exv10w70






Exhibit 10.70




EXECUTION VERSION




 




CREDIT AGREEMENT






dated as of



October 19, 2010,



among



BURGER KING HOLDINGS, INC.,



BLUE ACQUISITION SUB, INC.,

as Initial Borrower

(to be merged with and into Holdings)



BURGER KING CORPORATION,

as Borrower,



The Lenders Party Hereto,



JPMORGAN CHASE BANK, N.A.,

as Administrative Agent,



BARCLAYS CAPITAL,

as Syndication Agent, and



FIFTH THIRD BANK,

REGIONS BANK and

UNICREDIT BANK AG,



as Documentation Agents



 





J.P. MORGAN SECURITIES LLC and BARCLAYS CAPITAL,



as Co-Lead Arrangers and Joint Bookrunners



 




 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I Definitions
	 	 	1	 
	SECTION 1.01 Defined Terms
	 	 	1	 
	SECTION 1.02 Classification of Loans and Borrowings
	 	 	45	 
	SECTION 1.03 Terms Generally
	 	 	45	 
	SECTION 1.04 Accounting Terms; GAAP
	 	 	45	 
	SECTION 1.05 Pro Forma Calculations
	 	 	46	 
	SECTION 1.06 Currency Translation
	 	 	46	 
	 
	ARTICLE II The Credits
	 	 	47	 
	SECTION 2.01 Commitments
	 	 	47	 
	SECTION 2.02 Loans and Borrowings
	 	 	48	 
	SECTION 2.03 Requests for Borrowings
	 	 	49	 
	SECTION 2.04 Swingline Loans
	 	 	50	 
	SECTION 2.05 Letters of Credit
	 	 	51	 
	SECTION 2.06 Funding of Borrowings
	 	 	58	 
	SECTION 2.07 Interest Elections
	 	 	58	 
	SECTION 2.08 Termination and Reduction of Commitments
	 	 	60	 
	SECTION 2.09 Repayment of Loans; Evidence of Debt
	 	 	61	 
	SECTION 2.10 Amortization of Term Loans
	 	 	62	 
	SECTION 2.11 Prepayment of Loans
	 	 	64	 
	SECTION 2.12 Fees
	 	 	69	 
	SECTION 2.13 Interest
	 	 	70	 
	SECTION 2.14 Alternate Rate of Interest
	 	 	70	 
	SECTION 2.15 Increased Costs
	 	 	71	 
	SECTION 2.16 Break Funding Payments
	 	 	72	 
	SECTION 2.17 Taxes
	 	 	73	 
	SECTION 2.18 Payments Generally; Pro Rata Treatment; Sharing of Setoffs
	 	 	74	 
	SECTION 2.19 Mitigation Obligations; Replacement of Lenders
	 	 	76	 
	SECTION 2.20 Incremental Facility
	 	 	77	 
	SECTION 2.21 Defaulting Lenders
	 	 	80	 
	SECTION 2.22 Extensions of Term Loans and Revolving Commitments
	 	 	81	 
	 
	ARTICLE III Representations and Warranties
	 	 	85	 
	SECTION 3.01 Organization; Powers
	 	 	85	 
	SECTION 3.02 Authorization; Enforceability
	 	 	85	 
	SECTION 3.03 Governmental Approvals; No Conflicts
	 	 	85	 
	SECTION 3.04 Financial Condition; No Material Adverse Change
	 	 	85	 
	SECTION 3.05 Properties
	 	 	86	 
	SECTION 3.06 Litigation and Environmental Matters
	 	 	86	 
	SECTION 3.07 Compliance with Laws
	 	 	87	 
	SECTION 3.08 Investment Company Status
	 	 	87	 
	SECTION 3.09 Taxes
	 	 	87	 
	SECTION 3.10 ERISA
	 	 	87	 






i









 






	 	 	 	 	 
	 	 	Page	 
	SECTION 3.11 Disclosure
	 	 	87	 
	SECTION 3.12 Subsidiaries
	 	 	88	 
	SECTION 3.13 Labor Matters
	 	 	88	 
	SECTION 3.14 Solvency
	 	 	88	 
	SECTION 3.15 Federal Reserve Regulations
	 	 	88	 
	SECTION 3.16 Use of Proceeds
	 	 	88	 
	SECTION 3.17 Regulation H
	 	 	88	 
	SECTION 3.18 Security Documents
	 	 	89	 
	SECTION 3.19 Senior Indebtedness
	 	 	90	 
	SECTION 3.20 Certain Documents
	 	 	90	 
	 
	ARTICLE IV Conditions
	 	 	90	 
	SECTION 4.01 Conditions to Initial Extension of Credit
	 	 	90	 
	SECTION 4.02 Each Credit Event
	 	 	93	 
	 
	ARTICLE V Affirmative Covenants
	 	 	93	 
	SECTION 5.01 Financial Statements and Other Information
	 	 	93	 
	SECTION 5.02 Notices of Material Events
	 	 	96	 
	SECTION 5.03 Information Regarding Collateral
	 	 	96	 
	SECTION 5.04 Existence; Conduct of Business
	 	 	97	 
	SECTION 5.05 Payment of Taxes
	 	 	97	 
	SECTION 5.06 Maintenance of Properties
	 	 	97	 
	SECTION 5.07 Insurance
	 	 	97	 
	SECTION 5.08 Books and Records; Inspection and Audit Rights
	 	 	97	 
	SECTION 5.09 Compliance with Laws
	 	 	98	 
	SECTION 5.10 Environmental Laws
	 	 	98	 
	SECTION 5.11 [Reserved]
	 	 	98	 
	SECTION 5.12 Additional Subsidiaries
	 	 	98	 
	SECTION 5.13 Further Assurances
	 	 	98	 
	SECTION 5.14 Designation of Subsidiaries
	 	 	99	 
	 
	ARTICLE VI Negative Covenants
	 	 	99	 
	SECTION 6.01 Indebtedness
	 	 	100	 
	SECTION 6.02 Liens
	 	 	103	 
	SECTION 6.03 Fundamental Changes
	 	 	105	 
	SECTION 6.04 Investments, Loans, Advances, Guarantees and Acquisitions
	 	 	105	 
	SECTION 6.05 Asset Sales
	 	 	108	 
	SECTION 6.06 [Reserved]
	 	 	111	 
	SECTION 6.07 Swap Agreements
	 	 	111	 
	SECTION 6.08 Restricted Payments; Certain Payments of Indebtedness
	 	 	112	 
	SECTION 6.09 Transactions with Affiliates
	 	 	114	 
	SECTION 6.10 Restrictive Agreements
	 	 	116	 
	SECTION 6.11 Amendment of Material Documents
	 	 	117	 
	SECTION 6.12 Interest Coverage Ratio
	 	 	117	 
	SECTION 6.13 Total Leverage Ratio
	 	 	118	 
	SECTION 6.14 Maximum Capital Expenditures
	 	 	118	 
	SECTION 6.15 Holdings Covenants
	 	 	118	 






ii









 






	 	 	 	 	 
	 	 	Page	 
	ARTICLE VII Events of Default
	 	 	119	 
	 
	 
	ARTICLE VIII The Administrative Agent
	 	 	123	 
	 
	 
	ARTICLE IX Miscellaneous
	 	 	125	 
	SECTION 9.01 Notices
	 	 	125	 
	SECTION 9.02 Waivers; Amendments
	 	 	126	 
	SECTION 9.03 Expenses; Indemnity; Damage Waiver
	 	 	128	 
	SECTION 9.04 Successors and Assigns
	 	 	129	 
	SECTION 9.05 Survival
	 	 	135	 
	SECTION 9.06 Counterparts; Integration
	 	 	135	 
	SECTION 9.07 Severability
	 	 	135	 
	SECTION 9.08 Right of Setoff
	 	 	135	 
	SECTION 9.09 Governing Law; Jurisdiction; Consent to Service of Process
	 	 	136	 
	SECTION 9.10 WAIVER OF JURY TRIAL
	 	 	136	 
	SECTION 9.11 Headings
	 	 	137	 
	SECTION 9.12 Confidentiality
	 	 	137	 
	SECTION 9.13 Interest Rate Limitation
	 	 	137	 
	SECTION 9.14 USA Patriot Act
	 	 	138	 
	SECTION 9.15 Conversion of Currencies
	 	 	138	 
	SECTION 9.16 Effectiveness of the Merger; Assumption by the Borrower
	 	 	138	 






iii









 





Table of Contents



SCHEDULES:






	 	 	 	 	 

	Schedule 1.01

	 	—
	 	Existing Letters of Credit
	Schedule 2.01

	 	—
	 	Commitments
	Schedule 3.06

	 	—
	 	Disclosed Matters
	Schedule 3.12

	 	—
	 	Subsidiaries
	Schedule 3.18(a)

	 	—
	 	UCC Filing Jurisdictions
	Schedule 6.01

	 	—
	 	Existing Indebtedness
	Schedule 6.02

	 	—
	 	Existing Liens
	Schedule 6.04

	 	—
	 	Existing Investments
	 
	 	 	 	 
	EXHIBITS:
	 	 	 	 
	Exhibit A

	 	—
	 	Form of Assignment and Assumption
	Exhibit B

	 	—
	 	Form of Opinion of Associate General Counsel
	Exhibit B-2

	 	—
	 	Form of Opinion of Kirkland & Ellis LLP
	Exhibit C

	 	—
	 	Form of Collateral Agreement
	Exhibit D

	 	—
	 	Form of Perfection Certificate
	Exhibit E

	 	—
	 	Form of Compliance Certificate
	Exhibit F

	 	—
	 	Form of Closing Certificate
	Exhibit G

	 	—
	 	Form of Closing Date Leverage Ratio Certificate
	Exhibit H

	 	—
	 	Form of Solvency Certificate
	Exhibit I

	 	—
	 	Form of Discounted Prepayment Option Notice
	Exhibit J

	 	—
	 	Form of Lender Participation Notice
	Exhibit K

	 	—
	 	Form of Discounted Voluntary Prepayment Notice







iv











 





     CREDIT AGREEMENT dated as of October 19, 2010 (this “Agreement”), among BURGER KING
HOLDINGS, INC., BLUE ACQUISITION SUB, INC., as the initial borrower prior to the Merger (as defined
below) (the “Initial Borrower”), BURGER KING CORPORATION, as the borrower and the target
(the “Target”), the LENDERS party hereto, JPMORGAN CHASE BANK, N.A., as Administrative
Agent, BARCLAYS CAPITAL, as Syndication Agent and FIFTH THIRD BANK, REGIONS BANK and UNICREDIT BANK
AG, as Documentation Agents.



RECITALS:




     WHEREAS, the Sponsor and certain Sponsor Affiliates have newly formed Blue Acquisition Holding
Corporation (“Parent”), and Parent’s direct wholly owned Subsidiary, the Initial Borrower,
for the purpose of having the Initial Borrower acquire (the “Acquisition”) Burger King
Holdings, Inc. (“Holdings”) through a merger (the “Merger” and, together with the
Acquisition and the debt incurrences and equity issuances to occur substantially concurrently
therewith (including the issuance of the Senior Notes) and the use of proceeds therefrom, the
“Transactions”) of the Initial Borrower with and into Holdings (with Holdings as the
surviving corporation), in each case pursuant to an agreement and plan of merger (together with all
schedules, exhibits and annexes thereto, in each case as may be waived, supplemented or otherwise
modified, the “Purchase Agreement”) dated as of September 2, 2010 between Holdings, Parent
and the Initial Borrower;



     WHEREAS, the Initial Borrower has requested the Lenders extend credit to the Initial Borrower
in the form of Loans on the Effective Date in an aggregate principal amount of up to $1,510,000,000
in Tranche B Term Loans and €250,000,000 in Tranche B Euro Term Loans;



     WHEREAS, the proceeds of the initial Borrowing hereunder will be used, in part, (i) to
refinance certain existing indebtedness of the Target, (ii) to pay the cash consideration for the
Acquisition, and (iii) to pay the Transaction Costs;



     WHEREAS, upon consummation of the Acquisition and the Merger on the Effective Date, Holdings
shall automatically succeed to all the rights and obligations of the Initial Borrower under the
Loan Documents, and the Target, which shall be a wholly-owned subsidiary of Holdings, shall
immediately thereafter assume the rights and obligations of Holdings as “Borrower” under the Loan
Documents; and



     WHEREAS, the Lenders have agreed to make the term loan facility and revolving credit facility
available upon the terms and subject to the conditions set forth herein.



     NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants
herein contained, the parties hereto hereby agree as follows:



ARTICLE I



Definitions



     SECTION 1.01 Defined Terms. As used in this Agreement, the following terms have the
meanings specified below:



 









 





     “ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to
the Alternate Base Rate.



     “Acceptable Discount” has the meaning assigned to such term in Section 2.11(g).



     “Acceptance Date” has the meaning assigned to such term in Section 2.11(g).



