment, if any, in lieu of fractional shares) shall be
deemed to satisfy the Company's obligation to pay the principal amount at
Maturity of the portion of Convertible Debentures so converted and any unpaid
interest (including Compounded Interest) accrued on such Convertible Debentures
at the time of such conversion.
(c) No fractional shares of Common Stock will be issued as a
result of conversion, but in lieu thereof, the Company shall pay to the
Conversion Agent a cash adjustment in an amount equal to the same fraction of
the Closing Price of such fractional interest on the date on which the
Convertible Debentures were duly surrendered to the Conversion Agent for
conversion, or, if such day is not a Trading Day, on the next Trading Day, and
the Conversion Agent in turn will make such payment, if any, to the Holder of
the Convertible Debentures or the holder of the Trust Preferred Securities so
converted.
(d) In the event of the conversion of any Convertible
Debenture in part only, a new Convertible Debenture or Convertible Debentures
for the unconverted portion thereof will be issued in the name of the Holder
thereof upon the cancellation thereof in accordance with Section 1402 of the
Indenture.
(e) In effecting the conversion transactions described in this
Section 7.2, the Conversion Agent is acting as agent of the holders of Trust
Preferred Securities (in the exchange of Trust Preferred Securities for
Convertible Debentures) and as agent of the Holders of Convertible Debentures
(in the conversion of Convertible Debentures into Common Stock), as the case may
be. The Conversion Agent is hereby authorized (i) to exchange Convertible
Debentures held by the Trust from time to time for Trust Preferred Securities in
connection with the conversion of such Trust Preferred Securities in accordance
with this Article VII and (ii) to convert all or a portion of the Convertible
Debentures into Common Stock and thereupon to deliver such shares of Common
Stock in accordance with the provisions of this Article VII and to deliver to
the Trust a new Convertible Debenture or Convertible Debentures for any
resulting unconverted principal amount.
SECTION 7.3. CONVERSION PRICE ADJUSTMENTS.
16
<PAGE> 21
(a) The Conversion Price shall be adjusted from
time to time as follows:
(i) In case the Company shall pay or make a dividend
or other distribution on Common Stock in shares of Common
Stock, then the Conversion Price in effect at the opening of
business on the day following the date fixed for the
determination of shareholders entitled to receive such
dividend or other distribution shall be reduced by multiplying
such Conversion Price by a fraction the numerator of which
shall be the number of shares of Common Stock outstanding at
the close of business on the date fixed for such determination
and the denominator of which shall be the sum of such number
of shares and the total number of shares constituting such
dividend or other distribution, such reduction to become
effective immediately after the opening of business on the day
following the date fixed for such determination. For the
purposes of this subparagraph (i), the number of shares of
Common Stock at any time outstanding shall not include shares
held in the treasury of the Company (except to the extent such
dividend or distribution is being made with respect to such
shares) but shall include (x) shares issuable in respect of
scrip certificates issued in lieu of fractions of shares of
Common Stock and (y) any shares of Common Stock of the Company
issuable in exchange for any Exchangeable Non-Voting Shares of
WENTIM Ltd. held by Ronald V. Joyce or his successors or
assigns.
(ii) In case the outstanding shares of Common Stock
shall be subdivided into a greater number of shares of Common
Stock, then the Conversion Price in effect at the opening of
business on the day following the day upon which such
subdivision becomes effective shall be proportionately
reduced, and, conversely, in case the outstanding shares of
Common Stock shall be combined into a smaller amount of shares
of Common Stock, then the Conversion Price in effect at the
opening of business on the day following the day upon which
such combination becomes effective shall be proportionately
increased, such reduction or increase, as the case may be, to
become effective immediately after the opening of business on
the day following the day upon which such subdivision or
combination becomes effective.
17
<PAGE> 22
(iii) In case the Company shall issue rights or
warrants to all holders of Common Stock entitling them (for a
period expiring within 45 days after the record date fixed for
a distribution of such rights or warrants) to subscribe for or
purchase shares of Common Stock at a price per share less than
the Current Market Price (as hereinafter defined) per share
(determined as provided in subparagraph (vii) below) of Common
Stock on the date fixed for the determination of shareholders
entitled to receive such rights or warrants (other than
pursuant to a dividend reinvestment plan), then the Conversion
Price in effect at the opening of business on the day
following the date fixed for such determination shall be
reduced by multiplying such Conversion Price by a fraction the
numerator of which shall be the number of shares of Common
Stock outstanding at the close of business on the date fixed
for such determination plus the number of shares of Common
Stock which the aggregate of the offering price of the total
number of shares of Common Stock so offered for subscription
or purchase would purchase at such Current Market Price and
the denominator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for
such determination plus the number of shares of Common Stock
so offered for subscription or purchase, such reduction to
become effective immediately after the opening of business on
the day following the date fixed for such determination. For
the purposes of this subparagraph (iii), the number of shares
of Common Stock at any time outstanding shall not include
shares held in the treasury of the Company but shall include
(x) shares issuable in respect of scrip certificates issued in
lieu of fractions of shares of Common Stock and (y) any shares
of Common Stock of the Company issuable in exchange for any
Exchangeable Non-Voting Shares of WENTIM Ltd. held by Ronald
V. Joyce or his successors or assigns. The Company agrees not
to issue any rights or warrants in respect of shares of Common
Stock held in the treasury of the Company. To the extent that
shares of Common Stock are not delivered after the expiration
of such rights or warrants, the Conversion Price shall be
readjusted to the Conversion Price which would then be in
effect had the adjustments made in respect of the issuance of
such rights or warrants been made on the basis of delivery of
18
<PAGE> 23
only the number of shares of Common Stock actually
delivered.
(iv) Subject to the second paragraph of this
subparagraph (iv), in case the Company shall, by dividend or
otherwise, distribute to all holders of Common Stock (A)
shares of capital stock of the Company (other than Common
Stock), (B) evidence of indebtedness of the Company and/or (C)
other assets (including securities, but excluding (1) any
rights or warrants referred to in subparagraph (iii) above,
(2) any rights or warrants to obtain capital stock of a
company other than the Company or any subsidiary of the
Company (including any rights offerings of the Company with
respect to capital stock of companies in which the Company has
an investment (a "Rights Offering")), (3) dividends or
distributions in connection with the liquidation, dissolution
or winding-up of the Company, (4) dividends payable solely in
cash that may from time to time be fixed by the Board of
Directors of the Company and (5) dividends or distributions
referred to in subparagraph (i) above), then in each case
(unless the Company makes the election referred to in the next
sentence) the Conversion Price shall be adjusted so that the
same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the close of
business on such record date by a fraction the numerator of
which shall be the Current Market Price per share (determined
as provided in subparagraph (vii) below) of the Common Stock
on such record date (the "Reference Date") less the then fair
market value on the Reference Date (as determined in good
faith by the Board of Directors of the Company, whose
determination shall be conclusive and shall be described in a
statement filed with the Depositary and the Trustee) of the
portion of the shares of capital stock of the Company,
evidences of indebtedness or other assets so distributed (and
for which an adjustment to the Conversion Price has not been
made previously pursuant to the terms of this Article VII)
applicable to one share of Common Stock and the denominator
shall be such Current Market Price per share of the Common
Stock, such adjustment to become effective immediately prior
to the opening of business on the day following the Reference
Date. However, the Company may elect, in its sole discretion,
in lieu of the foregoing adjustment, to make adequate
19
<PAGE> 24
provision so that each holder of Securities shall have the
right to receive upon conversion thereof the amount and kind
of shares of capital stock, evidences of indebtedness or other
assets such holder would have received had such holder
converted such shares on such record date. If the Board of
Directors of the Company determines the fair market value of
any distribution for purposes of this subparagraph (iv) by
reference to the actual or when issued trading market for any
securities (including shares of capital stock or evidence of
indebtedness of the Company) comprising a distribution of
securities, it must in doing so consider the price in such
market over the period used in computing the Current Market
Price of the Common Stock.
For purposes of this subparagraph (iv), any dividend
or distribution that includes both (x) any of the items
described in clauses (A), (B) or (C) of the first paragraph of
this subparagraph (iv) and (y) Common Stock or rights or
warrants to subscribe for or purchase Common Stock of the type
referred to in subparagraph (iii) shall be deemed to be (1) a
dividend or distribution of shares of capital stock of the
Company (other than Common Stock), evidences of indebtedness
of the Company or other assets of the type referred to in
clause (C) of the first paragraph of this subparagraph (iv)
(making any Conversion Price reduction required by this
subparagraph (iv)) immediately followed by (2) a dividend or
distribution of such Common Stock or rights or warrants to
purchase Common Stock of the type referred to in subparagraph
(iii) (making any further Conversion Price reduction required
by subparagraph (i) or (iii) of this Section 7.3(a)), except
(A) the Reference Date of such dividend or distribution as
defined in this subparagraph (iv) shall be substituted as "the
date fixed for the determination of shareholders entitled to
receive such rights or warrants" and "the date fixed for such
determination" within the meaning of subparagraphs (i) and
(iii) of this Section 7.3(a) and (B) any shares of Common
Stock included in such dividend or distribution shall not be
deemed "outstanding at the close of business on the date fixed
for such determination" within the meaning of subparagraph (i)
of this Section 7.3(a).
20
<PAGE> 25
The occurrence of a distribution or the occurrence of
any other event as a result of which holders of Convertible
Debentures converting such notes into Common Stock hereunder
will not be entitled to receive rights issued pursuant to any
shareholder protective rights agreement now or hereafter in
effect (the "Other Rights") in the same amount and manner as
if such holders had converted such shares immediately prior to
the occurrence of such distribution or other event shall be
deemed a distribution of Other Rights for the purposes of
conversion adjustments pursuant to this subparagraph (iv). In
lieu of making any adjustment to the Conversion Price under
this subparagraph (iv) as a result of such a distribution of
Other Rights, the Company may elect, in its sole discretion,
to provide that Other Rights shall be issuable in the same
amount and manner upon conversion of the Convertible
Debentures without regard to whether the shares of Common
Stock issuable upon conversion of the Convertible Debentures
were issued before or after such distribution or other event.
(v) In case the Company shall, by dividend or
otherwise, at any time distribute cash to all holders of
Common Stock, excluding (A) any cash dividends on Common Stock
to the extent that the aggregate cash dividends per share of
Common Stock in any consecutive 12-month period do not exceed
the greater of (x) the amount per share of Common Stock of the
cash dividends paid on the Common Stock in the immediately
preceding 12-month period, to the extent that such dividends
for the immediately preceding 12-month period did not require
an adjustment to the Conversion Price pursuant to this
subparagraph (v) (as adjusted to reflect subdivisions or
combinations of the Common Stock) and (y) 15% of the average
of the daily Closing Prices (as hereinafter defined) of the
Common Stock for the ten consecutive Trading Days immediately
prior to the date of declaration of such dividend and (B) any
dividend or distribution in connection with the liquidation,
dissolution or winding-up of the Company, whether voluntary or
involuntary, or any redemption of the Rights or any Other
Rights; provided, however, that no adjustment shall be made
pursuant to this subparagraph (v) if such distribution would
otherwise constitute a Fundamental Change (as hereinafter
defined) and be reflected in a
21
<PAGE> 26
resulting adjustment to the Conversion Price as provided in
this Article VII) then, in each case (unless the Company makes
the election referred to in the proviso following this
clause), the Conversion Price shall be reduced so that the
same shall equal the price determined by multiplying the
Conversion Price in effect at the close of business on such
record date by a fraction the numerator of which shall be the
Closing Price of a share of Common Stock on such record date
less the amount of cash so distributed (to the extent not
excluded as provided above) applicable to one share of Common
Stock, and the denominator shall be the Closing Price of a
share of Common Stock, such reduction to become effective
immediately prior to the opening of business on the day
following such record date; provided, however, that the
Company may elect, in its sole discretion, in lieu of the
foregoing adjustment, to make adequate provision so that each
holder of Securities shall thereafter have the right to
receive upon conversion the amount of cash such holder would
have received had such holder converted each Security on such
record date. If any adjustment is required to be made as set
forth in this subparagraph (v) as a result of a distribution
which is a dividend described in clause (A) of this
subparagraph (v), such adjustment will be based upon the
amount by which such distribution exceeds the amount of the
dividend permitted to be excluded pursuant to such clause (A)
of this subparagraph (v). If an adjustment is required to be
made pursuant to this subparagraph (v) as a result of a
distribution which is not such a dividend, such adjustment
would be based upon the full amount of such distribution.
(vi) In case of the consummation of a tender or
exchange offer (other than an odd-lot tender offer) made by
the Company or any subsidiary of the Company for all or any
portion of the outstanding shares of Common Stock to the
extent that the cash and fair market value (as determined in
good faith by the Board of Directors of the Company, whose
determination shall be conclusive and shall be described in a
resolution of such Board) of any other consideration included
in such payment per share of Common Stock at the last time
(the "Expiration Time") tenders or exchanges may be made
pursuant to such tender or exchange offer
22
<PAGE> 27
(as amended) exceed by more than 10%, with any smaller excess
being disregarded in computing the adjustment to the
Conversion Price provided in this subparagraph (vi), the first
reported sale price per share of Common Stock on the Trading
Day next succeeding the Expiration Time, then the Conversion
Price shall be reduced so that the same shall equal the price
determined by multiplying the Conversion Price in effect
immediately prior to the Expiration Time by a fraction the
numerator of which shall be the number of shares of Common
Stock outstanding (including any tendered or exchanged shares)
on the Expiration Time multiplied by the first reported sale
price of the Common Stock on the Trading Day next succeeding
the Expiration Time and the denominator shall be the sum of
(x) the fair market value (determined as aforesaid) of the
aggregate consideration payable to shareholders based on the
acceptance (up to any maximum specified in the terms of the
tender or exchange offer) of all shares validly tendered or
exchanged and not withdrawn as of the Expiration Time (the
shares deemed so accepted, up to any such maximum, being
referred to as the "Purchased Shares") and (y) the product of
the number of shares of Common Stock outstanding (less any
Purchased Shares) on the Expiration Time and the first
reported sale price of the Common Stock on the Trading Day
next succeeding the Expiration Time, such reduction to become
effective immediately prior to the opening of business on the
day following the Expiration Time.
(vii) For the purpose of any computation under this
Article VII, the "Current Market Price per share" of Common
Stock on any day shall be deemed to be the average of the
daily Closing Prices (as hereinafter defined) per share of
Common Stock for the ten consecutive Trading Days prior to and
including the date in question; provided, however, that (1) if
the "ex" date (as hereinafter defined) for any event (other
than the issuance, distribution or Fundamental Change
requiring such computation) that requires an adjustment to the
Conversion Price pursuant to this Article VII (the "Other
Event") occurs during such ten consecutive Trading Days and
prior to the "ex" date for the issuance, distribution or
Fundamental Change requiring such computation (the "Current
Event"), the Closing Price for each Trading Day prior to the
"ex" date for such Other
23
<PAGE> 28
Event shall be adjusted by multiplying such Closing Price by
the same fraction by which the Conversion Price is so required
to be adjusted as a result of such Other Event, (2) if the
"ex" date for any Other Event occurs on or after the "ex" date
for the Current Event and on or prior to the date in question,
the Closing Price for each Trading Day on and after the "ex"
date for such Other Event shall be adjusted by multiplying
such Closing Price by the reciprocal of the fraction by which
the Conversion Price is so required to be adjusted as a result
of such Other Event (provided that in the event that such
fraction is required to be determined at a date subsequent to
the date in question and with reference to events taking place
subsequent to the date in question, the Board of Directors of
the Company or, to the extent permitted by applicable law, a
duly authorized committee thereof, whose determination shall
be conclusive and described in a resolution of the Board of
Directors of the Company or such duly authorized committee
thereof, as the case may be, shall in good faith estimate such
fraction based on assumptions it deems reasonable regarding
such events taking place subsequent to the date in question,
and such estimated fraction shall be used for purposes of such
adjustment until such time as the actual fraction by which the
Conversion Price is so required to be adjusted as a result of
such Other Event is determined), and (3) if the "ex" date for
the Current Event is on or prior to the date in question,
after taking into account any adjustment required pursuant to
clause (1) or (2) of this proviso, the Closing Price for each
Trading Day on or after such "ex" date shall be adjusted by
adding thereto the amount of any cash and the fair market
value (as determined in good faith by the Board of Directors
of the Company or, to the extent permitted by applicable law,
a duly authorized committee thereof in a manner consistent
with any determination of such value for purposes of this
Article VII, whose determination shall be conclusive and
described in a resolution of the Board of Directors of the
Company or such duly authorized committee thereof, as the case
may be) of the shares of capital stock, evidences of
indebtedness or other assets being distributed applicable to
one share of Common Stock as of the close of business on the
day before such "ex" date. For purposes of this subparagraph
(vii),
24
<PAGE> 29
the term "ex" date, (1) when used with respect to any
issuance, distribution or Fundamental Change, means the first
date on which the Common Stock trades regular way on the
relevant exchange or in the relevant market from which the
Closing Price was obtained without the right to receive such
issuance, such distribution or the cash, securities, property
or other assets distributable in such Fundamental Change to
holders of the Common Stock, (2) when used with respect to any
subdivision or combination of shares of Common Stock, means
the first date on which the Common Stock trades regular way on
such exchange or in such market after the time at which such
subdivision or combination becomes effective and (3) when used
with respect to any tender or exchange offer means the first
date on which the Common Stock trades regular way on such
exchange or in such market after the Expiration Time of such
offer.
(viii) No adjustment in the Conversion Price shall be
required pursuant to this Section 7.3(a) unless the adjustment
would require a change of at least 1% of such price; provided,
however, that any adjustments which by reason of this
subparagraph (viii) are not required to be made shall be
carried forward and taken into account in any subsequent
adjustment. All calculations shall be made to the nearest cent
(with .005 being rounded upward) or to the nearest 1/100th of
a share (with .005 of a share being rounded upward), as the
case may be. Notwithstanding anything to the contrary in this
Article VII, the Company from time to time may, to the extent
permitted by law, reduce the Conversion Price by any amount
for any period of at least 20 Business Days, in which case the
Company shall give at least 15 days' notice of such reduction
to the holders of Securities and the Trustee. In addition, the
Company may, at its option, make such reductions in the
Conversion Price in addition to those set forth in this
Article VII, as it considers to be advisable in order to avoid
or diminish any income tax to any holders of shares of Common
Stock resulting from any dividend or distribution of stock or
issuance of rights or warrants to purchase or subscribe for
stock or from any event treated as such for income tax
purposes or for any other reasons.
25
<PAGE> 30
(ix) In any case in which this Article VII provides
that an adjustment shall become effective immediately after a
record date for an event, the Company may defer until the
occurrence of such event (A) issuing to the holder of any
Convertible Debentures converted after such record date and
before the occurrence of such event the additional shares of
Common Stock issuable upon such conversion by reason of the
adjustment required by such event over and above the Common
Stock issuable upon such conversion before giving effect to
such adjustment and (B) paying to such holder any amount in
cash in lieu of any fractional shares pursuant to this Article
VII.
(x) For purposes of this Article VII, "Common Stock"
includes any stock of any class of the Company which has no
preference in respect of dividends or of amounts payable in
the event of any voluntary or involuntary liquidation,
dissolution or winding-up of the Company and which is not
subject to redemption by the Company. However, subject to the
provisions of this Article VII, shares issuable on conversion
of Convertible Debentures shall include only shares of the
class designated as the Company Common Stock on the date of
the initial issuance of Convertible Debentures by the Company
or shares of any class or classes resulting from any
reclassification or reclassification thereof and which have no
preference in respect of dividends or of amounts payable in
the event of any voluntary or involuntary liquidation,
dissolution or winding-up of the Company and which are not
subject to redemption by the Company; provided, however, that
if at any time there shall be more than one such resulting
class, the shares of each such class then so issuable shall be
substantially in the proportion which the total number of
shares of such class resulting from all such reclassifications
bears to the total number of shares of all such classes
resulting from all such reclassifications.
(b) Whenever the Conversion Price is adjusted as
herein provided:
(i) the Company shall compute the adjusted Conversion Price
and shall prepare a certificate signed by the Chief Financial Officer
or the Treasurer of the Company setting forth the adjusted Conversion
Price and
26
<PAGE> 31
showing in reasonable detail the facts upon which such adjustment is
based, and such certificate shall forthwith be filed with the Trustee
and the transfer agent for the Trust Preferred Securities and the
Convertible Debentures; and
(ii) a notice stating the Conversion Price has been adjusted
and setting forth the adjusted Conversion Price shall as soon as
practicable be mailed by the Company to all record holders of Trust
Preferred Securities and the Convertible Debentures at their last
addresses as they appear upon the stock transfer books of the Company
and the Trust.
SECTION 7.4. ADJUSTMENT OF CONVERSION PRICE - FUNDAMENTAL
CHANGE.
(a) In the event that the Company shall be a party to any transaction
or series of transactions constituting a Fundamental Change, including, without
limitation, (i) any recapitalization or reclassification of shares of Common
Stock (other than a change in the par value or as a result of a subdivision or
combination of the Common Stock), (ii) any consolidation of the Company with, or
merger of the Company into, any other corporation or any merger of another
corporation into the Company as a result of which holders of Common Stock shall
be entitled to receive securities or other property or assets (including cash)
with respect to or in exchange for Common Stock (other than a merger which does
not result in a reclassification, conversion, exchange or cancellation of
outstanding shares of Common Stock), (iii) any sale or transfer of all or
substantially all of the assets of the Company, or (iv) any compulsory share
exchange, pursuant to any of which the holders of Common Stock shall be entitled
to receive other securities, cash or other property, then appropriate provision
shall be made as part of the terms of such transaction or series of transactions
so that the holder of each Convertible Debenture then outstanding shall have the
right thereafter to convert such Convertible Debenture only into (A) if any such
transaction does not constitute a Common Stock Fundamental Change (as
hereinafter defined), the kind and amount of the securities, cash or other
property that would have been receivable upon such recapitalization,
reclassification, consolidation, merger, sale, transfer or share exchange by a
holder of the number of shares of Common Stock into which such Convertible
Debenture might have been converted immediately prior to such recapitalization,
reclassification, consolidation, merger, sale, transfer or share exchange,
after, in the case of a Non-Stock Fundamental Change (as hereinafter defined),
giving effect
27
<PAGE> 32
to any adjustment in the Conversion Price required by the provisions which
follow in subparagraph (i) of Section 7.4(c), and (B) in the case of a Common
Stock Fundamental Change (as hereinafter defined), common stock of the kind
received by holders of Common Stock as a result of such Common Stock Fundamental
Change in an amount determined pursuant to the provisions which follow in
subparagraph (ii) of Section 7.4(c). The company formed by such consolidation or
resulting from such merger or which acquires such assets or which acquires the
Common Stock, as the case may be, shall enter into a supplemental indenture with
the Trustee, satisfactory in form to the Trustee, the provisions of which
provide for adjustments which, for events subsequent to the effective date of
such supplemental indenture, shall be as nearly equivalent as may be practicable
to the adjustments provided for in this Article VII. The above provisions shall
similarly apply to successive recapitalizations, reclassifications,
consolidations, mergers, sales, transfers or share exchanges.
(b) Notwithstanding any other provisions in this Article VII to the
contrary, if any Fundamental Change (as hereinafter defined) occurs, then the
Conversion Price in effect will be adjusted immediately following such
Fundamental Change as described below in Section 7.4(c). In addition, in the
event of a Common Stock Fundamental Change, each Convertible Debenture shall be
convertible solely into common stock of the kind received by holders of Common
Stock as the result of such Common Stock Fundamental Change as more specifically
provided below in Section 7.4(c).
(c) For purposes of calculating any adjustment to be made pursuant to
this Article VII in the event of a Fundamental Change, immediately following
such Fundamental Change (and for such purposes a Fundamental Change shall be
deemed to occur on the earlier of (a) the occurrence of such Fundamental Change
and (b) the date, if any, fixed for determination of shareholders entitled to
receive the cash, securities, property or other assets distributable in such
Fundamental Change to holders of the Common Stock);
(i) in the case of a Non-Stock Fundamental Change, the
Conversion Price per share of Common Stock shall be the lower of (A)
the Conversion Price in effect immediately prior to such Non-Stock
Fundamental Change, but after giving effect to any other adjustments
effected pursuant to this Article VII, and (B) the product of (1) the
greater of the Applicable Price (as hereinafter defined) or the then
applicable Reference Market Price (as hereinafter defined) and (2) a
fraction the numerator of which shall be $100 and the
28
<PAGE> 33
denominator of which shall be the amount set forth below (based on the
date on which such Non-Stock Fundamental Change occurs). For the twelve
month period beginning September 15:
<TABLE>
<CAPTION>
Year Denominator
---- -----------
<S> <C> <C>
1996 105.00%
1997 104.50
1998 104.00
1999 103.50
2000 103.00
2001 102.50
2002 102.00
2003 101.50
2004 101.00
2005 100.50
and thereafter, 100.00;
</TABLE>
(ii) in the case of a Common Stock Fundamental Change, the
Conversion Price per share of Common Stock shall be the Conversion
Price in effect immediately prior to such Common Stock Fundamental
Change, but after giving effect to any other adjustments effected
pursuant to this Article VII, multiplied by a fraction, the numerator
of which is the Purchaser Stock Price (as hereinafter defined) and the
denominator of which is the Applicable Price; provided, however, that
in the event of a Common Stock Fundamental Change in which (A) 100% of
the value of the consideration received by a holder of Common Stock is
common stock of the successor, acquiror or other third party (and cash,
if any, paid with respect to any fractional interests in such common
stock resulting from such Common Stock Fundamental Change) and (B) all
of the Common Stock shall have been exchanged for, converted into or
acquired for common stock (and cash, if any, with respect to fractional
interests) of the successor, acquiror or other third party, the
Conversion Price per share of Common Stock immediately following such
Common Stock Fundamental Change shall be the Conversion Price in effect
immediately prior to such Common Stock Fundamental Change divided by
the number of shares of common stock of the successor, acquiror, or
other third party received by a holder of one share of Common Stock as
a result of such Common Stock Fundamental Change.
(d) The following definitions shall apply to
terms used in this Article VII:
(i) "Applicable Price" shall mean (A) in the
event of a Non-Stock Fundamental Change in which the
29
<PAGE> 34
holders of Common Stock receive only cash, the amount of cash
receivable by a holder of one share of Common Stock and (B) in the
event of any other Fundamental Change, the average of the Closing
Prices for one share of Common Stock during the ten Trading Days
immediately prior to the record date for the determination of the
holders of Common Stock entitled to receive cash, securities, property
or other assets in connection with such Fundamental Change or, if there
is no such record date, prior to the date upon which the holders of
Common Stock shall have the right to receive such cash, securities,
property or other assets.
(ii) "Closing Price" with respect to any securities on any day
shall mean the closing sale price, regular way, on such day or, in case
no such sale takes place on such day, the average of the reported
closing bid and asked prices, regular way, in each case on the New York
Stock Exchange or, if such security is not listed or admitted to
trading on such Exchange, on the principal national securities exchange
or quotation system on which such security is quoted or listed or
admitted to trading or, if not quoted or listed or admitted to trading
on any national securities exchange or quotation system, the average of
the closing bid and asked prices of such security on the
over-the-counter market on the date in question as reported by the
National Quotation Bureau Incorporated, or a similarly generally
accepted reporting service or, if not so available, in such manner as
furnished by any New York Stock Exchange member firm selected from time
to time by the Board of Directors of the Company for that purpose or a
price determined in good faith by the Board of Directors of the
Company.
(iii) "Common Stock Fundamental Change" shall mean any
Fundamental Change in which more than 50% of the value (as determined
in good faith by the Board of Directors of the Company) of the
consideration received by the holders of Common Stock pursuant to such
transactions consists of shares of common stock that, for the ten
consecutive Trading Days immediately prior to such Fundamental Change,
has been admitted for listing or admitted for listing subject to notice
of issuance on a national securities exchange or quoted on the Nasdaq
National Market; provided, however, that a Fundamental Change shall not
be a Common Stock Fundamental Change unless either (A) the Company
continues to exist after the occurrence of such Fundamental Change and
the outstanding Convertible Debentures continue to exist as outstanding
Convertible
30
<PAGE> 35
Debentures, or (B) the outstanding Convertible Debentures continue to
exist as Convertible Debentures and are convertible into common stock
of the successor to the Company.
(iv) "Fundamental Change" shall mean the occurrence of any
transaction or event or series of transactions or events pursuant to
which all or substantially all of the Common Stock shall be exchanged
for, converted into, acquired for or constitutes solely the right to
receive cash, securities, property or other assets (whether by means of
an exchange offer, liquidation, tender offer, consolidation, merger,
combination, reclassification, recapitalization or otherwise);
provided, however, in the case of a plan involving more than one such
transaction or event, for purposes of adjustment of the Conversion
Price, such Fundamental Change shall be deemed to have occurred when
substantially all of the Common Stock has been exchanged for, converted
into, or acquired for or constitutes solely the right to receive cash,
securities, property or other assets, but the adjustment shall be based
upon the consideration which the holders of Common Stock received in
such transaction or event as a result of which more than 50% of the
Common Stock shall have been exchanged for, converted into, or acquired
for or shall constitute solely the right to receive cash, securities,
property or other assets.
(v) "Non-Stock Fundamental Change" shall mean any
Fundamental Change other than a Common Stock
Fundamental Change.
(vi) "Purchaser Stock Price" shall mean, with respect to any
Common Stock Fundamental Change, the average of the Closing Prices for
one share of the common stock received by holders of Common Stock in
such Common Stock Fundamental Change during the ten Trading Days
immediately prior to the record date for the determination of the
holders of Common Stock entitled to receive such common stock or, if
there is no such record date, prior to the date upon which the holders
of Common Stock shall have the right to receive such common stock.
(vii) "Reference Market Price" shall initially mean $14.08
(which is an amount equal to 66-2/3% of the last reported sale price
for the Common Stock on the New York Stock Exchange on September 16,
1996) and, in the event of any adjustment to the Conversion Price
31
<PAGE> 36
other than as a result of a Fundamental Change, the Reference Market
Price shall also be adjusted so that the ratio of the Reference Market
Price to the Conversion Price after giving effect to any such
adjustment shall always be the same as the ratio of $14.08 to the
initial Conversion Price set forth in this Article VII.
(e) In determining the amount and type of consideration
received by a holder of Common Stock in the event of a Fundamental Change,
consideration received by a holder of Common Stock pursuant to a statutory right
of appraisal will be disregarded.
SECTION 7.5. NOTICE OF CERTAIN EVENTS. In case:
(i) the Company shall declare a dividend (or any
other distribution) on Common Stock that would cause an
adjustment to the Conversion Price of the Convertible
Debentures pursuant to the terms of any of the subparagraphs
above (including such an adjustment that would occur but for
the terms of the first sentence of Section 7.3(a)(viii)
above); or
(ii) the outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock or
combined into a smaller number of shares of Common Stock; or
(iii) the Company shall authorize the granting to the
holders of Common Stock generally of rights or warrants (for a
period expiring within 45 days after the record date fixed for
a distribution of such rights and warrants) to subscribe for
or purchase any shares of the Company's capital stock or other
capital stock of any class or of any other rights (including
any Rights Offerings); or
(iv) of any reclassification of Common Stock (other than a
subdivision or combination of the outstanding shares of Common
Stock), or of any consolidation, merger or share exchange to
which the Company is a party and for which approval of any
shareholders of the Company is required, or of the sale or
transfer of all or substantially all of the assets of the
Company or a compulsory share exchange; or
32
<PAGE> 37
(v) of the voluntary or involuntary
dissolution, liquidation or winding-up of the
Company;
then the Company shall (i) if any Trust Preferred Securities are outstanding,
cause to be filed with the transfer agent for the Trust Preferred Securities,
and shall cause to be mailed to the holders of record of the Trust Preferred
Securities, at their last addresses as they shall appear upon the stock transfer
books of the Trust or (ii) shall cause to be mailed to all Holders at their last
addresses as they shall appear in the Security Register, at least 15 days prior
to the applicable record or effective date hereinafter specified, a notice
stating (A) the date on which a record (if any) is to be taken for the purpose
of such dividend, distribution, rights or warrants or, if a record is not to be
taken, the date as of which the holders of Common Stock of record to be entitled
to such dividend, distribution, rights or warrants are to be determined or (B)
the date on which such reclassification, consolidation, merger, sale, transfer,
share exchange, dissolution, liquidation or winding up is expected to become
effective, and the date as of which it is expected that holders of Common Stock
of record shall be entitled to exchange their shares of Common Stock for
securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, share exchange, dissolution, liquidation
or winding up (but no failure to mail such notice or any defect therein or in
the mailing thereof shall affect the validity of the corporate action required
to be specified in such notice).
SECTION 7.6. COMPANY TO PROVIDE STOCK.
The Company shall reserve, free from pre-emptive rights, out
of its authorized but unissued shares, sufficient shares to provide for the
conversion of the Convertible Debentures from time to time as such Convertible
Debentures are presented for conversion, provided, that nothing contained herein
shall be construed to preclude the Company from satisfying its obligations in
respect of the conversion of Convertible Debentures by delivery of repurchased
shares of Common Stock which are held in the treasury of the Company.
If any shares of Common Stock to be reserved for the purpose
of conversion of Convertible Debentures hereunder require registration with or
approval of any governmental authority under any Federal or State law before
such shares may be validly issued or delivered upon
33
<PAGE> 38
conversion, then the Company covenants that it will in good faith and as
expeditiously as possible endeavor to secure such registration or approval, as
the case may be, PROVIDED, HOWEVER, that nothing in this Section 7.6 shall be
deemed to affect in any way the obligations of the Company to convert
Convertible Debentures into Common Stock as provided in this Article VII.
Before taking any action which would cause an adjustment
reducing the Conversion Price below the then par value, if any, of the Common
Stock, the Company will take all corporate action which may, in the Opinion of
Counsel, be necessary in order that the Company may validly and legally issue
fully paid and non-assessable shares of Common Stock at such adjusted Conversion
Price.
The Company covenants that all shares of Common Stock which
may be issued upon conversion of Convertible Debentures will upon issue be fully
paid and non-assessable by the Company and free of pre-emptive rights.
SECTION 7.7. DIVIDEND OR INTEREST REINVESTMENT PLANS.
Notwithstanding the foregoing provisions, the issuance of any
shares of Common Stock pursuant to any plan providing for the reinvestment of
dividends or interest payable on securities of the Company and the investment of
additional optional amounts in shares of Common Stock under any such plan, and
the issuance of any shares of Common Stock or options or rights to purchase such
shares pursuant to any employee benefit plan or program of the Company or
pursuant to any option, warrant, right or exercisable, exchangeable or
convertible security outstanding as of September 20, 1996, shall not be deemed
to constitute an issuance of Common Stock or exercisable, exchangeable or
convertible securities by the Company to which any of the adjustment provisions
described above applies. There shall also be no adjustment of the Conversion
Price in case of the issuance of any stock (or securities convertible into or ex
changeable for stock) of the Company except as specifically described in this
Article VII.
SECTION 7.8. CERTAIN ADDITIONAL RIGHTS.
In case the Company shall, by dividend or otherwise, declare
or make a distribution on the Common Stock referred to in Section 7.3(a)(iv) or
7.3(a)(v) (including, without limitation, dividends or distributions referred to
in the last sentence of Section 7.3(a)(vi)), the Holder of the Convertible
Debentures, upon the conversion thereof subsequent to the close of business on
the date
34
<PAGE> 39
fixed for the determination of stockholders entitled to re ceive such
distribution and prior to the effectiveness of the Conversion Price adjustment
in respect of such distribution, shall also be entitled to receive for each
share of Common Stock into which the Convertible Debentures are converted, the
portion of the shares of Common Stock, rights, warrants, evidences of
indebtedness, shares of capital stock, cash and assets so distributed applicable
to one share of Common Stock; PROVIDED, HOWEVER, that, at the election of the
Company (whose election shall be evidenced by a resolution of the Board of
Directors) with respect to all Holders so converting, the Company may, in lieu
of distributing to such Holder any portion of such distribution not consisting
of cash or securities of the Company, pay such Holder an amount in cash equal to
the fair market value thereof (as determined in good faith by the Board of
Directors, whose determination shall be conclusive and described in a resolution
of the Board of Directors). If any conversion of Convertible Debentures
described in the immediately preceding sentence occurs prior to the payment date
for a distribution to holders of Common Stock which the Holder of Convertible
Debentures so converted is entitled to receive in accordance with the
immediately preceding sentence, the Company may elect (such election to be
evidenced by a resolution of the Board of Directors) to distribute to such
Holder a due bill for the shares of Common Stock, rights, warrants, evidences of
indebtedness, shares of capital stock, cash or assets to which such Holder is so
entitled, PROVIDED, that such due bill (a) meets any applicable requirements of
the principal national securities exchange or other market on which the Common
Stock is then traded and (b) requires payment or delivery of such shares of
Common Stock, rights, warrants, evidences of indebtedness, shares of capital
stock, cash or assets no later than the date of payment or delivery thereof to
holders of shares of Common Stock receiving such distribution.
SECTION 7.9. PREFERRED STOCK PURCHASE RIGHTS.
(a) So long as Rights of a kind similar to those declared and
distributed by the Board of Directors in August 1988 pursuant to the Rights
Agreement between the Company and the American Stock Transfer and Trust Company,
as Rights Agent (as amended, the "Rights Agreement"), as the same may hereafter
be amended or reissued ("Rights"), are attached to the outstanding shares of
Common Stock, each share of Common Stock issued upon conversion of the
Convertible Debentures prior to the earliest of any Distribution Date, the date
of redemption of the Rights or the date of expiration of the Rights shall be
issued with Rights in a number equal to the
35
<PAGE> 40
number of Rights then attached to each such outstanding share of Common Stock.
