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Exhibit 2(m)
GUARANTY AGREEMENT
AMENDING AGREEMENT NO. 2
THIS IS AN AMENDING AGREEMENT made as of February 25, 1999 by
and between the Irrevocable Trust for the benefit of XXXXXX X. XXXXX (the
"Trust") and XXXXXX X. XXXXX (the "Shareholder").
WHEREAS:
A. The Trust and the Shareholder entered into a guaranty agreement
dated as of December 29, 1995 which was amended by an Agreement dated September
16, 1998 between the Trust, the Shareholder and other parties (collectively, the
"Guaranty Agreement"); and
B. The Shareholder wishes to pledge Newco Exchangeable Shares to
Canadian Imperial Bank of Commerce, a bank chartered under the laws of Canada
("CIBC") as security for loans which may be made from time to time by CIBC to
Seller.
NOW THEREFORE, in consideration of the mutual covenants and
agreements contained in this agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
ARTICLE I
INTERPRETATION
1.1 One Agreement. This Agreement amends the Guaranty Agreement and this
Agreement and the Guaranty Agreement shall be read, interpreted, construed and
have effect as, and shall constitute one agreement with the same effect as if
the amendments made to the Guaranty Agreement by this Agreement had been
contained in the Guaranty Agreement as of the date of this Agreement.
1.2 Defined Terms. In this Agreement, unless something in the subject
matter or context is inconsistent:
(a) terms defined in the description of the parties or in the
recitals have the respective meanings given to them in such
description or recitals; and
(b) all other capitalized terms have the respective meanings given
to them in the Guaranty Agreement as amended by Article 2 of
this Agreement.
1.3 Headings. The headings of the Articles and Sections of this Agreement
are inserted for convenience of reference only and shall not affect the
construction or interpretation of this Agreement.
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1.4 References. All references in this Agreement to Articles and
Sections, unless otherwise specified, are to Articles and Sections of the
Guaranty Agreement.
ARTICLE II
AMENDMENTS
2.1 Section 2 of the Guaranty Agreement is amended to read as follows:
2. In addition to any other restrictions that may apply from time to
time to the Newco Exchangeable Shares and Wendy's Common Shares,
Shareholder may transfer (other than to Issuer) all or any portion of
Shareholder's Newco Exchangeable Shares and Wendy's Common Shares only
in accordance with Section 4.3 of the Purchase Agreement and Sections
5.6 and 6.3 of the Share Exchange Agreement as amended. Notwithstanding
the foregoing, Shareholder may pledge from time to time to a bank
chartered under the laws of Canada (the "Bank"), Newco Exchangeable
Shares (the "Pledged Newco Exchangeable Shares") pursuant to the form
of the securities pledge agreement, attached hereto as Schedule A (the
"Securities Pledge Agreement"), along with Wendy's Common Shares
received upon the presentation and surrender of the Pledged Newco
Exchangeable Shares, on the condition that the Bank acknowledges its
agreement to be bound by the Share Exchange Agreement and by the
Guaranty Agreement as the Seller and as the Shareholder respectively,
to the extent of the Pledged Newco Exchangeable Shares.
ARTICLE III
GENERAL
3.1 Effective Date and Confirmation. This Agreement and the amendment to
the Guaranty Agreement contained in this Agreement shall be effective as of and
from the date of this Agreement. The Guaranty Agreement, as amended by this
Agreement, is confirmed by the Trust and the Shareholder.
3.2 Binding Nature. This Agreement shall enure to the benefit of and be
binding upon each of the Trust and the Shareholder and their respective
successors, permitted assigns, heirs and executors.
3.3 Conflicts. If any provision of this Agreement is inconsistent with any
provision of the Guaranty Agreement the relevant provision of this Agreement
shall prevail
3.4 Law of Contract. This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio without giving effect to conflict
of law principles.
3.5 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same Agreement.
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IN WITNESS OF WHICH the Trust and the Shareholder have executed this
Agreement as of the date indicated on the first page of this Agreement.
THE IRREVOCABLE TRUST FOR THE
BENEFIT OF XXXXXX X. XXXXX
THE HUNTINGTON NATIONAL BANK, TRUSTEE
By: /s/ Candada X. Xxxxx
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Name: Candada X. Xxxxx
Title: Vice President
/s/ Xxxx Xxxxxx /s/ Xxxxxx X. Xxxxx
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WITNESS XXXXXX X. XXXXX
ACKNOWLEDGEMENT
Canadian Imperial Bank of Commerce acknowledges to the Trust that it is
bound by and agrees to honour the terms of the Guaranty Agreement as Shareholder
to the extent of the Pledged Newco Exchangeable Shares.
CANADIAN IMPERIAL BANK OF
COMMERCE
By: /s/ X.X. Xxxxxxxx
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Name: X.X. Xxxxxxxx
Title: Senior Account Manager
I have authority to bind Canadian
Imperial Bank of Commerce