     “Acquired EBITDA” means, with respect to any Acquired Entity or Business or any
Converted Restricted Subsidiary for any period, the amount for such period of Consolidated EBITDA
of such Acquired Entity or Business or Converted Restricted Subsidiary, as applicable, all as
determined on a consolidated basis for such Acquired Entity or Business or Converted Restricted
Subsidiary, as applicable.



     “Acquired Entity or Business” has the meaning assigned to such term in the definition
of Consolidated EBITDA.



     “Acquisition” has the meaning assigned to such term in the Recitals.



     “Additional Lender” has the meaning assigned to such term in Section 2.20(c).



     “Adjusted Eurocurrency Rate” means, with respect to any Eurocurrency Borrowing for any
Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%)
equal to (a)(i) for any Eurocurrency Borrowing denominated in U.S. Dollars or Sterling, the LIBO
Rate, or (ii) for any Eurocurrency Borrowing denominated in Euros, the EURO LIBO Rate, in each case
in effect for such Interest Period, multiplied by (b) the Statutory Reserve Rate.



     “Adjustment Date” has the meaning assigned to such term in the definition of
“Applicable Rate”.



     “Administrative Agent” means JPMorgan Chase Bank, N.A., together with its affiliates,
as the arranger of the Commitments and in its capacity as administrative agent for the Lenders
hereunder, and its successors in such capacity as provided in Article VIII.



     “Administrative Questionnaire” means an administrative questionnaire in a form
supplied by the Administrative Agent.



     “Affiliate” means, with respect to a specified Person, another Person that directly,
or indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified, provided, however, that solely for purposes of Section
6.09, the term “Affiliate” shall also include any person that directly, or indirectly through one
or more intermediaries, owns 10% or more of any class of Equity Interests of the Person specified
or that is an executive officer or director of the Person specified. Notwithstanding the foregoing,
no Sponsor or Sponsor Affiliate shall be deemed to be an Affiliate of any Loan Party other than for
purposes of Section 6.09.



     “AHYDO Interest Payment” has the meaning assigned to such term in Section 2.11(h).



2









 





     “Alternate Base Rate” means, for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the greatest of (a) the Prime Rate in effect on such
day, (b) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1% and (c) the Adjusted
Eurocurrency Rate that would be calculated as of such day (or, if such day is not a Business Day,
as of the next preceding Business Day) in respect of a proposed Eurocurrency Loan with an interest
period of one month plus 1%; provided, however, that notwithstanding the rate calculated in
accordance with the foregoing, at no time shall the Alternate Base Rate for Tranche B Term Loans be
deemed to be less than 2.75% per annum. Any change in the Alternate Base Rate due to a change in
the Prime Rate, the Federal Funds Effective Rate or such Adjusted Eurocurrency Rate shall be
effective from and including the opening of business on the day of such change in the Prime Rate,
the Federal Funds Effective Rate or such Adjusted Eurocurrency Rate, respectively.



     “Alternative Currency” means Euro or Sterling.



     “Alternative Currency Letter of Credit” means a Letter of Credit denominated in an
Alternative Currency.



     “Alternative Currency LC Exposure” means LC Exposure related to Alternative Currency
Letters of Credit.



     “Applicable Discount” has the meaning assigned to such term in Section 2.11(g).



     “Applicable Percentage” means, at any time with respect to any Global Revolving Lender
or any U.S. Revolving Lender, the percentage of the aggregate Global Revolving Commitments or
aggregate U.S. Revolving Commitments, as the case may be, represented by such Lender’s Global
Revolving Commitment or U.S. Revolving Commitment, as the case may be, at such time;
provided that in the case of Section 2.21 when a Defaulting Lender shall exist, “Applicable
Percentage” shall mean the percentage of the aggregate Global Revolving Commitments or aggregate
U.S. Revolving Commitments, as the case may be (disregarding any Defaulting Lender’s Global
Revolving Commitment or U.S. Revolving Commitment, as the case may be), represented by such
Lender’s Global Revolving Commitment or aggregate U.S. Revolving Commitment, as the case may be. If
the Revolving Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Revolving Commitments most-recently in effect, giving effect to any
assignments of Revolving Loans, LC Exposures and Swingline Exposures and to any Lender’s status as
a Defaulting Lender that occur after such termination or expiration.


“Applicable Rate” means (a) with respect to any Eurocurrency Loan that is a Tranche B Euro
Term Loan, 4.75% and (b) with respect to any Tranche B Term Loan and any Revolving Loan, (i) 3.50%
in the case of ABR Loans and (ii) 4.50% in the case of Eurocurrency Loans. The Applicable Rate
applicable to Revolving Loans shall be adjusted, on and after the first Adjustment Date (as defined
below) occurring on the date on which the Borrower’s consolidated financial statements are
delivered to the Lenders pursuant to Section 5.01(a) or (b) for the first full fiscal quarter of
the Borrower after the Effective Date based upon the Total Leverage Ratio as of the most recent
determination date as follows:





3









 








	 	 	 	 	 	 	 	 	 
	 	 	Revolving	 	Revolving
	 	 	Loan	 	Loan
	 	 	ABR	 	Eurocurrency
	Total Leverage Ratio:
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Category 1
	 	 	 	 	 	 	 	 
	Greater than or equal to 4.50 to 1.00
	 	 	3.50	%	 	 	4.50	%
	 
	 	 	 	 	 	 	 	 
	Category 2
	 	 	 	 	 	 	 	 
	Less than 4.50 to 1.00 but greater than or equal to 4.00 to 1.00
	 	 	3.25	%	 	 	4.25	%
	 
	 	 	 	 	 	 	 	 
	Category 3
	 	 	 	 	 	 	 	 
	Less than 4.00 to 1.00
	 	 	3.00	%	 	 	4.00	%






     For purposes of the foregoing, (a) the Total Leverage Ratio shall be determined on a Pro
Forma Basis as of the end of each fiscal quarter of the Borrower’s fiscal year based upon the
Borrower’s consolidated financial statements delivered pursuant to Section 5.01(a) or (b) and (b)
each change in the Applicable Rate resulting from a change in the Total Leverage Ratio shall be
effective during the period commencing on and including the date of delivery to the Administrative
Agent of such consolidated financial statements and related certificate of a Financial Officer
indicating such change (the “Adjustment Date”) and ending on the date immediately preceding
the effective date of the next such change, provided that the Total Leverage Ratio shall be
deemed to be in Category 1 (i) at the written request of the Required Lenders at any time that an
Event of Default has occurred and is continuing (or, in the case of an Event of Default of the type
described in paragraph (h) or (i) of Article VII with respect to Holdings or the Borrower,
automatically) or (ii) at the option of the Administrative Agent or at the request of the Required
Lenders if the Borrower fails to deliver the consolidated financial statements or related
certificate of a Financial Officer required to be delivered by it pursuant to Section 5.01(a) or
(b) and Section 5.01(c), as the case may be, during the period from the expiration of the required
time for delivery thereof until such consolidated financial statements and related certificate of a
Financial Officer are delivered.



     Notwithstanding the foregoing, the Applicable Rate in respect of any tranche of Extended
Revolving Commitments or any Extended Term Loans or Revolving Loans made pursuant to any Extended
Revolving Commitments shall be the applicable percentages per annum set forth in the relevant
Extension Offer.



     “Approved Fund” has the meaning assigned to such term in Section 9.04(b).



     “Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an assignee (with the consent of any party whose consent is required by Section 9.04),
and accepted by the Administrative Agent, in the form of Exhibit A or any other form approved by
the Administrative Agent.



     “Available Amount” means at any time (the “Available Amount Reference Time”),
an amount (which shall not be less than zero) equal to the sum of:



     (a) the greater of (i)(x) the cumulative amount of Excess Cash Flow of the Borrower and the
Restricted Subsidiaries for all fiscal years completed after the Effective Date (commencing with
the first fiscal year ending on or after June 30, 2011) and prior to the



4









 




Available Amount Reference Time, minus (y) the portion of such Excess Cash Flow that has been
(or is required to be) applied after the Effective Date and prior to the Available Amount Reference
Time to the prepayment of Term Loans in accordance with Section 2.11(d) and (ii) 50% of
Consolidated Net Income for each fiscal quarter of the Borrower ending after the Effective Date and
prior to the Available Amount Reference Time; plus




     (b) after the completion of an IPO, $50,000,000; plus



     (c) the amount of any capital contributions or Net Proceeds from the sale or issuance of
any Qualified Equity Interests (or issuance of debt securities that have been converted into
or exchanged for Qualified Equity Interests) (other than any Cure Amount or any other capital
contributions or equity or debt issuances to the extent utilized in connection with other
transactions permitted pursuant to Sections 6.04 or 6.08) received or made by the Borrower (or any
direct or indirect parent thereof and contributed by such parent to the Borrower) during the period
from and including the Business Day immediately following the Effective Date through and including
the Available Amount Reference Time; plus



     (d) to the extent not (i) already included in the calculation of Consolidated Net Income of
the Borrower and the Restricted Subsidiaries or (ii) already reflected as a return of capital or
deemed reduction in the amount of such Investment pursuant to clause (f) below, the aggregate
amount of all cash dividends and other cash distributions received by the Borrower or any
Restricted Subsidiary from any Minority Investments or Unrestricted Subsidiaries (other than
payments to cover the payment of Tax liabilities of Unrestricted Subsidiaries pursuant to Section
6.08(a)(iv)(C)) during the period from and including the Business Day immediately following the
Effective Date through and including the Available Amount Reference Time; plus



     (e) to the extent not (i) already included in the calculation of Consolidated Net Income of
the Borrower and the Restricted Subsidiaries, (ii) already reflected as a return of capital or
deemed reduction in the amount of such Investment pursuant to clause (f) below, or (iii) used to
prepay Term Loans in accordance with Section 2.11(c), the aggregate amount of all Net Proceeds
received by the Borrower or any Restricted Subsidiary in connection with the sale, transfer or
other disposition of its ownership interest in any Minority Investment or Unrestricted Subsidiary
during the period from and including the Business Day immediately following the Effective Date
through and including the Available Amount Reference Time; minus



     (f) the aggregate amount of any Investments made pursuant to Section 6.04(q) (net of any
return of capital in respect of such Investment or deemed reduction in the amount of such
Investment including, without limitation, upon the re-designation of any Unrestricted Subsidiary as
a Restricted Subsidiary or the sale, transfer, lease or other disposition of any such Investment),
any Restricted Payment made pursuant to Section 6.08(a)(vi) or any payment made pursuant to Section
6.08(b)(iv) during the period commencing on the Effective Date and ending on prior to the Available
Amount Reference Time (and, for purposes of this clause (f), without taking account of the intended
usage of the Available Amount at such Available Amount Reference Time).



     “Bankruptcy Event” means, with respect to any Person, such Person or its Parent
becomes the subject of a bankruptcy or insolvency proceeding, or has had a receiver,



5









 




conservator, trustee, administrator, custodian, assignee for the benefit of creditors or
similar Person charged with the reorganization or liquidation of its business appointed for it, or,
in the good faith determination of the Administrative Agent, has taken any action in furtherance
of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or
appointment, provided that a Bankruptcy Event shall not result solely by virtue of any
ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental
Authority or instrumentality thereof, provided, further, that such ownership
interest does not result in or provide such Person with immunity from the jurisdiction of courts
within the United States or from the enforcement of judgments or writs of attachment on its assets
or permit such Person (or such Governmental Authority or instrumentality) to reject, repudiate,
disavow or disaffirm any contracts or agreements made by such Person or its Parent.




     “Board” means the Board of Governors of the Federal Reserve System of the United
States of America.



     “Borrower” means (i) the Initial Borrower, for the sole purpose of the initial
borrowings of Loans hereunder on the Effective Date in connection with the consummation of the
Acquisition and the use of proceeds of the Loans hereunder on the Effective Date, and (ii)
immediately upon consummation of the Acquisition and the Merger on the Effective Date, and at all
times thereafter, the Target, which shall assume all rights and Obligations of the Initial Borrower
hereunder.



     “Borrowing” means (a) Loans of the same Class, Type and currency, made, converted or
continued on the same date and, in the case of Eurocurrency Loans, as to which a single Interest
Period is in effect, or (b) a Swingline Loan.



     “Borrowing Minimum” shall mean (a) in the case of a Borrowing denominated in U.S.
Dollars, $5,000,000, (b) in the case of a Borrowing denominated in Euro, €5,000,000 and (c) in the
case of a Borrowing denominated in Sterling, £3,000,000.



     “Borrowing Multiple” shall mean (a) in the case of a Borrowing denominated in U.S.
Dollars, $1,000,000, (b) in the case of a Borrowing denominated in Euro, €1,000,000 and (c) in the
case of a Borrowing denominated in Sterling, £1,000,000.



     “Borrowing Request” means a request by the Borrower for a Borrowing in accordance with
Section 2.03.



     “Business Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain closed,
provided that (a) when used in connection with a Eurocurrency Loan, the term “Business Day”
shall also exclude any day on which banks are not open for dealings in dollar deposits in the
London interbank market , (b) when used in connection with any Loan denominated in any Alternative
Currency, the term “Business Day” shall also include any day on which banks are open for
dealings in deposits in Euro, Sterling and U.S. Dollars in London and (c) when used in connection
with a Loan denominated in Euro, the term “Business Day” shall also exclude any day on which the
Trans-European Automated Real Time Gross Settlement Express Transfer (TARGET) payment system is not
open for the settlement of payments in Euro.