(b) For the purposes of Section 7.3(a)(iii), upon the earlier to occur
of (i) the eleventh day following a Stock Acquisition Date and (ii) an event (a
"Section 13(a) Event") described in clause (x), (y) or (z) of Section 13(a) of
the Rights Agreement, then an issuance of rights to purchase shares of Common
Stock during a period not exceeding 45 days from the date of such dividend or
other distribution shall be deemed to have occurred, unless a Redemption Date or
an Expiration Date has occurred prior to such eleventh day (as defined in the
Rights Agreement) or such Section 13(a) Event, as the case may be. For purposes
of the reduction of the conversion price provided for in Section 7.3(a)(iii)
upon such deemed issuance of rights, each share of a Preferred Stock shall be
deemed to constitute 10,000 shares of Common Stock (subject to adjustment as
provided in the Rights Agreement), and the date fixed for determination of
stockholders entitled to receive such rights shall be the close of business on
the tenth such day following such Stock Acquisition Date or the date of such
Section 13(a) Event, as the case may be; provided, however, that the current
market price per share of the Common Stock shall be determined based on the 10
consecutive Trading Days prior to and including the Distribution Date. In lieu
of any adjustment pursuant to this subsection (a), the Company may amend the
Rights Agreement to provide that upon conversion of the Convertible Debentures
the holders thereof will receive, in addition to the shares of Common Stock
issuable upon such conversion, the Rights which would have attached to such
shares of Common Stock if the Rights had not become separated from the Common
Stock pursuant to the provisions of the Rights Agreement.
(c) For purposes of Section 7.3(a)(iii) and Section
7.3(a)(iv), the redemption by the Company of Rights shall be
deemed to be an expiration of such Rights.
(d) If any Convertible Debenture has been converted on or after the
Distribution Date and on or before the tenth day following such Stock
Acquisition Date or the date of such Section 13(a) Event, as the case may be,
then as soon as practicable following the date on which the adjustment required
by subsections (a)(iii) and (a)(iv) of Section 7.3 is made, the Company shall
issue to the holder of the Convertible Debenture so converted a number of
additional shares of Common Stock (and cash in lieu of any fractional share)
that would have been issuable upon such conversion had such adjustment been made
immediately prior to such conversion.
36
<PAGE> 41
ARTICLE VIII
FORM OF CONVERTIBLE DEBENTURE
SECTION 8.1. FORM OF CONVERTIBLE DEBENTURE.
The Convertible Debentures and the Trustee's Certificate of
Authentication to be endorsed thereon are to be substantially in the following
forms:
[(FORM OF FACE OF CONVERTIBLE DEBENTURE)]
[IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT THE
FOLLOWING - - This Debenture is a Global Debenture within the meaning of the
Indenture hereinafter referred to and is registered in the name of a Depositary
or a nominee of a Depositary. This Debenture is exchangeable for Convertible
Debentures registered in the name of a person other than the Depositary or its
nominee only in the limited circumstances described in the Inden ture, and no
transfer of this Debenture (other than a transfer of this Debenture as a whole
by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary) may be
registered except in limited circumstances.
Unless this Debenture is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) to the Company or its agent for registration of transfer, exchange or
payment, and any Debenture issued is registered in the name of Cede & Co. or
such other name as requested by an authorized representative of The Depository
Trust Company and any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the
registered owner hereof, Cede & Co., has an interest herein.]
No. CUSIP NO.
------------------------ ------------------------
WENDY'S INTERNATIONAL, INC.
___% CONVERTIBLE SUBORDINATED DEBENTURE
Wendy's International, Inc., an Ohio corporation (the
"Company", which term includes any successor corporation under the Indenture
hereinafter
37
<PAGE> 42
referred to), for value received, hereby promises to pay to, ___________________
or registered assigns, the principal sum of _________________Dollars ($________
) on _______, 2026, and to pay interest on said principal sum from September __,
1996, or from the most recent interest payment date (each such date, an
"Interest Payment Date") to which interest has been paid or duly provided for,
quarterly (subject to deferral as set forth herein) in arrears on March 15, June
15, September 15, and December 15 of each year commencing December 15, 1996, at
the rate of __% per annum until the principal hereof shall have become due and
payable, and on any overdue principal and premium, if any, and (without
duplication and to the extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest at the same rate per
annum compounded quarterly. The amount of interest payable on any Interest
Payment Date shall be computed on the basis of a 360-day year of twelve 30-day
months. Except as provided in the following sentence, the amount of interest
payable for any period shorter than a full quarterly period for which interest
is computed, will be computed on the basis of the actual number of days elapsed
per 30-day month. In the event that any date on which interest is payable on
this Convertible Debenture is not a Business Day, then payment of interest
payable on such date will be made on the next succeeding day that is a Business
Day (and without any interest or other payment in respect of any such delay),
except that, if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on such date. The interest installment
so payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in the Indenture (referred to on the reverse hereof, be
paid to the person in whose name this Convertible Debenture (or one or more
Predecessor Securities, as defined in said Indenture) is registered on the
Regular Record Date for such interest installment, which shall be the close of
business on the Business Day next preceding such Interest Payment Date unless
otherwise provided in the Indenture. Any such interest installment not
punctually paid or duly provided for shall forthwith cease to be payable to the
registered Holders on such Regular Record Date and may be paid to the Person in
whose name this Convertible Debenture (or one or more Predecessor Securities) is
registered at the close of business on a special record date to be fixed by the
Trustee for the payment of such defaulted interest, notice whereof shall be
given to the registered Holders of the Convertible Debentures not less than 10
days prior to such special record date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any secu-
38
<PAGE> 43
rities exchange on which the Convertible Debentures may be listed, and upon such
notice as may be required by such exchange, all as more fully provided in the
Indenture. The principal of (and premium, if any) and the interest on this
Convertible Debenture shall be payable at the office or agency of the Trustee
maintained for that purpose in any coin or currency of the United States of
America that at the time of payment is legal tender for payment of public and
private debts; PROVIDED, HOWEVER, that payment of interest may be made at the
option of the Company by check mailed to the registered Holder at such address
as shall appear in the Security Register. Notwithstanding the foregoing, so long
as the Holder of this Convertible Debenture is the Institutional Trustee, the
payment of the principal of (and premium, if any) and interest on this
Convertible Debenture will be made at such place and to such account as may be
designated by the Institutional Trustee.
The indebtedness evidenced by this Convertible Debenture is,
to the extent provided in the Indenture, subordinate and junior in right of
payment to the prior payment in full of all Senior Indebtedness, and this
Convertible Debenture is issued subject to the provisions of the Indenture with
respect thereto. Each Holder of this Convertible Debenture, by accepting the
same, (a) agrees to and shall be bound by such provisions, (b) authorizes and
directs the Trustee on his or her behalf to take such action as may be necessary
or appropriate to acknowledge or effectuate the subordination so provided and
(c) appoints the Trustee his or her attorney-in-fact for any and all such
purposes. Each Holder hereof, by his or her acceptance hereof, hereby waives all
notice of the acceptance of the subordination provisions contained herein and in
the Indenture by each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each such holder upon said
provisions.
This Convertible Debenture shall not be entitled to any
benefit under the Indenture hereinafter referred to, be valid or become
obligatory for any purpose until the Certificate of Authentication hereon shall
have been signed by or on behalf of the Trustee.
The provisions of this Convertible Debenture are continued on
the reverse side hereof and such continued
39
<PAGE> 44
provisions shall for all purposes have the same effect as though fully set forth
at this place.
40
<PAGE> 45
IN WITNESS WHEREOF, the Company has caused this instrument to
be executed.
WENDY'S INTERNATIONAL, INC.
By:
---------------------------
Name:
Title
Attest:
By:
---------------------------------
Name:
Title:
41
<PAGE> 46
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
This is one of the Convertible Debentures of the series of
Convertible Debentures described in the within-mentioned Indenture.
Dated:
NBD BANK,
as Trustee or as Authentication Agent
By By
-------------------- ------------------------
Authorized Signatory Authorized Signatory
42
<PAGE> 47
[FORM OF REVERSE OF DEBENTURE]
This Convertible Debenture is one of a duly authorized series
of Debentures of the Company (herein sometimes referred to as the "Debentures"),
specified in the Indenture, all issued or to be issued in one or more series
under and pursuant to an Indenture dated as of September __, 1996, duly executed
and delivered between the Company and NBD Bank, as Trustee (the "Trustee"), as
supplemented by the First Supplemental Indenture dated as of September __, 1996,
between the Company and the Trustee (the Indenture as so supplemented, the
"Indenture"), to which Indenture and all indentures supplemental thereto
reference is hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Company and
the Holders of the Convertible Debentures. By the terms of the Indenture, the
Debentures are issuable thereunder in series that may vary as to amount, date of
maturity, rate of interest and in other respects as provided in the Indenture.
This series of Debentures is limited in aggregate principal amount as specified
in said First Supplemental Indenture and herein sometimes referred to as the
"Convertible Debentures."
Because of the occurrence and continuation of a Special Event,
in certain circumstances, this Convertible Debenture may become due and payable
at the principal amount together with any interest accrued thereon (the
"Redemption Price"). The Redemption Price shall be paid prior to 12:00 noon, New
York time, on the date of such redemption or at such earlier time as the Company
determines. The Company shall have the right to redeem this Convertible
Debenture at the option of the Company, upon not less than 30 nor more than 60
days notice, without premium or penalty, in whole or in part at any time on or
after _______, 2000 (an "Optional Redemption") at the following prices
(expressed as percentages of the principal amount of the Convertible Debentures)
(the "Optional Redemption Price") together with accrued and unpaid interest,
including Additional Interest and Compounded Interest to, but excluding, the
redemption date, if redeemed during the 12-month period beginning _________:
43
<PAGE> 48
<TABLE>
<CAPTION>
Year Redemption Price
---- ----------------
<S> <C>
2000
2001
2002
2003
2004
2005
</TABLE>
and 100% if redeemed on or after _______, 2006.
If Convertible Debentures are redeemed on any March 15, June
15, September 15, or December 15, accrued and unpaid interest shall be payable
to holders of record on the relevant record date.
So long as the corresponding Trust Preferred Securities are
outstanding, the proceeds from the redemption of any of the Convertible
Debentures will be used to redeem Trust Preferred Securities.
If the Convertible Debentures are only partially redeemed by
the Company pursuant to an Optional Redemption, the Convertible Debentures will
be redeemed PRO RATA or by lot or by any other method utilized by the Trustee.
In the event of redemption of this Convertible Debenture in
part only, a new Convertible Debenture or Convertible Debentures of this series
for the unredeemed portion hereof will be issued in the name of the Holder
hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture,
shall have occurred and be continuing, the principal of all of the Convertible
Debentures may be declared, and upon such declaration shall become, due and
payable, in the manner, with the effect and subject to the conditions provided
in the Indenture.
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Debentures of each series affected at the time
outstanding, as defined in the Indenture, to execute supplemental indentures for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of the Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Debentures of such
series; PROVIDED, HOWEVER, that no such supplemental indenture shall (a) extend
the fixed maturity of any Debenture of any series, or reduce the principal
amount thereof, or reduce the rate or extend the
44
<PAGE> 49
time of payment of interest thereon, or reduce any premium payable upon the
redemption thereof, or make any change that adversely affects the right to
convert any Debenture of any series or make any change in the subordination
provisions that adversely affects the rights of any Holders of any Debenture of
any series, without the consent of the Holder of each Debenture so affected, or
(b) reduce the aforesaid percentage of Debentures of such series, the Holders of
which are required to consent to any such supplemental indenture, without the
consent of the Holders of each Debenture of any series then outstanding and
affected thereby. The Indenture also contains provisions permitting the Holders
of a majority in aggregate principal amount of the Debentures of any series at
the time outstanding affected thereby, on behalf of all of the Holders of the
Debentures of such series, to waive any past default in the performance of any
of the covenants contained in the Indenture, or established pursuant to the
Indenture with respect to such series, and its consequences, except a default in
the payment of the principal of or premium, if any, or interest on any
Debentures of such series or a failure to convert any Debentures of such series
in accordance with its terms upon an election by the Holders thereof. Any such
consent or waiver by the registered Holder of this Convertible Debenture (unless
revoked as provided in the Indenture) shall be conclusive and binding upon such
Holder and upon all future Holders and owners of this Convertible Debenture and
of any Convertible Debenture issued in exchange therefor or in place hereof
(whether by registration of transfer or otherwise), irrespective of whether or
not any notation of such consent or waiver is made upon this Convertible
Debenture.
No reference herein to the Indenture and no provision of this
Convertible Debenture or of the Indenture shall alter or impair the obligation
of the Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest on this Convertible Debenture at the time and
place and at the rate and in the money herein prescribed.
As long as an Event of Default under Section 501 of the
Indenture shall not have occurred and be continuing, the Company shall have the
right at any time during the term of the Convertible Debentures and from time to
time to extend the interest payment period of such Convertible Debentures for up
to 20 consecutive quarters (an "Extended Interest Payment Period"), at the end
of which period the Company shall pay all interest then accrued and unpaid
(together with interest thereon at the rate specified for the Convertible
Debentures to the extent that payment of
45
<PAGE> 50
such interest is enforceable under applicable law). Before the termination of
any such Extended Interest Payment Period, the Company may further extend such
Extended Interest Payment Period, PROVIDED that such Extended Interest Payment
Period together with all such further extensions thereof shall not exceed 20
consecutive quarters. At the termination of any such Extended Interest Payment
Period and upon the payment of all accrued and unpaid interest and any
additional amounts then due, the Company may commence a new Extended Interest
Payment Period.
As provided in the Indenture and subject to certain
limitations therein set forth, this Convertible Debenture is transferable by the
registered Holder hereof on the Security Register of the Company, upon surrender
of this Convertible Debenture for registration of transfer at the office or
agency of the Trustee in the City and State of New York accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company or the
Trustee duly executed by the registered Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Convertible Debentures of
authorized denominations and for the same aggregate principal amount and series
will be issued to the designated transferee or transferees. No service charge
will be made for any such transfer, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in relation
thereto.
Prior to due presentment for registration of transfer of this
Convertible Debenture, the Company, the Trustee, any paying agent and the
Security Registrar may deem and treat the registered holder hereof as the
absolute owner hereof (whether or not this Convertible Debenture shall be
overdue and notwithstanding any notice of ownership or writing hereon made by
anyone other than the Security Registrar) for the purpose of receiving payment
of or on account of the principal hereof and premium, if any, and interest due
hereon and for all other purposes, and neither the Company nor the Trustee nor
any paying agent nor any Security Registrar shall be affected by any notice to
the contrary.
No recourse shall be had for the payment of the principal of
or the interest on this Convertible Debenture, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Indenture, against
any incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the
46
<PAGE> 51
enforcement of any assessment or penalty or otherwise, all such liability being,
by the acceptance hereof and as part of the consideration for the issuance
hereof, expressly waived and released.
The Holder of any Convertible Debenture has the right,
exercisable at any time through the close of business (New York time) on
_______, 2026 (or, in the case of a Convertible Debenture called for redemption,
prior to the close of business on the Business Day prior to the corresponding
redemption date), to convert the principal amount thereof (or any portion
thereof that is an integral multiple of $50) into shares of Common Stock at the
initial conversion rate of ______ shares of Common Stock for each Convertible
Debenture (equivalent to a Conversion Price of $__ per share of Common Stock),
subject to adjustment under certain circumstances.
To convert a Convertible Debenture, a Holder must (a) complete
and sign a conversion notice substantially in the form attached hereto, (b)
surrender the Convertible Debenture to a Conversion Agent, (c) furnish
appropriate endorsements or transfer documents if required by the Conversion
Agent and (d) pay any transfer or similar tax, if required. If a Convertible
Debenture is surrendered for conversion after the close of business on any
regular record date for payment of a Distribution and before the opening of
business on the corresponding Distribution payment date, then, notwithstanding
such conversion, the Distribution payable on such Distribution payment date will
be paid in cash to the person in whose name the Convertible Debenture is
registered at the close of business on such record date, and (other than a
Convertible Debenture or a portion of a Convertible Debenture called for
redemption on a redemption date occurring after such record date and on or prior
to such Distribution payment date) when so surrendered for conversion, the
Convertible Debenture must be accompanied by payment of an amount equal to the
Distribution payable on such Distribution payment date. The number of shares
issuable upon conversion of a Convertible Debenture is determined by dividing
the principal amount of the Convertible Debenture converted by the Conversion
Price in effect on the Conversion Date. No fractional shares will be issued upon
conversion but a cash adjustment will be made for any fractional interest. The
outstanding principal amount of any Convertible Debenture shall be reduced by
the portion of the principal amount thereof converted into shares of Common
Stock.
[The Convertible Debentures of this series are issuable only
in registered form without Coupons in
47
<PAGE> 52
denominations of $50 and any integral multiple thereof.] [This Global Debenture
is exchangeable for Convertible Debentures in definitive form only under certain
limited circumstances set forth in the Indenture. Convertible Debentures of this
series so issued are issuable only in registered form without Coupons in
denominations of $50 and any integral multiple thereof.] As provided in the
Indenture and subject to certain limitations] therein set forth, Convertible
Debentures of this series are exchange able for a like aggregate principal
amount of Convertible Debentures of this series of a different authorized
denomination, as requested by the Holder surrendering the same.
All terms used in this Convertible Debenture that are defined
in the Indenture shall have the meanings assigned to them in the Indenture.
THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE
INDENTURE AND THE CONVERTIBLE DEBENTURES WITHOUT REGARD TO CONFLICT OF LAW
PROVISIONS THEREOF.
48
<PAGE> 53
[FORM OF ELECTION TO CONVERT]
ELECTION TO CONVERT
To: Wendy's International, Inc.
The undersigned owner of this Convertible Debenture hereby
irrevocably exercises the option to convert this Convertible Debenture, or the
portion below designated, into Common Stock of WENDY'S INTERNATIONAL, INC. in
accordance with the terms of the Indenture referred to in this Convertible
Debenture, and directs that the shares issuable and deliverable upon conversion,
together with any check in payment for fractional shares, be issued in the name
of and delivered to the undersigned, unless a different name has been indicated
in the assignment below. If shares are to be issued in the name of a person
other than the undersigned, the undersigned will pay all transfer taxes payable
with respect thereto.
Date: ,
-------------- ---
in whole Portions of Convertible Debenture
to be converted ($50 or integral
multiples thereof):
$
--------------------
----------------------------------------
Signature (for conversion only)
Please Print or Typewrite Name and
Address, Including Zip Code, and
Social Security or Other Identify-
ing Number
--------------------------------------
--------------------------------------
--------------------------------------
Signature Guarantee:1
---------------------
- --------
1 Signature must be guaranteed by an "eligible guarantor institution" that
is a bank, stockbroker, savings and loan association or credit union
meeting the requirements of the Conversion Agent, which requirements
include membership of participation in the Securities Transfer Agents
Medallion Program ("STAMP") or such other "signature guarantee program" as
may be determined by the Conversion Agent in addition to, or in
substitution for, STAMP, all in accordance with the Securities and
Exchange Act of 1934, as amended.
49
<PAGE> 54
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Convertible
Debenture to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
--------------------------------------------------------
- --------------------------------------------------------------------------------
___________________________________________________ agent to transfer this
Convertible Debenture on the books of the Trust. The agent may substitute
another to act for him or her.
Date:
---------------------------------------
Signature:
----------------------------------
(Sign exactly as your name appears on the other side of
this Convertible Debenture)
Signature
Guarantee*:
-------------------------------------------------
- --------
* Signature must be guaranteed by an "eligible guarantor institution"
that is a bank, stockbroker, savings and loan association or credit
union meeting the requirements of the Conversion Agent, which
requirements include membership of participation in the Securities
Transfer Agents Medallion Program ("STAMP") or such other "signature
guarantee program" as may be determined by the Conversion Agent in
addition to, or in substitution for, STAMP, all in accordance with
the Securities and Exchange Act of 1934, as amended.
50
<PAGE> 55
ARTICLE IX
ORIGINAL ISSUE OF CONVERTIBLE DEBENTURES
SECTION 9.1. ORIGINAL ISSUE OF CONVERTIBLE DEBENTURES.
Convertible Debentures in the aggregate principal amount of
$202,020,250 may, upon execution of this First Supplemental Indenture, be
executed by the Company and delivered to the Trustee for authentication, and the
Trustee shall thereupon authenticate and make available for delivery said
Convertible Debentures to or upon the written order of the Company, signed by
its Chairman, its Vice Chairman, its President, or any Vice President and its
Treasurer or an Assistant Treasurer, without any further action by the Company.
ARTICLE X
MISCELLANEOUS
SECTION 10.1. RATIFICATION OF INDENTURE; FIRST SUPPLEMENTAL
INDENTURE CONTROLS.
The Indenture, as supplemented by this First Supplemental
Indenture, is in all respects ratified and confirmed, and this First
Supplemental Indenture shall be deemed part of the Indenture in the manner and
to the extent herein and therein provided. The provisions of this First
Supplemental Indenture shall supersede the provisions of the Indenture to the
extent the Indenture is inconsistent herewith.
SECTION 10.2. TRUSTEE NOT RESPONSIBLE FOR RECITALS.
The recitals herein contained are made by the Company and not
by the Trustee, and the Trustee assumes no responsibility for the correctness
thereof. The Trustee makes no representation as to the validity or sufficiency
of this First Supplemental Indenture.
SECTION 10.3. GOVERNING LAW.
This First Supplemental Indenture and each Convertible
Debenture shall be deemed to be a contract made under the internal laws of the
State of New York, and for all purposes shall be construed in accordance with
the laws of said State.
51
<PAGE> 56
SECTION 10.4. SEPARABILITY.
In case any one or more of the provisions contained in this
First Supplemental Indenture or in the Convertible Debentures shall for any
reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provisions
of this First Supplemental Indenture or of the Convertible Debentures, but this
First Supplemental Indenture and the Convertible Debentures shall be construed
as if such invalid or illegal or unenforceable provision had never been
contained herein or therein.
SECTION 10.5. COUNTERPARTS.
This First Supplemental Indenture may be executed in any
number of counterparts each of which shall be an original; but such counterparts
shall together constitute but one and the same instrument.
52
<PAGE> 57
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed on the date or dates indicated in the
acknowledgements and as of the day and year first above written.
WENDY'S INTERNATIONAL, INC.
By /s/ John K. Casey
---------------------------------
Name: John K. Casey
Title: Vice Chairman and Chief
Financial Officer
NBD BANK,
as Trustee
By /s/ James D. Khami
---------------------------------
Name: James D. Khami
Title: Trust Officer
53
<PAGE> 1
Exhibit 4(c)
-----------------------------------------------------
AMENDED AND RESTATED DECLARATION
OF TRUST
Wendy's Financing I
Dated as of September 20, 1996
-----------------------------------------------------
<PAGE> 2
<TABLE>
<CAPTION>
TABLE OF CONTENTS
PAGE
----
ARTICLE 1
INTERPRETATION AND DEFINITION
<S> <C>
SECTION 1.01. Definitions...............................................................................2
ARTICLE 2
TRUST INDENTURE ACT
SECTION 2.01. Trust Indenture Act; Application..........................................................9
SECTION 2.02. List of Holders of Securities.............................................................9
SECTION 2.03. Reports by the Institutional Trustee.....................................................10
SECTION 2.04. Periodic Reports to Institutional Trustee................................................10
SECTION 2.05. Evidence of Compliance with Conditions Precedent.........................................10
SECTION 2.06. Events of Default; Waiver................................................................11
SECTION 2.07. Event of Default; Notice.................................................................13
ARTICLE 3
ORGANIZATION
SECTION 3.01. Name.....................................................................................13
SECTION 3.02. Office...................................................................................14
SECTION 3.03. Purpose..................................................................................14
SECTION 3.04. Authority................................................................................14
SECTION 3.05. Title to Property of the Trust...........................................................14
SECTION 3.06. Powers and Duties of the Regular Trustees................................................15
SECTION 3.07. Prohibition of Actions by the Trust and the Trustees.....................................18
SECTION 3.08. Powers and Duties of the Institutional Trustee...........................................19
SECTION 3.09. Certain Duties and Responsibilities of the Institutional Trustee.........................22
SECTION 3.10. Certain Rights of Institutional Trustee..................................................24
SECTION 3.11. Delaware Trustee.........................................................................27
SECTION 3.12. Execution of Documents...................................................................27
SECTION 3.13. Not Responsible for Recitals or Issuance of Securities...................................27
SECTION 3.14. Duration of Trust........................................................................27
SECTION 3.15. Mergers..................................................................................27
ARTICLE 4
SPONSOR
SECTION 4.01. Sponsor's Purchase of Common Securities..................................................29
</TABLE>
<PAGE> 3
<TABLE>
<S> <C>
SECTION 4.02. Responsibilities of the Sponsor..........................................................30
ARTICLE 5
TRUSTEES
SECTION 5.01. Number of Trustees.......................................................................31
SECTION 5.02. Delaware Trustee.........................................................................31
SECTION 5.03. Institutional Trustee; Eligibility.......................................................32
SECTION 5.04. Certain Qualifications of Regular Trustees and Delaware Trustee
Generally......................................................................................32
SECTION 5.05. Regular Trustees.........................................................................33
SECTION 5.06. Delaware Trustee.........................................................................33
SECTION 5.07. Appointment, Removal and Resignation of Trustees.........................................33
SECTION 5.08. Vacancies among Trustees.................................................................35
SECTION 5.09. Effect of Vacancies......................................................................35
SECTION 5.10. Meetings.................................................................................36
SECTION 5.11. Delegation of Power......................................................................36
SECTION 5.12. Merger, Conversion, Consolidation or Succession to Business..............................37
ARTICLE 6
DISTRIBUTIONS
SECTION 6.01. Distributions............................................................................37
ARTICLE 7
ISSUANCE OF SECURITIES
SECTION 7.01. General Provisions Regarding Securities..................................................38
SECTION 7.02. Execution and Authentication.............................................................38
SECTION 7.03. Form and Dating..........................................................................39
SECTION 7.04. Paying Agent and Conversion Agent........................................................40
ARTICLE 8
TERMINATION OF TRUST
SECTION 8.01. Termination of Trust.....................................................................40
ARTICLE 9
TRANSFER OF INTERESTS
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C>
SECTION 9.01. Transfer of Securities...................................................................42
SECTION 9.02. Transfer of Certificates.................................................................42
SECTION 9.03. Deemed Security Holders..................................................................43
SECTION 9.04. Book Entry Interests.....................................................................43
SECTION 9.05. Notices to Clearing Agency...............................................................44
SECTION 9.06. Appointment of Successor Clearing Agency.................................................44
SECTION 9.07. Definitive Trust Preferred Security Certificates.........................................44
SECTION 9.08. Mutilated, Destroyed, Lost or Stolen Certificates........................................45
ARTICLE 10
LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.01. Liability...............................................................................46
SECTION 10.02. Exculpation.............................................................................47
SECTION 10.03. Fiduciary Duty..........................................................................47
SECTION 10.04. Indemnification.........................................................................48
SECTION 10.05. Outside Business........................................................................52
ARTICLE 11
ACCOUNTING
SECTION 11.01. Fiscal Year.............................................................................53
SECTION 11.02. Certain Accounting Matters..............................................................53
SECTION 11.03. Banking.................................................................................54
SECTION 11.04. Withholding.............................................................................54
ARTICLE 12
AMENDMENTS AND MEETINGS
SECTION 12.01. Amendments..............................................................................55
SECTION 12.02. Meetings of the Holders of Securities; Action by Written Consent........................57
ARTICLE 13
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE AND DELAWARE TRUSTEE
SECTION 13.01. Representations and Warranties of Institutional Trustee.................................59
SECTION 13.02. Representations and Warranties of Delaware Trustee......................................60
ARTICLE 14
MISCELLANEOUS
</TABLE>
iii
<PAGE> 5
<TABLE>
<S> <C>
SECTION 14.01. Notices.................................................................................61
SECTION 14.02. Governing Law...........................................................................62
SECTION 14.03. Intention of the Parties................................................................62
SECTION 14.04. Headings................................................................................62
SECTION 14.05. Successors and Assigns..................................................................63
SECTION 14.06. Partial Enforceability..................................................................63
SECTION 14.07. Counterparts............................................................................63
</TABLE>
<TABLE>
<S> <C> <C>
ANNEX I TERMS OF SECURITIES................................................I-1
EXHIBIT A-1 FORM OF TRUST PREFERRED
SECURITY CERTIFICATE..............................................A1-1
EXHIBIT A-2 FORM OF COMMON SECURITY
CERTIFICATE.......................................................A2-1
EXHIBIT B SPECIMEN OF DEBENTURE..............................................B-1
EXHIBIT C UNDERWRITING AGREEMENT.............................................C-1
</TABLE>
iv
<PAGE> 6
CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
Section of
Trust Indenture Act Section of
of 1939, as amended Declaration
- ------------------- -----------
<C> <C>
310(a) .................................................. 5.03(a)
310(c) .................................................. Inapplicable
311(c) .................................................. Inapplicable
312(a) .................................................. 2.02(a)
312(b) .................................................. 2.02(b)
313 .................................................. 2.03
314(a) .................................................. 2.04
314(b) .................................................. Inapplicable
314(c) .................................................. 2.05
314(d) .................................................. Inapplicable
314(f) .................................................. Inapplicable
315(a) .................................................. 3.09(b)
315(c) .................................................. 3.09(a)
315(d) .................................................. 3.09(a)
316(a) .................................................. Annex I
316(c) .................................................. 3.06(e)
- ---------------------------
<FN>
* This Cross-Reference table does not constitute part of the Declaration and
shall not affect the interpretation of any of its terms or provisions.
</TABLE>
v
<PAGE> 7
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
WENDY'S FINANCING I
September 20, 1996
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration") dated and
effective as of September 20, 1996, by the Trustees (as defined herein), the
Sponsor (as defined herein) and by the holders, from time to time, of undivided
beneficial interests in the Trust to be issued pursuant to this Declaration;
WHEREAS, certain of the Trustees and the Sponsor established Wendy's
Financing I (the "Trust"), a trust under the Business Trust Act (as defined
herein) pursuant to a Trust Agreement, dated as of August 8, 1996 (the "Original
Declaration"), and a Certificate of Trust filed with the Secretary of State of
the State of Delaware on August 8, 1996, for the sole purpose of issuing and
selling certain securities representing undivided beneficial interests in the
assets of the Trust and investing the proceeds thereof in certain Debentures of
the Sponsor;
WHEREAS, as of the date hereof, no interests in the Trust have been
issued;
WHEREAS, all of the Trustees and the Sponsor, by this Declaration,
amend and restate each and every term and provision of the Original Declaration;
NOW, THEREFORE, it being the intention of the parties hereto to
continue the Trust as a business trust under the Business Trust Act and that
this Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
<PAGE> 8
ARTICLE 1
INTERPRETATION AND DEFINITION
SECTION 1.01. Definitions.
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined in the
preamble above have the respective meanings assigned to them in this Section
1.01;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to
this Declaration as modified, supplemented or amended from time to time;
(d) all references in this Declaration to Articles and Sections and
Annexes and Exhibits are to Articles and Sections of and Annexes and Exhibits to
this Declaration unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Declaration unless otherwise defined in this Declaration or unless
the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"AFFILIATE" has the same meaning as given to that term in Rule 405 of
the Securities Act or any successor rule thereunder.
"AGENT" means any Paying Agent or Conversion Agent.
"AUTHORIZED OFFICER" of a Person means any Person that is authorized to
bind such Person.
"BASE INDENTURE" means the Indenture dated as of September 16, 1996,
between the Sponsor and the Debenture Trustee.
2
<PAGE> 9
"BOOK ENTRY INTEREST" means a beneficial interest in a Global
Certificate, ownership and transfers of which shall be maintained and made
through book entries by a Clearing Agency as described in Section 9.04.
"BUSINESS DAY" means any day other than a Saturday, Sunday or any other
day on which banking institutions in New York, New York, Detroit, Michigan or
Columbus, Ohio are permitted or required by any applicable law to close.
"BUSINESS TRUST ACT" means Chapter 38 of Title 12 of the Delaware Code,
12 DEL. C. Section 3801 ET SEQ., as it may be amended from time to time, or any
successor legislation.
"CERTIFICATE" means a Common Security Certificate or a Trust Preferred
Security Certificate.
"CLEARING AGENCY" means an organization registered as a "Clearing
Agency" pursuant to Section 17A of the Exchange Act that is acting as depositary
for the Trust Preferred Securities and in whose name or in the name of a nominee
of that organization shall be registered a Global Certificate and which shall
undertake to effect book entry transfers and pledges of the Trust Preferred
Securities.
"CLEARING AGENCY PARTICIPANT" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the Clearing
Agency effects book entry transfers and pledges of securities deposited with the
Clearing Agency.
"CLOSING DATE" means September 20, 1996.
"CODE" means the Internal Revenue Code of 1986, as amended from time to
time, or any successor legislation.
"COMMISSION" means the Securities and Exchange Commission.
"COMMON SECURITY" has the meaning specified in Section 7.01.
"COMMON SECURITIES GUARANTEE" means the guarantee agreement to be dated
as of September 20, 1996 of the Sponsor in respect of the Common Securities.
3
<PAGE> 10
"COMMON SECURITY CERTIFICATE" means a definitive certificate in fully
registered form representing a Common Security substantially in the form of
Exhibit A-2.
"COMPANY INDEMNIFIED PERSON" means (a) any Regular Trustee; (b) any
Affiliate of any Regular Trustee; (c) any officers, directors, shareholders,
members, partners, employees, representatives or agents of any Regular Trustee;
or (d) any officer, employee or agent of the Trust or its Affiliates.
"CONVERSION AGENT" has the meaning specified in Section 7.04.
"CORPORATE TRUST OFFICE" means the office of the Institutional Trustee
at which the corporate trust business of the Preferred Guarantee Trustee (as
defined in the Preferred Securities Guarantee Agreement dated as of September
20, 1996 between the Sponsor and NBD Bank) shall, at any particular time, be
principally administered, which office at the date of execution of this
Agreement is located at 611 Woodward Avenue, Detroit, Michigan 48226.
"COVERED PERSON" means: (a) any officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates; and (b) any Holder of Securities.
"DEBENTURE TRUSTEE" means NBD Bank, as trustee under the Indenture
until a successor is appointed thereunder, and thereafter means such successor
trustee.
"DEBENTURES" means the series of Debentures to be issued by the Sponsor
under the Indenture to be held by the Institutional Trustee, a specimen
certificate for such series of Debentures being Exhibit B.
"DELAWARE TRUSTEE" has the meaning set forth in Section 5.02.
"DEFINITIVE TRUST PREFERRED SECURITY CERTIFICATES" has the meaning set
forth in Section 9.04.
"DISTRIBUTION" means a distribution payable to Holders of Securities in
accordance with Section 6.01.
"DTC" means The Depository Trust Company, the initial Clearing Agency.
4
<PAGE> 11
"EVENT OF DEFAULT" in respect of the Securities means an Event of
Default (as defined in the Indenture) has occurred and is continuing in respect
of the Debentures.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor legislation.
"FIDUCIARY INDEMNIFIED PERSON" has the meaning set forth in Section
10.04(b).
"GLOBAL CERTIFICATE" has the meaning set forth in Section 9.04.
"HOLDER" means a Person in whose name a Certificate representing a
Security is registered, such Person being a beneficial owner within the meaning
of the Business Trust Act.
"INDEMNIFIED PERSON" means a Company Indemnified Person or a Fiduciary
Indemnified Person.
"INDENTURE" means the Base Indenture as supplemented by the
Supplemental Indenture.
"INSTITUTIONAL TRUSTEE" means the Trustee meeting the eligibility
requirements set forth in Section 5.03.
"INSTITUTIONAL TRUSTEE ACCOUNT" has the meaning set forth in Section
3.08(c).
"INVESTMENT COMPANY" means an investment company as defined in the
Investment Company Act.
"INVESTMENT COMPANY ACT" means the Investment Company Act of 1940, as
amended from time to time, or any successor legislation.
"INVESTMENT COMPANY EVENT" has the meaning set forth in Annex I hereto.
"LEGAL ACTION" has the meaning set forth in Section 3.06(g).
"MAJORITY IN LIQUIDATION AMOUNT" of the Securities means, except as
provided in the terms of the Trust Preferred Securities or by the Trust
Indenture
5
<PAGE> 12
Act, Holder(s) of outstanding Securities voting together as a single class or,
as the context may require, Holders of outstanding Trust Preferred Securities or
Holders of outstanding Common Securities voting separately as a class, who are
the record owners of more than 50% of the aggregate liquidation amount
(including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accumulated and unpaid Distributions to the date upon which the
voting percentages are determined) of all outstanding Securities of the relevant
class.
"MINISTERIAL ACTION" has the meaning set forth in the terms of the
Securities as set forth in Annex I.
"OFFICERS' CERTIFICATE" means, with respect to any Person, a
certificate signed by two Authorized Officers of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Declaration shall include:
(a) a statement that each officer signing the Certificate has
read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering
the Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"PAYING AGENT" has the meaning specified in Sections 3.08(h) and 7.04.
"PERSON" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"QUORUM" means a majority of the Regular Trustees or, if there are only
two Regular Trustees, both of them.
6
<PAGE> 13
"REGULAR TRUSTEE" has the meaning set forth in Section 5.01(b).
"RELATED PARTY" means, with respect to the Sponsor, any direct or
indirect wholly owned subsidiary of the Sponsor or any other Person that owns,
directly or indirectly, 100% of the outstanding voting securities of the
Sponsor.
"RESPONSIBLE OFFICER" means, with respect to the Institutional Trustee,
any officer within the Corporate Trust Office of the Institutional Trustee,
including any vice president, any assistant vice president, any assistant
secretary, the treasurer, any assistant treasurer or other officer of the
Corporate Trust Office of the Institutional Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of that officer's knowledge of
and familiarity with the particular subject.
"RULE 3a-5" means Rule 3a-5 under the Investment Company Act.
"SECURITIES" means the Common Securities and the Trust Preferred
Securities.
"SECURITIES ACT" means the Securities Act of 1933, as amended from time
to time or any successor legislation.
"SECURITIES GUARANTEES" means the Common Securities Guarantee and the
Trust Preferred Securities Guarantee.
"SPECIAL EVENT" has the meaning set forth in Annex I hereto.
"SPONSOR" means Wendy's International, Inc. ("Wendy's"), an Ohio
corporation, or any successor entity in a merger, consolidation or amalgamation,
in its capacity as sponsor of the Trust.
"SUPER MAJORITY" has the meaning set forth in Section 2.06(a)(ii).
"SUPPLEMENTAL INDENTURE" means the First Supplemental Indenture dated
as of September 20, 1996 between the Sponsor and the Debenture Trustee pursuant
to which the Debentures are to be issued.
"TAX EVENT" has the meaning set forth in Annex I hereto.
