exhibit 10. 5 execution copy amended and restated agreement and consent to assignment by and among wendy ’ s international, inc., davco acquisition holding inc., davco restaurants, inc. and others april 16, 2004 table of contents 1. transactions ; wendy ’ s consent 2. certain representations, warranties and covenants 3. control block 4. right of first refusal. 5. consent required 6. indemnification 7. expenditures ; limitations on distributions and payments 8. noncompetition 9. purchase option 10. control of davco restaurants 11. letter of credit 12. certain restaurant covenants 13. additional representations and warranties 14. limitations on granting liens ; indebtedness ; guaranties 15. general release 16. modification of franchise contracts ; breach or default 17. future consents ; follow - on offering 18. offering and prospectus 19. notice 20. limitation of consent 21. notice and approvals of third parties 22. reliance 23. no representations by wendy ’ s 24. receipt of circular 25. conflicts 26. governing law 27. jurisdiction ; service of process ; waiver of jury trial 28. severability 29. entire agreement 30. amendment ; waiver i 31. binding nature ; assignment ; third party beneficiaries 32. joint and several ; survival 33. time of essence 34. construction 35. counterparts 36. legal opinions ; deliveries 37. effectiveness 38. continuous disclosure 39. limitation on liability of citicorp. exhibits exhibit a - form of amended and restated certificate of incorporation of davco restaurants exhibit b - form of ltip exhibit c - form of reinvestment plan exhibit d - outstanding obligations exhibit e - description of subordinated notes and guarantees exhibit f - format of standard business plan exhibit g - indebtedness and liens exhibit h - form of general release of all claims exhibit i - forms of legal opinions to be delivered at signing of amended and restated consent to assignment exhibit j - forms of legal opinions to be delivered at transaction closing ii amended and restated agreement and consent to assignment this amended and restated agreement and consent to assignment ( this “ amended consent to assignment ” or this “ agreement ” ) is made in dublin, ohio, effective as of april 16, 2004, by and among wendy ’ s international, inc., an ohio corporation ( “ wendy ’ s ” ) ; davco acquisition holding inc., a delaware corporation ( “