6









 





     “Capital Expenditures” means, for any period, (a) the additions to property, plant and
equipment and other capital expenditures of the Borrower and the Restricted Subsidiaries that are
(or should be) set forth in a consolidated statement of cash flows of the Borrower for such period
prepared in accordance with GAAP and (b) Capital Lease Obligations incurred by the Borrower and the
Restricted Subsidiaries during such period, but excluding in each case any such expenditure (i)
made to restore, replace or rebuild property to the condition of such property immediately prior to
any damage, loss, destruction or condemnation of such property, to the extent such expenditure is
made with, or subsequently reimbursed out of, insurance proceeds, indemnity payments, condemnation
awards (or payments in lieu thereof) or damage recovery proceeds relating to any such damage, loss,
destruction or condemnation, (ii) constituting reinvestment from the Reinvestment Deferred Amount,
(iii) made by the Borrower or any Restricted Subsidiary as payment of the consideration for a
Permitted Acquisition, (iv) made to repair, renovate, alter, restore, replace or improve any
restaurant or restaurant property acquired pursuant to a Permitted Acquisition prior to the date
that is 12 months after the date of completion of such Permitted Acquisition, (v) constituting a
debt or equity investment in a Franchisee, (vi) made by the Borrower or any Restricted Subsidiary
to effect leasehold improvements to any property leased by the Borrower or such Restricted
Subsidiary as lessee, to the extent that such expenses have been reimbursed by the landlord or any
other third party and (vii) made with the Net Proceeds from the issuance of Qualified Equity
Interests.



     “Capital Lease Obligations” of any Person means the obligations of such Person to pay
rent or other amounts under any lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of
such obligations shall be the capitalized amount thereof determined in accordance with GAAP.



     “Casualty Event” means any casualty or other insured damage to, or any taking under
power of eminent domain or by condemnation or similar proceeding of, any property or assets of
Holdings, the Borrower or any Restricted Subsidiary.



     “Change in Control” means (a) the failure by Holdings to own, beneficially and of
record, 100% of the Equity Interests in the Borrower, (b) prior to an IPO, the failure by the
Permitted Investors collectively to own, directly or indirectly through a wholly owned Subsidiary,
beneficially and of record, Equity Interests in Holdings representing at least a majority of each
of the aggregate ordinary voting power and the aggregate equity value represented by the issued and
outstanding Equity Interests in Holdings, (c) after an IPO, (i) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person or group (within the meaning of
the Exchange Act and the rules of the SEC thereunder as in effect on the Effective Date) other than
the Permitted Investors, of Equity Interests representing more than 35% of either the aggregate
ordinary voting power or the aggregate equity value represented by the issued and outstanding
Equity Interests in Holdings, and (ii) the ownership, directly or indirectly, beneficially or of
record, by the Permitted Investors collectively of Equity Interests in Holdings representing in the
aggregate a lesser percentage of either the aggregate ordinary voting power or the aggregate equity
value represented by the issued and outstanding Equity Interests in Holdings than such Person or
group, (d) the occupation of a majority of the seats (other than vacant seats) on the board of
directors of Holdings by Persons who were neither (i) nominated by a majority of



7









 




the board of directors of Holdings or one or more of the Permitted Investors nor (ii)
appointed by directors so nominated or (e) the occurrence of a “Change of Control” (or similar
event, however denominated), as defined in (i) the Senior Note Documents, (ii) any indenture or
agreement in respect of a Permitted Refinancing in respect of the Senior Note Documents, (iii) any
Subordinated Debt Documents or (iv) any indenture or agreement in respect of Indebtedness incurred
under Section 6.01(xviii).




     “Change in Law” means (a) the adoption of any law, rule or regulation after the
Effective Date, (b) any change in any law, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the Effective Date or (c) compliance by any
Lender or Issuing Bank (or, for purposes of Section 2.15(b), by any lending office of such Lender
or by such Lender’s or Issuing Bank’s holding company, if any) with any request, guideline or
directive (whether or not having the force of law) of any Governmental Authority made or issued
after the Effective Date.



     “Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are Global Revolving Loans, U.S. Revolving Loans, Tranche B
Term Loans, Tranche B Euro Term Loans, Extended Term Loans, Incremental Term Loans or Swingline
Loans and, when used in reference to any Commitment, refers to whether such Commitment is a Global
Revolving Commitment, U.S. Revolving Commitment, Extended Revolving Commitment, Tranche B
Commitment, Tranche B Euro Commitment or a Commitment in respect of any Incremental Term Loans.
Incremental Term Loans that have different terms and conditions (together with the Commitments in
respect thereof) shall be construed to be in different Classes.



     “Class”, when used in reference to any Lender, refers to whether such Lender has a
Loan or Commitment with respect to a particular Class.



     “CLO” has the meaning assigned to such term in Section 9.04(b).



     “Closing Date Leverage Ratio” means, with respect to the four most-recent fiscal
quarters of the Target ended not less than 45 days prior to the Effective Date, the ratio of total
debt of the Target and its consolidated Subsidiaries on the last day of such period (as determined
in accordance with GAAP) to Closing Date Target EBITDA for such period.



     “Closing Date Material Adverse Effect” has the meaning set forth in the definition of
“Material Adverse Effect” in the Purchase Agreement.



     “Closing Date Target EBITDA” means, with respect to the Target and its consolidated
Subsidiaries, for the four most-recent fiscal quarters of the Target ended not less than 45 days
prior to the Effective Date, consolidated net income for such period (as determined in accordance
with GAAP) plus, to the extent deducted in determining consolidated net income, (i) interest
expenses for such period, (ii) taxes for such period, (iii) depreciation for such period, (iv)
amortization for such period, (v) other non-cash charges (including write offs and write downs) and
expenses during such period, (vi) any extraordinary losses or charges during such period and (vii)
costs associated with the Transactions, minus, to the extent included in determining consolidated
net income, any extraordinary gains during such period. Notwithstanding the



8









 




foregoing, Closing Date Target EBITDA shall be $113,700,000, $123,700,000, $106,200,000 and
$117,200,000 for the fiscal quarters of the Target ended September 30, 2009, December 31, 2009,
March 31, 2010 and June 30, 2010, respectively.




     “Code” means the Internal Revenue Code of 1986, as amended from time to time.



     “Collateral” means any and all “Collateral”, as defined in any applicable Security
Document.



     “Collateral Agreement” means the Guarantee and Collateral Agreement among Holdings,
the Borrower, the Subsidiary Loan Parties and the Administrative Agent, substantially in the form
of Exhibit C.



     “Collateral and Guarantee Requirement” means, at any time, the requirement that:



     (a) the Administrative Agent shall have received from each Loan Party (i) either (x) a
counterpart of the Collateral Agreement duly executed and delivered on behalf of such Loan Party or
(y) in the case of any Person that becomes a Loan Party after the Effective Date, a supplement to
the Collateral Agreement, in the form specified therein, duly executed and delivered on behalf of
such Loan Party and (ii) with respect to any Loan Party that directly owns Equity Interests of a
Foreign Subsidiary that is (A) a Restricted Subsidiary, (B) not a De Minimis Foreign Subsidiary and
(C) domiciled in Gibraltar or the United Kingdom or any other jurisdiction of organization of any
entity that is a principal holding company of the Borrower’s non-United States operations, a
counterpart of each Foreign Pledge Agreement that the Administrative Agent determines, based on the
advice of counsel, to be necessary or advisable in connection with the pledge of, or the granting
of security interests in, Equity Interests of such Foreign Subsidiary, in each case duly executed
and delivered on behalf of such Loan Party and such Foreign Subsidiary;



     (b) all outstanding Equity Interests of the Borrower and each Restricted Subsidiary, in each
case directly owned by or on behalf of any Loan Party, shall have been pledged pursuant to the
Collateral Agreement or, if required pursuant to clause (a) above, a Foreign Pledge Agreement
(except that the Loan Parties shall not be required to pledge (i) more than 65% of the outstanding
voting Equity Interests of any Foreign Subsidiary, (ii) the Equity Interests of any Foreign
Subsidiary if the pledge of such Equity Interests would be prohibited by applicable law or (iii)
the Equity Interests of any Excluded Subsidiary) and, except as otherwise agreed upon by the
Administrative Agent, the Administrative Agent shall have received certificates or other
instruments representing all such Equity Interests that are certificated (other than any such
Equity Interests of De Minimis Foreign Subsidiaries), together with undated stock powers or other
instruments of transfer with respect thereto endorsed in blank;



     (c) to the extent required under the Collateral Agreement, all Indebtedness of the Borrower
and each Subsidiary that is owing to any Loan Party shall be evidenced by a promissory note or an
instrument and shall have been pledged pursuant to the Collateral Agreement, and the Administrative
Agent shall have received all such promissory notes or instruments, together with note powers or
other instruments of transfer with respect thereto



9









 




endorsed in blank; provided that no such promissory notes or instruments shall be
required to be delivered to the Administrative Agent prior to the date that is 60 days after the
Effective Date;




     (d) all documents and instruments, including Uniform Commercial Code financing statements,
filings with the United States Copyright Office and the United States Patent and Trademark Office,
required by law or reasonably requested by the Administrative Agent to be filed, registered or
recorded to create the Liens intended to be created by the Collateral Agreement and the Foreign
Pledge Agreements and perfect such Liens to the extent required by, and with the priority required
by, this Agreement, the Collateral Agreement and the Foreign Pledge Agreements, shall have been
filed, registered or recorded or delivered to the Administrative Agent for filing, registration or
recording; and



     (e) each Loan Party shall have obtained all consents and approvals required to be obtained by
it in connection with the execution and delivery of all Security Documents to which it is a party,
the performance of its obligations thereunder and the granting by it of the Liens thereunder.



     “Commitment” means (a) with respect to any Lender, such Lender’s Global Revolving
Commitment, U.S. Revolving Commitment, Extended Revolving Commitment, Tranche B Commitment, Tranche
B Euro Commitment or commitment in respect of any Incremental Term Loans or any combination thereof
(as the context requires) and (b) with respect to the Swingline Lender, its Swingline Commitment.



     “Commitment Fee Rate” means 0.75% per annum; provided that on and after the
date on which the Borrower’s consolidated financial statements are delivered to the Lenders
pursuant to Section 5.01(a) or (b) for the first full fiscal quarter of the Borrower after the
Effective Date, such rate shall be reduced to (i) 0.625% if and as long as the Total Leverage Ratio
at the most recent Adjustment Date is less than 5.00 to 1.00 and greater than or equal to 4.50 to
1.00 and (ii) 0.50% if and as long as the Total Leverage Ratio at the most recent Adjustment Date
is less than 4.50 to 1.00.



     “Consolidated Depreciation and Amortization Expenses” means with respect to any Person
for any period, the total amount of depreciation and amortization expense, including the
amortization of deferred financing fees or costs and the amortization of original issue discount
resulting from the issuance of Indebtedness at less than par and amortization of favorable or
unfavorable lease assets or liabilities, of such Person and its Restricted Subsidiaries for such
period on a consolidated basis and otherwise determined in accordance with GAAP.