7
<PAGE> 14
"10% IN LIQUIDATION AMOUNT OF THE SECURITIES" means, except as provided
in the terms of the Trust Preferred Securities or by the Trust Indenture Act,
Holder(s) of outstanding Securities voting together as a single class or, as the
context may require, Holders of outstanding Trust Preferred Securities or
Holders of outstanding Common Securities voting separately as a class, who are
the record owners of 10% or more of the aggregate liquidation amount (including
the stated amount that would be paid on redemption, liquidation or otherwise,
plus accumulated and unpaid Distributions to the date upon which the voting
percentages are determined) of all outstanding Securities of the relevant class.
"TREASURY REGULATIONS" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as amended
from time to time, or any successor legislation.
"TRUST PREFERRED SECURITIES GUARANTEE" means the guarantee agreement to
be dated as of September 20, 1996, of the Sponsor in respect of the Trust
Preferred Securities.
"TRUST PREFERRED SECURITY" has the meaning specified in Section 7.01.
"TRUST PREFERRED SECURITY BENEFICIAL OWNER" means, with respect to a
Book Entry Interest, a Person who is the beneficial owner of such Book Entry
Interest, as reflected on the books of the Clearing Agency, or on the books of a
Person maintaining an account with such Clearing Agency (directly as a Clearing
Agency Participant or as an indirect participant, in each case in accordance
with the rules of such Clearing Agency).
"TRUST PREFERRED SECURITY CERTIFICATE" means a certificate representing
a Trust Preferred Security substantially in the form of Exhibit A-1.
"TRUSTEE" or "TRUSTEES" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
8
<PAGE> 15
"UNDERWRITING AGREEMENT" means the Underwriting Agreement for the
offering and sale of Trust Preferred Securities in the form of Exhibit C.
ARTICLE 2
TRUST INDENTURE ACT
SECTION 2.01. Trust Indenture Act; Application.
(a) This Declaration is subject to the provisions of the Trust
Indenture Act that are required to be part of this Declaration and shall, to the
extent applicable, be governed by such provisions.
(b) The Institutional Trustee shall be the only Trustee which is a
Trustee for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this Declaration limits,
qualifies or conflicts with the duties imposed by sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to this Declaration
shall not affect the nature of the Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
SECTION 2.02. List of Holders of Securities.
(a) Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide the Institutional Trustee (i) within 14 days after each record
date for payment of Distributions, a list, in such form as the Institutional
Trustee may reasonably require, of the names and addresses of the Holders of the
Securities ("List of Holders") as of such record date, provided that neither the
Sponsor nor the Regular Trustees on behalf of the Trust shall be obligated to
provide such List of Holders at any time the List of Holders does not differ
from the most recent List of Holders given to the Institutional Trustee by the
Sponsor and the Regular Trustees on behalf of the Trust, and (ii) at any other
time, within 30 days of receipt by the Trust of a written request for a List of
Holders as of a date no more than 14 days before such List of Holders is given
to the Institutional Trustee. The Institutional Trustee shall preserve, in as
current a form as is reasonably practicable, all information contained in Lists
of Holders given to it or which it
9
<PAGE> 16
receives in the capacity as Paying Agent (if acting in such capacity) provided
that the Institutional Trustee may destroy any List of Holders previously given
to it on receipt of a new List of Holders.
(b) The Institutional Trustee shall comply with its obligations under
sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.03. Reports by the Institutional Trustee.
Within 60 days after May 15 of each year, the Institutional Trustee
shall provide to the Holders of the Trust Preferred Securities such reports as
are required by section 313 of the Trust Indenture Act, if any, in the form
and in the manner provided by section 313 of the Trust Indenture Act. The
Institutional Trustee shall also comply with the requirements of section 313(d)
of the Trust Indenture Act.
SECTION 2.04. Periodic Reports to Institutional Trustee.
Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide to the Institutional Trustee such documents, reports and
information as required by section 314 (if any) and the compliance certificate
required by section 314 of the Trust Indenture Act in the form, in the manner
and at the times required by section 314 of the Trust Indenture Act.
Delivery of such reports, information and documents to the
Institutional Trustee is for informational purposes only and the Institutional
Trustee's receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Sponsor's compliance with any of its covenants hereunder
(as to which the Institutional Trustee is entitled to rely exclusively on
Officers' Certificates).
SECTION 2.05. Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide to the Institutional Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Declaration that relate to
any of the matters set forth in section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to section
314(c)(1) may be given in the form of an Officers' Certificate.
10
<PAGE> 17
SECTION 2.06. Events of Default; Waiver.
(a) The Holders of a Majority in liquidation amount of Trust Preferred
Securities may, by vote, on behalf of the Holders of all of the Trust Preferred
Securities, waive any past Event of Default in respect of the Trust Preferred
Securities and its consequences, provided that, if the underlying Event of
Default under the Indenture:
(i) is not waivable under the Indenture, the Event of Default
under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of greater than a majority in
principal amount of the holders of the Debentures (a "Super Majority")
to be waived under the Indenture, the Event of Default under the
Declaration may only be waived by the vote of the Holders of at least
the proportion in liquidation amount of the Trust Preferred Securities
that the relevant Super Majority represents of the aggregate principal
amount of the Debentures outstanding.
The foregoing provisions of this Section 2.06(a) shall be in lieu of
section 316(a)(1)(B) of the Trust Indenture Act and such section 316(a)(1)(B)
of the Trust Indenture Act is hereby expressly excluded from this Declaration
and the Securities, as permitted by the Trust Indenture Act. Upon such waiver,
any such default shall cease to exist, and any Event of Default with respect to
the Trust Preferred Securities arising therefrom shall be deemed to have been
cured, for every purpose of this Declaration, but no such waiver shall extend
to any subsequent or other default or an Event of Default with respect to the
Trust Preferred Securities or impair any right consequent thereon. Any waiver
by the Holders of the Trust Preferred Securities of an Event of Default with
respect to the Trust Preferred Securities shall also be deemed to constitute a
waiver by the Holders of the Common Securities of any such Event of Default
with respect to the Common Securities for all purposes of this Declaration
without any further act, vote, or consent of the Holders of the Common
Securities.
(b) The Holders of a Majority in liquidation amount of the Common
Securities may, by vote, on behalf of the Holders of all of the Common
Securities, waive any past Event of Default with respect to the Common
Securities and its consequences, provided that, if the underlying Event of
Default under the Indenture:
11
<PAGE> 18
(i) is not waivable under the Indenture, except where the Holders
of the Common Securities are deemed to have waived such Event of
Default under the Declaration as provided below in this Section
2.06(b), the Event of Default under the Declaration shall also not be
waivable; or
(ii) requires the consent or vote of a Super Majority to be waived,
except where the Holders of the Common Securities are deemed to have
waived such Event of Default under the Declaration as provided below in
this Section 2.06(b), the Event of Default under the Declaration may
only be waived by the vote of the Holders of at least the proportion in
liquidation amount of the Common Securities that the relevant Super
Majority represents of the aggregate principal amount of the Debentures
outstanding;
provided further, each Holder of Common Securities will be deemed to have waived
any such Event of Default and all Events of Default with respect to the Common
Securities and its consequences until all Events of Default with respect to the
Trust Preferred Securities have been cured, waived or otherwise eliminated, and
until such Events of Default have been so cured, waived or otherwise eliminated,
the Institutional Trustee will be deemed to be acting solely on behalf of the
Holders of the Trust Preferred Securities and only the Holders of the Trust
Preferred Securities will have the right to direct the Institutional Trustee in
accordance with the terms of the Securities. The foregoing provisions of this
Section 2.06(b) shall be in lieu of sections 316(a)(1)(A) and 316(a)(1)(B) of
the Trust Indenture Act and such sections 316(a)(1)(A) and 316(a)(1)(B) of the
Trust Indenture Act are hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act. Subject to the foregoing
provisions of this Section 2.06(b), upon such waiver, any such default shall
cease to exist and any Event of Default with respect to the Common Securities
arising therefrom shall be deemed to have been cured for every purpose of this
Declaration, but no such waiver shall extend to any subsequent or other default
or Event of Default with respect to the Common Securities or impair any right
consequent thereon.
(c) A waiver of an Event of Default under the Indenture by the
Institutional Trustee at the direction of the Holders of the Trust Preferred
Securities, constitutes a waiver of the corresponding Event of Default under
this Declaration. The foregoing provisions of this Section 2.06(c) shall be in
lieu of section 316(a)(1)(B) of the Trust Indenture Act and such section
316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from this
Declaration and the Securities, as permitted by the Trust Indenture Act.
12
<PAGE> 19
SECTION 2.07. Event of Default; Notice.
(a) The Institutional Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to the Holders of the Securities, notices of all defaults with respect
to the Securities actually known to a Responsible Officer of the Institutional
Trustee, unless such defaults have been cured before the giving of such notice
(the term "defaults" for the purposes of this Section 2.07(a) being hereby
defined to be an Event of Default as defined in the Indenture, not including any
periods of grace provided for therein and irrespective of the giving of any
notice provided therein); provided that, except for a default in the payment of
principal of (or premium, if any) or interest on any of the Debentures or in the
payment of any sinking fund installment established for the Debentures, the
Institutional Trustee shall be protected in withholding such notice if and so
long as a Responsible Officer of the Institutional Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders of the Securities.
(b) The Institutional Trustee shall not be deemed to have knowledge of
any default except:
(i) a default under Sections 501(1) and 501(2) of the Indenture;
or
(ii) any default as to which the Institutional Trustee shall have
received written notice or of which a Responsible Officer of the
Institutional Trustee charged with the administration of the
Declaration shall have actual knowledge.
ARTICLE 3
ORGANIZATION
SECTION 3.01. Name.
The Trust is named "Wendy's Financing I" as such name may be modified
from time to time by the Regular Trustees following written notice to the
Holders of Securities and the other Trustees. The Trust's activities may be
conducted under the name of the Trust or any other name deemed advisable by the
Regular Trustees.
13
<PAGE> 20
SECTION 3.02. Office.
The address of the principal office of the Trust is c/o Wendy's
International, Inc., 4288 West Dublin - Granville Road, Dublin, Ohio 43017-0256.
On ten Business Days written notice to the Holders of Securities and the other
Trustees, the Regular Trustees may designate another principal office.
SECTION 3.03. Purpose.
The exclusive purposes and functions of the Trust are (a) to issue and
sell Securities and use the proceeds from such sale to acquire the Debentures,
and (b) except as otherwise limited herein, to engage in only those other
activities necessary, or incidental thereto. The Trust shall not borrow money,
issue debt or reinvest proceeds derived from investments, pledge any of its
assets, or otherwise undertake (or permit to be undertaken) any activity that
would cause the Trust not to be classified for United States federal income tax
purposes as a grantor trust.
SECTION 3.04. Authority.
Subject to the limitations provided in this Declaration and to the
specific duties of the Institutional Trustee, the Regular Trustees shall have
exclusive and complete authority to carry out the purposes of the Trust. An
action taken by the Regular Trustees in accordance with their powers shall
constitute the act of and serve to bind the Trust and an action taken by the
Institutional Trustee on behalf of the Trust in accordance with its powers shall
constitute the act of and serve to bind the Trust. In dealing with the Trustees
acting on behalf of the Trust, no Person shall be required to inquire into the
authority of the Trustees to bind the Trust. Persons dealing with the Trust are
entitled to rely conclusively on the power and authority of the Trustees as set
forth in this Declaration.
SECTION 3.05. Title to Property of the Trust.
Except as provided in Section 3.08 with respect to the Debentures and
the Institutional Trustee Account or as otherwise provided in this Declaration,
legal title to all assets of the Trust shall be vested in the Trust. The Holders
shall not have legal title to any part of the assets of the Trust, but shall
have an undivided beneficial interest in the assets of the Trust.
14
<PAGE> 21
SECTION 3.06. Powers and Duties of the Regular Trustees.
The Regular Trustees shall have the exclusive power, duty and authority
to cause the Trust to engage in the following activities:
(a) to issue and sell the Trust Preferred Securities and the Common
Securities in accordance with this Declaration; provided, however, that the
Trust may issue no more than one series of Trust Preferred Securities and no
more than one series of Common Securities, and, provided further, that there
shall be no interests in the Trust other than the Securities, and the issuance
of Securities shall be limited to a simultaneous issuance of both Trust
Preferred Securities and Common Securities on the Closing Date;
(b) in connection with the issue and sale of the Trust Preferred
Securities, at the direction of the Sponsor, to:
(i) file with the Commission the registration statement on Form
S-3 prepared by the Sponsor, including any amendments thereto,
pertaining to the Trust Preferred Securities;
(ii) file any documents prepared by the Sponsor, or take any acts
as determined by the Sponsor to be necessary in order to qualify or
register all or part of the Trust Preferred Securities in any State in
which the Sponsor has determined to qualify or register such Trust
Preferred Securities for sale;
(iii) file an application, prepared by the Sponsor, to the
New York Stock Exchange, Inc. or any other national stock exchange or
the Nasdaq National Market for listing upon notice of issuance of any
Trust Preferred Securities; and
(iv) file with the Commission a registration statement on Form 8-A,
including any amendments thereto, prepared by the Sponsor, relating to
the registration of the Trust Preferred Securities under Section 12(b)
of the Exchange Act;
(c) to acquire the Debentures with the proceeds of the sale of the
Trust Preferred Securities and the Common Securities; provided, however, that
the Regular Trustees shall cause legal title to the Debentures to be held of
record in
15
<PAGE> 22
the name of the Institutional Trustee for the benefit of the Holders of the
Trust Preferred Securities and the Holders of Common Securities;
(d) to give the Sponsor and the Institutional Trustee prompt written
notice of the occurrence of a Special Event; provided that the Regular Trustees
shall consult with the Sponsor and the Institutional Trustee before taking or
refraining from taking any Ministerial Action in relation to a Special Event;
(e) subject to Section 2(c) of Annex I hereto, to establish a record
date with respect to all actions to be taken hereunder that require a record
date be established, including and with respect to, for the purposes of section
316 (c) of the Trust Indenture Act, Distributions, voting rights, redemptions
and exchanges, and to issue relevant notices to the Holders of Trust Preferred
Securities and Holders of Common Securities as to such actions and applicable
record dates;
(f) to take all actions and perform such duties as may be required of
the Regular Trustees pursuant to the terms of the Securities;
(g) to bring or defend, pay, collect, compromise, arbitrate, resort to
legal action, or otherwise adjust claims or demands of or against the Trust
("Legal Action"), unless pursuant to Section 3.08(e), the Institutional Trustee
has the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors, and
consultants and pay reasonable compensation for such services;
(i) to cause the Trust to comply with the Trust's obligations under the
Trust Indenture Act;
(j) to give the certificate required by section 314(a)(4) of the Trust
Indenture Act to the Institutional Trustee, which certificate may be executed by
any Regular Trustee;
(k) to incur expenses that are necessary or incidental to carry out any
of the purposes of the Trust;
(l) to act as, or appoint another Person to act as, registrar and
transfer agent for the Securities;
16
<PAGE> 23
(m) to give prompt written notice to the Holders of the Securities of
any notice received from the Sponsor of its election to defer payments of
interest on the Debentures by extending the interest payment period under the
Indenture;
(n) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing;
(o) to take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of the
State of Delaware and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders of the Trust Preferred
Securities or to enable the Trust to effect the purposes for which the Trust was
created;
(p) to take any action, not inconsistent with this Declaration or with
applicable law, that the Regular Trustees determine in their discretion to be
necessary or desirable in carrying out the activities of the Trust as set out in
this Section 3.06, including, but not limited to:
(i) causing the Trust not to be deemed to be an Investment
Company required to be registered under the Investment Company Act;
(ii) causing the Trust to be classified for United States federal
income tax purposes as a grantor trust; and
(iii) cooperating with the Sponsor to ensure that the Debentures
will be treated as indebtedness of the Sponsor for United States
federal income tax purposes,
provided that such action does not adversely affect the interests of
Holders; and
(q) to take all action necessary to cause all applicable tax returns
and tax information reports that are required to be filed with respect to the
Trust to be duly prepared and filed by the Regular Trustees, on behalf of the
Trust.
17
<PAGE> 24
The Regular Trustees must exercise the powers set forth in this Section
3.06 in a manner that is consistent with the purposes and functions of the Trust
set out in Section 3.03, and the Regular Trustees shall not take any action that
is inconsistent with the purposes and functions of the Trust set forth in
Section 3.03.
Subject to this Section 3.06, the Regular Trustees shall have none of
the powers or the authority of the Institutional Trustee set forth in Section
3.08.
Any expenses incurred by the Regular Trustees pursuant to this Section
3.06 shall be reimbursed by the Sponsor.
SECTION 3.07. Prohibition of Actions by the Trust and the Trustees.
(a) The Trust shall not, and the Trustees (including the Institutional
Trustee) shall cause the Trust not to, engage in any activity other than as
required or authorized by this Declaration. In particular, the Trust shall not
and the Trustees (including the Institutional Trustee) shall cause the Trust not
to:
(i) invest any proceeds received by the Trust from holding the
Debentures, but shall distribute all such proceeds to Holders of
Securities pursuant to the terms of this Declaration and of the
Securities;
(ii) acquire any assets other than as expressly provided herein;
(iii) possess Trust property for other than a Trust purpose;
(iv) make any loans or incur any indebtedness other than loans
represented by the Debentures;
(v) possess any power or otherwise act in such a way as to vary
the Trust assets or the terms of the Securities in any way whatsoever;
(vi) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than the
Securities; or
(vii) other than as provided in this Declaration or Annex I, (A)
direct the time, method and place of exercising any trust or power
conferred upon the Debenture Trustee with respect to the Debentures,
(B) waive any past default that is waivable under the Indenture,
(C) exercise any right to rescind or annul any declaration that the
principal of all the
18
<PAGE> 25
Debentures shall be due and payable, or (D) consent to any amendment,
modification or termination of the Indenture or the Debentures where
such consent shall be required unless the Trust shall have received an
opinion of counsel to the effect that such modification will not cause
more than an insubstantial risk that for United States federal income
tax purposes the Trust will not be classified as a grantor trust.
SECTION 3.08. Powers and Duties of the Institutional Trustee.
(a) The legal title to the Debentures shall be owned by and held of
record in the name of the Institutional Trustee in trust for the benefit of the
Trust and the Holders of the Securities. The right, title and interest of the
Institutional Trustee to the Debentures shall vest automatically in each Person
who may hereafter be appointed as Institutional Trustee in accordance with
Section 5.07. Such vesting and cessation of title shall be effective whether or
not conveyancing documents with regard to the Debentures have been executed and
delivered.
(b) The Institutional Trustee shall not transfer its right, title and
interest in the Debentures to the Regular Trustees or to the Delaware Trustee
(if the Institutional Trustee does not also act as Delaware Trustee).
(c) The Institutional Trustee shall:
(i) establish and maintain a segregated non-interest bearing trust
account (the "Institutional Trustee Account") in the name of and under
the exclusive control of the Institutional Trustee on behalf of the
Holders of the Securities and, upon the receipt of payments of funds
made in respect of the Debentures held by the Institutional Trustee,
deposit such funds into the Institutional Trustee Account and make
payments to the Holders of the Trust Preferred Securities and Holders
of the Common Securities from the Institutional Trustee Account in
accordance with Section 6.01. Funds in the Institutional Trustee
Account shall be held uninvested until disbursed in accordance with
this Declaration. The Institutional Trustee Account shall be an account
that is maintained with a banking institution (which may be with the
Institutional Trustee) the rating on whose long-term unsecured
indebtedness is at least equal to the rating assigned to the Trust
Preferred Securities by a "nationally recognized statistical rating
organization", as that term is defined for purposes of Rule 436(g)(2)
under the Securities Act;
19
<PAGE> 26
(ii) engage in such ministerial activities as shall be necessary or
appropriate to effect the redemption of the Trust Preferred Securities and
the Common Securities to the extent the Debentures are redeemed or mature;
and
(iii) upon written notice of Distribution issued by the Regular
Trustees in accordance with the terms of the Securities, engage in such
ministerial activities as shall be necessary or appropriate to effect the
Distribution of the Debentures to Holders of Securities upon the
occurrence of certain special events (as may be defined in the terms of
the Securities) arising from a change in law or a change in legal
interpretation or other specified circumstances pursuant to the terms of
the Securities.
(d) The Institutional Trustee shall take all actions and perform such
duties as may be specifically required of the Institutional Trustee pursuant to
the terms of the Securities.
(e) The Institutional Trustee shall take any Legal Action which arises
out of or in connection with an Event of Default of which a Responsible Officer
of the Institutional Trustee has actual knowledge or the Institutional Trustee's
duties and obligations under this Declaration or the Trust Indenture Act;
provided however, that the holders of a majority in liquidation amount of the
Trust Preferred Securities will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Institutional
Trustee or to direct the exercise of any trust or power conferred upon the
Institutional Trustee under the Declaration, including the right to direct the
Institutional Trustee to exercise the remedies available to it as a holder of
the Convertible Debentures. If the Institutional Trustee fails to enforce its
rights under the Convertible Debentures, a Holder of Trust Preferred Securities,
to the extent permitted by law, may institute a legal proceeding directly
against Wendy's to enforce the Institutional Trustee's rights under the
Convertible Debentures without first instituting any legal proceeding against
the Institutional Trustee or any other Person; provided further, that, if an
Event of Default has occurred and is continuing and such event is attributable
to the failure of the Sponsor to pay interest or principal on the Debentures on
the date such interest or principal is otherwise payable (or in the case of
redemption, on the redemption date), then a Holder of Trust Preferred Securities
may directly institute a proceeding for enforcement of payment to such Holder of
the principal of or interest on the Debentures having a principal amount equal
to the aggregate liquidation amount of the Trust Preferred Securities of such
Holder (a "Direct Action") on or after the respective due date specified in the
20
<PAGE> 27
Debentures. In connection with such Direct Action, the rights of the Holders of
the Common Securities will be subrogated to the rights of such Holder of Trust
Securities to the extent of any payment made by the Sponsor to such Holder of
Trust Preferred Securities in such Direct Action. Except as provided in the
preceding sentences, the Holders of Trust Preferred Securities will not be able
to exercise directly any other remedy available to the holders of the
Debentures.
(f) The Institutional Trustee shall continue to serve as a Trustee
until either:
(i) the Trust has been completely liquidated and the proceeds of
the liquidation distributed to the Holders of Securities pursuant to the
terms of the Securities; or
(ii) a Successor Institutional Trustee has been appointed and has
accepted that appointment in accordance with Section 5.07.
(g) The Institutional Trustee shall have the legal power to exercise
all of the rights, powers and privileges of a holder of Debentures under the
Indenture and, if an Event of Default actually known to a Responsible Officer of
the Institutional Trustee occurs and is continuing, the Institutional Trustee
shall, for the benefit of Holders of the Securities, enforce its rights as
holder of the Debentures subject to the rights of the Holders pursuant to the
terms of such Securities.
(h) The Institutional Trustee may authorize one or more Persons (each,
a "Paying Agent") to pay Distributions, redemption payments or liquidation
payments on behalf of the Trust with respect to all Securities and any such
Paying Agent shall comply with section 317(b) of the Trust Indenture Act. Any
Paying Agent may be removed by the Institutional Trustee at any time and a
successor Paying Agent or additional Paying Agents may be appointed at any time
by the Institutional Trustee.
(i) Subject to this Section 3.08(i), the Institutional Trustee shall
have none of the duties, liabilities, powers or the authority of the Regular
Trustees set forth in Section 3.06.
The Institutional Trustee must exercise the powers set forth in this
Section 3.08 in a manner that is consistent with the purposes and functions of
the Trust set
21
<PAGE> 28
out in Section 3.03, and the Institutional Trustee shall not take any action
that is inconsistent with the purposes and functions of the Trust set out in
Section 3.03.
SECTION 3.09. Certain Duties and Responsibilities of the Institutional
Trustee.
(a) The Institutional Trustee, before the occurrence of any Event of
Default and after the curing or waiving of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Declaration and no implied covenants or obligations shall be read
into this Declaration against the Institutional Trustee. In case an Event of
Default has occurred (that has not been cured or waived pursuant to Section
2.06(c)) of which a Responsible Officer of the Institutional Trustee has actual
knowledge, the Institutional Trustee shall exercise such of the rights and
powers vested in it by this Declaration, and use the same degree of care and
skill in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(b) No provision of this Declaration shall be construed to relieve the
Institutional Trustee from liability for its own action or its own failure to
act in accordance with its obligations under the Trust Indenture Act, or its own
willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Institutional
Trustee shall be determined solely by the express provisions
of this Declaration and the Institutional Trustee shall not be
liable except for the performance of such duties and
obligations as are specifically set forth in this Declaration,
and no implied covenants or obligations shall be read into
this Declaration against the Institutional Trustee; and
(B) in the absence of bad faith on the part of the
Institutional Trustee, the Institutional Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Institutional
Trustee and conforming to the requirements of this
Declaration; but in the case of any such
22
<PAGE> 29
certificates or opinions that by any provision hereof are
specifically required to be furnished to the Institutional
Trustee, the Institutional Trustee shall be under a duty to
examine the same to determine whether or not they conform to
the requirements of this Declaration;
(ii) the Institutional Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the
Institutional Trustee, unless it shall be proved that the Institutional
Trustee failed to perform in accordance with its obligations under the
Trust Indenture Act in ascertaining the pertinent facts;
(iii) the Institutional Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a
Majority in liquidation amount of the Securities relating to the time,
method and place of conducting any proceeding for any remedy available
to the Institutional Trustee, or exercising any trust or power
conferred upon the Institutional Trustee under this Declaration;
(iv) no provision of this Declaration shall require the
Institutional Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers, if it shall
have reasonable grounds for believing that the repayment of such funds
or liability is not reasonably assured to it under the terms of this
Declaration or indemnity reasonably satisfactory to the Institutional
Trustee against such risk or liability is not reasonably assured to it;
(v) the Institutional Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures and
the Institutional Trustee Account shall be to deal with such property
in a similar manner as the Institutional Trustee deals with similar
property for its own account, subject to the protections and
limitations on liability afforded to the Institutional Trustee under
this Declaration and the Trust Indenture Act;
(vi) the Institutional Trustee shall have no duty or liability for
or with respect to the value, genuineness, existence or sufficiency
of the
23
<PAGE> 30
Debentures or the payment of any taxes or assessments levied thereon or
in connection therewith;
(vii) the Institutional Trustee shall not be liable for any
interest on any money received by it except as it may otherwise agree
in writing with the Sponsor. Money held by the Institutional Trustee
need not be segregated from other funds held by it except in relation
to the Institutional Trustee Account maintained by the Institutional
Trustee pursuant to Section 3.08(c)(i) and except to the extent
otherwise required by law; and
(viii) the Institutional Trustee shall not be responsible for
monitoring the compliance by the Regular Trustees or the Sponsor with
their respective duties under this Declaration, nor shall the
Institutional Trustee be liable for any default or misconduct of the
Regular Trustees or the Sponsor.
SECTION 3.10. Certain Rights of Institutional Trustee.
(a) Subject to the provisions of Section 3.09:
(i) the Institutional Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by
it to be genuine and to have been signed, sent or presented by the
proper party or parties;
(ii) any direction or act of the Sponsor or the Regular Trustees
contemplated by this Declaration shall be sufficiently evidenced by an
Officers' Certificate;
(iii) whenever in the administration of this Declaration, the
Institutional Trustee shall deem it desirable that a matter be proved
or established before taking, suffering or omitting any action
hereunder, the Institutional Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part,
request and conclusively rely upon an Officers' Certificate which,
upon receipt of such request, shall be promptly delivered by the
Sponsor or the Regular Trustees;
24
<PAGE> 31
(iv) the Institutional Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or
securities laws) or any rerecording, refiling or registration thereof;
(v) the Institutional Trustee may consult with counsel of its
selection or other experts and the advice or opinion of such counsel
and experts with respect to legal matters or advice within the scope
of such experts' area of expertise shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in accordance with such
advice or opinion. Such counsel may be counsel to the Sponsor or any
of its Affiliates, and may include any of its employees. The
Institutional Trustee shall have the right at any time to seek
instructions concerning the administration of this Declaration from
any court of competent jurisdiction;
(vi) the Institutional Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Declaration
at the request or direction of any Holder, unless such Holder shall
have provided to the Institutional Trustee security and indemnity,
reasonably satisfactory to the Institutional Trustee, against the
costs, expenses (including attorneys' fees and expenses and the
expenses of the Institutional Trustee's agents, nominees or
custodians) and liabilities that might be incurred by it in complying
with such request or direction, including such reasonable advances as
may be requested by the Institutional Trustee, provided that, nothing
contained in this Section 3.10(a)(vi) shall be taken to relieve the
Institutional Trustee, upon the occurrence of an Event of Default, of
its obligation to act in accordance with the requirements of the Trust
Indenture Act;
(vii) the Institutional Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Institutional
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit;
(viii) the Institutional Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through agents, custodians, nominees or attorneys and the
Institutional
25
<PAGE> 32
Trustee shall not be responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due care by it hereunder;
(ix) any action taken by the Institutional Trustee or its agents
hereunder shall bind the Trust and the Holders of the Securities, and the
signature of the Institutional Trustee or its agents alone shall be
sufficient and effective to perform any such action and no third party
shall be required to inquire as to the authority of the Institutional
Trustee to so act or as to its compliance with any of the terms and
provisions of this Declaration, both of which shall be conclusively
evidenced by the Institutional Trustee's or its agent's taking such action;
(x) whenever in the administration of this Declaration the
Institutional Trustee shall deem it desirable to receive written
instructions with respect to enforcing any remedy or right or taking any
other action hereunder, the Institutional Trustee (i) may request written
instructions from the Holders of the Securities which instructions may only
be given by the Holders of the same proportion in liquidation amount of the
Securities as would be entitled to direct the Institutional Trustee under
the terms of the Securities in respect of such remedy, right or action,
(ii) may refrain from enforcing such remedy or right or taking such other
action until such instructions are received, and (iii) shall be protected
in conclusively relying on or acting in accordance with such instructions;
(xi) except as otherwise expressly provided by this Declaration, the
Institutional Trustee shall not be under any obligation to take any action
that is discretionary under the provisions of this Declaration; and
(xii) the Institutional Trustee shall not be liable for any action
taken, suffered, or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Declaration.
(b) No provision of this Declaration shall be deemed to impose any duty or
obligation on the Institutional Trustee to perform any act or acts or exercise
any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Institutional Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Institutional
Trustee shall be construed to be a duty.
26
<PAGE> 33
SECTION 3.11. Delaware Trustee.
Notwithstanding any other provision of this Declaration other than
Section 5.02, the Delaware Trustee shall not be entitled to exercise any powers,
nor shall the Delaware Trustee have any of the duties and responsibilities of
the Regular Trustees or the Institutional Trustee described in this Declaration.
Except as set forth in Section 5.02, the Delaware Trustee shall be a Trustee for
the sole and limited purpose of fulfilling the requirements of section 3807 of
the Business Trust Act.
SECTION 3.12. Execution of Documents.
Except as otherwise required by the Business Trust Act, any Regular
Trustee is authorized to execute on behalf of the Trust any documents that the
Regular Trustees have the power and authority to execute pursuant to Section
3.06.
SECTION 3.13. Not Responsible for Recitals or Issuance of Securities.
The recitals contained in this Declaration and the Securities shall be
taken as the statements of the Sponsor, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as to
the value or condition of the property of the Trust or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this
Declaration or the Securities.
SECTION 3.14. Duration of Trust.
The Trust, unless terminated pursuant to the provisions of Article 8
hereof, shall have existence for thirty-five (35) years from the Closing Date.
SECTION 3.15. Mergers.
(a) The Trust may not consolidate, amalgamate, merge with or into, or
be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, except as described in Section
3.15(b) and (c) and in Annex I hereto.
(b) The Trust may, with the consent of the Regular Trustees or, if
there are more than two, a majority of the Regular Trustees and without the
consent of the Holders of the Securities, the Delaware Trustee or the
Institutional Trustee,
27
<PAGE> 34
consolidate, amalgamate, merge with or into, or be replaced by a trust organized
as such under the laws of any State; provided that:
(i) such successor entity ( the "Successor Entity") either:
(A) expressly assumes all of the obligations of the Trust
under the Securities; or
(B) substitutes for the Trust Preferred Securities other
securities having substantially the same terms as the Trust
Preferred Securities (the "Successor Securities") so long as
the Successor Securities rank the same as the Trust Preferred
Securities rank with respect to Distributions and payments
upon liquidation, redemption and otherwise;
(ii) the Sponsor expressly acknowledges a trustee of the
Successor Entity that possesses the same powers and duties as the
Institutional Trustee as the Holder of the Debentures;
(iii) the Trust Preferred Securities or any Successor
Securities are listed, or any Successor Securities will be listed upon
notification of issuance, on any national securities exchange or with
another organization on which the Trust Preferred Securities are then
listed or quoted;
(iv) such merger, consolidation, amalgamation or replacement
does not cause the Trust Preferred Securities (including any Successor
Securities) to be downgraded by any nationally recognized statistical
rating organization;
(v) such merger, consolidation, amalgamation or replacement
does not adversely affect the rights, preferences and privileges of the
Holders of the Securities (including any Successor Securities) in any
material respect (other than with respect to any dilution of such
Holders' interests in the Trust Preferred Securities as a result of
such merger consolidation, amalgamation or replacement);
(vi) such Successor Entity has a purpose identical to that of
the Trust;
28
<PAGE> 35
(vii) prior to such merger, consolidation, amalgamation or
replacement, the Sponsor has received an opinion of a nationally
recognized independent counsel to the Trust experienced in such matters
to the effect that:
(A) such merger, consolidation, amalgamation or
replacement does not adversely affect the rights, preferences
and privileges of the Holders of the Securities (including any
Successor Securities) in any material respect (other than with
respect to any dilution of the Holders' interest in the new
entity);
(B) following such merger, consolidation, amalgamation or
replacement, neither the Trust nor the Successor Entity will
be required to register as an Investment Company; and
(C) following such merger, consolidation, amalgamation or
replacement, the Trust (or the Successor Entity) will continue
to be classified as a grantor trust for United States federal
income tax purposes; and
(viii) the Sponsor guarantees the obligations of such
Successor Entity under the Successor Securities at least to the extent
provided by the Securities Guarantees.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except with
the consent of Holders of 100% in liquidation amount of the Securities,
consolidate, amalgamate, merge with or into, or be replaced by any other entity
or permit any other entity to consolidate, amalgamate, merge with or into, or
replace it if such consolidation, amalgamation, merger or replacement would
cause the Trust or Successor Entity to be classified as other than a grantor
trust for United States federal income tax purposes.
ARTICLE 4
SPONSOR
SECTION 4.01. Sponsor's Purchase of Common Securities.
On the Closing Date the Sponsor will purchase all of the Common
Securities issued by the Trust, in an amount at least equal to 1% of the capital
of the Trust, at the same time as the Trust Preferred Securities are sold.
29
<PAGE> 36
SECTION 4.02. Responsibilities of the Sponsor.
In connection with the issue and sale of the Trust Preferred
Securities, the Sponsor shall have the exclusive right and responsibility to
engage in the following activities:
(a) to prepare for filing by, and execute on behalf of, the Trust with
the Commission a registration statement on Form S-3 in relation to the Trust
Preferred Securities and the Trust Preferred Securities Guarantees, including
any amendments thereto;
(b) to determine the States in which to take appropriate action to
qualify or register for sale all or part of the Trust Preferred Securities and
the Trust Preferred Securities Guarantees and to do any and all such acts, other
than actions which must be taken by the Trust, and advise the Trust of actions
it must take, and prepare for filing and execute any documents to be executed
and filed by the Trust, as the Sponsor deems necessary or advisable in order to
comply with the applicable laws of any such States;
(c) to prepare for filing by, and execute on behalf of, the Trust an
application to the New York Stock Exchange, Inc. or any other national stock
exchange or the Nasdaq National Market for listing upon notice of issuance of
any Trust Preferred Securities;
(d) subject to Section 7.02(a), to prepare for filing by, and execute
on behalf of, the Trust of documents or instruments to be delivered to The
Depository Trust Company relating to the Trust Preferred Securities;
(e) to prepare for filing by, and execute on behalf of, the Trust with
the Commission a registration statement on Form 8-A relating to the registration
of the Trust Preferred Securities under Section 12(b) of the Exchange Act,
including any amendments thereto; and
(f) to negotiate the terms of, and execute on behalf of the Trust, the
Underwriting Agreement providing for the sale of the Trust Preferred Securities.
30
<PAGE> 37
ARTICLE 5
TRUSTEES
SECTION 5.01. Number of Trustees.
The number of Trustees initially shall be five (5), and:
(a) at any time before the issuance of any Securities, the Sponsor may,
by written instrument, increase or decrease the number of Trustees; and
(b) after the issuance of any Securities, the number of Trustees may be
increased or decreased by vote of the Holders of a Majority in liquidation
amount of the Common Securities voting as a class at a meeting of the Holders of
the Common Securities; provided however, that the number of Trustees shall in no
event be less than two (2); provided further that (1) one Trustee, in the case
of a natural person, shall be a person who is a resident of the State of
Delaware or that, if not a natural person, is an entity which has its principal
place of business in the State of Delaware (the "Delaware Trustee"); (2) there
shall be at least one Trustee who is an employee or officer of, or is affiliated
with the Sponsor (a "Regular Trustee"); and (3) one Trustee shall be the
Institutional Trustee for so long as this Declaration is required to qualify as
an indenture under the Trust Indenture Act, and such Trustee may also serve as
Delaware Trustee if it meets the applicable requirements.
SECTION 5.02. Delaware Trustee.
If required by the Business Trust Act, one Trustee (the "Delaware
Trustee") shall be:
(a) a natural person who is a resident of the State of Delaware; or
(b) if not a natural person, an entity which has its principal place of
business in the State of Delaware, and otherwise meets the requirements of
applicable law;
provided that, if the Institutional Trustee has its principal place of
business in the State of Delaware and otherwise meets the requirements of
applicable law, then the Institutional Trustee shall also be the Delaware
Trustee and Section 3.11 shall have no application.
31
<PAGE> 38
SECTION 5.03. Institutional Trustee; Eligibility.
