EXHIBIT 4.2
-----------
ARBY'S FRANCHISE TRUST
7.44% Fixed Rate Insured Notes Due December 20, 2020
FIRST SUPPLEMENTAL INDENTURE
Dated as of July 13, 2005
Supplementing the Indenture, Dated
as of November 21, 2000, Between
Xxxx's Franchise Trust, as Issuer, Ambac
Assurance Corporation, as Insurer, and
BNY Midwest Trust Company,
as Indenture Trustee
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, dated as of July 13, 2005 (this "First
Supplemental Indenture"), among ARBY'S FRANCHISE TRUST, a Delaware statutory
trust (the "Issuer"), AMBAC ASSURANCE CORPORATION, a Wisconsin stock insurance
corporation, as insurer (the "Insurer") and as Controlling Party (as defined in
the Indenture referred to below), and BNY MIDWEST TRUST COMPANY, an Illinois
banking corporation, as indenture trustee (in such capacity, together with its
permitted successors and assigns in such capacity, the "Indenture Trustee").
WHEREAS, the Issuer, the Insurer and the Indenture Trustee heretofore
executed and delivered an indenture, dated as of November 21, 2000 (the
"Indenture");
WHEREAS, pursuant to the Indenture, the Issuer issued and the Indenture
Trustee authenticated and delivered U.S. $290,000,000 aggregate principal amount
of the Issuer's 7.44% Fixed Rate Insured Notes Due December 20, 2020;
WHEREAS, the Issuer, the Insurer and the Indenture Trustee wish to
amend the Indenture in the manner set forth in this First Supplemental
Indenture.
NOW, THEREFORE, the Issuer, the Insurer and the Indenture Trustee agree
as follows:
ARTICLE I
AMENDMENT OF SECTION 4.01 OF THE INDENTURE
SECTION 1.1 Subclause (B) of Section 4.01(a)(i) of the Indenture
is hereby amended by inserting the following at the end of such subclause:
"PROVIDED, HOWEVER, no such Accountants' Certificate shall be required if on the
date of such deposit all funds deposited are cash and for purposes of
determining the sufficiency of the amount necessary to pay and discharge the
Optional Redemption Price for such Notes, the Issuer assumes that such cash has
a zero percent rate of return from the date of deposit to, but excluding, the
date of redemption of such Notes".
SECTION 1.2 INDENTURE TRUSTEE'S ACCEPTANCE. The Indenture Trustee
hereby accepts this First Supplemental Indenture and agrees to perform the same
under the terms and conditions set forth in the Indenture.
ARTICLE II
MISCELLANEOUS
SECTION 2.1 EFFECT OF SUPPLEMENTAL INDENTURE. Upon the execution
and delivery of this First Supplemental Indenture by the Issuer, the Insurer and
the
2
Indenture Trustee, the Indenture shall be supplemented in accordance herewith,
and this First Supplemental Indenture shall form a part of the Indenture for all
purposes, and every Holder of a Note heretofore or hereafter authenticated and
delivered under the Indenture shall be bound thereby.
SECTION 2.2 INDENTURE REMAINS IN FULL FORCE AND EFFECT. Except as
supplemented hereby, all provisions in the Indenture shall remain in full force
and effect.
SECTION 2.3 INDENTURE AND SUPPLEMENTAL INDENTURE CONSTRUED
TOGETHER. This First Supplemental Indenture is an indenture supplemental to and
in implementation of the Indenture, and the Indenture and this First
Supplemental Indenture shall henceforth be read and construed together.
SECTION 2.4 SEVERABILITY. In case any provision in this First
Supplemental Indenture 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 2.5 TERMS DEFINED IN THE INDENTURE. All capitalized terms
not otherwise defined herein shall have the meanings ascribed to them in the
Indenture.
SECTION 2.6 HEADINGS. The Article and Section headings of this
First Supplemental Indenture have been inserted for convenience of reference
only, are not to be considered a part of this Supplemental Indenture and shall
in no way modify or restrict any of the terms or provisions hereof.
SECTION 2.7 CERTAIN DUTIES AND RESPONSIBILITIES OF THE INDENTURE
TRUSTEE. In entering into this First Supplemental Indenture, the Indenture
Trustee shall be entitled to the benefit of every provision of the Indenture
relating to the conduct or affecting the liability or affording protection to
the Indenture Trustee, whether or not elsewhere herein so provided.
SECTION 2.8 CONSENT OF CONTROLLING PARTY; DIRECTION OF THE
ISSUER. In accordance with Section 8.02 of the Indenture, (i) the Controlling
Party hereby consents to the Indenture Trustee entering into this First
Supplemental Indenture and (ii) the Issuer hereby directs the Indenture Trustee
to enter into this First Supplemental Indenture.
SECTION 2.9 INSURER CONDITION. By its signature below the Insurer
confirms that the Insurer Condition with respect to this First Supplemental
Indenture has been satisfied.
SECTION 2.10 EFFECTIVENESS. This First Supplemental Indenture
shall become effective upon the delivery to the Indenture Trustee of (i) written
confirmation by each Rating Agency that the modification of the trusts created
by the Indenture contemplated by this First Supplemental Indenture will not have
an adverse effect upon the ratings of the Notes; (ii) an Opinion of Counsel
stating that the execution of this First Supplemental Indenture is permitted by
the Indenture and that this First Supplemental Indenture is the legal, valid and
binding obligation of the Issuer, enforceable against the
3
Issuer in accordance with its terms (subject to customary exceptions); and (iii)
this First Supplemental Indenture executed by each party hereto.
SECTION 2.11 GOVERNING LAW. This First Supplemental Indenture
shall be construed in accordance with and governed by the laws of the State of
New York, without regard to principles of conflict of laws.
SECTION 2.12 COUNTERPART ORIGINALS. The parties may sign any
number of copies of this First Supplemental Indenture. Each signed copy shall be
an original, but all of them together represent the same agreement.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, the parties have caused this First
Supplemental Indenture to be duly executed as of the date first written above.
ARBY'S FRANCHISE TRUST, as Issuer
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
AMBAC ASSURANCE CORPORATION,
as Insurer and as Controlling Party
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
BNY MIDWEST TRUST COMPANY, not
in its individual capacity but solely as
Indenture Trustee
By: /s/ Xxxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Assistant Vice President