     “Consolidated EBITDA” means, with respect to any Person for any period, the
Consolidated Net Income of such Person for such period:



     (a) increased (without duplication, including for purposes of determining Consolidated Net
Income) by the following, in each case (except with respect to clause (x) below) to the extent
deducted in determining Consolidated Net Income for such period:



     (i) provision for Income Taxes of such Person paid or accrued during such period; plus



10









 





     (ii) Consolidated Interest Expense of such Person for such period (including (x) net losses or
any obligations under any Swap Agreements or other derivative instruments entered into for the
purpose of hedging interest rate risk, (y) bank fees and (z) costs of surety bonds in connection
with financing activities, plus amounts excluded from Consolidated Interest Expense as set forth in
sub-clauses (w) to (z) of clause (a) of the definition thereof); plus



     (iii) any expenses (other than depreciation or amortization expense) related to any equity
offering, Investment, acquisition, disposition, or recapitalization permitted hereunder or the
incurrence of Indebtedness permitted to be incurred hereunder (including a refinancing thereof)
(whether or not successful), including (A) such fees or expenses related to the offering of the
Senior Notes, the Loans and any other credit facilities and (B) any amendment or other modification
of the Senior Notes, the Loans and such other credit facilities; plus



     (iv) Consolidated Depreciation and Amortization Expense of such Person for such period; plus



     (v) any non-cash extraordinary, unusual or non-recurring expenses, charges or losses
(including losses on asset sales outside of the ordinary course of business); plus



     (vi) (a) any cash extraordinary, unusual or non-recurring expenses, charges or losses
(including losses on asset sales outside of the ordinary course of business) and (b) any
restructuring charges, integration costs or other business optimization expenses, costs associated
with establishing new facilities or reserves, including any one-time costs incurred in connection
with acquisitions after the Effective Date, and costs related to the closure and/or consolidation
of facilities; provided that the aggregate amount of all charges, expenses, costs and
losses added back under this clause (vi) in any period of four consecutive fiscal quarters shall
not exceed (x) 15% of Consolidated EBITDA for any period of four consecutive fiscal quarters
completed on or prior to the first anniversary of the Effective Date or (y) 10% of Consolidated
EBITDA for any period of four consecutive fiscal quarters completed thereafter; provided
that the cap under this clause (y) for any period of four consecutive fiscal quarters completed on
or prior to the second anniversary of the Effective Date shall be increased up to 15% of
Consolidated EBITDA, but only to the extent the aggregate amount added back under this clause (vi)
for the corresponding period of four consecutive fiscal quarters of the previous fiscal year was
less than 15% of Consolidated EBITDA; plus



     (vii) any non-cash charges, expenses or losses (excluding charges, expenses or losses
resulting from the write off or write down of inventory or other current assets) (collectively, the
“Non-Cash Charges”) including any write offs or write downs reducing Consolidated Net
Income for such period (except to the extent such charges, expenses or losses represent an accrual
of or reserve for cash expenses in any future period (provided that such charges, expenses
or losses shall be added back to Consolidated EBITDA in such future period), an amortization of a
prepaid cash expense paid in a prior period (so long as such cash expense was added back to
Consolidated EBITDA in such prior period)); plus



     (viii) the amount of any minority interest expense consisting of Subsidiary income
attributable to minority equity interests of third parties in any non-wholly owned Subsidiary; plus



11









 





     (ix) the amount of management, monitoring, consulting and advisory fees (including termination
fees) and related indemnities and expenses paid or accrued in such period to the Sponsor to the
extent permitted under the Loan Documents; plus



     (x) the amount of “run-rate” cost savings projected by the Borrower in good faith and
certified by the chief financial officer of the Borrower in writing to the Administrative Agent to
result from actions either taken or initiated prior to or during such period (which cost savings
shall be calculated on a pro forma basis as though such cost savings had been realized on the first
day of such period), net of the amount of actual benefits realized or expected to be realized prior
to or during such period from such actions; provided, that (A) the chief financial officer
of the Borrower shall have certified to the Administrative Agent that (x) such cost savings are
reasonably identifiable, reasonably attributable to the actions specified and reasonably
anticipated to result from such actions and (y) such actions have been taken or initiated and the
benefits resulting therefrom are anticipated by the Borrower to be realized within 12 months, (B)
no cost savings shall be added pursuant to this clause (x) to the extent duplicative of any
expenses or charges relating to such cost savings that are included in clause (vi) above with
respect to such period or duplicative of any Pro Forma Adjustment pursuant to the last paragraph of
this definition and (C) the aggregate amount of cost savings added pursuant to this clause (x)
shall not exceed 10% of Consolidated EBITDA for any period of four consecutive fiscal quarters;
plus



     (xi) any costs or expense incurred by the Borrower or a Restricted Subsidiary pursuant to any
management equity plan or stock option plan or any other management or employee benefit plan or
agreement or any stock subscription or shareholder agreement, to the extent that such cost or
expenses are funded with cash proceeds contributed to the capital of the Borrower or Net Proceeds
of an issuance of Equity Interests (other than Disqualified Equity Interests) of the Borrower; plus



     (xii) any net loss from disposed or discontinued operations; plus



     (xiii) cash receipts (or any netting arrangements resulting in reduced cash expenditures) not
representing Consolidated EBITDA or Consolidated Net Income in any period to the extent non-cash
gains relating to such income were deducted in the calculation of Consolidated EBITDA pursuant to
paragraph (b) below for any previous period and not added back;



     (b) decreased (without duplication) by the following, in each case to the extent included in
determining Consolidated Net Income for such period:



     (i) any extraordinary, unusual or non-recurring income or gains (including gains on asset
sales outside of the ordinary course of business); plus



     (ii) non-cash income or gains increasing Consolidated Net Income of such Person for such
period, excluding any non-cash gains to the extent they represent the reversal of an accrual or
reserve for a potential cash item that reduced Consolidated EBITDA in any prior period and any
non-cash gains with respect to cash actually received in a prior period so long as such cash did
not increase Consolidated EBITDA in such prior period; plus



     (iii) any net income from disposed or discontinued operations;



12









 





     (c) increased or decreased without duplication, as applicable, by any adjustments resulting
from the application of FASB Interpretation No. 45 (Guarantees) or any comparable regulation;



     (d) increased (to the extent not already included in determining Consolidated EBITDA) by any
Pro Forma Adjustments; and



     (e) decreased (to the extent not already deducted in determining Consolidated EBITDA) by any
Restricted Payments made pursuant to Section 6.08(a)(iv).


There shall be included in determining Consolidated EBITDA for any period, without duplication, (A)
the Acquired EBITDA of any Person, property, business or asset acquired by the Borrower or any
Restricted Subsidiary during such period (but not the Acquired EBITDA of any related Person,
property, business or assets to the extent not so acquired), to the extent not subsequently sold,
transferred or otherwise disposed of by the Borrower or such Restricted Subsidiary during such
period (each such Person, property, business or asset acquired and not subsequently so disposed of,
an “Acquired Entity or Business”), and the Acquired EBITDA of any Unrestricted Subsidiary
that is converted into a Restricted Subsidiary during such period (each a “Converted Restricted
Subsidiary”), based on the actual Acquired EBITDA of such Acquired Entity or Business or
Converted Restricted Subsidiary for such period (including the portion thereof occurring prior to
such acquisition) and (B) for the purposes of compliance with the financial covenants, an
adjustment in respect of each Acquired Entity or Business equal to the amount of the Pro Forma
Adjustment with respect to such Acquired Entity or Business for such period (including the portion
thereof occurring prior to such acquisition) as specified in a certificate executed by a Financial
Officer and delivered to the Lenders and the Administrative Agent. For purposes of determining the
Total Leverage Ratio, the Senior Secured Leverage Ratio and the Interest Coverage Ratio, there
shall be excluded in determining Consolidated EBITDA for any period the Disposed EBITDA of any
Person, property, business or asset (other than an Unrestricted Subsidiary) sold, transferred or
otherwise disposed of, closed or classified as discontinued operations by the Borrower or any
Restricted Subsidiary during such period (each such Person, property, business or asset so sold or
disposed of, a “Sold Entity or Business”) and the Disposed EBITDA of any Restricted
Subsidiary that is converted into an Unrestricted Subsidiary during such period (each a
“Converted Unrestricted Subsidiary”), based on the actual Disposed EBITDA of such Sold
Entity or Business or Converted Unrestricted Subsidiary for such period (including the portion
thereof occurring prior to such sale, transfer or disposition). Notwithstanding the foregoing,
Consolidated EBITDA shall be $106,200,000 and $117,200,000 for the fiscal quarters ending March 31,
2010 and June 30, 2010, respectively.




     “Consolidated EBITDAR” means, for any period, Consolidated EBITDA for such period
plus, to the extent deducted in determining Consolidated Net Income for such period,
Consolidated Rental Expense for such period.



     “Consolidated Interest Expense” means, with respect to any Person for any period,
without duplication, the sum of:



     (a) consolidated cash interest expense of such Person and its Restricted Subsidiaries for such
period, to the extent such expense was deducted (and not added back) in computing



13









 




Consolidated Net Income (including (i) all cash commissions, discounts and other fees and
charges owed with respect to letters of credit or bankers acceptances, (ii) the cash interest
component of Capital Lease Obligations, and (iii) net cash payments, if any, made (less net
payments, if any, received) pursuant to interest rate obligations under any Swap Agreements with
respect to Indebtedness and excluding, (w) penalties and interest relating to taxes, (x) any
additional cash interest owing pursuant to any registration rights agreement with respect to
securities, (y) any expensing of bridge, commitment and other financing fees, and (z) any accretion
of accrued interest on discounted liabilities); less




     (b) cash interest income for such period.


For purposes of this definition, interest on a Capital Lease Obligation shall be deemed to accrue
at an interest rate reasonably determined by such Person to be the rate of interest implicit in
such Capital Lease Obligation in accordance with GAAP. For purposes of determining Consolidated
Interest Expense for any period ending prior to the first anniversary of the Effective Date,
Consolidated Interest Expense (i) for the Test Period ending at the end of the first full fiscal
quarter after the Effective Date shall be Consolidated Interest Expense for such quarter,
multiplied by 4, (ii) for the Test Period ending at the end of the second full fiscal quarter after
the Effective Date shall be Consolidated Interest Expense for the first and second full fiscal
quarters after the Effective Date, multiplied by 2, and (iii) for the Test Period ending at the end
of the third full fiscal quarter after the Effective Date shall be Consolidated Interest Expense
for the first, second and third full fiscal quarters after the Effective Date, multiplied by 4/3.




     “Consolidated Net Income” means, with respect to any Person for any period, the
aggregate of the Net Income of such Person and its Restricted Subsidiaries for such period, on a
consolidated basis, and otherwise determined in accordance with GAAP; provided,
however, that, without duplication (including for purposes of determining Consolidated
EBITDA),



     (a) any net after-tax effect of extraordinary gains or losses shall be excluded,



     (b) the Net Income for such period shall not include the cumulative effect of a change in
accounting principles and changes as a result of the adoption or modification of accounting
policies during such period,



     (c) any after-tax gains or losses on disposal of disposed, abandoned or discontinued
operations shall be excluded,



     (d) any after-tax effect of gains or losses (less all fees and expenses relating thereto)
attributable to asset dispositions or abandonments or the sale or other disposition of any Equity
Interests of any Person other than in the ordinary course of business shall be excluded,



     (e) the Net Income for such period of any Person that is not a Subsidiary, or is an
Unrestricted Subsidiary, or that is accounted for by the equity method of accounting, shall be
excluded; provided that Consolidated Net Income of the Borrower shall be increased by the amount of
dividends or distributions or other payments that are actually paid to the Borrower or a Restricted
Subsidiary thereof in respect of such period,



14









 





     (f) effects of adjustments (including the effects of such adjustments pushed down to the
Borrower and its Restricted Subsidiaries) in the inventory, property and equipment, software,
goodwill, other intangible assets, in-process research and development, deferred revenue, debt and
unfavorable or favorable lease line items in such Person’s consolidated financial statements
pursuant to GAAP resulting from the application of purchase accounting in relation to the
Transactions or any acquisition consummated prior to the Effective Date and any permitted
acquisitions or the amortization or write-off of any amounts thereof, net of taxes, shall be
excluded,



     (g) solely for purposes of calculating the Available Amount, the Net Income for such period of
any Restricted Subsidiary (other than the Borrower or any Guarantor) shall be excluded to the
extent that the declaration or payment of dividends or similar distributions by such Restricted
Subsidiary of its Net Income is not at the date of determination permitted without any prior
governmental approval (which has not been obtained) or, directly or indirectly, by the operation of
the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule, or
governmental regulation applicable to that Restricted Subsidiary, unless such restriction with
respect to the payment of dividends or similar distributions has been legally waived;
provided that Consolidated Net Income of the Borrower will be increased by the amount of
dividends or other distributions or other payments actually paid in cash (or to the extent
converted into cash) to the Borrower or a Restricted Subsidiary thereof in respect of such period,
to the extent not already included therein,



     (h) any after-tax effect of income (loss) from the early extinguishment of (i) Indebtedness,
(ii) obligations under any Swap Agreements or (iii) other derivative instruments shall be excluded,



     (i) any impairment charge or asset write-off or write-down, including impairment charges or
asset write-offs or write-downs related to intangible assets, long-lived assets, investments in
debt and equity securities or as a result of a change in law or regulation, in each case, pursuant
to GAAP, and the amortization of intangibles arising pursuant to GAAP shall be excluded,



     (j) any non-cash compensation charge or expense, including any such charge arising from the
grants of stock appreciation or similar rights, stock options, restricted stock or other rights
shall be excluded,



     (k) (i) Transaction Costs and (ii) any fees and expenses incurred during such period, or any
amortization thereof for such period, in connection with any acquisition (other than the
Transactions), Investment, disposition, issuance or repayment of Indebtedness, issuance of
Qualified Equity Interests, refinancing transaction or amendment or modification of any debt
instrument (in each case, including any such transaction consummated prior to the Effective Date
and any such transaction undertaken but not completed) and any charges or non-recurring merger
costs incurred during such period as a result of any such transaction shall be excluded,



     (l) accruals and reserves that are established within twelve months after the Effective Date
that are so required to be established as a result of the Transactions in accordance with GAAP
shall be excluded, and



15









 





     (m) the following items shall be excluded:



     (i) any net unrealized gain or loss (after any offset) resulting in such period from
obligations under any Swap Agreements in accordance with GAAP; and



     (ii) any net unrealized gain or loss (after any offset) resulting in such period from currency
translation gains or losses including those (x) related to currency remeasurements of Indebtedness
and (y) resulting from hedge agreements for currency exchange risk.