(a) There shall at all times be one Trustee which shall act as
Institutional Trustee which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation or bank organized and doing business under the
laws of the United States of America or any State or Territory thereof or of the
District of Columbia, or a corporation, bank or Person permitted by the
Commission to act as an institutional trustee under the Trust Indenture Act,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least 50 million U.S. dollars ($50,000,000), and
subject to supervision or examination by federal, state, territorial or District
of Columbia authority. If such corporation or bank publishes reports of
condition at least annually, pursuant to law or to the requirements of the
supervising or examining authority referred to above, then for the purposes of
this Section 5.03(a)(ii), the combined capital and surplus of such corporation
or bank shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published.
(b) If at any time the Institutional Trustee shall cease to be eligible
to so act under Section 5.03(a), the Institutional Trustee shall immediately
resign in the manner and with the effect set forth in Section 5.07(c).
(c) If the Institutional Trustee has or shall acquire any "conflicting
interest" within the meaning of section 310(b) of the Trust Indenture Act, the
Institutional Trustee and the Holder of the Common Securities (as if it were the
obligor referred to in section 310(b) of the Trust Indenture Act) shall in all
respects comply with the provisions of section 310(b) of the Trust Indenture
Act.
(d) The Trust Preferred Securities Guarantee shall be deemed to be
specifically described in this Declaration for purposes of clause (i) of the
first provision contained in Section 310(b) of the Trust Indenture Act.
(e) The initial Institutional Trustee shall be: NBD Bank.
SECTION 5.04. Certain Qualifications of Regular Trustees and Delaware
Trustee Generally.
32
<PAGE> 39
Each Regular Trustee and the Delaware Trustee (unless the Institutional
Trustee also acts as Delaware Trustee) shall be either a natural person who is
at least 21 years of age or a legal entity that shall act through one or more
Authorized Officers.
SECTION 5.05. Regular Trustees.
The initial Regular Trustees shall be:
John K. Casey
Ronald E. Musick
John F. Brownley
(a) Except as expressly set forth in this Declaration and except if a
meeting of the Regular Trustees is called with respect to any matter over which
the Regular Trustees have power to act, any power of the Regular Trustees may be
exercised by, or with the consent of, any one such Regular Trustee.
(b) Unless otherwise determined by the Regular Trustees, and except as
otherwise required by the Business Trust Act or applicable law, any Regular
Trustee is authorized to execute on behalf of the Trust any documents which the
Regular Trustees have the power and authority to cause the Trust to execute
pursuant to Section 3.06; and
(c) a Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purposes of signing any documents which the Regular Trustees
have power and authority to cause the Trust to execute pursuant to Section 3.06.
SECTION 5.06. Delaware Trustee.
The initial Delaware Trustee shall be: First Chicago Delaware Inc.
SECTION 5.07. Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 5.07(b), Trustees may be appointed or removed
without cause at any time:
33
<PAGE> 40
(i) until the issuance of any Securities, by written
instrument executed by the Sponsor; and
(ii) after the issuance of any Securities, by vote of the
Holders of a Majority in liquidation amount of the Common Securities
voting as a class at a meeting of the Holders of the Common Securities.
(b) (i) the Trustee that acts as Institutional Trustee shall
not be removed in accordance with Section 5.07(a) until a successor
Institutional Trustee (a "Successor Institutional Trustee") has been
appointed and has accepted such appointment by written instrument
executed by such Successor Institutional Trustee and delivered to the
Regular Trustees and the Sponsor; and
(ii) the Trustee that acts as Delaware Trustee shall not be
removed in accordance with Section 5.07(a) until a successor Trustee
possessing the qualifications to act as Delaware Trustee under Sections
5.02 and 5.04 (a "Successor Delaware Trustee") has been appointed and
has accepted such appointment by written instrument executed by such
Successor Delaware Trustee and delivered to the Regular Trustees and
the Sponsor.
(c) A Trustee appointed to office shall hold office until his successor
shall have been appointed or until his death, removal or resignation. Any
Trustee may resign from office (without need for prior or subsequent accounting)
by an instrument in writing signed by the Trustee and delivered to the Sponsor
and the Trust, which resignation shall take effect upon such delivery or upon
such later date as is specified therein; provided, however, that:
(i) No such resignation of the Trustee that acts as the
Institutional Trustee shall be effective:
(A) until a Successor Institutional Trustee has been
appointed and has accepted such appointment by instrument
executed by such Successor Institutional Trustee and delivered
to the Trust, the Sponsor and the resigning Institutional
Trustee; or
(B) until the assets of the Trust have been completely
liquidated and the proceeds thereof distributed to the holders
of the Securities; and
34
<PAGE> 41
(ii) no such resignation of the Trustee that acts as the
Delaware Trustee shall be effective until a Successor Delaware Trustee
has been appointed and has accepted such appointment by instrument
executed by such Successor Delaware Trustee and delivered to the Trust,
the Sponsor and the resigning Delaware Trustee.
(d) The Holders of the Common Securities shall use their best efforts
to promptly appointment a Successor Delaware Trustee or Successor Institutional
Trustee as the case may be if the Institutional Trustee or the Delaware Trustee
delivers an instrument of resignation in accordance with this Section 5.07.
(e) If no Successor Institutional Trustee or Successor Delaware Trustee
shall have been appointed and accepted appointment as provided in this Section
5.07 within 30 days after delivery of an instrument of resignation or removal,
the Institutional Trustee or Delaware Trustee resigning or being removed, as
applicable, may petition any court of competent jurisdiction for appointment of
a Successor Institutional Trustee or Successor Delaware Trustee. Such court may
thereupon, after prescribing such notice, if any, as it may deem proper and
prescribe, appoint a Successor Institutional Trustee or Successor Delaware
Trustee, as the case may be.
(f) No Institutional Trustee or Delaware Trustee shall be liable for
the acts or omissions to act of any Successor Institutional Trustee or Successor
Delaware Trustee, as the case may be.
SECTION 5.08. Vacancies among Trustees.
If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 5.01, or if the number of Trustees
is increased pursuant to Section 5.01, a vacancy shall occur. A resolution
certifying the existence of such vacancy by the Regular Trustees or, if there
are more than two, a majority of the Regular Trustees shall be conclusive
evidence of the existence of such vacancy. The vacancy shall be filled with a
Trustee appointed in accordance with Section 5.07.
SECTION 5.09. Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy, dissolution,
liquidation, incompetence or incapacity to perform the duties of a Trustee shall
not
35
<PAGE> 42
operate to annul the Trust. Whenever a vacancy in the number of Regular Trustees
shall occur, until such vacancy is filled by the appointment of a Regular
Trustee in accordance with Section 5.07, the Regular Trustees in office,
regardless of their number, shall have all the powers granted to the Regular
Trustees and shall discharge all the duties imposed upon the Regular Trustees by
this Declaration.
SECTION 5.10. Meetings.
If there is more than one Regular Trustee, meetings of the Regular
Trustees shall be held from time to time upon the call of any Regular Trustee.
Regular meetings of the Regular Trustees may be held at a time and place fixed
by resolution of the Regular Trustees. Notice of any in-person meetings of the
Regular Trustees shall be hand delivered or otherwise delivered in writing
(including by facsimile, with a hard copy by overnight courier) not less than 48
hours before such meeting. Notice of any telephonic meetings of the Regular
Trustee or any committee thereof shall be hand delivered or otherwise delivered
in writing (including by facsimile, with a hard copy by overnight courier) not
less than 24 hours before a meeting. Notices shall contain a brief statement of
the time, place and anticipated purposes of the meeting. The presence (whether
in person or by telephone) of a Regular Trustee at a meeting shall constitute a
waiver of notice of such meeting except where a Regular Trustee attends a
meeting for the express purpose of objecting to the transaction of any activity
on the ground that the meeting has not been lawfully called or convened. Unless
provided otherwise in this Declaration, any action of the Regular Trustees may
be taken at a meeting by vote of a majority of the Regular Trustees present
(whether in person or by telephone) and eligible to vote with respect to such
matter, provided that a Quorum is present, or without a meeting by the unanimous
written consent of the Regular Trustees. In the event there is only one Regular
Trustee, any and all action of such Regular Trustee shall be evidenced by a
written consent of such Regular Trustee.
SECTION 5.11. Delegation of Power.
(a) Any Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purpose of executing any documents contemplated in Section
3.06; and
(b) the Regular Trustees shall have power to delegate from time to time
to such of their number or to officers of the Trust the doing of such things and
the
36
<PAGE> 43
execution of such instruments either in the name of the Trust or the names of
the Regular Trustees or otherwise as the Regular Trustees may deem expedient, to
the extent such delegation is not prohibited by applicable law or contrary to
the provisions of the Trust, as set forth herein.
SECTION 5.12. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation, bank or Person into which the Institutional Trustee or
the Delaware Trustee, as the case may be, may be merged or converted or with
which either may be consolidated, or any corporation, bank or Person resulting
from any merger, conversion or consolidation to which the Institutional Trustee
or the Delaware Trustee, as the case may be, shall be a party, or any
corporation, bank or Person succeeding to all or substantially all the corporate
trust business of the Institutional Trustee or the Delaware Trustee, as the case
may be, shall be the successor of the Institutional Trustee or the Delaware
Trustee, as the case may be, hereunder, provided such corporation, bank or
Person shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto.
ARTICLE 6
DISTRIBUTIONS
SECTION 6.01. Distributions.
Holders shall receive Distributions (as defined herein) in accordance
with the applicable terms of the relevant Holder's Securities. Distributions
shall be made on the Trust Preferred Securities and the Common Securities in
accordance with the preferences set forth in their respective terms. If and to
the extent that the Sponsor makes a payment of interest (including Compounded
Interest (as defined in the Indenture) and Additional Interest (as defined in
the Indenture)), premium and/or principal on the Debentures held by the
Institutional Trustee (the amount of any such payment being a "Payment Amount"),
the Institutional Trustee shall and is directed, to the extent funds are
available for that purpose, to make a distribution (a "Distribution") of the
Payment Amount to Holders.
37
<PAGE> 44
ARTICLE 7
ISSUANCE OF SECURITIES
SECTION 7.01. General Provisions Regarding Securities.
(a) The Regular Trustees shall on behalf of the Trust issue one class
of convertible preferred securities representing undivided beneficial interests
in the assets of the Trust having such terms as are set forth in Annex I (the
"Trust Preferred Securities") and one class of convertible common securities
representing undivided beneficial interests in the assets of the Trust having
such terms as are set forth in Annex I (the "Common Securities"). The Trust
shall issue no securities or other interests in the assets of the Trust other
than the Trust Preferred Securities and the Common Securities.
(b) The consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust.
(c) Upon issuance of the Trust Preferred Securities as provided in this
Declaration, the Trust Preferred Securities so issued shall be deemed to be
validly issued, fully paid and non-assessable.
(d) Every Person, by virtue of having become a Holder or a Trust
Preferred Security Beneficial Owner in accordance with the terms of this
Declaration, shall be deemed to have expressly assented and agreed to the terms
of, and shall be bound by, this Declaration.
SECTION 7.02. Execution and Authentication.
(a) The Certificates shall be signed on behalf of the Trust by a
Regular Trustee. In case any Regular Trustee of the Trust who shall have signed
any of the Securities shall cease to be such Regular Trustee before the
Certificates so signed shall be delivered by the Trust, such Certificates
nevertheless may be delivered as though the person who signed such Certificates
had not ceased to be such Regular Trustee; and any Certificate may be signed on
behalf of the Trust by such persons who, at the actual date of execution of such
Security, shall be the Regular Trustees of the Trust, although at the date of
the execution and delivery of the Declaration any such person was not such a
Regular Trustee.
38
<PAGE> 45
(b) One Regular Trustee shall sign the Trust Preferred Securities for
the Trust by manual or facsimile signature. Unless otherwise determined by the
Trust, such signature shall, in the case of Common Securities, be a manual
signature.
A Trust Preferred Security shall not be valid until authenticated by
the manual signature of an authorized signatory of the Institutional Trustee.
The signature shall be conclusive evidence that the Trust Preferred Security has
been authenticated under this Declaration.
Upon a written order of the Trust signed by one Regular Trustee, the
Institutional Trustee shall authenticate the Trust Preferred Securities for
original issue.
The Institutional Trustee may appoint an authenticating agent
acceptable to the Trust to authenticate Trust Preferred Securities. An
authenticating agent may authenticate Trust Preferred Securities whenever the
Institutional Trustee may do so. Each reference in this Declaration to
authentication by the Institutional Trustee includes authentication by such
agent. An authenticating agent has the same rights as the Institutional Trustee
to deal with the Company or an Affiliate of the Company.
SECTION 7.03. Form and Dating.
The Trust Preferred Securities and the Institutional Trustee's
certificate of authentication shall be substantially in the form of Exhibit A-1
and the Common Securities shall be substantially in the form of Exhibit A-2,
each of which is hereby incorporated in and expressly made a part of this
Declaration. Certificates may be printed, lithographed or engraved or may be
produced in any other manner as is reasonably acceptable to the Regular
Trustees, as evidenced by their execution thereof. The Securities may have
letters, numbers, notations or other marks of identification or designation and
such legends or endorsements required by law, stock exchange rule, agreements to
which the Trust is subject, if any, or usage (provided that any such notation,
legend or endorsement is in a form acceptable to the Trust). The Trust at the
direction of the Sponsor shall furnish any such legend not contained in Exhibit
A-1 to the Institutional Trustee in writing. Each Trust Preferred Security
Certificate shall be dated the date of its authentication. The terms and
provisions of the Securities set forth in Annex I and the forms of Securities
set forth in Exhibits A-1 and A-2 are part of the terms of this Declaration and
to the extent applicable, the Institutional Trustee and the Sponsor,
39
<PAGE> 46
by their execution and delivery of this Declaration, expressly agree to such
terms and provisions and to be bound thereby.
SECTION 7.04. Paying Agent and Conversion Agent.
In the event that the Trust Preferred Securities are not in book-entry
only form, the Trust shall maintain in the Borough of Manhattan, City of New
York, State of New York, an office or agency where the Trust Preferred
Securities may be presented for payment ("Paying Agent"). The Trust shall
maintain an office or agency where Securities may be presented for conversion
("Conversion Agent"). The Trust may appoint the Paying Agent and the Conversion
Agent and may appoint one or more additional paying agents and one or more
additional conversion agents in such other locations as it shall determine. The
term "Paying Agent" includes any additional paying agent and the term
"Conversion Agent" includes any additional conversion agent. The Trust may
change any Paying Agent or Conversion Agent without prior notice to any Holder.
The Trust shall notify the Institutional Trustee in writing of the name and
address of any Agent not a party to this Declaration. If the Trust fails to
appoint or maintain another entity as Paying Agent or Conversion Agent, the
Institutional Trustee shall act as such. The Trust or any of its Affiliates may
act as Paying Agent or Conversion Agent. The Trust shall act as Paying Agent and
Conversion Agent for the Common Securities. The Paying Agent and Conversion
Agent shall be entitled to the rights and protections extended to the
Institutional Trustee when acting in such capacity.
The Institutional Trustee is hereby initially appointed as Conversion
Agent for the Trust Preferred Securities.
ARTICLE 8
TERMINATION OF TRUST
SECTION 8.01. Termination of Trust.
(a) The Trust shall terminate:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor; the filing of a certificate of
cancellation with respect to the Trust after having obtained the
consent of a majority in liquidation amount of the Securities voting
together as a single class to file
40
<PAGE> 47
such certificate of cancellation or the revocation of the Sponsor's
charter and the expiration of 90 days after the date of revocation
without a reinstatement thereof;
(iii) upon the entry of a decree of judicial dissolution of
the Sponsor or the Trust;
(iv) when all of the Securities shall have been called for
redemption and the amounts necessary for redemption thereof shall have
been paid to the Holders in accordance with the terms of the
Securities;
(v) upon the occurrence and continuation of a Special Event
pursuant to which the Trust shall have been dissolved in accordance
with the terms of the Securities and, after satisfaction of liabilities
of creditors (whether by payment or reasonable provision for payment),
all of the Debentures held by the Institutional Trustee shall have been
distributed to the Holders of Securities in exchange for all of the
Securities;
(vi) upon the distribution of the Sponsor's common stock to
all Securities Holders upon conversion of all outstanding Trust
Preferred Securities;
(vii) the expiration of the term of the Trust on September 20,
2031; or
(viii) before the issuance of any Securities, with the consent
of all of the Regular Trustees and the Sponsor.
(b) As soon as is practicable after the occurrence of an event referred
to in Section 8.01(a), after satisfaction of liabilities of creditors (whether
by payment or reasonable provision for payment), the Trustees shall file a
certificate of cancellation with the Secretary of State of the State of
Delaware.
(c) The provisions of Sections 3.09 and 3.10 and Article 10 shall
survive the termination of the Trust.
41
<PAGE> 48
ARTICLE 9
TRANSFER OF INTERESTS
SECTION 9.01. Transfer of Securities.
(a) Securities may only be transferred, in whole or in part, in
accordance with the terms and conditions set forth in this Declaration and in
the terms of the Securities. Any transfer or purported transfer of any Security
not made in accordance with this Declaration shall be null and void.
(b) Subject to this Article 9, Trust Preferred Securities shall be
freely transferable.
(c) Subject to this Article 9, the Sponsor and any Related Party may
only transfer Common Securities to the Sponsor or a Related Party of the
Sponsor; provided that, any such transfer is subject to the condition precedent
that the transferor obtain the written opinion of nationally recognized
independent counsel experienced in such matters that such transfer would not
cause more than an insubstantial risk that:
(i) the Trust would not be classified for United States
federal income tax purposes as a grantor trust; and
(ii) the Trust would be an Investment Company required to
register under the Investment Company Act or the transferee would
become an Investment Company required to register under the Investment
Company Act.
SECTION 9.02. Transfer of Certificates.
The Regular Trustees shall provide for the registration of Certificates
and of transfers of Certificates, which will be effected without charge but only
upon payment (with such indemnity as the Regular Trustees may require) in
respect of any tax or other government charges that may be imposed in relation
to it. Upon surrender for registration of transfer of any Certificate, the
Regular Trustees shall cause one or more new Certificates to be issued in the
name of the designated transferee or transferees. Every Certificate surrendered
for registration of transfer shall be accompanied by a written instrument of
transfer in form satisfactory to the Regular Trustees duly executed by the
Holder or such Holder's attorney duly authorized in writing. Each Certificate
surrendered for registration of transfer shall
42
<PAGE> 49
be canceled by the Regular Trustees. A transferee of a Certificate shall be
entitled to the rights and subject to the obligations of a Holder hereunder upon
the receipt by such transferee of a Certificate. By acceptance of a Certificate,
each transferee shall be deemed to have agreed to be bound by this Declaration.
SECTION 9.03. Deemed Security Holders.
The Trustees may treat the Person in whose name any Certificate shall
be registered on the books and records of the Trust as the sole holder of such
Certificate and of the Securities represented by such Certificate for purposes
of receiving Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such Certificate or in the Securities represented by such
Certificate on the part of any Person, whether or not the Trust shall have
actual or other notice thereof.
SECTION 9.04. Book Entry Interests.
Unless otherwise specified in the terms of the Trust Preferred
Securities, the Trust Preferred Securities Certificates, on original issuance,
will be issued in the form of one or more, fully registered, global Trust
Preferred Security Certificates (each a "Global Certificate"), to be delivered
to DTC, the initial Clearing Agency, by, or on behalf of, the Trust. Such Global
Certificates shall initially be registered on the books and records of the Trust
in the name of Cede & Co., the nominee of DTC, and no Trust Preferred Security
Beneficial Owner will receive a definitive Trust Preferred Security Certificate
representing such Trust Preferred Security Beneficial Owner's interests in such
Global Certificates, except as provided in Section 9.07. Unless and until
definitive, fully registered Trust Preferred Security Certificates (the
"Definitive Trust Preferred Security Certificates") have been issued to the
Trust Preferred Security Beneficial Owners pursuant to Section 9.07:
(a) the provisions of this Section 9.04 shall be in full force and
effect;
(b) the Trust and the Trustees shall be entitled to deal with the
Clearing Agency for all purposes of this Declaration (including the payment of
Distributions on the Global Certificates and receiving approvals, votes or
consents hereunder) as the Holder of the Trust Preferred Securities and the sole
holder of the Global Certificates and shall have no obligation to the Trust
Preferred Security Beneficial Owners;
43
<PAGE> 50
(c) to the extent that the provisions of this Section 9.04 conflict
with any other provisions of this Declaration, the provisions of this Section
9.04 shall control; and
(d) the rights of the Trust Preferred Security Beneficial Owners shall
be exercised only through the Clearing Agency and shall be limited to those
established by law and agreements between such Preferred Security Beneficial
Owners and the Clearing Agency and/or the Clearing Agency Participants,
including receiving and transmitting payments of Distributions on the Global
Certificates to such Clearing Agency Participants. DTC will make book entry
transfers among the Clearing Agency Participants; provided, that solely for the
purposes of determining whether the Holders of the requisite amount of Trust
Preferred Securities have voted on any matter provided for in this Declaration,
so long as Definitive Trust Preferred Security Certificates have not been
issued, the Trustees may conclusively rely on, and shall be protected in relying
on, any written instrument (including a proxy) delivered to the Trustees by the
Clearing Agency setting forth the Trust Preferred Security Beneficial Owners'
votes or assigning the right to vote on any matter to any other Persons, either
in whole or in part.
SECTION 9.05. Notices to Clearing Agency.
Whenever a notice or other communication to the Trust Preferred
Security Holders is required under this Declaration, unless and until Definitive
Trust Preferred Security Certificates shall have been issued to the Trust
Preferred Security Beneficial Owners pursuant to Section 9.07, the Regular
Trustees shall give all such notices and communications specified herein to be
given to the Trust Preferred Security Holders to the Clearing Agency, and shall
have no notice obligations to the Trust Preferred Security Beneficial Owners.
SECTION 9.06. Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as securities
depositary with respect to the Trust Preferred Securities, the Regular Trustees
may, in their sole discretion, appoint a successor Clearing Agency with respect
to such Trust Preferred Securities.
SECTION 9.07. Definitive Trust Preferred Security Certificates.
If:
44
<PAGE> 51
(a) a Clearing Agency elects to discontinue its services as securities
depositary with respect to the Trust Preferred Securities and a successor
Clearing Agency is not appointed within 90 days after such discontinuance
pursuant to Section 9.06; or
(b) the Regular Trustees elect after consultation with the Sponsor to
terminate the book entry system through the Clearing Agency with respect to the
Trust Preferred Securities,
then:
(c) Definitive Trust Preferred Security Certificates shall be prepared
by the Regular Trustees on behalf of the Trust with respect to such Trust
Preferred Securities; and
(d) upon surrender of the Global Certificates by the Clearing Agency,
accompanied by registration instructions, the Regular Trustees shall cause
Definitive Trust Preferred Security Certificates to be delivered to Trust
Preferred Security Beneficial Owners in accordance with the instructions of the
Clearing Agency. Neither the Trustees nor the Trust shall be liable for any
delay in delivery of such instructions and each of them may conclusively rely on
and shall be protected in relying on, said instructions of the Clearing Agency.
The Definitive Trust Preferred Security Certificates shall be printed,
lithographed or engraved or may be produced in any other manner as is reasonably
acceptable to the Regular Trustees, as evidenced by their execution thereof, and
may have such letters, numbers or other marks of identification or designation
and such legends or endorsements as the Regular Trustees may deem appropriate,
or as may be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock exchange on which
Trust Preferred Securities may be listed, or to conform to usage.
SECTION 9.08. Mutilated, Destroyed, Lost or Stolen Certificates.
If:
(a) any mutilated Certificates should be surrendered to the Regular
Trustees, or if the Regular Trustees shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and
45
<PAGE> 52
(b) there shall be delivered to the Institutional Trustee or the
Regular Trustees such security or indemnity as may be required by them to keep
each of them harmless,
then, in the absence of notice that such Certificate shall have been
acquired by a bona fide purchaser, the Institutional Trustee or any Regular
Trustee on behalf of the Trust shall execute and deliver, in exchange for, or in
lieu of, any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like denomination. In connection with the issuance of any new
Certificate under this Section 9.08, the Institutional Trustee or the Regular
Trustees may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Certificate issued pursuant to this Section shall constitute conclusive evidence
of an ownership interest in the relevant Securities, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time.
ARTICLE 10
LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.01. Liability.
(a) Except as expressly set forth in this Declaration, the Securities
Guarantees and the terms of the Securities, the Sponsor shall not be:
(i) personally liable for the return of any portion of the
capital contributions (or any return thereon) of the Holders of the
Securities which shall be made solely from assets of the Trust; or
(ii) be required to pay to the Trust or to any Holder of
Securities any deficit upon dissolution of the Trust or otherwise.
(b) The Holder of the Common Securities shall be liable for all of the
debts and obligations of the Trust (other than with respect to the Securities)
to the extent not satisfied out of the Trust's assets.
(c) Pursuant to section 3803(a) of the Business Trust Act, the Holders
of the Trust Preferred Securities shall be entitled to the same limitation of
personal liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware.
46
<PAGE> 53
SECTION 10.02. Exculpation.
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Trust or any Covered Person for any loss, damage
or claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration or by law, except that
an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's gross negligence or willful
misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Trust and upon such information, opinions, reports
or statements presented to the Trust by any Person as to matters the Indemnified
Person reasonably believes are within such other Person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Trust, including information, opinions, reports or statements as to the value
and amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which Distributions to
Holders of Securities might properly be paid.
SECTION 10.03. Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified Person has
duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under this
Declaration shall not be liable to the Trust or to any other Covered Person for
its good faith reliance on the provisions of this Declaration. The provisions of
this Declaration, to the extent that they restrict the duties and liabilities of
an Indemnified Person otherwise existing at law or in equity (other than the
duties imposed on the Institutional Trustee under the Trust Indenture Act), are
agreed by the parties hereto to replace such other duties and liabilities of
such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between
any Covered Persons; or
47
<PAGE> 54
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified Person
shall act in a manner that is, or provides terms that are, fair and
reasonable to the Trust or any Holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take
such action or provide such terms, considering in each case the relative
interest of each party (including its own interest) to such conflict, agreement,
transaction or situation and the benefits and burdens relating to such
interests, any customary or accepted industry practices, and any applicable
generally accepted accounting practices or principles. In the absence of bad
faith by the Indemnified Person, the resolution, action or term so made, taken
or provided by the Indemnified Person shall not constitute a breach of this
Declaration or any other agreement contemplated herein or of any duty or
obligation of the Indemnified Person at law or in equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is permitted or
required to make a decision:
(i) in its "discretion" or under a grant of similar authority,
the Indemnified Person shall be entitled to consider such interests and
factors as it desires, including its own interests, and shall have no
duty or obligation to give any consideration to any interest of or
factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard,
the Indemnified Person shall act under such express standard and shall
not be subject to any other or different standard imposed by this
Declaration or by applicable law.
SECTION 10.04. Indemnification.
48
<PAGE> 55
(a) (i) The Sponsor shall indemnify, to the full extent permitted
by law, any Company Indemnified Person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Trust) by
reason of the fact that he is or was a Company Indemnified Person
against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Trust, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct
was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the Company Indemnified Person did not act in good
faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Trust, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his
conduct was unlawful.
(ii) The Sponsor shall indemnify, to the full extent permitted
by law, any Company Indemnified Person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Trust to procure a judgment in
its favor by reason of the fact that he is or was a Company Indemnified
Person against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement
of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of
the Trust and except that no such indemnification shall be made in
respect of any claim, issue or matter as to which such Company
Indemnified Person shall have been adjudged to be liable to the Trust
unless and only to the extent that the Court of Chancery of Delaware or
the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of
all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which such Court of Chancery or
such other court shall deem proper.
(iii) To the extent that a Company Indemnified Person shall be
successful on the merits or otherwise (including dismissal of an action
49
<PAGE> 56
without prejudice or the settlement of an action without admission of
liability) in defense of any action, suit or proceeding referred to in
paragraphs (i) and (ii) of this Section 10.04(a), or in defense of any
claim, issue or matter therein, he shall be indemnified, to the full
extent permitted by law, against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith.
(iv) Any indemnification under paragraphs (i) and (ii) of this
Section 10.04(a) (unless ordered by a court) shall be made by the
Sponsor only as authorized in the specific case upon a determination
that indemnification of the Company Indemnified Person is proper in the
circumstances because he has met the applicable standard of conduct set
forth in paragraphs (i) and (ii). Such determination shall be made (1)
by the Regular Trustees by a majority vote of a quorum consisting of
such Regular Trustees who were not parties to such action, suit or
proceeding, (2) if such a quorum is not obtainable, or, even if
obtainable, if a quorum of disinterested Regular Trustees so directs,
by independent legal counsel in a written opinion, or (3) by the Common
Security Holder of the Trust.
(v) Expenses (including attorneys' fees) incurred by a Company
Indemnified Person in defending a civil, criminal, administrative or
investigative action, suit or proceeding referred to in paragraphs (i)
and (ii) of this Section 10.04(a) shall be paid by the Sponsor in
advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such Company
Indemnified Person to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the Sponsor as
authorized in this Section 10.04(a). Notwithstanding the foregoing, no
advance shall be made by the Sponsor if a determination is reasonably
and promptly made (i) by the Regular Trustees by a majority vote of a
quorum of disinterested Regular Trustees, (ii) if such a quorum is not
obtainable, or, even if obtainable, if a quorum of disinterested
Regular Trustees so directs, by independent legal counsel in a written
opinion or (iii) the Common Security Holder of the Trust, that, based
upon the facts known to the Regular Trustees, counsel or the Common
Security Holder at the time such determination is made, such Company
Indemnified Person acted in bad faith or in a manner that such person
did not believe to be in or not opposed to the best interests of the
Trust, or, with respect to any criminal proceeding, that such Company
Indemnified Person believed or had reasonable cause to believe his
conduct was unlawful. In no event shall any advance be made in
instances where
50
<PAGE> 57
the Regular Trustees, independent legal counsel or Common Security
Holder reasonably determine that such person deliberately breached his
duty to the Trust or its Common or Trust Preferred Security Holders.
(vi) The indemnification and advancement of expenses provided
by, or granted pursuant to, the other paragraphs of this Section
10.04(a) shall not be deemed exclusive of any other rights to which
those seeking indemnification and advancement of expenses may be
entitled under any agreement, vote of stockholders or disinterested
directors of the Sponsor or Trust Preferred Security Holders of the
Trust or otherwise, both as to action in his official capacity and as
to action in another capacity while holding such office. All rights to
indemnification under this Section 10.04(a) shall be deemed to be
provided by a contract between the Sponsor and each Company Indemnified
Person who serves in such capacity at any time while this Section
10.04(a) is in effect. Any repeal or modification of this Section
10.04(a) shall not affect any rights or obligations then existing.
(vii) The Sponsor or the Trust may purchase and maintain
insurance on behalf of any Person who is or was a Company Indemnified
Person against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or
not the Sponsor would have the power to indemnify him against such
liability under the provisions of this Section 10.04(a)
(viii) For purposes of this Section 10.04(a), references to
"the Trust" shall include, in addition to the resulting or surviving
entity, any constituent entity (including any constituent of a
constituent) absorbed in a consolidation or merger, so that any person
who is or was a director, trustee, officer or employee of such
constituent entity, or is or was serving at the request of such
constituent entity as a director, trustee, officer, employee or agent
of another entity, shall stand in the same position under the
provisions of this Section 10.04(a) with respect to the resulting or
surviving entity as he would have with respect to such constituent
entity if its separate existence had continued.
(ix) The indemnification and advancement of expenses provided
by, or granted pursuant to, this Section 10.04(a) shall, unless
otherwise provided when authorized or ratified, continue as to a person
who has ceased to be a Company Indemnified Person and shall inure to
the benefit of the heirs, executors and administrators of such a
person.
51
<PAGE> 58
(b) The Sponsor agrees to indemnify, to the fullest extent permitted by
law, (i) the Institutional Trustee, (ii) the Delaware Trustee, (iii) the Paying
Agent, (iv) the Conversion Agent, (v) any Affiliate of the Institutional
Trustee, and the Delaware Trustee, and (vi) any officers, directors,
shareholders, members, partners, employees, representatives, custodians,
nominees or agents of the Institutional Trustee, the Paying Agent, the
Conversion Agent and the Delaware Trustee (each of the Persons in (i) through
(vi) being referred to as a "Fiduciary Indemnified Person") for, and to hold
each Fiduciary Indemnified Person harmless against, any loss, liability or
expense incurred without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses (including reasonable legal fees and
expenses) of defending itself against or investigating any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder. The Sponsor also agrees to advance expenses (including legal fees)
incurred by a Fiduciary Indemnified Person in defending any claim, demand,
action, suit or proceeding, from time to time, prior to the final disposition of
such claim, demand, action, suit or proceeding upon receipt by the Sponsor of an
undertaking by or on behalf of the Fiduciary Indemnified Person to repay such
amount if it shall be determined that the Fiduciary Indemnified Person is not
entitled to be indemnified as authorized in the preceding subsection. The
obligation to indemnify as set forth in this Section 10.04(b) shall survive the
satisfaction and discharge of this Declaration. The Institutional Trustee agrees
to use its best efforts to provide the Sponsor prompt, written notification of
any of the aforementioned losses, liabilities or expenses (hereinafter "Claims")
and to cooperate with the Sponsor in the investigation, defense and settlement
of any such Claim. The Sponsor shall have the right to assume the investigation,
defense and settlement of any such Claim and to employ such legal counsel as the
Sponsor deems acceptable, unless the Institutional Trustee in its best judgment
determines that a conflicting interest would be created and that the Sponsor's
assumption of the investigation, defense and settlement of any such Claim would
not be in the best interests of the Holders. In the event that the Trustee has
not determined that a conflict has been created and the Sponsor has assumed the
investigation and defense of such Claim, the indemnity obligations set forth in
this Section 10.04(b) shall be void as to any Claim for which settlement or
offer of settlement is made without the prior, written consent of the Sponsor.
SECTION 10.05. Outside Business.
52
<PAGE> 59
Any Covered Person, the Sponsor, the Delaware Trustee and the
Institutional Trustee may engage in or possess an interest in other business
ventures of any nature or description, independently or with others, similar or
dissimilar to the business of the Trust, and the Trust and the Holders of
Securities shall have no rights by virtue of this Declaration in and to such
independent ventures or the income or profits derived therefrom, and the pursuit
of any such venture, even if competitive with the business of the Trust, shall
not be deemed wrongful or improper. No Covered Person, the Sponsor, the Delaware
Trustee, or the Institutional Trustee shall be obligated to present any
particular investment or other opportunity to the Trust even if such opportunity
is of a character that, if presented to the Trust, could be taken by the Trust,
and any Covered Person shall have the right to take for its own account
(individually or as a partner or fiduciary) or to recommend to others any such
particular investment or other opportunity. Any Covered Person, the Delaware
Trustee and the Institutional Trustee may engage or be interested in any
financial or other transaction with the Sponsor or any Affiliate of the Sponsor,
or may act as depositary for, trustee or agent for, or act on any committee or
body of holders of, securities or other obligations of the Sponsor of its
Affiliates.
ARTICLE 11
ACCOUNTING
SECTION 11.01. Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the calendar
year, or such other year as is required by the Code.
SECTION 11.02. Certain Accounting Matters.
(a) At all times during the existence of the Trust, the Regular
Trustees shall keep, or cause to be kept, full books, records and supporting
documents, which shall reflect in detail, each transaction of the Trust. The
books of account shall be maintained on the accrual method of accounting in
compliance with generally accepted accounting principles, consistently applied.
The Trust shall use the accrual method of accounting for the United States
federal income tax purposes. The books of account and the records of the Trust
shall be examined by and reported upon as of the end of each Fiscal Year of the
Trust by a firm of independent certified public accountants selected by the
Regular Trustees.
53
<PAGE> 60
(b) The Regular Trustees shall cause to be prepared and delivered to
each of the Holders of Securities and the other Trustees, within 90 days after
the end of each Fiscal Year of the Trust, annual financial statements of the
Trust, including a balance sheet of the Trust as of the end of such Fiscal Year,
and the related income or loss.
(c) The Regular Trustees shall cause to be duly prepared and delivered
to each of the Holders of Securities, any annual United States federal income
tax information statement, required by the Code, containing such information
with regard to the Securities held by each Holder as is required by the Code and
the Treasury Regulations. Notwithstanding any right under the Code to deliver
any such statement at a later date, the Regular Trustees shall endeavor to
deliver all such statements within 30 days after the end of each Fiscal Year of
the Trust.
(d) The Regular Trustees shall cause to be duly prepared and filed with
the appropriate taxing authority, an annual United States federal income tax
return, on a Form 1041 or such other form required by United States federal
income tax law, and any other annual income tax returns required to be filed by
the Regular Trustees on behalf of the Trust with any state or local taxing
authority.
SECTION 11.03. Banking.
The Trust shall maintain one or more bank accounts in the name and for
the sole benefit of the Trust; provided, however, that all payments of funds in
respect of the Debentures held by the Institutional Trustee shall be made
directly to the Institutional Trustee Account and no other funds of the Trust
shall be deposited in the Institutional Trustee Account. The sole signatories
for such accounts shall be designated by the Regular Trustees; provided,
however, that the Institutional Trustee shall designate the signatories for the
Institutional Trustee Account.
SECTION 11.04. Withholding.
The Trust and the Regular Trustees shall comply with all withholding
requirements under United States federal, state and local law. The Trust shall
request, and the Holders shall provide to the Trust, such forms or certificates
as are necessary to establish an exemption from withholding with respect to each
Holder, and any representations and forms as shall reasonably be requested by
the Trust to assist it in determining the extent of, and in fulfilling, its
withholding obligations. The Regular Trustees shall file required forms with
applicable
54
<PAGE> 61
jurisdictions and, unless an exemption from withholding is properly established
by a Holder, shall remit amounts withheld with respect to the Holder to
applicable jurisdictions. To the extent that the Trust is required to withhold
and pay over any amounts to any authority with respect to distributions or
allocations to any Holder, the amount withheld shall be deemed to be a
distribution in the amount of the withholding to the Holder. In the event of any
claimed over-withholding, Holders shall be limited to an action against the
applicable jurisdiction. If the amount required to be withheld was not withheld
from actual Distributions made, the Trust may reduce subsequent Distributions by
the amount of such withholding.
ARTICLE 12
AMENDMENTS AND MEETINGS
SECTION 12.01. Amendments.
(a) Except as otherwise provided in this Declaration or by any
applicable terms of the Securities, this Declaration may only be amended by a
written instrument approved and executed by:
(i) the Regular Trustees (or, if there are more than two
Regular Trustees a majority of the Regular Trustees);
(ii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Institutional Trustee, the
Institutional Trustee; and
(iii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee, the Delaware
Trustee;
(b) no amendment shall be made, and any such purported amendment shall
be void and ineffective:
(i) unless, in the case of any proposed amendment, the
Institutional Trustee shall have first received an Officers'
Certificate from each of the Trust and the Sponsor that such amendment
is permitted by, and conforms to, the terms of this Declaration
(including the terms of the Securities);
55
<PAGE> 62
(ii) unless, in the case of any proposed amendment which
affects the rights, powers, duties, obligations or immunities of the
Institutional Trustee, the Institutional Trustee shall have first
received:
(A) an Officers' Certificate from each of the Trust and
the Sponsor that such amendment is permitted by, and conforms
to, the terms of this Declaration (including the terms of the
Securities); and
(B) an opinion of counsel (who may be counsel to the
Sponsor or the Trust) that such amendment is permitted by, and
conforms to, the terms of this Declaration (including the
terms of the Securities); and
(iii) to the extent the result of such amendment would be to:
(A) cause the trust to fail to continue to be classified
for purposes of United States federal income taxation as a
grantor trust;
(B) reduce or otherwise adversely affect the powers of
the Institutional Trustee in contravention of the Trust
Indenture Act; or
(C) cause the Trust to be deemed to be an Investment
Company required to be registered under the Investment Company
Act;
(c) at such time after the Trust has issued any Securities that remain
outstanding, any amendment that would adversely affect the rights, privileges or
preferences of any Holder of Securities may be effected only with such
additional requirements as may be set forth in the terms of such Securities;
(d) Section 9.01(c) and this Section 12.01 shall not be amended without
the consent of all of the Holders of the Securities;
(e) Article 4 shall not be amended without the consent of the Holders
of a Majority in liquidation amount of the Common Securities;
(f) the rights of the holders of the Common Securities under Article 5
to increase or decrease the number of and appoint and remove Trustees shall not
be
56
<PAGE> 63
amended without the consent of the Holders of a Majority in liquidation amount
of the Common Securities; and
(g) notwithstanding Section 12.01(c), this Declaration may be amended
without the consent of the Holders of the Securities to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this Declaration
that may be defective or inconsistent with any other provision of this
Declaration;
(iii) add to the covenants, restrictions or obligations of the
Sponsor; and
(iv) to conform to any change in Rule 3a-5 or written change
in interpretation or application of Rule 3a-5 by any legislative body,
court, government agency or regulatory authority which amendment does
not have a material adverse effect on the right, preferences or
privileges of the Holders.
SECTION 12.02. Meetings of the Holders of Securities; Action by
Written Consent.
(a) Meetings of the Holders of any class of Securities may be called at
any time by the Regular Trustees (or as provided in the terms of the Securities)
to consider and act on any matter on which Holders of such class of Securities
are entitled to act under the terms of this Declaration, the terms of the
Securities or the rules of any stock exchange on which the Trust Preferred
Securities are listed or admitted for trading. The Regular Trustees shall call a
meeting of the Holders of such class if directed to do so by the Holders of at
least 10% in liquidation amount of such class of Securities. Such direction
shall be given by delivering to the Regular Trustees one or more calls in a
writing stating that the signing Holders of Securities wish to call a meeting
and indicating the general or specific purpose for which the meeting is to be
called. Any Holders of Securities calling a meeting shall specify in writing the
Security Certificates held by the Holders of Securities exercising the right to
call a meeting and only those Securities specified shall be counted for purposes
of determining whether the required percentage set forth in the second sentence
of this paragraph has been met.
57
<PAGE> 64
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provisions shall apply to meetings of Holders of
Securities:
(i) notice of any such meeting shall be given to all the
Holders of Securities having a right to vote thereat at least 7 days
and not more than 60 days before the date of such meeting. Whenever a
vote, consent or approval of the Holders of Securities is permitted or
required under this Declaration or the rules of any stock exchange on
which the Trust Preferred Securities are listed or admitted for
trading, such vote, consent or approval may be given at a meeting of
the Holders of Securities. Any action that may be taken at a meeting of
the Holders of Securities may be taken without a meeting if a consent
in writing setting forth the action so taken is signed by the Holders
of Securities owning not less than the minimum amount of Securities in
liquidation amount that would be necessary to authorize or take such
action at a meeting at which all Holders of Securities having a right
to vote thereon were present and voting. Prompt notice of the taking of
action without a meeting shall be given to the Holders of Securities
entitled to vote who have not consented in writing. The Regular
Trustees may specify that any written ballot submitted to the Security
Holder for the purpose of taking any action without a meeting shall be
returned to the Trust within the time specified by the Regular
Trustees;
(ii) each Holder of a Security may authorize any Person to act
for it by proxy on all matters in which a Holder of Securities is
entitled to participate, including waiving notice of any meeting, or
voting or participating at a meeting. No proxy shall be valid after the
expiration of 11 months from the date thereof unless otherwise provided
in the proxy. Every proxy shall be revocable at the pleasure of the
Holder of Securities executing it. Except as otherwise provided herein,
all matters relating to the giving, voting or validity of proxies shall
be governed by the General Corporation Law of the State of Delaware
relating to proxies, and judicial interpretations thereunder, as if the
Trust were a Delaware corporation and the Holders of the Securities
were stockholders of a Delaware corporation;
(iii) each meeting of the Holders of the Securities shall be
conducted by the Regular Trustees or by such other Person that the
Regular Trustees may designate; and
58
<PAGE> 65
(iv) unless the Business Trust Act, this Declaration, the
terms of the Securities, the Trust Indenture Act or the listing rules
of any stock exchange on which the Trust Preferred Securities are then
listed or trading, otherwise provides, the Regular Trustees, in their
sole discretion, shall establish all other provisions relating to
meetings of Holders of Securities, including notice of the time, place
or purpose of any meeting at which any matter is to be voted on by any
Holders of Securities, waiver of any such notice, action by consent
without a meeting, the establishment of a record date, quorum
requirements, voting in person or by proxy or any other matter with
respect to the exercise of any such right to vote.
ARTICLE 13
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE AND DELAWARE TRUSTEE
SECTION 13.01. Representations and Warranties of Institutional Trustee.
The Trustee that acts as initial Institutional Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Institutional Trustee represents and warrants, as applicable, to
the Trust and the Sponsor at the time of the Successor Institutional Trustee's
acceptance of its appointment as Institutional Trustee that:
(a) the Institutional Trustee is a Michigan banking corporation with
trust powers, duly organized, validly existing and in good standing, with trust
power and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, the Declaration;
(b) the execution, delivery and performance by the Institutional
Trustee of the Declaration has been duly authorized by all necessary corporate
action on the part of the Institutional Trustee. The Declaration has been duly
executed and delivered by the Institutional Trustee, and it constitutes a legal,
valid and binding obligation of the Institutional Trustee, enforceable against
it in accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws affecting
creditors' rights generally and to general principles of equity and the
discretion of the court (regardless of whether the enforcement of such remedies
is considered in a proceeding in equity or at law);
(c) the execution, delivery and performance of the Declaration by the
Institutional Trustee does not conflict with or constitute a breach of the
charter or by-laws of the Institutional Trustee; and
59
<PAGE> 66
(d) no consent, approval or authorization of, or registration with or
notice to, any Michigan or federal banking authority is required for the
execution, delivery or performance by the Institutional Trustee, of the
Declaration.
SECTION 13.02. Representations and Warranties of Delaware Trustee.
The Trustee that acts as initial Delaware Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Delaware Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Delaware Trustee's acceptance of its
appointment as Delaware Trustee that:
(a) The Delaware Trustee is a Delaware corporation, duly organized,
validly existing and in good standing, with full power and authority to execute
and deliver, and to carry out and perform its obligations under the terms of,
the Declaration.
(b) The Delaware Trustee has been authorized to perform its obligations
under the Certificate of Trust and the Declaration. The Declaration under
Delaware law constitutes a legal, valid and binding obligation of the Delaware
Trustee, enforceable against it in accordance with its terms, subject to
applicable bankruptcy, reorganization, moratorium, insolvency, and other similar
laws affecting creditors' rights generally and to general principles of equity
and the discretion of the court (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law).
(c) No consent, approval or authorization of, or registration with or
notice to, any Delaware or federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee of the Declaration.
(d) The Delaware Trustee is a natural person who is a resident of the
State of Delaware or, if not a natural person, an entity which has its principal
place of business in the State of Delaware. The Delaware Trustee satisfies for
the Trust the requirements set forth in Section 3807(a) of the Business Trust
Act.
60
<PAGE> 67
ARTICLE 14
MISCELLANEOUS
SECTION 14.01. Notices.
All notices provided for in this Declaration shall be in writing, duly
signed by the party giving such notice, and shall be delivered, telecopied or
mailed by first class mail, as follows:
(a) if given to the Trust, in care of the Regular Trustees at the
Trust's mailing address set forth below (or such other address as the Trust may
give notice of to the Holders of the Securities):
Wendy's Financing I
c/o Wendy's International, Inc.
4288 West Dublin-Granville Road
Dublin, OH 43017-0256
Attention: General Counsel
(b) if given to the Delaware Trustee, at the mailing address set forth
below (or such other address as Delaware Trustee may give notice of to the
Holders of the Securities):
First Chicago Delaware Inc.
c/o FCC National Bank
300 King Street
Wilmington, Delaware 19801
(c) if given to the Institutional Trustee, at its Corporate Trust
Office to the attention of Corporate Trust Administration (or such other address
as the Institutional Trustee may give notice of to the Holders of the
Securities).
(d) if given to the Holder of the Common Securities, at the mailing
address of the Sponsor set forth below (or such other address as the Holder of
the Common Securities may give notice to the Trust):
61
<PAGE> 68
Wendy's International, Inc.
4288 West Dublin-Granville Road
Dublin, OH 43017-0256
Attention: General Counsel
(e) if given to any other Holder, at the address set forth on the books
and records of the Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 14.02. Governing Law.
This Declaration and the rights of the parties hereunder shall be
governed by and interpreted in accordance with the laws of the State of Delaware
and all rights and remedies shall be governed by such laws without regard to
principles of conflict of laws.
SECTION 14.03. Intention of the Parties.
It is the intention of the parties hereto that the Trust be classified
for United States federal income tax purposes as a grantor trust. The provisions
of this Declaration shall be interpreted to further this intention of the
parties.
SECTION 14.04. Headings.
62
<PAGE> 69
Headings contained in this Declaration are inserted for convenience of
reference only and do not affect the interpretation of this Declaration or any
provision hereof.
SECTION 14.05. Successors and Assigns.
Whenever in this Declaration any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by the Sponsor
and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
SECTION 14.06. Partial Enforceability.
If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder of
this Declaration, or the application of such provision to Persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 14.07. Counterparts.
This Declaration may contain more than one counterpart of the signature
page and this Declaration may be executed by the affixing of the signature of
each of the Trustees to one of such counterpart signature pages. All of such
counterpart signature pages shall be read as though one, and they shall have the
same force and effect as though all of the signers had signed a single signature
page.
63
<PAGE> 70
IN WITNESS WHEREOF, the undersigned have caused these presents to be
executed as of the day and year first above written.
/s/ John K. Casey
----------------------------------
John K. Casey, as Regular Trustee
/s/ Ronald E. Musick
----------------------------------
Ronald E. Musick, as Regular Trustee
/s/ John F. Brownley
----------------------------------
John F. Brownley, as Regular Trustee
First Chicago Delaware Inc., as Delaware Trustee
By: /s/ Lawrence Dillard
-------------------------------
Name: Lawrence Dillard
Title: Vice President
NBD Bank, as Institutional Trustee
By: /s/ James D. Khami
-------------------------------
Name: James D. Khami
Title: Trust Officer
Wendy's International, Inc., as Sponsor
By: /s/ John K. Casey
-------------------------------
Name: John K. Casey
Title: Vice Chairman and Chief Financial
Officer
64
<PAGE> 71
ANNEX I
TERMS OF
$2.50 TRUST PREFERRED SECURITIES
$2.50 COMMON SECURITIES
Pursuant to Section 7.01 of the Amended and Restated Declaration of
Trust, dated as of September 20, 1996 (as amended from time to time, the
"Declaration"), the designation, rights, privileges, restrictions, preferences
and other terms and provisions of the Trust Preferred Securities and the Common
Securities are set out below (each capitalized term used but not defined herein
has the meaning set forth in the Declaration or, if not defined in such
Declaration, as defined in the Prospectus referred to below):
1. DESIGNATION AND NUMBER.
-----------------------
(a) TRUST PREFERRED SECURITIES. 4,000,000 Trust Preferred Securities of
the Trust with an aggregate liquidation amount with respect to the assets of the
Trust of TWO HUNDRED MILLION] Dollars ($200,000,000.00), and a liquidation
amount with respect to the assets of $50 per trust preferred security, are
hereby designated for the purposes of identification only as "$2.50 Term
Convertible Securities, Series A" (the "Trust Preferred Securities"). The Trust
Preferred Security Certificates evidencing the Trust Preferred Securities shall
be substantially in the form of Exhibit A-1 to the Declaration, with such
changes and additions thereto or deletions therefrom as may be required by
ordinary usage, custom or practice or to conform to the rules of any stock
exchange on which the Trust Preferred Securities are listed.
(b) COMMON SECURITIES. 40,405 Common Securities of the Trust with an
aggregate liquidation amount with respect to the assets of the Trust of TWO
MILLION TWENTY THOUSAND TWO HUNDRED FIFTY Dollars
($2,020,250.00), and a liquidation amount with respect to the assets of the
Trust of $50 per common security, are hereby designated for the purposes of
identification only as "$2.50 Common Securities" (the "Common Securities"). The
Common Security Certificates evidencing the Common Securities shall be in the
I-1
<PAGE> 72
form of Exhibit A-2 to the Declaration, with such changes and additions thereto
or deletions therefrom as may be required by ordinary usage, custom or practice.
2. DISTRIBUTIONS.
--------------
(a) Distributions payable on each Security will be fixed at a rate per
annum of $2.50 (the "Coupon Rate") of the stated liquidation amount of $50 per
Security, such rate being the rate of interest payable on the Debentures to be
held by the Institutional Trustee. Distributions in arrears for more than one
quarter will bear interest thereon compounded quarterly at the Coupon Rate (to
the extent permitted by applicable law). The term "Distributions" as used herein
includes such cash distributions and any such interest payable unless otherwise
stated. A Distribution is payable only to the extent that payments are made in
respect of the Debentures held by the Institutional Trustee and to the extent
the Institutional Trustee has funds available therefor. The amount of
Distributions payable for any period will be computed for any full quarterly
Distribution period on the basis of a 360-day year of twelve 30-day months, and
for any period shorter than a full quarterly Distribution period for which
Distributions are computed, Distributions will be computed on the basis of the
actual number of days elapsed per 30-day month.
(b) Distributions on the Securities will be cumulative, will accrue
from September 20, 1996, and will be payable quarterly in arrears, on March 15,
June 15, September 15 and December 15 of each year, commencing on December 15,
1996, except as otherwise described below. So long as the Sponsor shall not be
in default in the payment of interest on the Debentures, the Sponsor has the
right under the Indenture to defer payments of interest by extending the
interest payment period from time to time on the Debenture for a period not
exceeding 20 consecutive quarters (each an "Extension Period"), during which
Extension Period no interest shall be due and payable on the Debentures,
provided that no Extension Period shall last beyond the date of maturity or any
redemption date of the Debentures. As a consequence of such deferral,
Distributions will also be deferred. Despite such deferral, quarterly
Distributions will continue to accrue with interest thereon (to the extent
permitted by applicable law) at the Coupon Rate compounded quarterly during any
such Extension Period. Prior to the termination of any such Extension Period,
the Sponsor may further extend such Extension Period; provided that such
Extension Period together with all such previous and further extensions thereof
may not exceed 20 consecutive quarters or extend beyond the maturity or any
redemption date of the Debentures. Payments of accumulated Distributions will be
payable to Holders as they appear on the
I-2
<PAGE> 73
books and records of the Trust on the first record date after the end of the
Extension Period. Upon the termination of any Extension Period and the payment
of all amounts then due, the Sponsor Issue may commence a new Extension Period,
subject to the above requirements.
(c) Distributions on the Securities will be payable to the Holders
thereof as they appear on the books and records of the Trust on the relevant
record dates. While the Trust Preferred Securities remain in book-entry only
form, the relevant record dates shall be one Business Day prior to the relevant
payment dates which payment dates correspond to the interest payment dates on
the Debentures. Subject to any applicable laws and regulations and the
provisions of the Declaration, each such payment in respect of the Trust
Preferred Securities will be made as described under the heading "Description of
the Trust Preferred Securities -- Book-Entry Only Issuance -- The Depository
Trust Company" in the Prospectus Supplement dated September 16, 1996, to the
Base Prospectus dated August 28, 1996 (together, the "Prospectus"), of the Trust
included in the Registration Statement on Form S-3 of the Sponsor, the Trust and
certain other business trusts. The relevant record dates for the Common
Securities shall be the same record date as for the Trust Preferred Securities.
If the Trust Preferred Securities shall not continue to remain in book-entry
only form, the relevant record dates for the Trust Preferred Securities shall
conform to the rules of any securities exchange on which the securities are
listed and, if none, shall be selected by the Regular Trustees, which dates
shall be at least one Business Day before the relevant payment dates, which
payment dates correspond to the interest payment dates on the Debentures.
Distributions payable on any Securities that are not punctually paid on any
Distribution payment date, as a result of the Sponsor having failed to make a
payment under the Debentures, will cease to be payable to the Person in whose
name such Securities are registered on the relevant record date, and such
defaulted Distribution will instead be payable to the Person in whose name such
Securities are registered on the special record date or other specified date
determined in accordance with the Indenture. If any date on which Distributions
are payable on the Securities is not a Business Day, then payment of the
Distribution payable on such date will be made on the next succeeding day that
is a Business Day (and without any interest or other payment in respect of any
such delay) except that, if such Business Day is in the next succeeding calendar
year, such payment shall be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on such date.
(d) In the event of an election by the Holder to convert its Securities
through the Conversion Agent into Wendy's Common Stock pursuant to the terms
I-3
<PAGE> 74
of the Securities as set forth in this Annex I to the Declaration, no payment,
allowance or adjustment shall be made with respect to accumulated and unpaid
Distributions on such Securities, or be required to be made; provided, however,
that if a Security is surrendered for conversion after the close of business on
any regular record date for payment of a Distribution and before the opening of
business on the corresponding Distribution payment date, then, notwithstanding
such conversion, the Distribution payable on such Distribution payment date will
be paid in cash to the person in whose name the Security is registered at the
close of business on such record date, and (other than a Security or a portion
of a Security called for redemption on a redemption date occurring after such
record date and on or prior to such Distribution payment date) when so
surrendered for conversion, the Security must be accompanied by payment of an
amount equal to the Distribution payable on such Distribution payment date.
(e) In the event that there is any money or other property held by or
for the Trust that is not accounted for hereunder, such property shall be
distributed Pro Rata (as defined herein) among the Holders of the Securities.
3. LIQUIDATION DISTRIBUTION UPON DISSOLUTION.
------------------------------------------
In the event of any voluntary or involuntary dissolution, winding-up or
termination of the Trust, the Holders of the Securities on the date of the
dissolution, winding-up or termination, as the case may be, will be entitled to
receive out of the assets of the Trust available for distribution to Holders of
Securities after satisfaction of liabilities of creditors an amount equal to the
aggregate of the stated liquidation amount of $50 per Security plus accumulated
and unpaid Distributions thereon to the date of payment (such amount being the
"Liquidation Distribution"), unless, such dissolution, winding-up or termination
occurs in connection with a Special Event in which, in accordance with Section
4(c), Debentures in an aggregate stated principal amount equal to the aggregate
stated liquidation amount of such Securities, with an interest rate equal to the
Coupon Rate of, and bearing accrued and unpaid interest in an amount equal to
the accumulated and unpaid Distributions on, such Securities, shall be
distributed on a Pro Rata basis to the Holders of the Securities in exchange for
such Securities.
If, upon any such dissolution, the Liquidation Distribution can be paid
only in part because the Trust has insufficient assets available to pay in full
the
I-4
<PAGE> 75
aggregate Liquidation Distribution, then the amounts payable directly by the
Trust on the Securities shall be paid on a Pro Rata basis.
4. REDEMPTION AND DISTRIBUTION.
----------------------------
(a) Upon the repayment of the Debentures in whole or in part, whether
at maturity or upon redemption (either at the option of the Sponsor or pursuant
to a Special Event as described below), the proceeds from such repayment or
payment shall be simultaneously applied to redeem Securities having an aggregate
liquidation amount equal to the aggregate principal amount of the Debentures so
repaid or redeemed at a redemption price per Security equal to the redemption
price of the Debentures, together with accrued and unpaid Distributions thereon
through the date of the redemption, payable in cash (the "Redemption Price").
Holders will be given not less than 30 nor more than 60 days' notice of such
redemption.
(b) If fewer than all the outstanding Securities are to be so redeemed,
the Common Securities and the Trust Preferred Securities will be redeemed Pro
Rata and the Trust Preferred Securities to be redeemed will be as described in
Section 4(g) below.
(c) If, at any time, a Tax Event or an Investment Company Event (each,
as defined below, a "Special Event") shall occur and be continuing, the Regular
Trustees may with the consent of the Sponsor, except in certain limited
circumstances in relation to a Tax Event described in this Section 4(c),
dissolve the Trust and, after satisfaction of creditors, cause Debentures held
by the Institutional Trustee, having an aggregate principal amount equal to the
aggregate stated liquidation amount of, with an interest rate identical to the
Coupon Rate of, and accrued and unpaid interest equal to accumulated and unpaid
Distributions on, and having the same record date for payment as the Securities,
to be distributed to the Holders of the Securities in liquidation of such
Holders' interests in the Trust on a Pro Rata basis, within 90 days following
the occurrence of such Special Event (the "90 Day Period"); provided, however,
that such dissolution and distribution shall be conditioned on (i) the Regular
Trustees' receipt of an opinion of a nationally recognized independent tax
counsel experienced in such matters (a "No Recognition Opinion"), which opinion
may rely on published revenue rulings of the Internal Revenue Service, to the
effect that the Holders of the Securities will not recognize any gain or loss
for United States federal income tax purposes as a result of the dissolution of
the Trust and the distribution of Debentures, (ii) in the case of a Tax Event,
the Sponsor or the Trust being unable to eliminate, within the 90 Day
I-5
<PAGE> 76
Period, the Tax Event by taking some ministerial action, such as filing a form
or making an election, or pursuing some other similar reasonable measure that
has no adverse effect on the Trust, the Sponsor or the Holders of the Securities
("Ministerial Action"), and (iii) the Sponsor's prior written consent to such
dissolution and distribution.
If in the event of a Tax Event (i) after receipt of a Dissolution Tax
Opinion (as defined hereinafter) by each of the Trustees, the Sponsor has
received an opinion (a "Redemption Tax Opinion") of a nationally recognized
independent tax counsel experienced in such matters that, as a result of a Tax
Event, there is more than an insubstantial risk that the Sponsor would be
precluded from deducting the interest on the Debentures for United States
federal income tax purposes even after the Debentures were distributed to the
Holders of Securities in liquidation of such Holders' interests in the Trust as
described in this Section 4(c), or (ii) the Regular Trustees shall have been
informed by such tax counsel that a No Recognition Opinion cannot be delivered
to the Trust, the Sponsor shall have the right at any time, upon not less than
30 nor more than 60 days' notice, to redeem the Debentures in whole or in part,
at a redemption price equal to 100% of the principal amount thereof plus accrued
and unpaid interest thereon, for cash within 90 days following the occurrence of
such Tax Event. Following such redemption, Securities with an aggregate
liquidation amount equal to the aggregate principal amount of the Debentures so
redeemed shall be redeemed by the Trust at the Redemption Price on a Pro Rata
basis; provided, however, that, if at any time there is available to the Sponsor
or the Trust the opportunity to eliminate, within such 90 Day Period, the Tax
Event by taking some Ministerial Action, the Trust or the Sponsor will pursue
such Ministerial Action in lieu of redemption.
"Tax Event" means that each of the Trustees shall have received an
opinion of a nationally recognized independent tax counsel experienced in such
matters (a "Dissolution Tax Opinion") to the effect that on or after September
20, 1996, as a result of (a) any amendment to, clarification of, or change
(including any announced prospective change) in the laws (or any regulations
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein affecting taxation, (b) any judicial decision,
official administrative pronouncement, ruling, regulatory procedure, notice or
announcement, including any notice or announcement of intent to adopt such
procedures or regulations (an "Administrative Action") or (c) any amendment to,
clarification of, or change in the official position or the interpretation of
such Administrative Action or judicial decision that differs from the
theretofore generally accepted position, in each case, by any legislative body,
court, governmental authority or regulatory body,
I-6
<PAGE> 77
irrespective of the manner in which such amendment, clarification or change is
made known, which amendment, clarification, or change is effective or such
pronouncement or decision is announced, in each case, on or after, September 20,
1996, there is more than an insubstantial risk that (i) the Trust is or will be
within 90 days of the date thereof, subject to United States federal income tax
with respect to interest accrued or received on the Debentures, (ii) the Trust
is, or will be within 90 days of the date thereof, subject to more than a de
minimis amount of taxes, duties or other governmental charges, or (iii) interest
payable in cash by the Sponsor to the Trust on the Debentures is not, or within
90 days of the date thereof will not be, deductible, in whole or in part, by the
Sponsor for United States federal income tax purposes. Notwithstanding the
foregoing, a Tax Event shall not include any change in tax law that requires the
Sponsor for United States federal income tax purposes to defer taking a
deduction for any original issue discount ("OID") that accrues with respect to
the Debentures until the interest payment related to such OID is paid by the
Sponsor in cash; provided, that such change in tax law does not create more than
an insubstantial risk that the Sponsor will be prevented from taking a deduction
for OID accruing with respect to the Debentures at a date that is no later than
the date the interest payment related to such OID is actually paid by the
Sponsor in cash.
"Investment Company Event" means that each of the Trustees shall have
received an opinion of a nationally recognized independent counsel to the effect
that, as a result of the occurrence of a change in law or regulation or a
written change in interpretation or application of law or regulations by any
legislative body, court, governmental agency or regulatory authority on or after
September 20, 1996 (a "Change in 1940 Act Law"), there is more than an
insubstantial risk that the Trust is or will be considered an "investment
company" which is required to be registered under the Investment Company Act of
1940, as amended (the "1940 Act").
On and from the date fixed by the Regular Trustees for any distribution
of Debentures upon dissolution of the Trust: (i) the Securities will no longer
be deemed to be outstanding, (ii) The Depository Trust Company (the
"Depository") or its nominee (or any successor Clearing Agency or its nominee),
as the record Holder of the Trust Preferred Securities, will receive a
registered certificate or certificates representing the Debentures to be
delivered upon such distribution, and (iii) any certificates representing
Securities, except for certificates representing Trust Preferred Securities held
by the Depository or its nominee (or any successor Clearing Agency or its
nominee), will be deemed to represent Debentures having an aggregate principal
amount equal to the aggregate stated liquidation amount of,
I-7
<PAGE> 78
with an interest rate identical to the Coupon Rate of, and accrued and unpaid
interest equal to accumulated and unpaid Distributions on such Trust Preferred
Securities until such certificates are presented to the Sponsor or its agent for
transfer or reissue.
(d) The Trust may not redeem fewer than all the outstanding Securities
unless all accumulated and unpaid Distributions have been paid on all Securities
for all quarterly Distribution periods terminating on or before the date of
redemption.
(e) If the Debentures are distributed to Holders of the Securities,
pursuant to the terms of the Indenture, the Sponsor will use its best efforts to
have the Debentures listed on the New York Stock Exchange or on such other
exchange as the Trust Preferred Securities were listed immediately prior to the
distribution of the Debentures.
(f) Notice of any redemption of, or notice of distribution of
Debentures in exchange for the Securities (a "Redemption/Distribution Notice")
will be given by the Trust by mail to each Holder of Securities to be redeemed
or exchanged not fewer than 30 nor more than 60 days before the date fixed for
redemption or exchange thereof which, in the case of a redemption, will be the
date fixed for redemption of the Debentures. For purposes of the calculation of
the date of redemption or exchange and the dates on which notices are given
pursuant to this Section 4(f), a Redemption/Distribution Notice shall be deemed
to be given on the day such notice is first mailed by first-class mail, postage
prepaid, or by such other means suitable to assure delivery of such written
notice, to Holders of Securities. Each Redemption/Distribution Notice shall be
addressed to the Holders of Securities at the address of each such Holder
appearing in the books and records of the Trust. No defect in the
Redemption/Distribution Notice or in the mailing of either thereof with respect
to any Holder shall affect the validity of the redemption or exchange
proceedings with respect to any other Holder.
(g) In the event that fewer than all the outstanding Securities are to
be redeemed, the Securities to be redeemed shall be redeemed Pro Rata from each
Holder of Trust Preferred Securities, it being understood that, in respect of
Trust Preferred Securities registered in the name of and held of record by the
Depository or its nominee (or any successor Clearing Agency or its nominee) or
any nominee, the distribution of the proceeds of such redemption will be made to
each Clearing Agency Participant (or Person on whose behalf such nominee holds
such securities) in accordance with the procedures applied by such agency or
nominee.
I-8
<PAGE> 79
(h) If Securities are to be redeemed and the Trust gives a
Redemption/Distribution Notice, which notice may only be issued if the
Debentures are redeemed as set out in this Section 4 (which notice will be
irrevocable), then (A) while the Trust Preferred Securities are in book-entry
form, with respect to the Trust Preferred Securities, by 12:00 noon, New York
City time, on the redemption date, provided that the Sponsor has paid the
Institutional Trustee a sufficient amount of cash in connection with the related
redemption or maturity of the Debentures, the Institutional Trustee will deposit
irrevocably with the Depository or its nominee (or successor Clearing Agency or
its nominee) funds sufficient to pay the applicable Redemption Price with
respect to the Trust Preferred Securities and will give the Depository
irrevocable instructions and authority to pay the Redemption Price to the
Holders of the Trust Preferred Securities, and (B) with respect to Trust
Preferred Securities issued in definitive form and Common Securities, provided
that the Sponsor has paid the Institutional Trustee a sufficient amount of cash
in connection with the related redemption or maturity of the Debentures, the
Institutional Trustee will pay the relevant Redemption Price to the Holders of
such Securities by check mailed to the address of the relevant Holder appearing
on the books and records of the Trust on the redemption date. If a
Redemption/Distribution Notice shall have been given and funds deposited as
required, if applicable, then immediately prior to the close of business on the
required date of such deposit, distributions will cease to accrue on the
Securities so called for redemption and all rights of Holders of such Securities
so called for redemption will cease, except the right of the Holders of such
Securities to receive the Redemption Price, but without interest on such
Redemption Price. Neither the Regular Trustees nor the Trust shall be required
to register or cause to be registered the transfer of any Securities that have
been so called for redemption. If any date fixed for redemption of Securities is
not a Business Day, then payment of the Redemption Price payable on such date
will be made on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay) except that, if such
Business Day falls in the next calendar year, such payment will be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date fixed for redemption. If payment of the Redemption Price
in respect of any Securities is improperly withheld or refused and not paid
either by the Institutional Trustee or by the Sponsor as guarantor pursuant to
the relevant Securities Guarantee, Distributions on such Securities will
continue to accrue from the original redemption date to the actual date of
payment, in which case the actual payment date will be considered the date fixed
for redemption for purposes of calculating the Redemption Price.
I-9
<PAGE> 80
(i) Redemption/Distribution Notices shall be sent by the Regular
Trustees on behalf of the Trust to (A) in respect of the Trust Preferred
Securities, the Depository or its nominee (or any successor Clearing Agency or
its nominee) if the Global Certificates have been issued or, if Definitive Trust
Preferred Security Certificates have been issued, to the Holder thereof, and (B)
in respect of the Common Securities to the Holder thereof.
(j) Subject to the foregoing and applicable law (including, without
limitation, United States federal securities laws), the Sponsor or any of its
subsidiaries may at any time and from time to time purchase outstanding Trust
Preferred Securities by tender, in the open market or otherwise.
5. CONVERSION RIGHTS.
------------------
The Holders of Securities shall have the right at any time prior to the
close of business on September 15, 2026 (or, in the case of Securities called
for redemption, prior to the close of business on the Business Day prior to the
redemption date), at their option, to cause the Conversion Agent to convert
Securities, on behalf of the converting Holders, into shares of Wendy's Common
Stock in the manner described herein on and subject to the following terms and
conditions:
(a) The Securities will be convertible at the office of the Conversion
Agent into fully paid and nonassessable shares of Wendy's Common Stock pursuant
to the Holder's direction to the Conversion Agent to exchange such Securities
for a portion of the Debentures theretofore held by the Trust on the basis of
one Security per $50 principal amount of Debentures, and immediately convert
such amount of Debentures into fully paid and nonassessable shares of Wendy's
Common Stock at an initial rate of 1.8932 shares of Wendy's Common Stock per $50
principal amount of Debentures (which is equivalent to a conversion price of
$26.41 per share of Wendy's Common Stock, subject to certain adjustments set
forth in Sections 7.3 and 7.4 of the Supplemental Indenture (as so adjusted,
"Conversion Price")).
(b) In order to convert Securities into Wendy's Common Stock the Holder
shall submit to the Conversion Agent at the office referred to above an
irrevocable request to convert Securities on behalf of such Holder (the
"Conversion Request"), together, if the Securities are in certificated form,
with such certificates. The Conversion Request shall (i) set forth the number of
Securities to be converted and the name or names, if other than the Holder, in
which the shares of Wendy's
I-10
<PAGE> 81
Common Stock should be issued and (ii) direct the Conversion Agent (a) to
exchange such Securities for a portion of the Debentures held by the Trust (at
the rate of exchange specified in the preceding paragraph) and (b) to
immediately convert such Debentures on behalf of such Holder, into Wendy's
Common Stock (at the conversion rate specified in the preceding paragraph). The
Conversion Agent shall notify the Trust of the Holder's election to exchange
Securities for a portion of the Debentures held by the Trust and the Trust
shall, upon receipt of such notice, deliver to the Conversion Agent the
appropriate principal amount of Debentures for exchange in accordance with this
Section. The Conversion Agent shall thereupon notify Wendy's of the Holder's
election to convert such Debentures into shares of Wendy's Common Stock. If a
Security is surrendered for conversion after the close of business on any
regular record date for payment of a Distribution and before the opening of
business on the corresponding Distribution payment date, then, notwithstanding
such conversion, the Distribution payable on such Distribution payment date will
be paid in cash to the person in whose name the Security is registered at the
close of business on such record date, and (other than a Security or a portion
of a Security called for redemption on a redemption date occurring after such
record date and on or prior to such Distribution payment date) when so
surrendered for conversion, the Security must be accompanied by payment of an
amount equal to the Distribution payable on such Distribution payment date.
Except as provided above, neither the Trust nor the Sponsor will make, or be
required to make, any payment, allowance or adjustment upon any conversion on
account of any accumulated and unpaid Distributions accumulated on the
Securities (including any Additional Amounts accrued thereon) surrendered for
conversion, or on account of any accumulated and unpaid dividends on the shares
of Wendy's Common Stock issued upon such conversion. Securities shall be deemed
to have been converted immediately prior to the close of business on the day on
which a Notice of Conversion relating to such Securities is received by the
Trust in accordance with the foregoing provision (the "Conversion Date"). The
Person or Persons entitled to receive Wendy's Common Stock issuable upon
conversion of the Debentures shall be treated for all purposes as the record
holder or holders of such Wendy's Common Stock at such time. As promptly as
practicable on or after the Conversion Date, Wendy's shall issue and deliver at
the office of the Conversion Agent a certificate or certificates for the number
of full shares of Wendy's Common Stock issuable upon such conversion, together
with the cash payment, if any, in lieu of any fraction of any share to the
Person or Persons entitled to receive the same, unless otherwise directed by the
Holder in the notice of conversion and the Conversion Agent shall distribute
such certificate or certificates, together with the applicable cash payment, if
any, to such Person or Persons.
I-11
<PAGE> 82
(c) Each Holder of a Security by his acceptance thereof appoints NBD
Bank "Conversion Agent" for the purpose of effecting the conversion of
Securities in accordance with this Section. In effecting the conversion and
transactions described in this Section, the Conversion Agent shall be acting as
agent of the Holders of Securities directing it to effect such conversion
transactions. The Conversion Agent is hereby authorized (i) to exchange
Securities from time to time for Debentures held by the Trust in connection with
the conversion of such Securities in accordance with this Section and (ii) to
convert all or a portion of the Debentures into Wendy's Common Stock and
thereupon to deliver such shares of Wendy's Common Stock in accordance with the
provisions of this Section and to deliver to the Trust a new Debenture or
Debentures for any resulting unconverted principal amount.
(d) No fractional shares of Wendy's Common Stock will be issued as a
result of conversion, but in lieu thereof, such fractional interest will be paid
in cash by Wendy's to the Conversion Agent, which in turn will make such payment
to the Holder or Holders of Securities so converted.
(e) Wendy's shall at all times reserve and keep available out of its
authorized and unissued Wendy's Common Stock, solely for issuance upon the
conversion of the Debentures, free from any preemptive or other similar rights,
such number of shares of Wendy's Common Stock as shall from time to time be
issuable upon the conversion of all the Debentures then outstanding.
Notwithstanding the foregoing, Wendy's shall be entitled to deliver upon
conversion of Debentures, shares of Wendy's Common Stock reacquired and held in
the treasury of Wendy's (in lieu of the issuance of authorized and unissued
shares of Wendy's Common Stock), so long as any such treasury shares are free
and clear of all liens, charges, security interests or encumbrances. Any shares
of Wendy's Common Stock issued upon conversion of the Debentures shall be duly
authorized, validly issued and fully paid and nonassessable. The Trust shall
deliver the shares of Wendy's Common Stock received upon conversion of the
Debentures to the converting Holder free and clear of all liens, charges,
security interests and encumbrances, except for United States withholding taxes.