In addition, to the extent not already included in the Consolidated Net Income of such Person and
its Restricted Subsidiaries, notwithstanding anything to the contrary in the foregoing,
Consolidated Net Income shall include (i) any expenses and charges that are reimbursed by
indemnification or other reimbursement provisions in connection with any investment or any sale,
conveyance, transfer or other disposition of assets permitted hereunder and (ii) to the extent
covered by insurance and actually reimbursed, expenses with respect to liability or casualty events
or business interruption.




     “Consolidated Rental Expense” means, for any period, the aggregate rental expense of
the Borrower and the Restricted Subsidiaries in respect of real property for such period,
determined on a consolidated basis in accordance with GAAP in respect of all rent obligations under
operating leases in respect of real property.



     “Consolidated Senior Secured Debt” means, as of any date of determination,
Consolidated Total Debt secured by a Lien on any of the assets of the Borrower or any of its
Restricted Subsidiaries.



     “Consolidated Tangible Assets” means, on any date, the aggregate amount of assets
(less applicable accumulated depreciation, amortization and other reserves and other properly
deductible items) of the Borrower and the Restricted Subsidiaries, minus (a) all minority interests
in consolidated Subsidiaries held by Persons other than the Borrower or any of the Restricted
Subsidiaries and (b) all intangible assets of the Borrower and the Restricted Subsidiaries,
including intellectual property, goodwill and unamortized debt discount and expense and other
unamortized deferred charges, all determined on a consolidated basis in accordance with GAAP.



     “Consolidated Total Debt” means, as of any date of determination, (a) the aggregate
principal amount of Indebtedness of the Borrower and the Restricted Subsidiaries outstanding on
such date, determined on a consolidated basis in accordance with GAAP to the extent reflected as a
liability on the balance sheet (but excluding the effects of any discounting of Indebtedness
resulting from the application of purchase accounting in connection with the Transactions or any
Permitted Acquisition) consisting of any Indebtedness for borrowed money, Capital Lease Obligations
and debt obligations evidenced by bonds, debentures, notes or similar instruments, minus
(b) the aggregate amount of cash and Permitted Investments (in each case, free and clear of all
Liens, other than nonconsensual Liens permitted by Section 6.02, Liens permitted by Section
6.02(a)(vi) and Liens permitted by clause (g) of the definition of the term “Permitted
Encumbrances”) included in the consolidated balance sheet of the Borrower and the Restricted
Subsidiaries as of such date in excess of $25,000,000 (provided that the aggregate amount
subtracted pursuant to this clause (b) shall not exceed $150,000,000); provided that
Consolidated



16









 




Total Debt shall not include (i) all Letters of Credit (or other letters of credit and
bankers’ acceptances), except to the extent of unreimbursed LC Disbursements (or unreimbursed
amounts) thereunder and (ii) obligations under Swap Agreements permitted by Section 6.07.




     “Consolidated Working Capital” means, at any date, the excess of (a) the sum of (i)
all amounts (other than cash and Permitted Investments) that would, in conformity with GAAP, be set
forth opposite the caption “total current assets” (or any like caption) on a consolidated balance
sheet of the Borrower and the Restricted Subsidiaries at such date and (ii) long-term accounts
receivable over (b) the sum of (i) all amounts that would, in conformity with GAAP, be set forth
opposite the caption “total current liabilities” (or any like caption) on a consolidated balance
sheet of the Borrower and the Restricted Subsidiaries on such date and (ii) long-term deferred
revenue, but excluding, without duplication, (a) the current portion of any Funded Debt, (b) all
Indebtedness consisting of Revolving Loans, Swingline Loans and L/C Exposure to the extent
otherwise included therein, (c) the current portion of interest, (d) the current portion of current
and deferred income taxes, (e) the current portion of any Capital Lease Obligations, (f) deferred
revenue arising from cash receipts that are earmarked for specific projects and (g) non-cash
current assets and current liabilities.



     “Control” means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise. The terms “Controlling” and
“Controlled” have meanings correlative thereto.



     “Converted Restricted Subsidiary” has the meaning assigned to such term in the
definition of Consolidated EBITDA.



     “Converted Unrestricted Subsidiary” has the meaning assigned to such term in the
definition of Consolidated EBITDA.



     “Credit Party” means the Administrative Agent, the Issuing Bank, the Swingline Lender
or any other Lender.



     “Cure Amount” has the meaning assigned to such term in the last paragraph of Article
VII.



     “Cure Right” has the meaning assigned to such term in the last paragraph of Article
VII.



     “Default” means any event or condition that constitutes an Event of Default or that
upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.



     “Default Rate” has the meaning set forth in Section 2.13(c).



     “Defaulting Lender” means any Lender that (a) has failed, within two Business Days of
the date required to be funded or paid, to (i) fund any portion of its Loans, (ii) fund any portion
of its participations in Letters of Credit or Swingline Loans or (iii) pay over to any Credit Party
any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such
Lender notifies the Administrative Agent in writing that such failure is the result of such
Lender’s good faith determination that a condition precedent to funding (specifically identified



17









 




and including the particular default, if any) has not been satisfied, (b) has notified the
Borrower or any Credit Party in writing that it does not intend or expect to comply with any of its
funding obligations under this Agreement (unless such writing indicates that such position is based
on such Lender’s good faith determination that a condition precedent (specifically identified and
including the particular default, if any) to funding a Loan cannot be satisfied), (c) has failed,
within three Business Days after request by a Credit Party, acting in good faith, to provide a
certification in writing from an authorized officer of such Lender that it will comply with its
obligations to fund prospective Loans and participations in then outstanding Letters of Credit and
Swingline Loans under this Agreement, provided that such Lender shall cease to be a
Defaulting Lender pursuant to this clause (c) upon such Credit Party’s receipt of such
certification in form and substance satisfactory to it and the Administrative Agent, or (d) has
become the subject of a Bankruptcy Event.




     “De Minimis Foreign Subsidiary” means, at any date of determination, any Foreign
Subsidiary the Equity Interests of which would otherwise be required to be pledged pursuant to the
Collateral and Guarantee Requirement and which has assets having an aggregate book value of less
than $2,500,000 at such date.



     “Designated Non-Cash Consideration” means the fair market value of non-cash
consideration received by the Borrower or a Restricted Subsidiary in connection with a sale,
transfer, lease or other disposition of assets permitted by Section 6.05 that is so designated as
Designated Non-Cash Consideration pursuant to a certificate of a Financial Officer, setting forth
the basis of such valuation, less the amount of cash or Permitted Investments received in
connection with a subsequent sale of or collection on such Designated Non-Cash Consideration.



     “Disclosed Matters” means the actions, suits and proceedings and the environmental
matters disclosed in Schedule 3.06.



     “Discounted Prepayment Option Notice” has the meaning assigned to such term in Section
2.11(g).



     “Discounted Voluntary Prepayment” has the meaning assigned to such term in Section
2.11(g).



     “Discounted Voluntary Prepayment Notice” has the meaning assigned to such term in
Section 2.11(g).



     “Discount Range” has the meaning assigned to such term in Section 2.11(g).



     “Disposed EBITDA” means, with respect to any Sold Entity or Business or any Converted
Unrestricted Subsidiary for any period, the amount for such period of Consolidated EBITDA of such
Sold Entity or Business or such Converted Unrestricted Subsidiary, all as determined on a
consolidated basis for such Sold Entity or Business or such Converted Unrestricted Subsidiary.



     “Disqualified Equity Interests” means Equity Interests that (a) require the payment of
any dividends (other than dividends payable solely in shares of Qualified Equity Interests) prior
to



18









 




the date that is 180 days after the Tranche B Maturity Date, (b) mature or are mandatorily
redeemable or subject to mandatory repurchase or redemption or repurchase at the option of the
holders thereof, in each case in whole or in part and whether upon the occurrence of any event,
pursuant to a sinking fund obligation, on a fixed date or otherwise, prior to the date that is 180
days after the Tranche B Maturity Date or, if such Equity Interests are issued after the Borrower
has obtained any Incremental Term Loans or while any Commitments from Additional Lenders to make
Incremental Term Loans remain in effect, 180 days after the maturity date for such Incremental Term
Loans, unless all such Incremental Term Loans have been repaid in full and all Commitments in
respect thereof shall have been terminated (other than (i) upon payment in full of the Loan
Document Obligations, reduction of the LC Exposure to zero and termination of the Commitments or
(ii) upon a “change in control”, provided that any payment required pursuant to this clause
(ii) is contractually subordinated in right of payment to the Loan Document Obligations on terms
reasonably satisfactory to the Administrative Agent), (c) require the maintenance or achievement of
any financial performance standards other than as a condition to the taking of specific actions or
provide remedies to holders thereof (other than voting and management rights and increases in
pay-in-kind dividends) or (d) are convertible or exchangeable, automatically or at the option of
any holder thereof, into any Indebtedness, Equity Interests or other assets other than Qualified
Equity Interests.




     “Domestic Subsidiary” means any Subsidiary incorporated or organized under the laws of
the United States of America, any State thereof or the District of Columbia.



     “Effective Date” means October 19, 2010.



     “EMU Legislation” means the legislative measures of the European Union for the
introduction of, changeover to or operation of the Euro in one or more member states.



     “Environmental Laws” means all treaties, laws, rules, regulations, codes, ordinances,
orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or
entered into by or with any Governmental Authority, relating in any way to the environment, the
preservation or reclamation of natural resources, the generation, management, Release or threatened
Release of any Hazardous Material or to health and safety matters.



     “Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of medical monitoring, costs of environmental remediation or
restoration, administrative oversight costs, consultants’ fees, fines, penalties or indemnities),
of Holdings, the Borrower or any Subsidiary directly or indirectly resulting from or based upon (a)
any actual or alleged violation of any Environmental Law or permit, license or approval issued
thereunder, (b) the generation, use, handling, transportation, storage, treatment or disposal of
any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release or threatened
Release of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the foregoing.



     “Equity Interests” means shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or other equity ownership
interests in a Person.



19









 





     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from
time to time.



     “ERISA Affiliate” means any trade or business (whether or not incorporated) that,
together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code
or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414(m) of the Code.



     “ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or
the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day
notice period is waived), (b) any failure by any Plan to satisfy the minimum funding standards
(within the meaning of Sections 412 or 430 of the Code or Section 302 of ERISA and including any
minimum funding standards as a result of any Plan being in “at risk” status (within the meaning of
Section 430 of the Code or Section 303 of ERISA) or in “endangered” or “critical” status (within
the meaning of Section 432 of the Code or Section 305 of ERISA)) applicable to such Plan, whether
or not waived, (c) the filing pursuant to Section 412(d) of the Code or Section 302(c) of ERISA of
an application for a waiver of the minimum funding standard with respect to any Plan, (d) the
failure of Borrower or any ERISA Affiliate to make by its due date a required installment under
Section 430(j) of the Code with respect to any Plan or to make any required contribution to a
Multiemployer Plan, including any contribution required as the result of such Multiemployer Plan
being in “endangered” or “critical” status (within the meaning of Section 432 of the Code or
Section 305 of ERISA), (e) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan, (f) the receipt by
the Borrower or any ERISA Affiliate from the PBGC of any notice to appoint a trustee to administer
any Plan, (g) the incurrence by the Borrower or any of its ERISA Affiliates of any liability with
respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan or (h) the
receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer
Plan from the Borrower or any ERISA Affiliate of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be,
insolvent or in reorganization (in either case within the meaning of Title IV of ERISA) and (i)
with respect to any Foreign Plan, (A) the failure to make any employer or employee contributions
required by applicable law or by the terms of such Foreign Plan; or (B) the failure to register or
loss of good standing with applicable regulatory authorities of any such Foreign Plan required to
be registered.



     “Euro” or “€” refers to the currency constituted by the Treaty on the European
Union and as referred to in the EMU Legislation.



     “Eurocurrency”, when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by
reference to the Adjusted Eurocurrency Rate.



     “EURO LIBO Rate” means, with respect to any Eurocurrency Borrowing denominated in
Euro, for any Interest Period, the offered rate for deposits in Euros in the European interbank
market for the relevant Interest Period that is determined by the Banking Federation of the
European Union, and displayed on the LIBOR01 Page published by Reuters, at or about 11:00 a.m.
(Brussels time) two Business Days prior to the first day of the relevant Interest Period. To



20









 




the extent that an interest rate is not ascertainable pursuant to the foregoing provisions of
this definition, the “EURO LIBO Rate” shall be the interest rate per annum determined by
the Administrative Agent to be the average of the rates per annum at which deposits in Euro are
offered for a maturity comparable to such relevant Interest Period to major banks in the London
interbank market in London, England by the Administrative Agent at approximately 11:00 a.m. (London
time) on the date that is two Business Days prior to the beginning of such Interest Period;
provided, however, that notwithstanding the rate calculated in accordance with the
foregoing, at no time shall the EURO LIBO Rate for Tranche B Euro Term Loans be deemed to be less
than 1.75%.




     “Event of Default” has the meaning assigned to such term in Article VII.