Each of Wendy's and the Trust shall prepare and shall use its best efforts to
obtain and keep in force such governmental or regulatory permits or other
authorizations as may be required by law, and shall comply with all applicable
requirements as to registration or qualification of Wendy's Common Stock (and
all requirements to list Wendy's Common Stock issuable upon conversion of
Debentures that are at the time applicable), in order to enable Wendy's to
lawfully issue Wendy's Common Stock to the Trust upon conversion of the
Debentures and the Trust to
I-12
<PAGE> 83
lawfully deliver Wendy's Common Stock to each Holder upon conversion of the
Securities.
(f) Wendy's will pay any and all taxes that may be payable in respect
of the issue or delivery of shares of Wendy's Common Stock on conversion of
Debentures and the delivery of the shares of Wendy's Common Stock by the Trust
upon conversion of the Securities. Wendy's shall not, however, be required to
pay any tax which may be payable in respect of any transfer involved in the
issue and delivery of shares of Wendy's Common Stock in a name other than that
in which the Securities so converted were registered, and no such issue or
delivery shall be made unless and until the person requesting such issue has
paid to the Trust the amount of any such tax, or has established to the
satisfaction of the Trust that such tax has been paid.
(g) Nothing in the preceding Paragraph (f) shall limit the requirement
of the Trust to withhold taxes pursuant to the terms of the Securities or set
forth in this Annex I to the Declaration or to the Declaration itself or
otherwise require the Institutional Trustee or the Trust to pay any amounts on
account of such withholdings.
6. VOTING RIGHTS - TRUST PREFERRED SECURITIES.
-------------------------------------------
(a) Except as provided under Sections 6(b) and 8 and as otherwise
required by law and the Declaration, the Holders of the Trust Preferred
Securities will have no voting rights.
(b) Subject to the requirements set forth in this paragraph, the
Holders of a Majority in liquidation amount of the Trust Preferred Securities,
voting separately as a class, may direct the time, method, and place of
conducting any proceeding for any remedy available to the Institutional Trustee,
or exercising any trust or power conferred upon the Institutional Trustee under
the Declaration, including the right to direct the Institutional Trustee, as
holder of the Debentures, to (i) exercise the remedies available under the
Indenture with respect to the Debentures, (ii) waive any past default and its
consequences that is waivable under Section 513 of the Indenture, or (iii)
exercise any right to rescind or annul a declaration that the principal of all
the Debentures shall be due and payable, provided, however, that, where a
consent under the Indenture would require the consent or act of the Holders of
greater than a majority of the Holders in principal amount of Debentures
affected thereby (a "Super Majority"), the Institutional Trustee may only give
such consent or take such action at the written direction of the Holders
I-13
<PAGE> 84
of at least the proportion in liquidation amount of the Trust Preferred
Securities which the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding. The Institutional Trustee shall
not revoke any action previously authorized or approved by a vote of the Holders
of the Trust Preferred Securities. Other than with respect to directing the
time, method and place of conducting any remedy available to the Institutional
Trustee or the Debenture Trustee as set forth above, the Institutional Trustee
shall not take any action in accordance with the directions of the Holders of
the Trust Preferred Securities under this paragraph unless each of the Trustees
has obtained an opinion of tax counsel to the effect that for the purposes of
United States federal income tax the Trust will not be classified as other than
a grantor trust on account of such action. The Holders of a Majority in
liquidation amount of the Trust Preferred Securities will have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Institutional Trustee or to direct the exercise of any trust or
power conferred upon the Institutional Trustee under the Declaration, including
the right to direct the Institutional Trustee to exercise the remedies available
to it as a Holder of the Debentures. If the Institutional Trustee fails to
enforce its rights under the Debentures, a Holder of Trust Preferred Securities,
to the extent permitted by law, may institute a legal proceeding directly
against the Sponsor to enforce the Institutional Trustee's rights under the
Debentures without first instituting any legal proceeding against the
Institutional Trustee or any other Person. Notwithstanding the foregoing, if an
Event of Default has occurred and is continuing and such event is attributable
to the failure of the Sponsor to pay interest or principal on the Debentures on
the date such interest or principal is otherwise payable (or in the case of
redemption, on the redemption date), then a Holder of Trust Preferred Securities
may directly institute a proceeding for enforcement of payment to such Holder of
the principal of or interest on the Debentures having a principal amount equal
to the aggregate liquidation amount of the Trust Preferred Securities of such
Holder (a "Direct Action") on or after the respective due date specified in the
Debentures. In connection with such Direct Action, the rights of the Holders of
the Common Securities will be subrogated to the rights of such Holder of Trust
Preferred Securities to the extent of any payment made by the Issuer to such
Holder of Trust Preferred Securities in such Direct Action. Except as provided
in the preceding sentences, the Holders of Trust Preferred Securities will not
be able to exercise directly any other remedy available to the holders of the
Debentures.
Any approval or direction of Holders of Trust Preferred Securities may
be given at a separate meeting of Holders of Trust Preferred Securities convened
for such purpose, at a meeting of all of the Holders of Securities in the Trust
or
I-14
<PAGE> 85
pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Trust Preferred Securities are entitled to vote, or
of any matter upon which action by written consent of such Holders is to be
taken, to be mailed to each Holder of record of Trust Preferred Securities. Each
such notice will include a statement setting forth (i) the date of such meeting
or the date by which such action is to be taken, (ii) a description of any
resolution proposed for adoption at such meeting on which such Holders are
entitled to vote or of such matter upon which written consent is sought and
(iii) instructions for the delivery of proxies or consents.
No vote or consent of the Holders of the Trust Preferred Securities
will be required for the Trust to redeem and cancel Trust Preferred Securities
or to distribute the Debentures in accordance with the Declaration and the terms
of the Securities.
Notwithstanding that Holders of Trust Preferred Securities are entitled
to vote or consent under any of the circumstances described above, any of the
Trust Preferred Securities that are owned by the Sponsor or any Affiliate of the
Sponsor shall not be entitled to vote or consent and shall, for purposes of such
vote or consent, be treated as if they were not outstanding.
7. VOTING RIGHTS - COMMON SECURITIES.
----------------------------------
(a) Except as provided under Sections 7(b), (c) and 8 and as otherwise
required by law and the Declaration, the Holders of the Common Securities will
not have voting rights.
(b) The Holders of the Common Securities are entitled, in accordance
with Article 5 of the Declaration, to vote to appoint, remove or replace any
Trustee or to increase or decrease the number of Trustees.
(c) Subject to Section 2.06 of the Declaration and only after any Event
of Default with respect to the Trust Preferred Securities has been cured,
waived, or otherwise eliminated and subject to the requirements of the second to
last sentence of this paragraph, the Holders of a Majority in liquidation amount
of the Common Securities, voting separately as a class, may direct the time,
method, and place of conducting any proceeding for any remedy available to the
Institutional Trustee, or exercising any trust or power conferred upon the
Institutional Trustee under the Declaration, including (i) directing the time,
method, place of conducting any proceeding for any remedy available to the
Debenture Trustee, or exercising any
I-15
<PAGE> 86
trust or power conferred on the Debenture Trustee with respect to the
Debentures, (ii) waive any past default and its consequences that is waivable
under Section 513 of the Indenture, or (iii) exercise any right to rescind or
annul a declaration that the principal of all the Debentures shall be due and
payable, provided that, where a consent or action under the Indenture would
require the consent or act of the Holders of greater than a majority in
principal amount of Debentures affected thereby (a "Super Majority"), the
Institutional Trustee may only give such consent or take such action at the
written direction of the Holders of at least the proportion in liquidation
amount of the Common Securities which the relevant Super Majority represents of
the aggregate principal amount of the Debentures outstanding. Pursuant to this
Section 7(c), the Institutional Trustee shall not revoke any action previously
authorized or approved by a vote of the Holders of the Trust Preferred
Securities. Other than with respect to directing the time, method and place of
conducting any remedy available to the Institutional Trustee or the Debenture
Trustee as set forth above, the Institutional Trustee shall not take any action
in accordance with the directions of the Holders of the Common Securities under
this paragraph unless each of the Trustees has obtained an opinion of tax
counsel to the effect that for the purposes of United States federal income tax
the Trust will not be classified as other than a grantor trust on account of
such action. If the Institutional Trustee fails to enforce its rights under the
Declaration, any Holder of Common Securities may institute a legal proceeding
directly against any Person to enforce the Institutional Trustee's rights under
the Declaration, without first instituting a legal proceeding against the
Institutional Trustee or any other Person.
Any approval or direction of Holders of Common Securities may be given
at a separate meeting of Holders of Common Securities convened for such purpose,
at a meeting of all of the Holders of Securities in the Trust or pursuant to
written consent. The Regular Trustees will cause a notice of any meeting at
which Holders of Common Securities are entitled to vote, or of any matter upon
which action by written consent of such Holders is to be taken, to be mailed to
each Holder of record of Common Securities. Each such notice will include a
statement setting forth (i) the date of such meeting or the date by which such
action is to be taken, (ii) a description of any resolution proposed for
adoption at such meeting on which such Holders are entitled to vote or of such
matter upon which written consent is sought and (iii) instructions for the
delivery of proxies or consents.
No vote or consent of the Holders of the Common Securities will be
required for the Trust to redeem and cancel Common Securities or to distribute
the Debentures in accordance with the Declaration and the terms of the
Securities.
I-16
<PAGE> 87
8. AMENDMENTS TO DECLARATION AND INDENTURE.
----------------------------------------
(a) In addition to any requirements under Section 12.01 of the
Declaration, if any proposed amendment to the Declaration provides for, or the
Regular Trustees otherwise propose to effect, (i) any action that would
adversely affect the powers, preferences or special rights of the Securities,
whether by way of amendment to the Declaration or otherwise, or (ii) the
dissolution, winding-up or termination of the Trust, other than as described in
Section 8.01 of the Declaration, then the Holders of outstanding Securities
voting together as a single class, will be entitled to vote on such amendment or
proposal (but not on any other amendment or proposal) and such amendment or
proposal shall not be effective except with the approval of the Holders of at
least a Majority in liquidation amount of the Securities affected thereby;
provided, however, if any amendment or proposal referred to in clause (i) above
would adversely affect only the Trust Preferred Securities or only the Common
Securities, then only the affected class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of a Majority in liquidation amount of such class of
Securities.
(b) In the event the consent of the Institutional Trustee as the holder
of the Debentures is required under the Indenture with respect to any amendment,
modification or termination of the Indenture or the Debentures, the
Institutional Trustee shall request the written direction of the Holders of the
Securities with respect to such amendment, modification or termination and shall
vote with respect to such amendment, modification or termination as directed by
a Majority in liquidation amount of the Securities voting together as a single
class; provided, however, that where a consent under the Indenture would require
the consent of the holders of greater than a majority in aggregate principal
amount of the Debentures (a "Super Majority"), the Institutional Trustee may
only give such consent at the direction of the Holders of at least the
proportion in liquidation amount of the Securities which the relevant Super
Majority represents of the aggregate principal amount of the Debentures
outstanding; provided, further, that the Institutional Trustee shall not take
any action in accordance with the directions of the Holders of the Securities
under this Section 8(b) unless each of the Trustees has obtained an opinion of
tax counsel to the effect that for the purposes of United States federal income
tax the Trust will not be classified as other than a grantor trust on account of
such action.
9. PRO RATA.
---------
I-17
<PAGE> 88
A reference in these terms of the Securities to any distribution or
treatment as being "Pro Rata" shall mean pro rata to each Holder of Securities
according to the aggregate liquidation amount of the Securities held by the
relevant Holder in relation to the aggregate liquidation amount of all
Securities outstanding unless, in relation to a payment, an Event of Default
under the Declaration has occurred and is continuing, in which case any funds
available to make such payment shall be paid first to each Holder of the Trust
Preferred Securities pro rata according to the aggregate liquidation amount of
Trust Preferred Securities held by the relevant Holder relative to the aggregate
liquidation amount of all Trust Preferred Securities outstanding, and only after
satisfaction of all amounts owed to the Holders of the Trust Preferred
Securities, to each Holder of Common Securities pro rata according to the
aggregate liquidation amount of Common Securities held by the relevant Holder
relative to the aggregate liquidation amount of all Common Securities
outstanding.
10. RANKING.
--------
The Trust Preferred Securities rank PARI PASSU and payment thereon
shall be made Pro Rata with the Common Securities except that, where an Event of
Default occurs and is continuing, the rights of Holders of the Common Securities
to payment in respect of Distributions and payments upon liquidation, redemption
and otherwise are subordinated to the rights to payment of the Holders of the
Trust Preferred Securities.
11. LISTING.
--------
The Regular Trustees shall use their best efforts to cause the Trust
Preferred Securities to be listed for quotation on the New York Stock Exchange,
Inc.
12. ACCEPTANCE OF SECURITIES GUARANTEE AND INDENTURE.
-------------------------------------------------
Each Holder of Trust Preferred Securities and Common Securities, by the
acceptance thereof, agrees to the provisions of the Trust Preferred Securities
Guarantee and the Common Securities Guarantee, respectively, including the
subordination provisions therein and to the provisions of the Indenture.
13. NO PREEMPTIVE RIGHTS.
---------------------
I-18
<PAGE> 89
The Holders of the Securities shall have no preemptive or similar
rights to subscribe for any additional securities.
14. MISCELLANEOUS.
--------------
These terms constitute a part of the Declaration.
The Sponsor will provide a copy of the Declaration, the Trust Preferred
Securities Guarantee or the Common Securities Guarantee (as may be appropriate),
and the Indenture to a Holder without charge on written request to the Sponsor
at its principal place of business.
I-19
<PAGE> 90
EXHIBIT A-1
FORM OF TRUST PREFERRED SECURITY CERTIFICATE
[IF THE TRUST PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE INSERT -
This Trust Preferred Security is a Global Certificate within the meaning of the
Declaration hereinafter referred to and is registered in the name of The
Depository Trust Company (the "Depositary") or a nominee of the Depositary. This
Trust Preferred Security is exchangeable for Trust Preferred Securities
registered in the name of a person other than the Depositary or its nominee only
in the limited circumstances described in the Declaration and no transfer of
this Trust Preferred Security (other than a transfer of this Trust Preferred
Security as a whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the
Depositary) may be registered except in limited circumstances.
Unless this Trust Preferred Security is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) to the Trust or its agent for registration of transfer, exchange or
payment, and any Trust Preferred Security issued is registered in the name of
Cede & Co. or such other name as requested by an authorized representative of
The Depository Trust Company and any payment hereon is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein.]
Certificate Number: Number of Trust Preferred Securities:
CUSIP NO. [ ]
Certificate Evidencing Trust Preferred Securities
of
A1-1
<PAGE> 91
Wendy's Financing I
$2.50 Trust Preferred Securities (liquidation amount $50 per Trust
Preferred Security)
Wendy's Financing I, a statutory business trust created under the laws
of the State of Delaware (the "Trust"), hereby certifies that __________ (the
"Holder") is the registered owner of Trust Preferred Securities of the Trust
representing undivided beneficial interests in the assets of the Trust
designated the $2.50 Term Convertible Securities, Series A (liquidation amount
$50 per Trust Preferred Security) (the "Trust Preferred Securities"). The Trust
Preferred Securities are transferable on the books and records of the Trust, in
person or by a duly authorized attorney, upon surrender of this certificate duly
endorsed and in proper form for transfer. The designation, rights, privileges,
restrictions, preferences and other terms and provisions of the Trust Preferred
Securities represented hereby are issued and shall in all respects be subject to
the provisions of the Amended and Restated Declaration of Trust of the Trust
dated as of September 20, 1996, as the same may be amended from time to time
(the "Declaration"), including the designation of the terms of the Trust
Preferred Securities as set forth in Annex I to the Declaration. Capitalized
terms used herein but not defined shall have the meaning given them in the
Declaration. The Holder is entitled to the benefits of the Trust Preferred
Securities Guarantee to the extent provided therein. The Sponsor will provide a
copy of the Declaration, the Trust Preferred Securities Guarantee and the
Indenture to a Holder without charge upon written request to the Trust at its
principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Debentures as indebtedness and the Trust Preferred
Securities as evidence of indirect beneficial ownership in the Debentures.
Unless the Institutional Trustee's Certificate of Authentication hereon
has been properly executed, these Trust Preferred Securities shall not be
entitled to any benefit under the Declaration or be valid or obligatory for any
purpose.
A1-2
<PAGE> 92
IN WITNESS WHEREOF, the Trust has executed this certificate
this [ ] day of [ ], 1996.
Wendy's Financing I
By:
---------------------------
Name:
Title: Regular Trustee
[FORM OF CERTIFICATE OF AUTHENTICATION]
INSTITUTIONAL TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Trust Preferred Securities referred to in the
within-mentioned Declaration.
Dated: [ ], 1996
NBD Bank
as Institutional Trustee or as Authenticating Agent
By: By:
----------------------- ------------------------------
Authorized Signatory Authorized Signatory
A1-3
<PAGE> 93
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Trust Preferred Security will be fixed at
a rate per annum of $2.50 (the "Coupon Rate") of the stated liquidation amount
of $50 per Trust Preferred Security, such rate being the rate of interest
payable on the Debentures to be held by the Institutional Trustee. Distributions
in arrears for more than one quarter will bear interest thereon compounded
quarterly at the Coupon Rate (to the extent permitted by applicable law). The
term "Distributions" as used herein includes such cash distributions and any
such interest payable unless otherwise stated. A Distribution is payable only to
the extent that payments are made in respect of the Debentures held by the
Institutional Trustee and to the extent the Institutional Trustee has funds
available therefor. The amount of Distributions payable for any period will be
computed for any full quarterly Distribution period on the basis of a 360-day
year of twelve 30-day months, and for any period shorter than a full quarterly
Distribution period for which Distributions are computed, Distributions will be
computed on the basis of the actual number of days elapsed per 30-day month.
Except as otherwise described below, distributions on the Trust
Preferred Securities will be cumulative, will accrue from September 20, 1996 and
will be payable quarterly in arrears, on March 15, June 15, September 15 and
December 15 of each year, commencing on December 15, 1996, which payment dates
shall correspond to the interest payment dates on the Debentures, to Holders of
record at the close of business on the regular record date for such Distribution
which shall be the close of business on the Business Day next preceding such
Distribution payment date unless otherwise provided in the Declaration. The
Sponsor has the right under the Indenture to defer payments of interest by
extending the interest payment period from time to time on the Debentures for a
period not exceeding 20 consecutive quarters (each an "Extension Period")
provided that no Extension Period shall last beyond the date of the maturity or
any redemption date of the Debentures and, as a consequence of such deferral,
Distributions will also be deferred. Despite such deferral, quarterly
Distributions will continue to accrue with interest thereon (to the extent
permitted by applicable law) at the Coupon Rate compounded quarterly during any
such Extension Period. Prior to the termination of any such Extension Period,
the Sponsor may further extend such Extension Period; provided that such
Extension Period together with all such previous and further extensions thereof
may not exceed 20 consecutive quarters or extend beyond the maturity or any
redemption date of the Debentures. Payments of accrued Distributions will be
payable to Holders as they appear on the books and records of the Trust on the
first record date after the end of the Extension Period. Upon the termination of
any Extension Period and the payment of all amounts then due, the Sponsor may
commence a new Extension Period, subject to the above requirements.
The Trust Preferred Securities shall be redeemable as provided in the
Declaration.
A1-4
<PAGE> 94
The Trust Preferred Securities shall be convertible into shares of
Wendy's Common Stock, through (i) the exchange of Trust Preferred Securities for
a portion of the Debentures and (ii) the immediate conversion of such Debentures
into Wendy's Common Stock, in the manner and according to the terms set forth in
the Declaration.
A1-5
<PAGE> 95
CONVERSION REQUEST
To: NBD Bank as Institutional Trustee of Wendy's Financing I
The undersigned owner of these Trust Preferred Securities hereby
irrevocably exercises the option to convert these Trust Preferred Securities, or
the portion below designated, into Common Stock of Wendy's International, Inc.
(the "Wendy's Common Stock") in accordance with the terms of the Amended and
Restated Declaration of Trust, dated as of September 20, 1996 (as amended from
time to time, the "Declaration"), by John K. Casey, Ronald E. Musick and John F.
Brownley, as Regular Trustees, First Chicago Delaware Inc., as Delaware Trustee,
NBD Bank, as Institutional Trustee, Wendy's International, Inc., as Sponsor, and
by the Holders, from time to time, of individual beneficial interests in the
Trust to be issued pursuant to the Declaration. Pursuant to the aforementioned
exercise of the option to convert these Trust Preferred Securities, the
undersigned hereby directs the Conversion Agent (as that term is defined in the
Declaration) to (i) exchange such Trust Preferred Securities for a portion of
the Debentures (as that term is defined in the Declaration) held by the Trust
(at the rate of exchange specified in the terms of the Trust Preferred
Securities set forth as Annex I to the Declaration) and (ii) immediately convert
such Debentures on behalf of the undersigned, into Wendy's Common Stock (at the
conversion rate specified in the terms of the Trust Preferred Securities set
forth as Annex I to the Declaration).
The undersigned does also hereby direct the Conversion Agent that the
shares issuable and deliverable upon conversion, together with any check in
payment for fractional shares, be issued in the name of and delivered to the
undersigned, unless a different name has been indicated in the assignment below.
If shares are to be issued in the name of a person other than the undersigned,
the undersigned will pay all transfer taxes payable with respect thereto.
A1-6
<PAGE> 96
Date: ,
--------------- -----
in whole in part
--- ---
Number of Trust Preferred
Securities to be converted:
-----------------------
If a name or names other
than the undersigned, please
indicate in the spaces below
the name or names in which
the shares of Wendy's Common
Stock are to be issued,
along with the address or
addresses of such person or
persons
---------------------------
---------------------------
---------------------------
---------------------------
---------------------------
---------------------------
----------------------------------
Signature (for conversion only)
Please Print or Typewrite Name and Address, Including Zip
Code, and Social Security or Other Identifying Number
A1-7
<PAGE> 97
----------------------------------
------------------------------
------------------------------
Signature Guarantee:*
-------------
- --------
1(Signature must be guaranteed by an "eligible guarantor
institution" that is, a bank, stockbroker, savings and loan association or
credit union meeting the requirements of the Conversion Agent, which
requirements include membership or participation in the Securities Transfer
Agents Medallion Program ("STAMP") or such other "signature guarantee program"
as may be determined by the Conversion Agent in addition to, or in substitution
for, STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended.)
A1-8
<PAGE> 98
-------------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Trust
Preferred Security Certificate to:
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
A1-9
<PAGE> 99
- --------------------------------------------------------------------------------
agent to transfer this Trust Preferred Security Certificate on the
books of the Trust. The agent may substitute another to act for him or her.
Date:
------------------
Signature:
-------------------
(Sign exactly as your name appears on the other side of this Trust
Preferred Security Certificate)
SIGNATURE GUARANTEE*
--------------------
- --------
1Signature must be guaranteed by an "eligible guarantor
institution" that is a bank, stockbroker, savings and loan association or credit
union meeting the requirements of the Registrar, which requirements include
membership or participation in the Securities Transfer Agents Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities and Exchange Act of 1934, as amended.
A1-10
<PAGE> 100
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
Certificate Number Number of Common Securities
Certificate Evidencing Common Securities
of
Wendy's Financing I
$2.50 Common Securities
(liquidation amount $50 per Common Security)
THIS CERTIFICATE IS NOT TRANSFERABLE
EXCEPT IN THE LIMITED CIRCUMSTANCES
AS DESCRIBED IN THE DECLARATION
(AS DEFINED BELOW)
Wendy's Financing I, a statutory business trust created under the laws
of the State of Delaware (the "Trust"), hereby certifies that ____________ (the
"Holder") is the registered owner of common securities of the Trust representing
undivided beneficial interests in the assets of the Trust designated the $2.50
Common Securities (liquidation amount $50 per Common Security) (the "Common
Securities"). The Common Securities are transferable on the books and records of
the Trust, in person or by a duly authorized attorney, upon surrender of this
certificate duly endorsed and in proper form for transfer. The designation,
rights, privileges, restrictions, preferences and other terms and provisions of
the Common Securities represented hereby are issued and shall in all respects be
subject to the provisions of the Amended and Restated
A2-1
<PAGE> 101
Declaration of Trust of the Trust dated as of September 20, 1996, as the same
may be amended from time to time (the "Declaration"), including the designation
of the terms of the Common Securities as set forth in Annex I to the
Declaration. Capitalized terms used herein but not defined shall have the
meaning given them in the Declaration. The Holder is entitled to the benefits of
the Common Securities Guarantee to the extent provided therein. The Sponsor will
provide a copy of the Declaration, the Common Securities Guarantee and the
Indenture to a Holder without charge upon written request to the Sponsor at its
principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Debentures as indebtedness and the Common Securities as
evidence of indirect beneficial ownership in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this ___
day of ___________, 199__.
Wendy's Financing I
By:
---------------------------
Name:
Title: Regular Trustee
A2-2
<PAGE> 102
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Common Security will be fixed at a rate
per annum of $2.50 (the "Coupon Rate") of the stated liquidation amount of $50
per Common Security, such rate being the rate of interest payable on the
Debentures to be held by the Institutional Trustee. Distributions in arrears for
more than one quarter will bear interest thereon compounded quarterly at the
Coupon Rate (to the extent permitted by applicable law). The term
"Distributions" as used herein includes such cash distributions and any such
interest payable unless otherwise stated. A Distribution is payable only to the
extent that payments are made in respect of the Debentures held by the
Institutional Trustee and to the extent the Institutional Trustee has funds
available therefor. The amount of Distributions payable for any period will be
computed for any full quarterly Distribution period on the basis of a 360-day
year of twelve 30-day months, and for any period shorter than a full quarterly
Distribution period for which Distributions are computed, Distributions will be
computed on the basis of the actual number of days elapsed per 30-day month.
Except as otherwise described below, distributions on the Common
Securities will be cumulative, will accrue from September 20, 1996 and will be
payable quarterly in arrears, on March 15, June 15, September 15 and December 15
of each year, commencing on December 15, 1996, which payment dates shall
correspond to the interest payment dates on the Debentures, to Holders of record
at the close of business on the regular record date for such Distribution which
shall be the close of business on the Business Day next preceding such
Distribution payment date unless otherwise provided in the Declaration. The
Sponsor has the right under the Indenture to defer payments of interest by
extending the interest payment period from time to time on the Debentures for a
period not exceeding 20 consecutive quarters (each an "Extension Period")
provided that no Extension Period shall last beyond the date of maturity of the
Debentures and, as a consequence of such deferral, Distributions will also be
deferred. Despite such deferral, quarterly Distributions will continue to accrue
with interest thereon (to the extent permitted by applicable law) at the Coupon
Rate compounded quarterly during any such Extension Period. Prior to the
termination of any such Extension Period, the Sponsor may further extend such
Extension Period; provided that such Extension Period together with all such
previous and further extensions thereof may not exceed 20 consecutive quarters
or extend beyond the date of maturity of the Debentures. Payments of accrued
Distributions will be payable to Holders as they appear on the books and records
of the Trust on the first record date after the end of the Extension Period.
Upon the termination of any Extension Period and the payment of all amounts then
due, the Sponsor may commence a new Extension Period, subject to the above
requirements.
The Common Securities shall be redeemable as provided in the
Declaration.
A2-3
<PAGE> 103
The Common Securities shall be convertible into shares of Wendy's
Common Stock, through (i) the exchange of Common Securities for a portion of the
Debentures and (ii) the immediate conversion of such Debentures into Wendy's
Common Stock, in the manner and according to the terms set forth in the
Declaration.
A2-4
<PAGE> 104
CONVERSION REQUEST
To: NBD Bank
as Institutional Trustee of
Wendy's Financing I
The undersigned owner of these Common Securities hereby irrevocably
exercises the option to convert these Common Securities, or the portion below
designated, into Common Stock of Wendy's International, Inc. (the "Wendy's
Common Stock") in accordance with the terms of the Amended and Restated
Declaration of Trust dated as of September 20, 1996 (as amended from time to
time, the "Declaration"), by John K. Casey, Ronald E. Musick and John F.
Brownley, as Regular Trustees, First Chicago Delaware Inc., as Delaware Trustee,
NBD Bank, as Institutional Trustee, Wendy's International, Inc., as Sponsor, and
by the Holders, from time to time, of individual beneficial interests in the
Trust to be issued pursuant to the Declaration. Pursuant to the aforementioned
exercise of the option to convert these Common Securities, the undersigned
hereby directs the Conversion Agent (as that term is defined in the Declaration)
to (i) exchange such Common Securities for a portion of the Debentures (as that
term is defined in the Declaration) held by the Trust (at the rate of exchange
specified in the terms of the Common Securities set forth as Annex I to the
Declaration) and (ii) immediately convert such Debentures on behalf of the
undersigned, into Wendy's Common Stock (at the conversion rate specified in the
terms of the Common Securities set forth as Annex I to the Declaration).
The undersigned does also hereby direct the Conversion Agent that the
shares issuable and deliverable upon conversion, together with any check in
payment for fractional shares, be issued in the name of and delivered to the
undersigned, unless a different name has been indicated in the assignment below.
If shares are to be issued in the name of a person other than the undersigned,
the undersigned will pay all transfer taxes payable with respect thereto.
A2-5
<PAGE> 105
Date: ,
------------- -----
in whole in part
--- ---
Number of Common Securities to
be converted:
----------------
If a name or names other than
the undersigned, please
indicate in the spaces below
the name or names in which the
shares of Wendy's Common Stock
are to be issued, along with
the address or addresses of
such person or persons
-----------------------------
-----------------------------
-----------------------------
-----------------------------
-----------------------------
-----------------------------
-----------------------------
Signature (for conversion
only)
A2-6
<PAGE> 106
Please Print or Typewrite Name
and Address, Including Zip
Code, and Social Security or
Other Identifying Number
------------------------------
------------------------------
------------------------------
Signature Guarantee:*
-------------
- --------
1(Signature must be guaranteed by an "eligible guarantor
institution" that is, a bank, stockbroker, savings and loan association or
credit union meeting the requirements of the Conversion Agent, which
requirements include membership or participation in the Securities Transfer
Agents Medallion Program ("STAMP") or such other "signature guarantee program"
as may be determined by the Conversion Agent in addition to, or in substitution
for, STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended.)
A2-7
<PAGE> 107
-------------------
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned assigns and transfers this Common
Security Certificate to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
----------------------------------------
_____________________________________ agent to transfer this Common
Security Certificate on the books of the Trust. The
agent may substitute another to act for him or her.
A2-8
<PAGE> 108
Date:
-----------------
Signature:
---------------
(Sign exactly as your name appears on the other side of this Common
Security Certificate)
Signature Guarantee*:
------------------------------------------
- --------
1(Signature must be guaranteed by an "eligible guarantor
institution" that is, a bank, stockbroker, savings and loan association or
credit union meeting the requirements of the Registrar, which requirements
include membership or participation in the Securities Transfer Agents Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Registrar in addition to, or in substitution for, STAMP, all
in accordance with the Securities Exchange Act of 1934, as amended.)
A2-9
<PAGE> 109
EXHIBIT B
SPECIMEN OF DEBENTURE
B-1
<PAGE> 110
EXHIBIT C
UNDERWRITING AGREEMENT
C-1
<PAGE> 1
Exhibit 4(d)
This Trust Preferred Security is a Global Certificate within the
meaning of the Declaration hereinafter referred to and is registered in the name
of The Depository Trust Company (the "Depositary") or a nominee of the
Depositary. This Trust Preferred Security is exchangeable for Trust Preferred
Securities registered in the name of a person other than the Depositary or its
nominee only in the limited circumstances described in the Declaration and no
transfer of this Trust Preferred Security (other than a transfer of this Trust
Preferred Security as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary) may be registered except in limited circumstances.
Unless this Trust Preferred Security is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) to the Trust or its agent for registration of transfer, exchange or
payment, and any Trust Preferred Security issued is registered in the name of
Cede & Co. or such other name as requested by an authorized representative of
The Depository Trust Company and any payment hereon is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein.
Certificate Number: Number of Trust Preferred Securities:
P-1 2,000,000
CUSIP NO. 950588 20 2
Certificate Evidencing Trust Preferred Securities
of
Wendy's Financing I
$2.50 Term Convertible Securities, Series A (liquidation amount $50 per
Security)
Wendy's Financing I, a statutory business trust created under the laws
of the State of Delaware (the "Trust"), hereby certifies that Cede & Co., as
nominee for the Depository Trust Company (the "Holder"), is the registered owner
of $2.50 Term Convertible Securities, Series A of the Trust representing
undivided beneficial interests in the assets of the Trust (liquidation amount
$50 per Security) (the "Trust Preferred Securities"). The Trust Preferred
Securities are transferable on the books and records of the Trust, in person or
by a duly authorized attorney, upon surrender of this certificate duly endorsed
and in proper form for transfer. The designation, rights, privileges,
restrictions, preferences and other terms and provisions of the Trust Preferred
Securities represented hereby are issued and shall in all respects be subject to
the provisions of the Amended and Restated Declaration of Trust of the Trust
dated as of September 20, 1996, as the same may be amended from time to time
(the "Declaration"), including the designation of the terms of the Trust
Preferred Securities as set forth in Annex I to the Declaration. Capitalized
terms used herein but not defined shall have the meaning given them in the
Declaration. The Holder is entitled to the benefits of the Trust Preferred
Securities Guarantee to the extent provided therein. The Sponsor will provide a
copy of the Declaration, the Trust Preferred
<PAGE> 2
Securities Guarantee and the Indenture to a Holder without charge upon written
request to the Trust at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Debentures as indebtedness and the Trust Preferred
Securities as evidence of indirect beneficial ownership in the Debentures.
Unless the Institutional Trustee's Certificate of Authentication hereon has been
properly executed, these Trust Preferred Securities shall not be entitled to any
benefit under the Declaration or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Trust has executed this certificate this 20th
day of September, 1996.
Wendy's Financing I
By: /s/ John K.Casey
---------------------------
Name: John K.Casey
Title: Regular Trustee
INSTITUTIONAL TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Trust Preferred Securities referred to in the
within-mentioned Declaration.
Dated: September 20, 1996
NBD Bank
as Institutional Trustee or as Authenticating Agent
By: /s/ James D. Khami By:
------------------------ ---------------------------
Authorized Signatory Authorized Signatory
2
<PAGE> 3
Distributions payable on each Trust Preferred Security will be fixed at
a rate per annum of $2.50 (the "Coupon Rate") of the stated liquidation amount
of $50 per Trust Preferred Security, such rate being the rate of interest
payable on the Debentures to be held by the Institutional Trustee. Distributions
in arrears for more than one quarter will bear interest thereon compounded
quarterly at the Coupon Rate (to the extent permitted by applicable law). The
term "Distributions" as used herein includes such cash distributions and any
such interest payable unless otherwise stated. A Distribution is payable only to
the extent that payments are made in respect of the Debentures held by the
Institutional Trustee and to the extent the Institutional Trustee has funds
available therefor. The amount of Distributions payable for any period will be
computed for any full quarterly Distribution period on the basis of a 360-day
year of twelve 30-day months, and for any period shorter than a full quarterly
Distribution period for which Distributions are computed, Distributions will be
computed on the basis of the actual number of days elapsed per 30-day month.
Except as otherwise described below, distributions on the Trust
Preferred Securities will be cumulative, will accrue from September 20, 1996 and
will be payable quarterly in arrears, on March 15, June 15, September 15 and
December 15 of each year, commencing on December 15, 1996, which payment dates
shall correspond to the interest payment dates on the Debentures, to Holders of
record at the close of business on the regular record date for such Distribution
which shall be the close of business on the Business Day next preceding such
Distribution payment date unless otherwise provided in the Declaration. The
Sponsor has the right under the Indenture to defer payments of interest by
extending the interest payment period from time to time on the Debentures for a
period not exceeding 20 consecutive quarters (each an "Extension Period")
provided that no Extension Period shall last beyond the date of the maturity or
any redemption date of the Debentures and, as a consequence of such deferral,
Distributions will also be deferred. Despite such deferral, quarterly
Distributions will continue to accrue with interest thereon (to the extent
permitted by applicable law) at the Coupon Rate compounded quarterly during any
such Extension Period. Prior to the termination of any such Extension Period,
the Sponsor may further extend such Extension Period; provided that such
Extension Period together with all such previous and further extensions thereof
may not exceed 20 consecutive quarters or extend beyond the maturity or any
redemption date of the Debentures. Payments of accrued Distributions will be
payable to Holders as they appear on the books and records of the Trust on the
first record date after the end of the Extension Period. Upon the termination of
any Extension Period and the payment of all amounts then due, the Sponsor may
commence a new Extension Period, subject to the above requirements.
The Trust Preferred Securities shall be redeemable as provided in the
Declaration.
The Trust Preferred Securities shall be convertible into shares of
Wendy's Common Stock, through (i) the exchange of Trust Preferred Securities for
a portion of the Debentures and (ii) the immediate conversion of such Debentures
into Wendy's Common Stock, in the manner and according to the terms set forth in
the Declaration.
3
<PAGE> 4
CONVERSION REQUEST
To: NBD Bank as Institutional Trustee of Wendy's Financing I
The undersigned owner of these Trust Preferred Securities hereby
irrevocably exercises the option to convert these Trust Preferred Securities, or
the portion below designated, into Common Stock of Wendy's International, Inc.
(the "Wendy's Common Stock") in accordance with the terms of the Amended and
Restated Declaration of Trust, dated as of September [ ], 1996 (as amended from
time to time, the "Declaration"), by John K. Casey, Ronald E. Musick and John F.
Brownley, as Regular Trustees, First Chicago Delaware Inc., as Delaware Trustee,
NBD Bank, as Institutional Trustee, Wendy's International, Inc., as Sponsor, and
by the Holders, from time to time, of individual beneficial interests in the
Trust to be issued pursuant to the Declaration. Pursuant to the aforementioned
exercise of the option to convert these Trust Preferred Securities, the
undersigned hereby directs the Conversion Agent (as that term is defined in the
Declaration) to (i) exchange such Trust Preferred Securities for a portion of
the Debentures (as that term is defined in the Declaration) held by the Trust
(at the rate of exchange specified in the terms of the Trust Preferred
Securities set forth as Annex I to the Declaration) and (ii) immediately convert
such Debentures on behalf of the undersigned, into Wendy's Common Stock (at the
conversion rate specified in the terms of the Trust Preferred Securities set
forth as Annex I to the Declaration). The undersigned does also hereby direct
the Conversion Agent that the shares issuable and deliverable upon conversion,
together with any check in payment for fractional shares, be issued in the name
of and delivered to the undersigned, unless a different name has been indicated
in the assignment below. If shares are to be issued in the name of a person
other than the undersigned, the undersigned will pay all transfer taxes payable
with respect thereto.
Date: ,
--------------- -----
in whole in part
--- ---
Number of Trust Preferred Securities
to be converted:
------------------------------------
If a name or names other than the
undersigned, please indicate in the
spaces below the name or names in
which the shares of Wendy's Common
Stock are to be issued, along with
the address or addresses of such
person or persons
----------------------------------
----------------------------------
----------------------------------
----------------------------------
4
<PAGE> 5
----------------------------------
----------------------------------
----------------------------------
Signature (for conversion only)
Please Print or Typewrite Name and Address,
Including Zip Code, and Social Security or
Other Identifying Number
----------------------------------
----------------------------------
----------------------------------
Signature Guarantee:*
------------
- --------
* (Signature must be guaranteed by an "eligible guarantor
institution" that is, a bank, stockbroker, savings and loan
association or credit union meeting the requirements of the
Conversion Agent, which requirements include membership or
participation in the Securities Transfer Agents Medallion
Program ("STAMP") or such other "signature guarantee program"
as may be determined by the Conversion Agent in addition to,
or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.)
5
<PAGE> 6
-------------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Trust Preferred
Security Certificate to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
agent to transfer this Trust Preferred Security Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date:
------------------
Signature:
-----------------------
(Sign exactly as your name appears on the other side of this Trust Preferred
Security Certificate)
Signature Guarantee*
- --------
*Signature must be guaranteed by an "eligible guarantor
institution" that is a bank, stockbroker, savings and loan
association or credit union meeting the requirements of the
Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion
Program ("STAMP") or such other "signature guarantee program"
as may be determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities
and Exchange Act of 1934, as amended.
6
<PAGE> 7
Certificate Number Number of Common Securities
C-1 40,405
Certificate Evidencing Common Securities
of
Wendy's Financing I
$2.50 Common Securities
(liquidation amount $50 per Common Security)
THIS CERTIFICATE IS NOT TRANSFERABLE
EXCEPT IN THE LIMITED CIRCUMSTANCES
AS DESCRIBED IN THE DECLARATION
(AS DEFINED BELOW)
Wendy's Financing I, a statutory business trust created under the laws
of the State of Delaware (the "Trust"), hereby certifies that Wendy's
International, Inc. (the "Holder") is the registered owner of common securities
of the Trust representing undivided beneficial interests in the assets of the
Trust designated the $2.50 Common Securities (liquidation amount $50 per Common
Security) (the "Common Securities"). The Common Securities are transferable on
the books and records of the Trust, in person or by a duly authorized attorney,
upon surrender of this certificate duly endorsed and in proper form for
transfer. The designation, rights, privileges, restrictions, preferences and
other terms and provisions of the Common Securities represented hereby are
issued and shall in all respects be subject to the provisions of the Amended and
Restated Declaration of Trust of the Trust dated as of September 20, 1996, as
the same may be amended from time to time (the "Declaration"), including the
designation of the terms of the Common Securities as set forth in Annex I to the
Declaration. Capitalized terms used herein but not defined shall have the
meaning given them in the Declaration. The Holder is entitled to the benefits of
the Common Securities Guarantee to the extent provided therein. The Sponsor will
provide a copy of the Declaration, the Common Securities Guarantee and the
Indenture to a Holder without charge upon written request to the Sponsor at its
principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Debentures as indebtedness and the Common Securities as
evidence of indirect beneficial ownership in the Debentures.
1
<PAGE> 8
IN WITNESS WHEREOF, the Trust has executed this certificate this 20th
day of September, 1996.
Wendy's Financing I
By:
---------------------------
Name:
Title: Regular Trustee
2
<PAGE> 9
(Reverse of Security)
Distributions payable on each Common Security will be fixed at a rate
per annum of $2.50 (the "Coupon Rate") of the stated liquidation amount of $50
per Common Security, such rate being the rate of interest payable on the
Debentures to be held by the Institutional Trustee. Distributions in arrears for
more than one quarter will bear interest thereon compounded quarterly at the
Coupon Rate (to the extent permitted by applicable law). The term
"Distributions" as used herein includes such cash distributions and any such
interest payable unless otherwise stated. A Distribution is payable only to the
extent that payments are made in respect of the Debentures held by the
Institutional Trustee and to the extent the Institutional Trustee has funds
available therefor. The amount of Distributions payable for any period will be
computed for any full quarterly Distribution period on the basis of a 360-day
year of twelve 30-day months, and for any period shorter than a full quarterly
Distribution period for which Distributions are computed, Distributions will be
computed on the basis of the actual number of days elapsed per 30-day month.
Except as otherwise described below, distributions on the Common
Securities will be cumulative, will accrue from September 20, 1996 and will be
payable quarterly in arrears, on March 15, June 15, September 15 and December 15
of each year, commencing on December 15, 1996, which payment dates shall
correspond to the interest payment dates on the Debentures, to Holders of record
at the close of business on the regular record date for such Distribution which
shall be the close of business on the Business Day next preceding such
Distribution payment date unless otherwise provided in the Declaration. The
Sponsor has the right under the Indenture to defer payments of interest by
extending the interest payment period from time to time on the Debentures for a
period not exceeding 20 consecutive quarters (each an "Extension Period")
provided that no Extension Period shall last beyond the date of maturity of the
Debentures and, as a consequence of such deferral, Distributions will also be
deferred. Despite such deferral, quarterly Distributions will continue to accrue
with interest thereon (to the extent permitted by applicable law) at the Coupon
Rate compounded quarterly during any such Extension Period. Prior to the
termination of any such Extension Period, the Sponsor may further extend such
Extension Period; provided that such Extension Period together with all such
previous and further extensions thereof may not exceed 20 consecutive quarters
or extend beyond the date of maturity of the Debentures. Payments of accrued
Distributions will be payable to Holders as they appear on the books and records
of the Trust on the first record date after the end of the Extension Period.
Upon the termination of any Extension Period and the payment of all amounts then
due, the Sponsor may commence a new Extension Period, subject to the above
requirements.
The Common Securities shall be redeemable as provided in the
Declaration.
The Common Securities shall be convertible into shares of Wendy's
Common Stock, through (i) the exchange of Common Securities for a portion of the
Debentures and (ii) the immediate conversion of such Debentures into Wendy's
Common Stock, in the manner and according to the terms set forth in the
Declaration.
3
<PAGE> 10
CONVERSION REQUEST
To: NBD Bank
as Institutional Trustee of
Wendy's Financing
The undersigned owner of these Common Securities hereby irrevocably
exercises the option to convert these Common Securities, or the portion below
designated, into Common Stock of Wendy's International, Inc. (the "Wendy's
Common Stock") in accordance with the terms of the Amended and Restated
Declaration of Trust dated as of September 20, 1996 (as amended from time to
time, the "Declaration"), by John K. Casey, Ronald E. Musick and John F.
Brownley, as Regular Trustees, First Chicago Delaware Inc., as Delaware Trustee,
NBD Bank, as Institutional Trustee, Wendy's International, Inc., as Sponsor, and
by the Holders, from time to time, of individual beneficial interests in the
Trust to be issued pursuant to the Declaration. Pursuant to the aforementioned
exercise of the option to convert these Common Securities, the undersigned
hereby directs the Conversion Agent (as that term is defined in the Declaration)
to (i) exchange such Common Securities for a portion of the Debentures (as that
term is defined in the Declaration) held by the Trust (at the rate of exchange
specified in the terms of the Common Securities set forth as Annex I to the
Declaration) and (ii) immediately convert such Debentures on behalf of the
undersigned, into Wendy's Common Stock (at the conversion rate specified in the
terms of the Common Securities set forth as Annex I to the Declaration).
The undersigned does also hereby direct the Conversion Agent that the
shares issuable and deliverable upon conversion, together with any check in
payment for fractional shares, be issued in the name of and delivered to the
undersigned, unless a different name has been indicated in the assignment below.
If shares are to be issued in the name of a person other than the undersigned,
the undersigned will pay all transfer taxes payable with respect thereto.
4
<PAGE> 11
Date: ,
------------- -----
in whole in part
--- ---
Number of Common Securities to
be converted: _______________
If a name or names other than
the undersigned, please
indicate in the spaces below
the name or names in which the
shares of Wendy's Common Stock
are to be issued, along with
the address or addresses of
such person or persons
-----------------------------
------------------------------
------------------------------
------------------------------
------------------------------
------------------------------
------------------------------
Signature (for conversion
only)
5
<PAGE> 12
Please Print or Typewrite Name
and Address, Including Zip
Code, and Social Security or
Other Identifying Number
------------------------------
------------------------------
------------------------------
Signature Guarantee:*
---------
- --------
*(Signature must be guaranteed by an "eligible
guarantor institution" that is, a bank, stockbroker,
savings and loan association or credit union meeting
the requirements of the Conversion Agent, which
requirements include membership or participation in
the Securities Transfer Agents Medallion Program
("STAMP") or such other "signature guarantee program"
as may be determined by the Conversion Agent in
addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934,
as amended.)
6
<PAGE> 13
-------------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Common
Security Certificate to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert address and zip code of assignee)
7
<PAGE> 14
and irrevocably appoints
----------------------------------------
_____________________________________ agent to transfer this Common
Security Certificate on the books of the Trust. The agent may substitute another
to act for him or her.
Date:
-----------------
Signature:
---------------
(Sign exactly as your name appears on the other side of this Common
Security Certificate)
Signature Guarantee*:
------------------------------------------
- --------
*(Signature must be guaranteed by an "eligible
guarantor institution" that is, a bank, stockbroker,
savings and loan association or credit union meeting
the requirements of the Registrar, which requirements
include membership or participation in the Securities
Transfer Agents Medallion Program ("STAMP") or such
other "signature guarantee program" as may be
determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.)
8
<PAGE> 1
Exhibit 4(e)
This Trust Preferred Security is a Global Certificate within the
meaning of the Declaration hereinafter referred to and is registered in the name
of The Depository Trust Company (the "Depositary") or a nominee of the
Depositary. This Trust Preferred Security is exchangeable for Trust Preferred
Securities registered in the name of a person other than the Depositary or its
nominee only in the limited circumstances described in the Declaration and no
transfer of this Trust Preferred Security (other than a transfer of this Trust
Preferred Security as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary) may be registered except in limited circumstances.
Unless this Trust Preferred Security is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) to the Trust or its agent for registration of transfer, exchange or
payment, and any Trust Preferred Security issued is registered in the name of
Cede & Co. or such other name as requested by an authorized representative of
The Depository Trust Company and any payment hereon is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein.
Certificate Number: Number of Trust Preferred Securities:
P-2 2,000,000
CUSIP NO. 950588 20 2
Certificate Evidencing Trust Preferred Securities
of
Wendy's Financing I
$2.50 Term Convertible Securities, Series A (liquidation amount $50 per
Security)
Wendy's Financing I, a statutory business trust created under the laws
of the State of Delaware (the "Trust"), hereby certifies that Cede & Co., as
nominee for the Depository Trust Company (the "Holder"), is the registered owner
of $2.50 Term Convertible Securities, Series A of the Trust representing
undivided beneficial interests in the assets of the Trust (liquidation amount
$50 per Security) (the "Trust Preferred Securities"). The Trust Preferred
Securities are transferable on the books and records of the Trust, in person or
by a duly authorized attorney, upon surrender of this certificate duly endorsed
and in proper form for transfer. The designation, rights, privileges,
restrictions, preferences and other terms and provisions of the Trust Preferred
Securities represented hereby are issued and shall in all respects be subject to
the provisions of the Amended and Restated Declaration of Trust of the Trust
dated as of September 20, 1996, as the same may be amended from time to time
(the "Declaration"), including the designation of the terms of the Trust
Preferred Securities as set forth in Annex I to the Declaration. Capitalized
terms used herein but not defined shall have the meaning given them in the
Declaration. The Holder is entitled to the benefits of the Trust Preferred
Securities Guarantee to the extent provided therein. The Sponsor will provide a
copy of the Declaration, the Trust Preferred
<PAGE> 2
Securities Guarantee and the Indenture to a Holder without charge upon written
request to the Trust at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Debentures as indebtedness and the Trust Preferred
Securities as evidence of indirect beneficial ownership in the Debentures.
Unless the Institutional Trustee's Certificate of Authentication hereon has been
properly executed, these Trust Preferred Securities shall not be entitled to any
benefit under the Declaration or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Trust has executed this certificate this 20th
day of September, 1996.
Wendy's Financing I
By: /s/ John K.Casey
---------------------------
Name: John K.Casey
Title: Regular Trustee
INSTITUTIONAL TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Trust Preferred Securities referred to in the
within-mentioned Declaration.
Dated: September 20, 1996
NBD Bank
as Institutional Trustee or as Authenticating Agent
By: /s/ James D. Khami By:
------------------------ ---------------------------
Authorized Signatory Authorized Signatory
2
<PAGE> 3
Distributions payable on each Trust Preferred Security will be fixed at
a rate per annum of $2.50 (the "Coupon Rate") of the stated liquidation amount
of $50 per Trust Preferred Security, such rate being the rate of interest
payable on the Debentures to be held by the Institutional Trustee. Distributions
in arrears for more than one quarter will bear interest thereon compounded
quarterly at the Coupon Rate (to the extent permitted by applicable law). The
term "Distributions" as used herein includes such cash distributions and any
such interest payable unless otherwise stated. A Distribution is payable only to
the extent that payments are made in respect of the Debentures held by the
Institutional Trustee and to the extent the Institutional Trustee has funds
available therefor. The amount of Distributions payable for any period will be
computed for any full quarterly Distribution period on the basis of a 360-day
year of twelve 30-day months, and for any period shorter than a full quarterly
Distribution period for which Distributions are computed, Distributions will be
computed on the basis of the actual number of days elapsed per 30-day month.
Except as otherwise described below, distributions on the Trust
Preferred Securities will be cumulative, will accrue from September 20, 1996 and
will be payable quarterly in arrears, on March 15, June 15, September 15 and
December 15 of each year, commencing on December 15, 1996, which payment dates
shall correspond to the interest payment dates on the Debentures, to Holders of
record at the close of business on the regular record date for such Distribution
which shall be the close of business on the Business Day next preceding such
Distribution payment date unless otherwise provided in the Declaration. The
Sponsor has the right under the Indenture to defer payments of interest by
extending the interest payment period from time to time on the Debentures for a
period not exceeding 20 consecutive quarters (each an "Extension Period")
provided that no Extension Period shall last beyond the date of the maturity or
any redemption date of the Debentures and, as a consequence of such deferral,
Distributions will also be deferred. Despite such deferral, quarterly
Distributions will continue to accrue with interest thereon (to the extent
permitted by applicable law) at the Coupon Rate compounded quarterly during any
such Extension Period. Prior to the termination of any such Extension Period,
the Sponsor may further extend such Extension Period; provided that such
Extension Period together with all such previous and further extensions thereof
may not exceed 20 consecutive quarters or extend beyond the maturity or any
redemption date of the Debentures. Payments of accrued Distributions will be
payable to Holders as they appear on the books and records of the Trust on the
first record date after the end of the Extension Period. Upon the termination of
any Extension Period and the payment of all amounts then due, the Sponsor may
commence a new Extension Period, subject to the above requirements.
The Trust Preferred Securities shall be redeemable as provided in the
Declaration.
The Trust Preferred Securities shall be convertible into shares of
Wendy's Common Stock, through (i) the exchange of Trust Preferred Securities for
a portion of the Debentures and (ii) the immediate conversion of such Debentures
into Wendy's Common Stock, in the manner and according to the terms set forth in
the Declaration.
3
<PAGE> 4
CONVERSION REQUEST
To: NBD Bank as Institutional Trustee of Wendy's Financing I
The undersigned owner of these Trust Preferred Securities hereby
irrevocably exercises the option to convert these Trust Preferred Securities, or
the portion below designated, into Common Stock of Wendy's International, Inc.
(the "Wendy's Common Stock") in accordance with the terms of the Amended and
Restated Declaration of Trust, dated as of September [ ], 1996 (as amended from
time to time, the "Declaration"), by John K. Casey, Ronald E. Musick and John F.
Brownley, as Regular Trustees, First Chicago Delaware Inc., as Delaware Trustee,
NBD Bank, as Institutional Trustee, Wendy's International, Inc., as Sponsor, and
by the Holders, from time to time, of individual beneficial interests in the
Trust to be issued pursuant to the Declaration. Pursuant to the aforementioned
exercise of the option to convert these Trust Preferred Securities, the
undersigned hereby directs the Conversion Agent (as that term is defined in the
Declaration) to (i) exchange such Trust Preferred Securities for a portion of
the Debentures (as that term is defined in the Declaration) held by the Trust
(at the rate of exchange specified in the terms of the Trust Preferred
Securities set forth as Annex I to the Declaration) and (ii) immediately convert
such Debentures on behalf of the undersigned, into Wendy's Common Stock (at the
conversion rate specified in the terms of the Trust Preferred Securities set
forth as Annex I to the Declaration). The undersigned does also hereby direct
the Conversion Agent that the shares issuable and deliverable upon conversion,
together with any check in payment for fractional shares, be issued in the name
of and delivered to the undersigned, unless a different name has been indicated
in the assignment below. If shares are to be issued in the name of a person
other than the undersigned, the undersigned will pay all transfer taxes payable
with respect thereto.
Date: ,
--------------- -----
in whole in part
--- ---
Number of Trust Preferred Securities
to be converted:
------------------------------------
If a name or names other than the
undersigned, please indicate in the
spaces below the name or names in
which the shares of Wendy's Common
Stock are to be issued, along with
the address or addresses of such
person or persons
----------------------------------
----------------------------------
----------------------------------
----------------------------------
4
<PAGE> 5
----------------------------------
----------------------------------
----------------------------------
Signature (for conversion only)
Please Print or Typewrite Name and Address,
Including Zip Code, and Social Security or
Other Identifying Number
----------------------------------
----------------------------------
----------------------------------
Signature Guarantee:*
------------
- --------
* (Signature must be guaranteed by an "eligible guarantor
institution" that is, a bank, stockbroker, savings and loan
association or credit union meeting the requirements of the
Conversion Agent, which requirements include membership or
participation in the Securities Transfer Agents Medallion
Program ("STAMP") or such other "signature guarantee program"
as may be determined by the Conversion Agent in addition to,
or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.)
5
<PAGE> 6
-------------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Trust Preferred
Security Certificate to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
agent to transfer this Trust Preferred Security Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date:
------------------
Signature:
-----------------------
(Sign exactly as your name appears on the other side of this Trust Preferred
Security Certificate)
Signature Guarantee*
- --------------------
- --------
*Signature must be guaranteed by an "eligible guarantor
institution" that is a bank, stockbroker, savings and loan
association or credit union meeting the requirements of the
Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion
Program ("STAMP") or such other "signature guarantee program"
as may be determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities
and Exchange Act of 1934, as amended.
6
<PAGE> 7
1
<PAGE> 1
Exhibit 4(f)
==========================================
PREFERRED SECURITIES GUARANTEE AGREEMENT
Wendy's Financing I
Dated as of September 20, 1996
==========================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
ARTICLE 1
DEFINITIONS AND INTERPRETATION
<S> <C> <C>
SECTION 1.01. Definitions and Interpretation............................................................1
ARTICLE 2
TRUST INDENTURE ACT
SECTION 2.01. Trust Indenture Act; Application..........................................................4
SECTION 2.02. Lists of Holders of Securities............................................................4
SECTION 2.03. Reports by the Preferred Guarantee Trustee................................................5
SECTION 2.04. Periodic Reports to Preferred Guarantee Trustee...........................................5
SECTION 2.05. Evidence of Compliance with Conditions Precedent..........................................5
SECTION 2.06. Events of Default; Waiver.................................................................5
SECTION 2.07. Event of Default; Notice..................................................................5
SECTION 2.08. Conflicting Interests.....................................................................6
ARTICLE 3
POWERS, DUTIES AND RIGHTS OF PREFERRED GUARANTEE TRUSTEE
SECTION 3.01. Powers and Duties of the Preferred Guarantee Trustee......................................6
SECTION 3.02. Certain Rights of Preferred Guarantee Trustee.............................................8
SECTION 3.03. Not Responsible for Recitals or Issuance of Preferred Securities Guarantee
..............................................................................................10
ARTICLE 4
PREFERRED GUARANTEE TRUSTEE
SECTION 4.01. Preferred Guarantee Trustee; Eligibility.................................................11
SECTION 4.02. Appointment, Removal and Resignation of Preferred Guarantee Trustee......................11
ARTICLE 5
GUARANTEE
SECTION 5.01. Guarantee................................................................................12
SECTION 5.02. Waiver of Notice and Demand..............................................................12
SECTION 5.03. Obligations Not Affected.................................................................13
SECTION 5.04. Rights of Holders........................................................................14
SECTION 5.05. Guarantee of Payment.....................................................................14
SECTION 5.06. Subrogation..............................................................................14
SECTION 5.07. Independent Obligations..................................................................14
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
ARTICLE 6
LIMITATION OF TRANSACTIONS; SUBORDINATION
<S> <C> <C>
SECTION 6.01. Limitation of Transactions...............................................................15
SECTION 6.02. Ranking..................................................................................15
ARTICLE 7
TERMINATION
SECTION 7.01. Termination..............................................................................16
ARTICLE 8
INDEMNIFICATION
SECTION 8.01. Exculpation..............................................................................16
SECTION 8.02. Indemnification..........................................................................16
ARTICLE 9
MISCELLANEOUS
SECTION 9.01. Successors and Assigns...................................................................17
SECTION 9.02. Amendments...............................................................................17
SECTION 9.03. Notices..................................................................................18
SECTION 9.04. Benefit..................................................................................19
SECTION 9.05. Governing Law............................................................................19
</TABLE>
ii
<PAGE> 4
PREFERRED SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Preferred Securities Guarantee"), dated
as of September 20, 1996, is executed and delivered by Wendy's International,
Inc., an Ohio corporation (the "Guarantor"), and NBD Bank, as trustee (the
"Preferred Guarantee Trustee"), for the benefit of the Holders (as defined
herein) from time to time of the TECONS (as defined herein) of Wendy's Financing
I, a Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of September 20, 1996, among the trustees of the Issuer
named therein, the Guarantor, as depositor, and the holders from time to time of
undivided beneficial interests in the assets of the Issuer, the Issuer is
issuing on the date hereof 4,000,000 preferred securities, having an aggregate
liquidation amount of $200,000,000 designated the $2.50 Term Convertible
Securities, Series A (the "TECONS").
WHEREAS, as incentive for the Holders to purchase the TECONS, the
Guarantor desires irrevocably and unconditionally to agree, to the extent set
forth in this Preferred Securities Guarantee, to pay to the Holders of the
TECONS the Guarantee Payments (as defined herein) and to make certain other
payments on the terms and conditions set forth herein.
WHEREAS, as of the date hereof, the Guarantor is also executing and
delivering a guarantee agreement (the "Common Securities Guarantee") in
substantially identical terms to this Preferred Securities Guarantee for the
benefit of the holders of the Common Securities (as defined herein), except that
if an Event of Default (as defined in the Indenture), has occurred and is
continuing, the rights of holders of the Common Securities to receive Guarantee
Payments under the Common Securities Guarantee are subordinated to the rights of
Holders of TECONS to receive Guarantee Payments under this Preferred Securities
Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder of
TECONS, which purchase the Guarantor hereby agrees shall benefit the Guarantor,
the Guarantor executes and delivers this Preferred Securities Guarantee for the
benefit of the Holders.
ARTICLE 1
DEFINITIONS AND INTERPRETATION
SECTION 1.01. Definitions and Interpretation.
In this Preferred Securities Guarantee, unless the context otherwise
requires:
<PAGE> 5
(a) Capitalized terms used in this Preferred Securities Guarantee
but not defined in the preamble above have the respective
meanings as signed to them in this Section 1.01;
(b) terms defined in the Declaration as at the date of execution
of this Preferred Securities Guarantee have the same meaning
when used in this Preferred Securities Guarantee unless
otherwise defined in this Preferred Securities Guarantee;
(c) a term defined anywhere in this Preferred Securities Guarantee
has the same meaning throughout;
(d) all references to "the Preferred Securities Guarantee" or
"this Preferred Securities Guarantee" are to this Preferred
Securities Guarantee as modified, supplemented or amended from
time to time;
(e) all references in this Preferred Securities Guarantee to
Articles and Sections are to Articles and Sections of this
Preferred Securities Guarantee, unless otherwise specified;
(f) a term defined in the Trust Indenture Act has the same meaning
when used in this Preferred Securities Guarantee, unless
otherwise defined in this Preferred Securities Guarantee or
unless the context otherwise requires; and
(g) a reference to the singular includes the plural and vice
versa.
"AUTHORIZED OFFICER" of a Person means any Person that is authorized to
bind such Person PROVIDED, HOWEVER, that the Authorized Officer signing an
Officers' Certificate given pursuant to Section 314(a)(4) of the Trust Indenture
Act shall be the principal executive, financial or accounting officer of such
Person.
"CORPORATE TRUST OFFICE" means the office of the Preferred Guarantee
Trustee at which the corporate trust business of the Preferred Guarantee Trustee
shall, at any particular time, be principally administered, which office at the
date of execution of this Agreement is located at 611 Woodward Avenue, Detroit,
Michigan 48226, Attn: Corporate Trust Administration.
"COVERED PERSON" means any Holder or beneficial owner of TECONS.
"EVENT OF DEFAULT" means a default by the Guarantor on any of its
payment or other obligations under this Preferred Securities Guarantee.
"GUARANTEE PAYMENTS" means the following payments or distributions,
without duplication, with respect to the TECONS, to the extent not paid or made
by the Issuer: (i) any
2
<PAGE> 6
accumulated and unpaid Distributions (as defined in the Declaration) that are
required to be paid on such TECONS to the extent the Issuer shall have funds
available therefor, (ii) the redemption price (the "Redemption Price"), and all
accumulated and unpaid Distributions to the date of redemption to the extent the
Issuer has funds available therefor, with respect to any TECONS called for
redemption by the Issuer, and (iii) upon a voluntary or involuntary dissolution,
winding-up or termination of the Issuer (other than in connection with the
conversion of all of the Trust Securities into the Guarantor's common stock or
the distribution of Debentures to the Holders in exchange for TECONS as provided
in the Declaration), the lesser of (a) the aggregate of the liquidation amount
and all accumulated and unpaid Distributions on the TECONS to the date of
payment, to the extent the Issuer shall have funds available therefor, and (b)
the amount of assets of the Issuer remaining available for distribution to
Holders in liquidation of the Issuer (in either case, the "Liquidation Distribu
tion"). If an event of default under the Indenture has occurred and is
continuing, the rights of holders of the Common Securities to receive payments
under the Common Securities Guarantee Agreement are subordinated to the rights
of Holders of TECONS to receive Guarantee Payments.
"HOLDER" shall mean any holder, as registered on the books and records
of the Issuer of any TECONS; provided, however, that, in determining whether the
holders of the requisite percentage of TECONS have given any request, notice,
consent or waiver hereunder, "Holder" shall not include the Guarantor or any
Affiliate of the Guarantor.
"INDEMNIFIED PERSON" means the Preferred Guarantee Trustee, any
Affiliate of the Preferred Guarantee Trustee, or any officers, directors,
shareholders, members, partners, employees, representatives, nominees,
custodians or agents of the Preferred Guarantee Trustee.
"INDENTURE" means the Indenture dated as of September 16, 1996, among
the Guarantor (the "Debenture Issuer") and NBD Bank, as trustee, as supplemented
by the First Supplemental Indenture dated as of September 20, 1996, among the
Debenture Issuer and NBD Bank, as trustee.
"MAJORITY IN LIQUIDATION AMOUNT OF THE SECURITIES" means, except as
provided in the terms of the TECONS or, except as provided by the Trust
Indenture Act, a vote by Holder(s) of TECONS, voting separately as a class, of
more than 50% of the liquidation amount (including the stated amount that would
be paid on redemption, liquidation or otherwise, plus accrued and unpaid
Distributions to the date upon which the voting percentages are determined) of
all TECONS.
"PREFERRED GUARANTEE TRUSTEE" means NBD Bank, until a Successor
Preferred Guarantee Trustee has been appointed and has accepted such appointment
pursuant to the terms of this Preferred Securities Guarantee and thereafter
means each such Successor Preferred Guarantee Trustee.
3
<PAGE> 7
"RESPONSIBLE OFFICER" means, with respect to the Preferred Guarantee
Trustee, any officer within the Corporate Trust Office of the Preferred
Guarantee Trustee, including any vice president, any assistant vice president,
any assistant secretary, the treasurer, any assistant treasurer or other officer
of the Corporate Trust Office of the Preferred Guarantee Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of that officer's
knowledge of and familiarity with the particular subject.
"SUCCESSOR PREFERRED GUARANTEE TRUSTEE" means a successor Preferred
Guarantee Trustee possessing the qualifications to act as Preferred Guarantee
Trustee under Section 4.01.
"TRUST SECURITIES" means the Common Securities and the TECONS.
ARTICLE 2
TRUST INDENTURE ACT
SECTION 2.01. Trust Indenture Act; Application.
(a) This Preferred Securities Guarantee is subject to the provisions of
the Trust Indenture Act that are required to be part of this Preferred
Securities Guarantee and shall, to the extent applicable, be governed by such
provisions; and
(b) if and to the extent that any provision of this Preferred
Securities Guarantee limits, qualifies or conflicts with the duties imposed by
Section 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties
shall control.
SECTION 2.02. Lists of Holders of Securities.
(a) The Guarantor shall provide the Preferred Guarantee Trustee with a
list, in such form as the Preferred Guarantee Trustee may reasonably require, of
the names and addresses of the Holders of the TECONS ("List of Holders") as of
such date, (i) within 1 Business Day after January 1 and June 30 of each year,
and (ii) at any other time within 30 days of receipt by the Guarantor of a
written request for a List of Holders as of a date no more than 14 days before
such List of Holders is given to the Preferred Guarantee Trustee PROVIDED, that
the Guarantor shall not be obligated to provide such List of Holders at any time
the List of Holders does not differ from the most recent List of Holders given
to the Preferred Guarantee Trustee by the Guarantor. The Preferred Guarantee
Trustee may destroy any List of Holders previously given to it on receipt of a
new List of Holders.
4
<PAGE> 8
(b) The Preferred Guarantee Trustee shall comply with its obligations
under Sections 311(a), 311(b) and Section 312(b) of the Trust Indenture Act.
SECTION 2.03. Reports by the Preferred Guarantee Trustee.
Within 60 days after May 15 of each year, the Preferred Guarantee
Trustee shall provide to the Holders of the TECONS such reports as are required
by Section 313 of the Trust Indenture Act if any, in the form and in the manner
provided by Section 313 of the Trust Indenture Act. The Preferred Guarantee
Trustee shall also comply with the requirements of Section 313(d) of the Trust
Indenture Act.
SECTION 2.04. Periodic Reports to Preferred Guarantee Trustee.
The Guarantor shall provide to the Preferred Guarantee Trustee such
documents, reports and information as required by Section 314 (if any) and the
compliance certificate required by Section 314 of the Trust Indenture Act in the
form, in the manner and at the times required by Section 314 of the Trust
Indenture Act.
Delivery of such reports, information and documents to the Preferred
Guarantee Trustee is for informational purposes only and the Preferred Guarantee
Trustee's receipt of such shall not constitute constructive notice of any
information contained therein, including the Guarantor's compliance with any of
its covenants hereunder (as to which the Preferred Guarantee Trustee is entitled
to rely exclusively on Officers' Certificates).
SECTION 2.05. Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Preferred Guarantee Trustee such
evidence of compliance with any conditions precedent, if any, provided for in
this Preferred Securities Guarantee that relate to any of the matters set forth
in Section 314(c) of the Trust Indenture Act. Any certificate or opinion
required to be given by an officer pursuant to Section 314(c)(1) may be given in
the form of an Officers' Certificate.
SECTION 2.06. Events of Default; Waiver.
The Holders of a Majority in liquidation amount of TECONS may, by vote,
on behalf of the Holders of all of the TECONS, waive any past Event of Default
and its consequences. Upon such waiver, any such Event of Default shall cease to
exist, and any Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Preferred Securities Guarantee, but no such
waiver shall extend to any subsequent or other default or Event of Default or
impair any right consequent thereon.
SECTION 2.07. Event of Default; Notice.
5
<PAGE> 9
(a) The Preferred Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to the Holders of the TECONS, notices of all Events of Default actually
known to a Responsible Officer of the Preferred Guarantee Trustee, unless such
defaults have been cured before the giving of such notice, provided, that, the
Preferred Guarantee Trustee shall be protected in withholding such notice if and
so long as a Responsible Officer of the Preferred Guarantee Trustee in good
faith determines that the withholding of such notice is in the interests of the
Holders of the TECONS.
(b) The Preferred Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless the Preferred Guarantee Trustee shall
have received written notice, or of which a Responsible Officer of the Preferred
Guarantee Trustee charged with the administration of the Declaration shall have
obtained actual knowledge.
SECTION 2.08. Conflicting Interests.
The Declaration shall be deemed to be specifically described in this
Preferred Securities Guarantee for the purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE 3
POWERS, DUTIES AND RIGHTS OF PREFERRED GUARANTEE TRUSTEE
SECTION 3.01. Powers and Duties of the Preferred Guarantee Trustee.
(a) This Preferred Securities Guarantee shall be held by the Preferred
Guarantee Trustee for the benefit of the Holders of the TECONS, and the
Preferred Guarantee Trustee shall not transfer this Preferred Securities
Guarantee to any Person except a Holder of TECONS exercising his or her rights
pursuant to Section 5.04(b) or to a Successor Preferred Guarantee Trustee on
acceptance by such Successor Preferred Guarantee Trustee of its appointment to
act as Successor Preferred Guarantee Trustee. The right, title and interest of
the Preferred Guarantee Trustee shall automatically vest in any Successor
Preferred Guarantee Trustee, and such vesting and cessation of title shall be
effective whether or not conveyancing documents have been executed and delivered
pursuant to the appointment of such Successor Preferred Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible Officer of
the Preferred Guarantee Trustee has occurred and is continuing, the Preferred
Guarantee Trustee shall enforce this Preferred Securities Guarantee for the
benefit of the Holders of the TECONS.
6
<PAGE> 10
(c) The Preferred Guarantee Trustee, before the occurrence of any Event
of Default and after the curing or waiving of all Events of Default that may
have occurred, shall undertake to perform only such duties as are specifically
set forth in this Preferred Securities Guarantee, and no implied covenants or
obligations shall be read into this Preferred Securities Guarantee against the
Preferred Guarantee Trustee. In case an Event of Default has occurred (that has
not been cured or waived pursuant to Section 2.06) and is actually known to a
Responsible Officer of the Preferred Guarantee Trustee, the Preferred Guarantee
Trustee shall exercise such of the rights and powers vested in it by this
Preferred Securities Guarantee, and use the same degree of care and skill in its
exercise thereof, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(d) No provision of this Preferred Securities Guarantee shall be
construed to relieve the Preferred Guarantee Trustee from liability for its own
action or its own failure to act in accordance with its obligations under the
Trust Indenture Act, or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Preferred Guarantee
Trustee shall be determined solely by the express provisions
of this Preferred Securities Guarantee, and the Preferred
Guarantee Trustee shall not be liable except for the
performance of such duties and obligations as are specifically
set forth in this Preferred Securities Guarantee, and no
implied covenants or obligations shall be read into this
Preferred Securities Guarantee against the Preferred Guarantee
Trustee; and
(B) in the absence of bad faith on the part of the
Preferred Guarantee Trustee, the Preferred Guarantee Trustee
may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Preferred Guarantee
Trustee and conforming to the requirements of this Preferred
Securities Guarantee; but in the case of any such certificates
or opinions that by any provision hereof are specifically
required to be furnished to the Preferred Guarantee Trustee,
the Preferred Guarantee Trustee shall be under a duty to
examine the same to determine whether or not they conform to
the requirements of this Preferred Securities Guarantee;
(ii) the Preferred Guarantee Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer of the
Preferred Guarantee Trustee, unless it shall be proved that the
Preferred Guarantee Trustee was negligent in ascertaining the pertinent
facts upon which such judgment was made;
7
<PAGE> 11
(iii) the Preferred Guarantee Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith
in accordance with the direction of the Holders of not less than a
Majority in liquidation amount of the TECONS relating to the time,
method and place of conducting any proceeding for any remedy available
to the Preferred Guarantee Trustee, or exercising any trust or power
conferred upon the Preferred Guarantee Trustee under this Preferred
Securities Guarantee; and
(iv) no provision of this Preferred Securities Guarantee shall
require the Preferred Guarantee Trustee to expend or risk its own funds
or otherwise incur personal financial liability in the performance of
any of its duties or in the exercise of any of its rights or powers, if
the Preferred Guarantee Trustee shall have reasonable grounds for
believing that the repayment of such funds or liability is not
reasonably assured to it under the terms of this Preferred Securities
Guarantee or indemnity, reasonably satisfactory to the Preferred
Guarantee Trustee, against such risk or liability is not reasonably
assured to it.
SECTION 3.02. Certain Rights of Preferred Guarantee Trustee.
(a) Subject to the provisions of Section 3.01:
(i) The Preferred Guarantee Trustee may conclusively rely, and
shall be fully protected in acting or refraining from acting upon, any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by
it to be genuine and to have been signed, sent or presented by the
proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by
this Preferred Securities Guarantee shall be sufficiently evidenced by
an Officers' Certificate.
(iii) Whenever, in the administration of this Preferred
Securities Guarantee, the Preferred Guarantee Trustee shall deem it
desirable that a matter be proved or established before taking,
suffering or omitting any action hereunder, the Preferred Guarantee
Trustee (unless other evidence is herein specifically prescribed) may,
in the absence of bad faith on its part, request and conclusively rely
upon an Officers' Certificate which, upon receipt of such request,
shall be promptly delivered by the Guarantor.
(iv) The Preferred Guarantee Trustee shall have no duty to see
to any recording, filing or registration of any instrument (or any
rerecording, refiling or registration thereof).