     “Excess Cash Flow” means, for any period, an amount equal to the excess of:



     (a) the sum, without duplication, of:



     (i) Consolidated Net Income for such period,



     (ii) an amount equal to the amount of all non-cash charges (including depreciation and
amortization) to the extent deducted in arriving at such Consolidated Net Income,



     (iii) decreases in Consolidated Working Capital for such period (other than any such decreases
arising from acquisitions by the Borrower and the Restricted Subsidiaries completed during such
period or the application of purchase accounting), and



     (iv) an amount equal to the aggregate net non-cash loss on dispositions by the Borrower and
the Restricted Subsidiaries during such period (other than dispositions in the ordinary course of
business) to the extent deducted in arriving at such Consolidated Net Income; over



     (b) the sum, without duplication, of:



     (i) an amount equal to the amount of all non-cash credits included in arriving at such
Consolidated Net Income and cash charges included in clauses (a) through (f) of the definition of
Consolidated Net Income,



     (ii) without duplication of amounts deducted pursuant to clause (x) below in prior fiscal
years, the amount of Capital Expenditures or acquisitions of intellectual property made in cash
during such period, except to the extent that such Capital Expenditures or acquisitions were
financed by incurring Long-Term Indebtedness, by issuing Equity Interests or with the proceeds of
any Reinvestment Deferred Amount,



     (iii) the aggregate amount of all principal payments of Indebtedness of the Borrower and the
Restricted Subsidiaries (including (A) the principal component of payments in respect of Capital
Lease Obligations and (B) the amount of scheduled repayments of Term Loans pursuant to Section
2.10(a) and any mandatory prepayment of Term Loans pursuant to Section 2.11(c) due to a Prepayment
Event described in clause (a) of the definition of the term “Prepayment Event” to the extent
required due to a disposition that resulted in an increase to such Consolidated Net



21









 




Income and not in excess of the amount of such increase but excluding (X) all other
prepayments of Term Loans, (Y) all prepayments of Revolving Loans and (Z) all prepayments in
respect of any other revolving credit facility, except, in the case of clause (Z), to the extent
there is an equivalent permanent reduction in commitments thereunder) made during such period,
except to the extent financed by incurring Long-Term Indebtedness, by issuing Equity Interests or
with the proceeds of any Reinvestment Deferred Amount,




     (iv) an amount equal to the aggregate net non-cash gain on dispositions by the Borrower and
the Restricted Subsidiaries during such period (other than dispositions in the ordinary course of
business) to the extent included in arriving at such Consolidated Net Income,



     (v) increases in Consolidated Working Capital for such period (other than any such increases
arising from acquisitions by the Borrower and the Restricted Subsidiaries completed during such
period or the application of purchase accounting),



     (vi) cash payments by the Borrower and the Restricted Subsidiaries during such period in
respect of long-term liabilities of the Borrower and the Restricted Subsidiaries other than
Indebtedness (including such Indebtedness specified in clause (b)(iii) above),



     (vii) without duplication of amounts deducted pursuant to clause (xi) below in prior fiscal
years, the amount of investments and acquisitions made during such period, except to the extent
that such investments and acquisitions were financed by incurring Long-Term Indebtedness or by
issuing Equity Interests,



     (viii) the amount of Restricted Payments paid during such period pursuant to clauses (iii),
(iv), (v), (viii) and (xiii) of Section 6.08, except to the extent such Restricted Payments were
financed by incurring Long-Term Indebtedness or by issuing Equity Interests,



     (ix) the aggregate amount of expenditures actually made by the Borrower and the Restricted
Subsidiaries in cash during such period (including expenditures for the payment of financing fees)
to the extent that such expenditures are not expensed during such period,



     (x) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash
by the Borrower and the Restricted Subsidiaries during such period that are required to be made in
connection with any prepayment of Indebtedness, and



     (xi) without duplication of amounts deducted from Excess Cash Flow in prior periods, the
aggregate consideration required to be paid in cash by the Borrower or any of the Restricted
Subsidiaries pursuant to binding contracts (the “Contract Consideration”) entered into
prior to or during such period relating to Permitted Acquisitions, Capital Expenditures or
acquisitions of intellectual property to be consummated or made during the period of four
consecutive fiscal quarters of the Borrower following the end of such period except to the extent
intended to be financed by incurring Long-Term Indebtedness, or by issuing Equity Interests;
provided that to the extent the aggregate amount utilized to finance such Permitted
Acquisitions, Capital Expenditures or acquisitions of intellectual property during such period of
four consecutive fiscal quarters is less than the Contract Consideration, the amount of such
shortfall, less the amount financed by incurring Long-Term Indebtedness or by issuing Equity
Interests, shall be added to



22









 




the calculation of Excess Cash Flow at the end of such period of four consecutive fiscal
quarters, and




     (xii) amount of cash taxes paid or tax reserves set aside or payable (without duplication) in
such period to the extent they exceed the amount of tax expense deducted in determining
Consolidated Net Income for such period.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended.



     “Exchange Rate” means, on any day, for purposes of determining the U.S. Dollar
Equivalent of any other currency, the rate at which such other currency may be exchanged into U.S.
Dollars at the time of determination on such day on the Reuters WRLD Page for such currency. In the
event that such rate does not appear on any Reuters WRLD Page, the Exchange Rate shall be
determined by reference to such other publicly available service for displaying exchange rates as
may be agreed upon by the Administrative Agent and the Borrower, or, in the absence of such an
agreement, such Exchange Rate shall instead be the arithmetic average of the spot rates of exchange
of the Administrative Agent in the market where its foreign currency exchange operations in respect
of such currency are then being conducted, at or about such time as the Administrative Agent shall
elect after determining that such rates shall be the basis for determining the Exchange Rate, on
such date for the purchase of U.S. Dollars for delivery two Business Days later, provided
that if at the time of any such determination, for any reason, no such spot rate is being quoted,
the Administrative Agent may use any reasonable method it deems appropriate to determine such rate,
and such determination shall be conclusive absent manifest error.



     “Excluded Subsidiary” means Have It Your Way Foundation, Inc., a Florida
not-for-profit corporation.



     “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, any
Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of
any Loan Party hereunder, (a) income or franchise taxes imposed on (or measured by) its net income
by the United States of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any Lender, in which its
applicable lending office is located, (b) with respect to each Lender, taxes imposed by reason of
such Lender doing business in the jurisdiction imposing such tax, other than solely as a result of
this Agreement or any transaction contemplated hereby, (c) any branch profits taxes imposed by the
United States of America or any similar tax imposed by any other jurisdiction described in clause
(a) above and (d) in the case of a Foreign Lender (other than an assignee pursuant to a request by
the Borrower under Section 2.19(b)), any withholding tax that (i) is in effect (including FATCA)
and would apply to amounts payable to such Foreign Lender at the time (and, in the case of FATCA,
including any regulations or official interpretations thereof issued after) such Foreign Lender
becomes a party to this Agreement (or designates a new lending office), except to the extent that
such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new
lending office (or assignment), to receive additional amounts from the Borrower with respect to any
withholding tax pursuant to Section 2.17(a), or (ii) is attributable to such Foreign Lender’s
failure to comply with Section 2.17(e).



23









 





     “Existing Credit Agreement” means the Amended and Restated Credit Agreement dated as
of February 15, 2006, among Burger King Holdings, Inc., Burger King Corporation, the lenders party
thereto from time to time, JPMorgan Chase Bank, N.A., as administrative agent, Citicorp North
America, Inc., as syndication agent, and Bank of America N.A., RBC Capital Markets and Wachovia
Bank, National Association, as documentation agents.



     “Existing Letters of Credit” means each letter of credit previously issued for the
account of, or guaranteed by, the Borrower pursuant to the Existing Credit Agreement that (a) is
outstanding on the Effective Date and (b) is listed on Schedule 1.01.



     “Extended Revolving Commitment” has the meaning set forth in Section 2.22(a).



     “Extended Term Loans” has the meaning set forth in Section 2.22(a).



     “Extending Revolving Lender” has the meaning set forth in Section 2.22(a).



     “Extending Term Lender” has the meaning set forth in Section 2.22(a).



     “Extension” has the meaning set forth in Section 2.22(a).



     “Extension Offer” has the meaning set forth in Section 2.22(a).



     “Fair Labor Standards Act” means the Fair Labor Standards Act, 29 U.S.C. ss.201 et
seq.



     “FATCA” means Sections 1471 through 1474 of the Code, as of the date of this
Agreement.



     “Federal Funds Effective Rate” means, for any day, the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received
by the Administrative Agent from three Federal funds brokers of recognized standing selected by the
Administrative Agent in its reasonable judgment.



     “Financial Officer” means the chief financial officer, principal accounting officer,
treasurer or controller of the Borrower.



     “Foreign Acquisition” means any Permitted Acquisition by the Borrower or a Subsidiary
Loan Party of a Person that is not organized under the laws of the United States of America, any
State thereof or the District of Columbia, and shall include, in the case of a Permitted
Acquisition by the Borrower or a Subsidiary Loan Party of the Equity Interests of a Person that is
organized under the laws of the United States of America, any State thereof or the District of
Columbia, the indirect acquisition of any subsidiary of such Person that is not so organized and
that is acquired as a result of such Permitted Acquisition (with the value of such indirect
acquisition to be determined at the time such Permitted Acquisition is made in good faith by the
Borrower based upon the fair value of such subsidiary).



24









 





     “Foreign Lender” means any Lender that is organized under the laws of a jurisdiction
other than that in which the Borrower is located. For purposes of this definition, the United
States of America, each State thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction.



     “Foreign Plan” means each employee pension benefit plan through which the Borrower or
any ERISA Affiliate promises employees a defined level of benefit upon retirement that is not
subject to US law and requires contributions by the Borrower or any ERISA Affiliate.



     “Foreign Pledge Agreement” means a pledge or charge agreement with respect to the
Collateral that constitutes Equity Interests of a Foreign Subsidiary, in form and substance
reasonably satisfactory to the Administrative Agent.



     “Foreign Subsidiary” means any Restricted Subsidiary that is organized under the laws
of a jurisdiction other than the United States of America, any State thereof or the District of
Columbia.



     “Franchise Agreement” means each franchise agreement between the Borrower or any
Restricted Subsidiary and a Franchisee.



     “Franchisee” means any Person, other than Holdings, the Borrower or any Restricted
Subsidiary, that directly or indirectly owns or operates or is approved by the Borrower or any
Restricted Subsidiary to own or operate a restaurant that is branded as Burger King or Hungry
Jack’s or any other brand operated by the Borrower or any Restricted Subsidiary.



     “Funded Debt” means all Indebtedness of the Borrower and the Restricted Subsidiaries
for borrowed money that matures more than one year from the date of its creation or matures within
one year from such date that is renewable or extendable, at the option of such Person, to a date
more than one year from such date or arises under a revolving credit or similar agreement that
obligates the lender or lenders to extend credit during a period of more than one year from such
date, including Indebtedness in respect of the Loans.



     “GAAP” means generally accepted accounting principles in the United States of America.



     “Global Revolving Commitment” means, with respect to each Lender, the commitment, if
any, of such Lender to make Global Revolving Loans and to acquire participations in Letters of
Credit and Swingline Loans hereunder, expressed as an amount representing the maximum possible
aggregate amount of such Lender’s Global Revolving Exposure hereunder, as such commitment may be
(a) reduced from time to time pursuant to Section 2.08 and (b) reduced or increased from time to
time pursuant to assignments by or to such Lender pursuant to Section 9.04. The initial amount of
each Lender’s Global Revolving Commitment is set forth on Schedule 2.01, or in the Assignment and
Assumption pursuant to which such Lender shall have assumed its Global Revolving Commitment, as the
case may be. The initial aggregate amount of the Lenders’ Global Revolving Commitments on the
Effective Date is $143,000,000.



     “Global Revolving Exposure” means, at any time, the sum of (a) the aggregate principal
amount of the Global Revolving Loans denominated in U.S. Dollars outstanding at such time, (b)



25









 




the U.S. Dollar Equivalent of the aggregate principal amount of the Global Revolving Loans
denominated in an Alternative Currency outstanding at such time, (c) the LC Exposure at such time
and (d) the Swingline Exposure at such time. The Global Revolving Exposure of any Lender at any
time shall be its Applicable Percentage of the Global Revolving Exposure at such time.




     “Global Revolving Lender” means a Lender with a Global Revolving Commitment or, if the
Global Revolving Commitments have terminated or expired, a Lender with Global Revolving Exposure.



     “Global Revolving Loan” means a Loan made pursuant to clause (c)(i) of Section 2.01.



     “Governmental Authority” means the government of the United States of America, any
other nation or any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government (including any supra-national bodies such as the European Union or the
European Central Bank).



     “Granting Lender” has the meaning assigned to such term in Section 9.04(e).



     “Guarantee” of or by any Person (the “guarantor”) means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such Indebtedness or other
obligation of the payment thereof, (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or obligation,
provided, that the term Guarantee shall not include endorsements for collection or deposit
in the ordinary course of business.