8
<PAGE> 12
(v) The Preferred Guarantee Trustee may consult with counsel
of its selection, and the advice or opinion of such counsel with
respect to legal matters shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with such advice or opinion.
Such counsel may be counsel to the Guarantor or any of its Affiliates
and may include any of its employees. The Preferred Guarantee Trustee
shall have the right at any time to seek instructions concerning the
administration of this Preferred Securities Guarantee from any court of
competent jurisdiction.
(vi) The Preferred Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this
Preferred Securities Guarantee at the request or direction of any
Holder, unless such Holder shall have provided to the Preferred
Guarantee Trustee such security and indemnity, reasonably satisfactory
to the Preferred Guarantee Trustee, against the costs, expenses
(including attorneys' fees and expenses and the expenses of the
Preferred Guarantee Trustee's agents, nominees or custodians) and
liabilities that might be incurred by it in complying with such request
or direction, including such reasonable advances as may be requested by
the Preferred Guarantee Trustee; provided that, nothing contained in
this Section 3.02(a)(vi) shall be taken to relieve the Preferred
Guarantee Trustee, upon the occurrence of an Event of Default, of its
obligation to act in accordance with the requirements of the Trust
Indenture Act.
(vii) The Preferred Guarantee Trustee shall not be bound to
make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document, but the
Preferred Guarantee Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit.
(viii) The Preferred Guarantee Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents, nominees, custodians or attorneys,
and the Preferred Guarantee Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder.
(ix) Any action taken by the Preferred Guarantee Trustee or
its agents hereunder shall bind the Holders of the TECONS, and the
signature of the Preferred Guarantee Trustee or its agents alone shall
be sufficient and effective to perform any such action. No third party
shall be required to inquire as to the authority of the Preferred
Guarantee Trustee to so act or as to its compliance with any of the
terms and provisions of this Preferred Securities Guarantee, both of
which shall be conclusively evidenced by the Preferred Guarantee
Trustee's or its agent's taking such action.
9
<PAGE> 13
(x) Whenever in the administration of this Preferred
Securities Guarantee the Preferred Guarantee Trustee shall deem it
desirable to receive instructions with respect to enforcing any remedy
or right or taking any other action hereunder, the Preferred Guarantee
Trustee (i) may request instructions from the Holders of a Majority in
liquidation amount of the TECONS, (ii) may refrain from enforcing such
remedy or right or taking such other action until such instructions are
received, and (iii) shall be protected in conclusively relying on or
acting in accordance with such instructions.
(xi) The Preferred Guarantee Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys and the Trustee shall not
be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
(xii) The Preferred Securities Trustee shall not be liable for
any action taken, suffered, or omitted to be taken by it in good faith
and reasonably believed by it to be authorized or within the discretion
or rights or powers conferred upon it by this Preferred Securities
Guarantee.
(b) No provision of this Preferred Securities Guarantee shall be deemed
to impose any duty or obligation on the Preferred Guarantee Trustee to perform
any act or acts or exercise any right, power, duty or obligation conferred or
imposed on it in any jurisdiction in which it shall be illegal, or in which the
Preferred Guarantee Trustee shall be unqualified or incompetent in accordance
with applicable law, to perform any such act or acts or to exercise any such
right, power, duty or obligation. No permissive power or authority available to
the Preferred Guarantee Trustee shall be construed to be a duty.
SECTION 3.03. Not Responsible for Recitals or Issuance of Preferred
Securities Guarantee.
The recitals contained in this Preferred Securities Guarantee shall be
taken as the statements of the Guarantor, and the Preferred Guarantee Trustee
does not assume any responsibility for their correctness. The Preferred
Guarantee Trustee makes no representation as to the validity or sufficiency of
this Preferred Securities Guarantee.
10
<PAGE> 14
ARTICLE 4
PREFERRED GUARANTEE TRUSTEE
SECTION 4.01. Preferred Guarantee Trustee; Eligibility.
(a) There shall at all times be a Preferred Guarantee Trustee which
shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person organized and doing business under the laws
of the United States of America or any State or Territory thereof or of
the District of Columbia, or a Person permitted by the Securities and
Exchange Commission to act as an institutional trustee under the Trust
Indenture Act, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least 50 million
U.S. dollars ($50,000,000), and subject to supervision or examination
by federal, state, territorial or District of Columbia authority. If
such Person publishes reports of condition at least annually, pursuant
to law or to the requirements of the supervising or examining authority
referred to above, then, for the purposes of this Section 4.01(a)(ii),
the combined capital and surplus of such Person shall be deemed to be
its combined capital and surplus as set forth in its most recent report
of condition so published.
(b) If at any time the Preferred Guarantee Trustee shall cease to be
eligible to so act under Section 4.01(a), the Preferred Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section 4.02(c).
(c) If the Preferred Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Preferred Guarantee Trustee and Guarantor shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
SECTION 4.02. Appointment, Removal and Resignation of Preferred
Guarantee Trustee.
(a) Subject to Section 4.02(b), the Preferred Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor.
(b) The Preferred Guarantee Trustee shall not be removed in accordance
with Section 4.02(a) until a Successor Preferred Guarantee Trustee has been
appointed and has accepted such appointment by written instrument executed by
such Successor Preferred Guarantee Trustee and delivered to the Guarantor.
11
<PAGE> 15
(c) The Preferred Guarantee Trustee appointed to office shall hold
office until a Successor Preferred Guarantee Trustee shall have been appointed
or until its removal or resig nation. The Preferred Guarantee Trustee may resign
from office (without need for prior or subsequent accounting) by an instrument
in writing executed by the Preferred Guarantee Trustee and delivered to the
Guarantor, which resignation shall not take effect until a Successor Preferred
Guarantee Trustee has been appointed and has accepted such appointment by
instrument in writing executed by such Successor Preferred Guarantee Trustee and
delivered to the Guarantor and the resigning Preferred Guarantee Trustee.
(d) If no Successor Preferred Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section 4.02 within 30
days after delivery of an instrument of resignation or removal, the Preferred
Guarantee Trustee resigning or being removed may petition any court of competent
jurisdiction for appointment of a Successor Preferred Guarantee Trustee. Such
court may thereupon, after prescribing such notice, if any, as it may deem
proper, appoint a Successor Preferred Guarantee Trustee.
(e) No Preferred Guarantee Trustee shall be liable for the acts or
omissions to act of any Successor Preferred Guarantee Trustee.
(f) Upon termination of this Preferred Securities Guarantee or removal
or resignation of the Preferred Guarantee Trustee pursuant to this Section 4.02,
the Guarantor shall pay to the Preferred Guarantee Trustee all amounts accrued
to the date of such termination, removal or resignation.
ARTICLE 5
GUARANTEE
SECTION 5.01. Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Preferred Guarantee Trustee for the benefit of the Holders the Guarantee
Payments (without duplication of amounts theretofore paid by the Issuer), as and
when due, regardless of any defense, right of set-off or counterclaim that the
Issuer may have or assert. The Guarantor's obligation to make a Guarantee
Payment may be satisfied by direct payment of the required amounts by the
Guarantor to the Preferred Guarantee Trustee for the benefit of the Holders or
by causing the Issuer to pay such amounts to the Preferred Guarantee Trustee for
the benefit of the Holders.
SECTION 5.02. Waiver of Notice and Demand.
12
<PAGE> 16
The Guarantor hereby waives notice of acceptance of this Preferred
Securities Guarantee and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first against
the Issuer or any other Person before proceeding against the Guarantor, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
SECTION 5.03. Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor
under this Preferred Securities Guarantee shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise,
of the performance or observance by the Issuer of any express or
implied agreement, covenant, term or condition relating to the TECONS
to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all
or any portion of the Distributions, Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the TECONS or
the extension of time for the performance of any other obligation
under, arising out of, or in connection with, the TECONS (other than an
extension of time for payment of Distributions, Redemption Price,
Liquidation Distribution or other sum payable that results from the
extension of any interest payment period on the Debentures or any
extension of the maturity date of the Debentures permitted by the
Indenture);
(c) any failure, omission, delay or lack of diligence on the
part of the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Holders pursuant to the
terms of the TECONS, or any action on the part of the Issuer or the
Guarantor granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment of debt of, or other similar proceedings
affecting, the Issuer or the Guarantor or any of the assets of the
Issuer or the Guarantor;
(e) any invalidity of, or defect or deficiency in, the TECONS;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
13
<PAGE> 17
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it
being the intent of this Section 5.03 that the obligations of the
Guarantor hereunder shall be absolute and unconditional under any and
all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.04. Rights of Holders.
(a) The Holders of a Majority in liquidation amount of the TECONS have
the right to direct the time, method and place of conducting of any proceeding
for any remedy available to the Preferred Guarantee Trustee in respect of this
Preferred Securities Guarantee or exercising any trust or power conferred upon
the Preferred Guarantee Trustee under this Preferred Securities Guarantee.
(b) If the Preferred Guarantee Trustee fails to enforce such Preferred
Securities Guarantee, any Holder of TECONS may institute a legal proceeding
directly against the Guarantor to enforce the Preferred Guarantee Trustee's
rights under this Preferred Securities Guarantee, without first instituting a
legal proceeding against the Issuer, the Preferred Guarantee Trustee or any
other person or entity. The Guarantor waives any right or remedy to require that
any action be brought first against the Issuer or any other person or entity
before proceeding directly against the Guarantor.
SECTION 5.05. Guarantee of Payment.
This Preferred Securities Guarantee creates a guarantee of payment and
not of collection.
SECTION 5.06. Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the Holders
of TECONS against the Issuer in respect of any amounts paid to such Holders by
the Guarantor under this Preferred Securities Guarantee; provided, however, that
the Guarantor shall not (except to the extent required by mandatory provisions
of law) be entitled to enforce or exercise any right that it may acquire by way
of subrogation or any indemnity, reimbursement or other agreement, in all cases
as a result of payment under this Preferred Securities Guarantee, if, at the
time of any such payment, any amounts are due and unpaid under this Preferred
Securities Guarantee. If any amount shall be paid to the Guarantor in violation
of the preceding sentence, the Guarantor agrees to hold such amount in trust for
the Holders and to pay over such amount to the Holders.
SECTION 5.07. Independent Obligations.
14
<PAGE> 18
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the TECONS, and
that the Guarantor shall be liable as principal and as debtor hereunder to make
Guarantee Payments pursuant to the terms of this Preferred Securities Guarantee
notwithstanding the occurrence of any event referred to in subsections (a)
through (g), inclusive, of Section 5.03 hereof.
ARTICLE 6
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.01. Limitation of Transactions.
So long as any TECONS remain outstanding, if there shall have occurred
an Event of Default or an event of default under the Declaration, then (a) the
Guarantor shall not declare or pay any dividend on, make any distributions with
respect to, or redeem, purchase, acquire or make a liquidation payment with
respect to, any of its capital stock (other than (i) purchases or acquisitions
of shares of Common Stock in connection with the satisfaction by the Guarantor
of its obligations under any employee benefit plans, (ii) as a result of a
reclassification of the Guarantor's capital stock or the exchange or conversion
of one class or series of the Guarantor's capital stock for another class or
series of the Guarantor's capital stock or, (iii) the purchase of fractional
interests in shares of the Guarantor's capital stock pursuant to the conversion
or exchange provisions of such capital stock of the Guarantor or the security
being converted or exchanged) or make any guarantee payments with respect to the
foregoing, (b) the Guarantor shall not make any payment of interest, principal
or premium, if any, on or repay, repurchase or redeem any debt securities
(including guarantees) issued by the Guarantor which rank pari passu with or
junior to the Debentures and (c) the Guarantor shall not make any guarantee
payments with respect to the foregoing (other than pursuant to this guarantee).
SECTION 6.02. Ranking.
This Preferred Securities Guarantee will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and junior in right of
payment to all other liabilities of the Guarantor, (ii) pari passu with the most
senior Preferred or preference stock now or hereafter issued by the Guarantor
and with any guarantee now or hereafter entered into by the Guarantor in respect
of any Preferred or preference stock of any Affiliate of the Guarantor, and
(iii) senior to the Guarantor's common stock.
15
<PAGE> 19
ARTICLE 7
TERMINATION
SECTION 7.01. Termination.
This Preferred Securities Guarantee shall terminate upon (i) full
payment of the Redemption Price of all TECONS, (ii) upon the distribution of the
Guarantor's common stock to all of the Holders in respect of the conversion of
the TECONS into the Guarantor's common stock or upon the distribution of the
Debentures to the Holders of all of the TECONS or (iii) upon full payment of the
amounts payable in accordance with the Declaration upon liquidation of the
Issuer. Notwithstanding the foregoing, this Preferred Securities Guarantee will
continue to be effective or will be reinstated, as the case may be, if at any
time any Holder of TECONS must restore payment of any sums paid under the TECONS
or under this Preferred Securities Guarantee.
ARTICLE 8
INDEMNIFICATION
SECTION 8.01. Exculpation.
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Guarantor or any Covered Person for any loss,
damage, liability, expense or claim incurred by reason of any act or omission
performed or omitted by such Indemnified Person in good faith in accordance with
this Preferred Securities Guarantee and in a manner that such Indemnified Person
reasonably believed to be within the scope of the authority conferred on such
Indemnified Person by this Preferred Securities Guarantee or by law, except that
an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's failure to act in accordance
with its obligations under the Trust Indenture Act or willful misconduct with
respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Guarantor and upon such information, opinions,
reports or statements presented to the Guarantor by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Guarantor, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders of TECONS might properly be paid.
SECTION 8.02. Indemnification.
16
<PAGE> 20
The Guarantor agrees to indemnify each Indemnified Person for, and to
hold each Indemnified Person harmless against, any loss, liability or expense
incurred arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against, or
investigating, any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder; provided that the
provisions of this sentence shall not apply unless such Indemnified Person has
complied with the requirements of the Trust Indenture Act and has acted in good
faith. The obligation to indemnify as set forth in this Section 8.02 shall
survive the termination of this Preferred Securities Guarantee.
When the Preferred Guarantee Trustee incurs expenses or renders
services in connection with an Event of Default specified in Section 5.01(5) or
Section 5.01(6) of the Indenture, the expenses (including the reasonable charges
and expenses of its counsel) and the compensation for services are intended to
constitute expenses of administration under any applicable federal or state
bankruptcy, insolvency or other similar law.
The Trustee agrees to use its best efforts to provide the Guarantor
prompt, written notification of any of the aforementioned losses, damage,
liabilities, expenses or claims (hereinafter "Claims") and to cooperate with
each Indemnified Person in the investigation, defense and settlement of any such
Claim. The Guarantor shall have the right to assume the investigation, defense
and settlement of any such Claim and to employ such legal counsel as the
Guarantor deems acceptable. The indemnity obligations set forth in this Article
8 shall be void as to any Claim for which settlement or offer of settlement is
made without the prior, written consent of the Guarantor.
ARTICLE 9
MISCELLANEOUS
SECTION 9.01. Successors and Assigns.
All guarantees and agreements contained in this Preferred Securities
Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the TECONS then outstanding.
SECTION 9.02. Amendments.
Except with respect to any changes that do not adversely affect the
rights of Holders (in which case no consent of Holders will be required), this
Preferred Securities Guarantee may only be amended with the prior approval of
the Holders of at least a Majority in liquidation amount (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus
accumulated and unpaid Distributions to the date upon which the voting
percentages are determined) of all the outstanding TECONS. The provisions of
Section 12.02
17
<PAGE> 21
of the Declaration with respect to meetings of Holders of the Securities apply
to the giving of such approval.
SECTION 9.03. Notices.
All notices provided for in this Preferred Securities Guarantee shall
be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by first class mail, as follows:
(a) If given to the Preferred Guarantee Trustee, at the Preferred
Guarantee Trustee's mailing address set forth below (or such other address as
the Preferred Guarantee Trustee may give notice of to the Holders of the
TECONS):
NBD Bank
611 Woodward Avenue
Detroit, Michigan 48226
Attention: Corporate Trust Administration
(b) If given to the Guarantor, at the Guarantor's mailing address set
forth below (or such other address as the Guarantor may give notice of to the
Holders of the TECONS):
Wendy's International, Inc.
4288 West Dublin - Granville Road
Dublin, Ohio 43017-0256
Attention: General Counsel
(c) If given to any Holder of TECONS, at the address set forth on the
books and records of the Issuer.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
18
<PAGE> 22
SECTION 9.04. Benefit.
This Preferred Securities Guarantee is solely for the benefit of the
Holders of the TECONS and, subject to Section 3.01(a), is not separately
transferable from the TECONS.
SECTION 9.05. Governing Law.
THIS PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.
19
<PAGE> 23
THIS PREFERRED SECURITIES GUARANTEE is executed as of the day and year
first above written.
WENDY'S INTERNATIONAL, INC.,
as Guarantor
By: /s/ John K. Casey
--------------------------------
Name: John K. Casey
Title: Vice Chairman and Chief
Financial Officer
NBD BANK,
as Preferred Guarantee Trustee
By: /s/ James D. Khami
--------------------------------
Name: James D. Khami
Title: Trust Officer
20
<PAGE> 1
Exhibit 4(g)
No. R-1
WENDY'S INTERNATIONAL, INC.
5% CONVERTIBLE SUBORDINATED DEBENTURE
Wendy's International, Inc., an Ohio corporation (the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to NBD
Bank, as Institutional Trustee of Wendy's Financing I, or registered assigns,
the principal sum of TWO HUNDRED TWO MILLION, TWENTY THOUSAND, TWO HUNDRED FIFTY
Dollars ($202,020,250) on September 15, 2026, and to pay interest on said
principal sum from September 20, 1996, or from the most recent interest payment
date (each such date, an "Interest Payment Date") to which interest has been
paid or duly provided for, quarterly (subject to deferral as set forth herein)
in arrears on March 15, June 15, September 15, and December 15 of each year
commencing December 15, 1996, at the rate of 5% per annum until the principal
hereof shall have become due and payable, and on any overdue principal and
premium, if any, and (without duplication and to the extent that payment of such
interest is enforceable under applicable law) on any overdue installment of
interest at the same rate per annum compounded quarterly. The amount of interest
payable on any Interest Payment Date shall be computed on the basis of a 360-day
year of twelve 30-day months. Except as provided in the following sentence, the
amount of interest payable for any period shorter than a full quarterly period
for which interest is computed, will be computed on the basis of the actual
number of days elapsed per 30-day month. In the event that any date on which
interest is payable on this Convertible Debenture is not a Business Day, then
payment of interest payable on such date will be made on the next succeeding day
that is a Business Day (and without any interest or other payment in respect of
any such delay), except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on such date. The
interest installment so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in the Indenture (referred to on the
reverse hereof, be paid to the person in whose name this Convertible Debenture
(or one or more Predecessor Securities, as defined in said Indenture) is
registered on the Regular Record Date for such interest installment, which shall
be the close of business on the Business Day next preceding such Interest
Payment Date unless otherwise provided in the Indenture. Any such interest
installment not punctually paid or duly provided for shall forthwith cease to be
payable to the registered Holders on such Regular Record Date and may be paid to
the Person in whose name this Convertible Debenture (or one or more Predecessor
Securities) is registered at the close of business on a special record date to
be fixed by the
<PAGE> 2
Trustee for the payment of such defaulted interest, notice whereof shall be
given to the registered Holders of the Convertible Debentures not less than 10
days prior to such special record date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which the Convertible Debentures may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in the
Indenture. The principal of (and premium, if any) and the interest on this
Convertible Debenture shall be payable at the office or agency of the Trustee
maintained for that purpose in any coin or currency of the United States of
America that at the time of payment is legal tender for payment of public and
private debts; PROVIDED, HOWEVER, that payment of interest may be made at the
option of the Company by check mailed to the registered Holder at such address
as shall appear in the Security Register. Notwithstanding the foregoing, so long
as the Holder of this Convertible Debenture is the Institutional Trustee, the
payment of the principal of (and premium, if any) and interest on this
Convertible Debenture will be made at such place and to such account as may be
designated by the Institutional Trustee.
The indebtedness evidenced by this Convertible Debenture is,
to the extent provided in the Indenture, subordinate and junior in right of
payment to the prior payment in full of all Senior Indebtedness, and this
Convertible Debenture is issued subject to the provisions of the Indenture with
respect thereto. Each Holder of this Convertible Debenture, by accepting the
same, (a) agrees to and shall be bound by such provisions, (b) authorizes and
directs the Trustee on his or her behalf to take such action as may be necessary
or appropriate to acknowledge or effectuate the subordination so provided and
(c) appoints the Trustee his or her attorney-in-fact for any and all such
purposes. Each Holder hereof, by his or her acceptance hereof, hereby waives all
notice of the acceptance of the subordination provisions contained herein and in
the Indenture by each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each such holder upon said
provisions.
This Convertible Debenture shall not be entitled to any
benefit under the Indenture hereinafter referred to, be valid or become
obligatory for any purpose until the Certificate of Authentication hereon shall
have been signed by or on behalf of the Trustee.
The provisions of this Convertible Debenture are continued on
the reverse side hereof and such continued provisions shall for all purposes
have the same effect as though fully set forth at this place.
2
<PAGE> 3
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
WENDY'S INTERNATIONAL, INC.
By: /s/ John K. Casey
---------------------------
Name: John K. Casey
Title: Vice Chairman and Chief
Financial Officer
Attest:
By: /s/ Dana Klein
---------------------------------
Name: Dana Klein
Title: Assistant Secretary
3
<PAGE> 4
CERTIFICATE OF AUTHENTICATION
This is one of the Convertible Debentures of the series of Convertible
Debentures described in the within-mentioned Indenture.
Dated: September 20, 1996
NBD BANK,
as Trustee or as Authentication Agent
By By
-------------------- ------------------------
Authorized Signatory Authorized Signatory
4
<PAGE> 5
(Reverse of Debenture)
This Convertible Debenture is one of a duly authorized series of
Debentures of the Company (herein sometimes referred to as the "Debentures"),
specified in the Indenture, all issued or to be issued in one or more series
under and pursuant to an Indenture dated as of September 16, 1996, duly executed
and delivered between the Company and NBD Bank, as Trustee (the "Trustee"), as
supplemented by the First Supplemental Indenture dated as of September 20, 1996,
between the Company and the Trustee (the Indenture as so supplemented, the
"Indenture"), to which Indenture and all indentures supplemental thereto
reference is hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Company and
the Holders of the Convertible Debentures. By the terms of the Indenture, the
Debentures are issuable thereunder in series that may vary as to amount, date of
maturity, rate of interest and in other respects as provided in the Indenture.
This series of Debentures is limited in aggregate principal amount as specified
in said First Supplemental Indenture and herein sometimes referred to as the
"Convertible Debentures."
Because of the occurrence and continuation of a Special Event, in
certain circumstances, this Convertible Debenture may become due and payable at
the principal amount together with any interest accrued thereon (the "Redemption
Price"). The Redemption Price shall be paid prior to 12:00 noon, New York time,
on the date of such redemption or at such earlier time as the Company
determines. The Company shall have the right to redeem this Convertible
Debenture at the option of the Company, upon not less than 30 nor more than 60
days notice, without premium or penalty, in whole or in part at any time on or
after September 17, 2000 (an "Optional Redemption") at the following prices
(expressed as percentages of the principal amount of the Convertible Debentures)
(the "Optional Redemption Price") together with accrued and unpaid interest,
including Additional Interest and Compounded Interest to, but excluding, the
redemption date, if redeemed during the 12-month period beginning September 15:
<TABLE>
<CAPTION>
YEAR REDEMPTION PRICE
---- ----------------
<S> <C>
2000 103.00%
2001 102.50
2002 102.00
2003 101.50
2004 101.00
2005 100.50
and 100% if redeemed on or after September 15, 2006.
</TABLE>
If Convertible Debentures are redeemed on any March 15, June 15,
September 15, or December 15, accrued and unpaid interest
5
<PAGE> 6
shall be payable to holders of record on the relevant record date.
So long as the corresponding Trust Preferred Securities are
outstanding, the proceeds from the redemption of any of the Convertible
Debentures will be used to redeem Trust Preferred Securities.
If the Convertible Debentures are only partially redeemed by the
Company pursuant to an Optional Redemption, the Convertible Debentures will be
redeemed PRO RATA or by lot or by any other method utilized by the Trustee.
In the event of redemption of this Convertible Debenture in part only,
a new Convertible Debenture or Convertible Debentures of this series for the
unredeemed portion hereof will be issued in the name of the Holder hereof upon
the cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Convertible Debentures
may be declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Debentures of each series affected at the time
outstanding, as defined in the Indenture, to execute supplemental indentures for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of the Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Debentures of such
series; PROVIDED, HOWEVER, that no such supplemental indenture shall (a) extend
the fixed maturity of any Debenture of any series, or reduce the principal
amount thereof, or reduce the rate or extend the time of payment of interest
thereon, or reduce any premium payable upon the redemption thereof, or make any
change that adversely affects the right to convert any Debenture of any series
or make any change in the subordination provisions that adversely affects the
rights of any Holders of any Debenture of any series, without the consent of the
Holder of each Debenture so affected, or (b) reduce the aforesaid percentage of
Debentures of such series, the Holders of which are required to consent to any
such supplemental indenture, without the consent of the Holders of each
Debenture of any series then outstanding and affected thereby. The Indenture
also contains provisions permitting the Holders of a majority in aggregate
principal amount of the Debentures of any series at the time outstanding
affected thereby, on behalf of all of the Holders of the Debentures of such
series, to waive any past default in the performance of any of the covenants
contained in the Indenture, or established pursuant to the Indenture with
6
<PAGE> 7
respect to such series, and its consequences, except a default in the payment of
the principal of or premium, if any, or interest on any Debentures of such
series or a failure to convert any Debentures of such series in accordance with
its terms upon an election by the Holders thereof. Any such consent or waiver by
the registered Holder of this Convertible Debenture (unless revoked as provided
in the Indenture) shall be conclusive and binding upon such Holder and upon all
future Holders and owners of this Convertible Debenture and of any Convertible
Debenture issued in exchange therefor or in place hereof (whether by
registration of transfer or otherwise), irrespective of whether or not any
notation of such consent or waiver is made upon this Convertible Debenture.
No reference herein to the Indenture and no provision of this
Convertible Debenture or of the Indenture shall alter or impair the obligation
of the Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest on this Convertible Debenture at the time and
place and at the rate and in the money herein prescribed.
As long as an Event of Default under Section 501 of the Indenture shall
not have occurred and be continuing, the Company shall have the right at any
time during the term of the Convertible Debentures and from time to time to
extend the interest payment period of such Convertible Debentures for up to 20
consecutive quarters (an "Extended Interest Payment Period"), at the end of
which period the Company shall pay all interest then accrued and unpaid
(together with interest thereon at the rate specified for the Convertible
Debentures to the extent that payment of such interest is enforceable under
applicable law). Before the termination of any such Extended Interest Payment
Period, the Company may further extend such Extended Interest Payment Period,
PROVIDED that such Extended Interest Payment Period together with all such
further extensions thereof shall not exceed 20 consecutive quarters. At the
termination of any such Extended Interest Payment Period and upon the payment of
all accrued and unpaid interest and any additional amounts then due, the Company
may commence a new Extended Interest Payment Period.
As provided in the Indenture and subject to certain limitations therein
set forth, this Convertible Debenture is transferable by the registered Holder
hereof on the Security Register of the Company, upon surrender of this
Convertible Debenture for registration of transfer at the office or agency of
the Trustee in the City and State of New York accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company or the
Trustee duly executed by the registered Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Convertible Debentures of
authorized denominations and for the same aggregate principal amount and series
will be issued to the designated transferee or transferees. No service charge
will be made for any such trans-
7
<PAGE> 8
fer, but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this
Convertible Debenture, the Company, the Trustee, any paying agent and the
Security Registrar may deem and treat the registered holder hereof as the
absolute owner hereof (whether or not this Convertible Debenture shall be
overdue and notwithstand ing any notice of ownership or writing hereon made by
anyone other than the Security Registrar) for the purpose of receiving payment
of or on account of the principal hereof and premium, if any, and interest due
hereon and for all other purposes, and neither the Company nor the Trustee nor
any paying agent nor any Security Registrar shall be affected by any notice to
the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Convertible Debenture, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Indenture, against
any incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issuance hereof, expressly
waived and released.
The Holder of any Convertible Debenture has the right, exercisable at
any time through the close of business (New York time) on September 15, 2026
(or, in the case of a Convertible Debenture called for redemption, prior to the
close of business on the Business Day prior to the corresponding redemption
date), to convert the principal amount thereof (or any portion thereof that is
an integral multiple of $50) into shares of Common Stock at the initial
conversion rate of 1.8932 shares of Common Stock for each Convertible Debenture
(equivalent to a Conversion Price of $26.41 per share of Common Stock), subject
to adjustment under certain circumstances.
To convert a Convertible Debenture, a Holder must (a) complete and sign
a conversion notice substantially in the form attached hereto, (b) surrender the
Convertible Debenture to a Conversion Agent, (c) furnish appropriate
endorsements or trans fer documents if required by the Conversion Agent and (d)
pay any transfer or similar tax, if required. If a Convertible Debenture is
surrendered for conversion after the close of business on any regular record
date for payment of a Distribution and before the opening of business on the
corresponding Distribution payment date, then, notwithstanding such conversion,
the Distribution payable on such Distribution payment date will be paid in cash
to the person in whose name the Convertible Debenture is registered
8
<PAGE> 9
at the close of business on such record date, and (other than a Convertible
Debenture or a portion of a Convertible Debenture called for redemption on a
redemption date occurring after such record date and on or prior to such
Distribution payment date) when so surrendered for conversion, the Convertible
Debenture must be accompanied by payment of an amount equal to the Distribution
payable on such Distribution payment date. The number of shares issuable upon
conversion of a Convertible De benture is determined by dividing the principal
amount of the Convertible Debenture converted by the Conversion Price in effect
on the Conversion Date. No fractional shares will be issued upon conversion but
a cash adjustment will be made for any fractional interest. The outstanding
principal amount of any Convertible Debenture shall be reduced by the portion of
the principal amount thereof converted into shares of Common Stock.
The Convertible Debentures of this series are issuable only in
registered form without Coupons in denominations of $50 and any integral
multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Convertible Debentures of this series are
exchangeable for a like aggregate principal amount of Convertible Debentures of
this series of a different authorized denomination, as requested by the Holder
surrendering the same.
All terms used in this Convertible Debenture that are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE
AND THE CONVERTIBLE DEBENTURES WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS
THEREOF.
9
<PAGE> 10
ELECTION TO CONVERT
To: Wendy's International, Inc.
The undersigned owner of this Convertible Debenture hereby irrevocably
exercises the option to convert this Convertible Debenture, or the portion below
designated, into Common Stock of WENDY'S INTERNATIONAL, INC. in accordance with
the terms of the Indenture referred to in this Convertible Debenture, and
directs that the shares issuable and deliverable upon conversion, together with
any check in payment for fractional shares, be issued in the name of and
delivered to the undersigned, unless a different name has been indicated in the
assignment below. If shares are to be issued in the name of a person other than
the undersigned, the undersigned will pay all transfer taxes payable with
respect thereto.
Date: ,
-------------- ---
in whole Portions of Convertible Debenture to be
converted ($50 or integral multiples
thereof):
$
--------------------------
-----------------------------------
Signature (for conversion only)
Please Print or Typewrite Name and
Address, Including Zip Code, and Social
Security or Other Identifying Number
---------------------------------------
---------------------------------------
---------------------------------------
Signature Guarantee:*
------------------
- --------
* Signature must be guaranteed by an "eligible guarantor
institution" that is a bank, stockbroker, savings and loan
association or credit union meeting the requirements of the
Conversion Agent, which requirements include membership of
participation in the Securities Transfer Agents Medallion
Program ("STAMP") or such other "signature guarantee program"
as may be determined by the Conversion Agent in addition to, or
in substitution for, STAMP, all in accordance with the
Securities and Exchange Act of 1934, as amended.
10
<PAGE> 11
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Convertible
Debenture to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
----------------------------------------------
- --------------------------------------------------------------------------------
___________________________________________________ agent to
transfer this Convertible Debenture on the books of the Trust.
The agent may substitute another to act for him or her.
Date:
---------------------------------------
Signature:
----------------------------------
(Sign exactly as your name appears on the other side of
this Convertible Debenture)
Signature
Guarantee*:
-------------------------------------------------
- --------
* Signature must be guaranteed by an "eligible guarantor
institution" that is a bank, stockbroker, savings and loan
association or credit union meeting the requirements of the
Conversion Agent, which requirements include membership of
participation in the Securities Transfer Agents Medallion
Program ("STAMP") or such other "signature guarantee program"
as may be determined by the Conversion Agent in addition to, or
in substitution for, STAMP, all in accordance with the
Securities and Exchange Act of 1934, as amended.
11
<PAGE> 1
<TABLE>
WENDY'S INTERNATIONAL, INC. AND SUBSIDIARIES
EXHIBIT 11
COMPUTATION OF NET INCOME PER COMMON SHARE
<CAPTION>
(In thousands except per share data)
QUARTER ENDED QUARTER ENDED
SEPTEMBER 29 OCTOBER 1
1996 1995
------------ --------
<S> <C> <C>
Weighted average number
of common shares outstanding........................... 112,477 102,644
Shares issuable pursuant
to employee stock option plans
less shares assumed repurchased
at the average market price........................ 2,657 3,419
Shares issuable upon conversion of company-
obligated mandatorily redeemable
convertible preferred securities................... 749 -
Shares issuable upon conversion of exchangeable
shares............................................... 16,450 16,450
------- -------
NUMBER OF SHARES FOR COMPUTATION OF
PRIMARY EARNINGS PER COMMON SHARE...................... 132,333 122,513
Add net additional shares issuable
pursuant to employee stock option plans at
period-end market price............................ 221 6
Add additional shares issuable
assuming conversion of
subordinated debentures............................ - 8,124
------- -------
NUMBER OF SHARES FOR COMPUTATION OF
FULLY DILUTED EARNINGS PER COMMON SHARE............... 132,554 130,643
======= =======
Net income................................................ $46,941 $36,237
Add savings on assumed conversion of preferred
securities net of tax................................ 154 -
------- -------
Net income for computation of primary
earnings per common share.............................. 47,095 36,237
Add savings on assumed dilutive conversion
of subordinated debentures net of tax................ - 1,291
------- -------
Net income for computation of fully diluted
earnings per common share.............................. $ 47,095 $ 37,528
======== ========
Net income per common share:
Assuming primary dilution.............................. $.36 $.30
==== ====
Assuming full dilution................................. $.36 $.29
==== ====
</TABLE>
325
<PAGE> 2
<TABLE>
WENDY'S INTERNATIONAL, INC. AND SUBSIDIARIES
EXHIBIT 11
COMPUTATION OF NET INCOME PER COMMON SHARE
<CAPTION>
(In thousands except per share data)
YEAR-TO-DATE ENDED YEAR-TO-DATE ENDED
SEPTEMBER 29 OCTOBER 1
1996 1995
------------ --------
<S> <C> <C>
Weighted average number
of common shares outstanding........................... 109,062 102,128
Add net shares issuable pursuant
to employee stock option plans
less shares assumed repurchased
at the average market price........................ 2,596 3,026
Shares issuable upon conversion of company-
obligated mandatorily redeemable
convertible preferred securities................... 250 -
Shares issuable upon conversion of exchangeable
shares............................................... 16,450 16,450
------- -------
NUMBER OF SHARES FOR COMPUTATION OF
PRIMARY EARNINGS PER COMMON SHARE...................... 128,358 121,604
Add net additional shares issuable
pursuant to employee stock option plans at
period-end market price............................ 93 65
Add additional shares issuable
assuming conversion of
subordinated debentures............................ 3,192 8,124
------- -------
NUMBER OF SHARES FOR COMPUTATION OF
FULLY DILUTED EARNINGS PER COMMON SHARE ............... 131,643 129,793
======= =======
Net income................................................ $115,699 $91,912
Add savings on assumed conversion of preferred
securities net of tax................................ 154 -
------- -------
Net income for computation of primary
earnings per common share.............................. 115,853 91,912
Add savings on assumed dilutive conversion
of subordinated debentures net of tax................ 1,014 3,708
------- -------
Net income for computation of fully diluted
earnings per common share.............................. $116,867 $ 95,620
======== ========
Net income per common share:
Assuming primary dilution.............................. $.90 $.76
==== ====
Assuming full dilution................................. $.89 $.74
==== ====
</TABLE>
326
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINACIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED BALANCE SHEET AND CONSOLIDATED STATEMENT OF INCOME AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<RESTATED>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-START> JAN-02-1995
<PERIOD-END> OCT-01-1995
<CASH> 0
<SECURITIES> 0
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 0
<PP&E> 0
<DEPRECIATION> 0
<TOTAL-ASSETS> 0
<CURRENT-LIABILITIES> 0
<BONDS> 0
<COMMON> 0
0
0
<OTHER-SE> 0
<TOTAL-LIABILITY-AND-EQUITY> 0
<SALES> 1,092,114
<TOTAL-REVENUES> 1,286,920
<CGS> 663,045
<TOTAL-COSTS> 963,944
<OTHER-EXPENSES> 155,521
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 8,131
<INCOME-PRETAX> 132,037
<INCOME-TAX> 40,125
<INCOME-CONTINUING> 91,912
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 91,912
<EPS-PRIMARY> .76
<EPS-DILUTED> .74
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED BALANCE SHEET AND CONSOLIDATED STATEMENT OF INCOME AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-29-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> SEP-29-1996
<CASH> 271,558
<SECURITIES> 5,387
<RECEIVABLES> 62,184
<ALLOWANCES> 0
<INVENTORY> 33,887
<CURRENT-ASSETS> 388,118
<PP&E> 1,626,310
<DEPRECIATION> (530,347)
<TOTAL-ASSETS> 1,708,507
<CURRENT-LIABILITIES> 192,802
<BONDS> 237,575
<COMMON> 11,278
200,000
0
<OTHER-SE> 1,008,720
<TOTAL-LIABILITY-AND-EQUITY> 1,708,507
<SALES> 1,170,083
<TOTAL-REVENUES> 1,408,369
<CGS> 728,690
<TOTAL-COSTS> 1,052,195
<OTHER-EXPENSES> 162,851
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 5,194
<INCOME-PRETAX> 188,129
<INCOME-TAX> 72,430
<INCOME-CONTINUING> 115,699
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 115,699
<EPS-PRIMARY> .90
<EPS-DILUTED> .89
</TABLE>