     “Hazardous Materials” means all explosive, radioactive, hazardous or toxic substances,
materials, wastes or other pollutants, including petroleum or petroleum by-products or distillates,
asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas,
chlorofluorocarbons and other ozone-depleting substances or lead-based paint that are regulated
pursuant to any Environmental Law.



     “Holdings” has the meaning assigned to such term in the Recitals.



     “Income Taxes” means all taxes, whether domestic or foreign, based on income or
profits or capital, including, without limitation, federal, provincial, state, local or other
Governmental entity, franchise and similar taxes and foreign withholding taxes, including any
interest, additions to tax or penalties applicable thereto.



26









 





     “Incremental Amount” means, at any time, the excess, if any, of (a) the sum of (x)
$450,000,000 plus (y) the amount of any voluntary prepayments of the Term Loans and voluntary
permanent reductions of the Revolving Commitments effected after the Effective Date over (b) the
aggregate principal amount of all Incremental Term Loans made plus all Incremental Revolving
Commitments established prior to such date pursuant to Section 2.20(a).



     “Incremental Facility Amendment” has the meaning assigned to such term in Section
2.20(c).



     “Incremental Facility Closing Date” has the meaning assigned to such term in Section
2.20(c).



     “Incremental Revolving Commitment” has the meaning assigned to such term in Section
2.20(a).



     “Incremental Revolving Lender” has the meaning assigned to such term in Section
2.20(c).



     “Incremental Term Loans” has the meaning assigned to such term in Section 2.20(a).



     “Indebtedness” of any Person means, without duplication, (a) all obligations of such
Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes
or similar instruments, (c) all obligations of such Person under conditional sale or other title
retention agreements relating to property acquired by such Person, (d) all obligations of such
Person in respect of the deferred purchase price of property or services (excluding trade accounts
payable and other accrued obligations, in each case incurred in the ordinary course of business and
not more than 90 days past due (unless being contested in good faith by appropriate actions)), (e)
all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such
Person, whether or not the Indebtedness secured thereby has been assumed, (f) all Guarantees by
such Person of Indebtedness of others, (g) all Capital Lease Obligations of such Person, (h) all
obligations, contingent or otherwise, of such Person as an account party in respect of letters of
credit and letters of guaranty, (i) all obligations, contingent or otherwise, of such Person in
respect of bankers’ acceptances and (j) all obligations of such Person with respect to the
redemption, repayment or other repurchase of any Disqualified Equity Interests. The Indebtedness of
any Person shall include the Indebtedness of any other entity (including any partnership in which
such Person is a general partner) to the extent such Person is liable therefor as a result of such
Person’s ownership interest in or other relationship to the extent the terms of such Indebtedness
provide that such Person is liable therefor. Notwithstanding the foregoing, in connection with any
Permitted Acquisition, the term “Indebtedness” shall not include contingent post-closing purchase
price adjustments or earn-outs to which the seller in such Permitted Acquisition may become
entitled.



     “Indemnified Taxes” means Taxes other than Excluded Taxes.



27









 





     “Information Memorandum” means the Confidential Information Memorandum dated September
2010, relating to the Borrower and the Transactions.



     “Interest Coverage Ratio” means, with respect to any Test Period, the ratio of (a)
Consolidated EBITDA of the Borrower for such period to (b) Consolidated Interest Expense of the
Borrower for such Test Period.



     “Interest Election Request” means a request by the Borrower to convert or continue a
Revolving Borrowing or Term Borrowing in accordance with Section 2.07.



     “Interest Payment Date” means (a) with respect to any ABR Loan (including a Swingline
Loan), the last day of each March, June, September and December and (b) with respect to any
Eurocurrency Loan, the last day of the Interest Period applicable to the Borrowing of which such
Loan is a part and, in the case of a Eurocurrency Borrowing with an Interest Period of more than
three months’ duration, each day prior to the last day of such Interest Period that occurs at
intervals of three months’ duration after the first day of such Interest Period.



     “Interest Period” means, with respect to any Eurocurrency Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically corresponding day in the
calendar month that is one, two, three or six months thereafter, as the Borrower may elect (or with
respect to the initial Borrowing hereunder, such other period as the Borrower and the
Administrative Agent shall mutually agree), provided, that (a) if any Interest Period would
end on a day other than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless such next succeeding Business Day would fall in the next calendar
month, in which case such Interest Period shall end on the next preceding Business Day and (b) any
Interest Period that commences on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the last calendar month of such Interest Period) shall
end on the last Business Day of the last calendar month of such Interest Period. For purposes
hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and
thereafter shall be the effective date of the most recent conversion or continuation of such
Borrowing.



     “IPO” means a bona fide underwritten initial public offering of voting common Equity
Interests of Holdings or any direct or indirect parent as a direct result of which at least 10% of
the aggregate voting common Equity Interests of Holdings or any direct or indirect parent
(calculated on a fully diluted basis taking into account all options or other rights to acquire
voting common Equity Interests of Holdings or any direct or indirect parent then outstanding,
regardless of whether such options or other rights are then currently exercisable) will be
beneficially owned by Persons other than the Permitted Investors, Holdings and Affiliates of
Holdings (including all directors, officers and employees of Holdings, the Borrower or any
Subsidiary).



     “Issuing Bank” means, as the context may require, (a) JPMorgan Chase Bank, N.A. and
each other Issuing Bank designated by the Borrower as such pursuant to Section 2.05(k), in each
case in its capacity as an issuer of Letters of Credit hereunder, and its successors in such
capacity as provided in Section 2.05(i), and (b) with respect to each Existing Letter of Credit,
the Lender that issued such Existing Letter of Credit. An Issuing Bank may, in its discretion,
arrange for one



28









 




or more Letters of Credit to be issued by Affiliates of such Issuing Bank, in which case the
term “Issuing Bank” shall include any such Affiliate with respect to Letters of Credit issued by
such Affiliate.




     “LC Disbursement” means a payment made by an Issuing Bank pursuant to a Letter of
Credit. The amount of any LC Disbursement made by an Issuing Bank in an Alternative Currency and
not reimbursed by the Borrower shall be determined as set forth in paragraph (e) or (m) of Section
2.05, as applicable.



     “LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of all
outstanding Letters of Credit denominated in U.S. Dollars at such time, (b) the U.S. Dollar
Equivalent of the aggregate undrawn amount of all outstanding Alternative Currency Letters of
Credit at such time, (c) the aggregate amount of all LC Disbursements made in U.S. Dollars that
have not yet been reimbursed by or on behalf of the Borrower at such time and (d) the U.S. Dollar
Equivalent of the aggregate amount of all LC Disbursements made in an Alternative Currency that
have not yet been reimbursed by or on behalf of the Borrower at such time. The LC Exposure of any
Global Revolving Lender at any time shall be its Applicable Percentage of the aggregate LC Exposure
at such time.



     “Lead Arrangers” means J.P. Morgan Securities LLC and Barclays Capital, the investment
banking division of Barclays Bank PLC.



     “Lender Participation Notice” has the meaning assigned to such term in Section
2.11(g).



     “Lenders” means the Persons listed on Schedule 2.01 and any other Person that shall
have become a party hereto pursuant to Section 9.04 or Section 2.20, other than any such Person
that ceases to be a party hereto pursuant to Section 9.04. Unless the context otherwise requires,
the term “Lenders” includes the Swingline Lender.



     “Letter of Credit” means any letter of credit issued (or, in the case of Existing
Letters of Credit, deemed issued) pursuant to this Agreement.



     “LIBO Rate” means, with respect to any Eurocurrency Borrowing denominated in U.S.
Dollars or Sterling for any Interest Period, the rate per annum determined by the Administrative
Agent at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period (or on the date of the commencement of such Interest Period if such Eurocurrency
Borrowing is denominated in Sterling) by reference to LIBOR01 Page published by Reuters for
deposits in the currency of such Eurocurrency Borrowing for a period equal to such Interest Period.
In the event that such rate is not available at such time for any reason, then the “LIBO
Rate” with respect to such Eurocurrency Borrowing for such Interest Period shall be the
interest rate per annum determined by the Administrative Agent to be the average of the rates per
annum at which deposits in the currency of such Eurocurrency Borrowing are offered for a maturity
comparable to such relevant Interest Period to the Reference Banks in the London interbank market
in London, England, at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period (or on the date of the commencement of such Interest Period if
such Eurocurrency Borrowing is denominated in Sterling); provided,



29









 




however, that notwithstanding the rate calculated in accordance with the foregoing, at
no time shall the LIBO Rate for Tranche B Term Loans be deemed to be less than 1.75%.




     “Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the
interest of a vendor or a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the same economic effect as any of
the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call
or similar right of a third party with respect to such securities. “Lien” shall not include any
license to any intellectual property.



     “Loan Document Obligations” has the meaning assigned to such term in the Collateral
Agreement.



     “Loan Documents” means this Agreement, any Incremental Facility Amendment, the
Collateral Agreement and the other Security Documents.



     “Loan Parties” means Holdings, the Borrower and the Subsidiary Loan Parties.



     “Loans” means the loans made by the Lenders to the Borrower pursuant to this
Agreement.



     “Long-Term Indebtedness” means any Indebtedness (excluding Indebtedness permitted by
Section 6.01(iii)) that, in accordance with GAAP, constitutes a long-term liability.



     “Material Adverse Effect” means a material adverse effect on (a) the business,
operations or financial condition of Holdings, the Borrower and the Restricted Subsidiaries, taken
as a whole, (b) the ability of any Loan Party to perform any of its material obligations under any
Loan Document or (c) the rights of or benefits available to the Lenders under any Loan Document.



     “Material Indebtedness” means Indebtedness (other than the Loans and Letters of
Credit), or obligations in respect of one or more Swap Agreements, of any one or more of Holdings,
the Borrower and the Restricted Subsidiaries in an aggregate principal amount exceeding
$20,000,000. For purposes of determining Material Indebtedness, the “principal amount” of the
obligations of Holdings, the Borrower or any Restricted Subsidiary in respect of any Swap Agreement
at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that
Holdings, the Borrower or such Restricted Subsidiary would be required to pay if such Swap
Agreement were terminated at such time.



     “Maximum Accrual” has the meaning set forth in Section 2.11(h).



     “Merger” has the meaning assigned to such term in the Recitals.



     “Minimum Tranche Amount” has the meaning set forth in Section 2.22(b).



     “Minority Investment” means any person (other than a Subsidiary) in which the Borrower
or any Restricted Subsidiary owns capital stock.



30









 





     “Moody’s” means Moody’s Investors Service, Inc.



     “Mortgages” means each of the mortgages and deeds of trust made by any Loan Party in
favor of, or for the benefit of, the Administrative Agent for the benefit of the Lenders, in form
and substance reasonably satisfactory to the Administrative Agent and the Borrower.



     “Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.



     “Net Income” means, with respect to any Person, the net income (loss) of such Person,
determined in accordance with GAAP and before any reduction in respect of preferred stock
dividends.



     “Net Proceeds” means:



     (a) with respect to the disposition of any asset by Holdings, the Borrower or any Restricted
Subsidiary or any Casualty Event, the excess, if any, of (i) the sum of cash and Permitted
Investments received in connection with such disposition or Casualty Event (including any cash or
Permitted Investments received by way of deferred payment pursuant to, or by monetization of, a
note receivable or otherwise, but only as and when so received and, with respect to any Casualty
Event, any insurance proceeds or condemnation awards in respect of such Casualty Event actually
received by or paid to or for the account of Holdings, the Borrower or any Restricted Subsidiary)
over (ii) the sum of (A) the principal amount, premium or penalty, if any, interest and other
amounts on any Indebtedness that is secured by the asset subject to such disposition or Casualty
Event and that is required to be repaid in connection with such disposition or Casualty Event
(other than Indebtedness under the Loan Documents), (B) the out-of-pocket fees and expenses
(including attorneys’ fees, investment banking fees, survey costs, title insurance premiums, and
related search and recording charges, transfer taxes, deed or mortgage recording taxes, other
customary expenses and brokerage, consultant and other customary fees) actually incurred by
Holdings, the Borrower or such Restricted Subsidiary in connection with such disposition or
Casualty Event, (C) taxes paid or reasonably estimated to be actually payable in connection
therewith, and (D) any reserve for adjustment in respect of (x) the sale price of such asset or
assets established in accordance with GAAP and (y) any liabilities associated with such asset or
assets and retained by Holdings, the Borrower or any Restricted Subsidiary after such sale or other
disposition thereof, including pension and other post-employment benefit liabilities and
liabilities related to environmental matters or with respect to any indemnification obligations
associated with such transaction and it being understood that “Net Proceeds” shall include (i) any
cash or Permitted Investments received upon the disposition of any non-cash consideration by
Holdings, the Borrower or any Restricted Subsidiary in any such disposition and (ii) upon the
reversal (without the satisfaction of any applicable liabilities in cash in a corresponding amount)
of any reserve described in clause (D) above or if such liabilities have not been satisfied in cash
and such reserve is not reversed within 365 days after such disposition or Casualty Event, the
amount of such reserve; provided that (x) no net cash proceeds calculated in accordance
with the foregoing realized in a single transaction or series of related transactions shall
constitute Net Proceeds unless such net cash proceeds shall exceed $10,000,000 and (y) no such net
cash proceeds shall constitute Net Proceeds under this clause (a) in any fiscal year until the
aggregate amount of all such net cash proceeds in such fiscal year



31









 




shall exceed $25,000,000 (and thereafter only net cash proceeds in excess of such amount shall
constitute Net Proceeds under this clause (a)); and




     (b) (i) with respect to the incurrence or issuance of any Indebtedness by Holdings, the
Borrower or any Restricted Subsidiary, the excess, if any, of (x) the sum of the cash received in
connection with such incurrence or issuance over (y) the investment banking fees, underwriting
discounts, commissions, costs and other out-of-pocket expenses and other customary expenses,
incurred by Holdings, the Borrower or such Restricted Subsidiary in connection with such incurrence
or issuance and (ii) with respect to any Qualified Equity Interests issued by any direct or
indirect parent of the Borrower, the amount of cash from such Qualified Equity Interests
contributed to the capital of the Borrower.



     “Non-Cash Charges” has the meaning assigned to such term in the definition of
Consolidated EBITDA.



     “Non-Consenting Lender” has the meaning assigned to such term in Section 9.02(c).



     “Notice of Intent to Cure” has the meaning assigned to such term in the last paragraph
of Article VII.



     “Obligations” has the meaning assigned to such term in the Collateral Agreement.



     “OECD Country” means any member country of the Organization of Economic Cooperation
and Development.



     “Offered Loans” has the meaning assigned to such term in Section 2.11(g).



     “Organizational Documents” means, with respect to any Person, the charter, articles or
certificate of organization or incorporation and bylaws or other organizational or governing
documents of such Person.



     “Other Taxes” means any and all present or future recording, stamp, documentary,
excise, transfer, sales, property or similar taxes, charges or levies arising from any payment made
under any Loan Document or from the execution, delivery or enforcement of, or otherwise with
respect to, any Loan Document, including any interest, additions to tax or penalties applicable
thereto.



     “Parent” means, with respect to any Lender, any Person as to which such Lender is,
directly or indirectly, a subsidiary.



     “Participant” has the meaning assigned to such term in Section 9.04(c).



     “PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity performing similar functions.



     “Perfection Certificate” means a certificate in the form of Exhibit D or any other
form approved by the Administrative Agent.



32









 





     “Permitted Acquisition” means any acquisition by the Borrower or a Restricted
Subsidiary of any restaurant or other business permitted by Section 6.03(b) (whether through the
acquisition of real property or assets, from a Franchisee or otherwise) or all the outstanding
Equity Interests (other than directors’ qualifying shares and shares required by applicable law to
be issued to nationals or citizens) in, all or substantially all the assets of, or all or
substantially all the assets constituting a division or line of business of, a Person if (a) such
acquisition was not preceded by, or consummated pursuant to, a hostile offer (including a proxy
contest), (b) no Default has occurred and is continuing or would result therefrom, (c) such
acquisition and all transactions related thereto are consummated in accordance with applicable
material laws, (d) all actions required to be taken with respect to any acquired or newly formed
Restricted Subsidiary under Sections 5.12 and 5.13 shall have been taken, (e) the Borrower is in
compliance, on a Pro Forma Basis after giving effect to such acquisition as of the last day of the
most-recently ended Test Period for which financial statements have been delivered pursuant to
Section 5.01(a) or (b), with the covenants contained in Section 6.13, (f) after giving effect to
such acquisition, the Borrower and the Subsidiaries shall have no less than $100,000,000 of
aggregate cash and cash equivalents and unused and available Revolving Commitments, (g) the
business of such Person or such assets, as the case may be, constitutes a business permitted by
Section 6.03(b) and (i) in the case of any acquisition resulting in cash consideration in excess of
$50,000,000, the Borrower has delivered to the Administrative Agent a certificate of a Financial
Officer to the effect set forth in clauses (a), (b), (c), (d), (e), (f) and (g) above, together
with all relevant available financial information for the Person or assets to be acquired and
setting forth reasonably detailed calculations demonstrating compliance with clause (e) above;
provided that any such acquisition by a non wholly owned Restricted Subsidiary shall only
be deemed to be a Permitted Acquisition if the Borrower otherwise complies with clause (d) above as
if such acquisition were made by a wholly owned Restricted Subsidiary.



     “Permitted Encumbrances” means:



     (a) Liens imposed by law for taxes, assessments or other governmental charges that are not yet
due or are being contested in compliance with Section 5.05;



     (b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, landlords’ and other
like Liens imposed by law, arising in the ordinary course of business and securing obligations that
are not overdue by more than 60 days or are being contested in good faith by appropriate
proceedings and, in the case of material obligations, in compliance with Section 5.05;



     (c) pledges and deposits made, and other Liens incurred, in the ordinary course of business in
compliance with workers’ compensation, unemployment insurance and other social security laws or
regulations;



     (d) deposits and other Liens incurred to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of
a like nature, in each case in the ordinary course of business;



     (e) judgment liens in respect of judgments that do not constitute an Event of Default under
clause (k) of Article VII;



33









 





     (f) easements, zoning restrictions, rights-of-way and similar encumbrances on real property
imposed by law or arising in the ordinary course of business that do not secure any monetary
obligations and do not interfere with the ordinary conduct of business of the Borrower or any
Subsidiary; and



     (g) Liens arising from Permitted Investments described in clause (d) of the definition of the
term “Permitted Investments”,


provided that the term “Permitted Encumbrances” shall not include any Lien securing
Indebtedness (other than pursuant to clause (d) above).




     “Permitted Investments” means:



     (a) direct obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States of America, any State thereof or any political
subdivision of any such State or any OECD Country (or by any agency of the United States of America
or any OECD Country to the extent such obligations are backed by the full faith and credit of the
United States of America or such OECD Country, as the case may be), in each case maturing within
one year from the date of acquisition thereof;



     (b) investments in commercial paper maturing within one year from the date of acquisition
thereof and having, at such date of acquisition, one of the two highest credit ratings obtainable
from S&P or from Moody’s;



     (c) investments in certificates of deposit, banker’s acceptances and time or demand deposits
maturing within one year from the date of acquisition thereof issued or guaranteed by or placed
with, and money market deposit accounts issued or offered by, any office of any commercial bank
organized under the laws of the United States of America or any State thereof or any OECD Country
that has a combined capital and surplus and undivided profits of not less than $100,000,000;



     (d) fully collateralized repurchase agreements with a term of not more than 30 days for
securities described in clause (a) above and entered into with a financial institution satisfying
the criteria described in clause (c) above;



     (e) investments in “money market funds” within the meaning of Rule 2a-7 of the Investment
Company Act of 1940, as amended, substantially all of whose assets are invested in investments of
the type described in clauses (a) through (d) above; and



     (f) foreign investments substantially comparable to any of the foregoing in connection with
managing cash of any Subsidiary having operations in a foreign country.



     “Permitted Investors” means the Sponsors and any Sponsor Affiliate.



     “Permitted Refinancing” means, with respect to any Indebtedness, any modification,
refinancing, refunding, renewal or extension of such Indebtedness; provided that (i) the
principal amount thereof does not exceed the principal amount of the Indebtedness so modified,
refinanced, refunded, renewed or extended (plus any accrued but unpaid interest, fees and



34









 




redemption premiums payable by the terms of such Indebtedness thereon), (ii) such
modification, refinancing, refunding, renewal or extension has a final maturity date equal to or
later than the final maturity date of, and has a weighted average life to maturity equal to or
greater than the weighted average life to maturity of, the Indebtedness being modified, refinanced,
refunded, renewed or extended, (iii) if the Indebtedness being modified, refinanced, refunded,
renewed or extended is subordinated in right of payment to the Obligations, such modification,
refinancing, refunding, renewal or extension is subordinated in right of payment to the Obligations
on terms at least as favorable on the whole to the Lenders as those contained in the documentation
governing the Indebtedness being modified, refinanced, refunded, renewed or extended, (iv) the
terms and conditions of any such modified, refinanced, refunded, renewed or extended Indebtedness
are market terms on the date of issuance (as determined in good faith by the Borrower) or are not,
taken as a whole, materially more restrictive than the covenants and events of default contained in
this Agreement, provided that if such Indebtedness contains any financial maintenance
covenants, such covenants shall not be tighter than those contained in this Agreement, (v) such
modification, refinancing, refunding, renewal or extension shall not be incurred by a Person who is
not the obligor on the Indebtedness being modified, refinanced, refunded, renewed or extended, (vi)
at the time thereof, no Default shall have occurred and be continuing and (vii) to the extent that
the Liens securing the Indebtedness being refinanced is subordinated to the Liens securing the
Obligations, any Lien securing such refinancing Indebtedness is subordinated to the Liens securing
the Obligations on terms at least as favorable on the whole to the Lenders as those contained in
the applicable subordination language (if any) for the Indebtedness being refinanced.




     “Permitted Sale and Leaseback Transaction” means any Sale and Leaseback Transaction by
the Borrower or any Restricted Subsidiary that is made for cash consideration in an amount not less
than the fair value of the fixed or capital assets that are sold or transferred pursuant to such
Sale and Leaseback Transaction if (x) such Sale and Leaseback Transaction, together with all other
Sale and Leaseback Transactions made pursuant to this clause (x), does not result in aggregate Net
Proceeds in excess of $20,000,000 in any fiscal year or (y) (a) immediately before and after giving
effect thereto, no Default has occurred and is continuing or would result therefrom, (b)(i) the
Borrower is in compliance on a Pro Forma Basis after giving effect to such Sale and Leaseback
Transaction and the application of the proceeds therefrom with the covenants contained in Sections
6.12 and 6.13, recomputed as of the last day of the most-recently ended fiscal quarter of the
Borrower prior to such Sale and Leaseback Transaction for which financial statements have been
delivered pursuant to Section 5.01(a) or (b), and (ii) the Rent-Adjusted Leverage Ratio, after
giving effect to such Sale and Leaseback Transaction and the application of the proceeds therefrom,
recomputed on a Pro Forma Basis as of the last day of the most-recently ended fiscal quarter of the
Borrower prior to such Sale and Leaseback Transaction for which financial statements have been
delivered pursuant to Section 5.01(a) or (b), is either (x) less than 3.00 to 1.00 or (y) not
greater than the Rent-Adjusted Leverage Ratio recomputed on a Pro Forma Basis as of such date
without giving effect to such Sale and Leaseback Transaction and the application of the proceeds
therefrom and (c) the Borrower has, in the case of any Sale and Leaseback Transaction resulting in
cash consideration in excess of $15,000,000, delivered to the Administrative Agent a certificate of
a Financial Officer to such effect, together with all relevant financial information reasonably
requested by the Administrative Agent, including reasonably detailed calculations demonstrating
compliance with clause (b) above.



35









 





     “Person” means any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental Authority or other entity.



     “Plan” means any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA,
and in respect of which the Borrower or any ERISA Affiliate is (or, if such Plan were terminated,
would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of
ERISA.



     “Prepayment Event” means:



     (a) any sale, transfer or other disposition (including pursuant to a Sale and Leaseback
Transaction and by way of merger or consolidation) of any property or asset of Holdings, the
Borrower or any Restricted Subsidiary, other than dispositions permitted by clauses (a), (b), (c),
(d), (f), (g), (h), (i), (j), (l) (but excluding sales of owned real property to the extent that
the aggregate fair market value of all owned real property sold to Franchisees exceeds $25,000,000
during any fiscal year of the Borrower) and (m) of Section 6.05;



     (b) any casualty or other insured damage to, or any taking under power of eminent domain
or by condemnation or similar proceeding of, any property or asset of Holdings, the Borrower or any
Restricted Subsidiary with a fair market value immediately prior to such event equal to or greater
than $5,000,000; and



     (c) the incurrence by Holdings, the Borrower or any Restricted Subsidiary of any
Indebtedness, other than Indebtedness permitted under Section 6.01 (except as required by Section
6.01(xi)(A)(1)(y) or Section 6.01(xviii)) or permitted by the Required Lenders pursuant to Section
9.02.



     “Prime Rate” means the rate of interest per annum publicly announced from time to time
by JPMorgan Chase Bank, N.A. as its prime rate in effect at its principal office in New York City;
each change in the Prime Rate shall be effective from and including the date such change is
publicly announced as being effective.



     “Pro Forma Adjustment” means, for any Test Period that includes all or any part of a
fiscal quarter included in any Post-Acquisition Period, with respect to the Acquired EBITDA of the
applicable Acquired Entity or Business or Converted Restricted Subsidiary or the Consolidated
EBITDA of the Borrower, the pro forma increase or decrease in such Acquired EBITDA or such
Consolidated EBITDA, as the case may be, projected by the Borrower in good faith as a result of (a)
actions taken during such Post-Acquisition Period for the purposes of realizing reasonably
identifiable and factually supportable cost savings or (b) any additional costs incurred during
such Post-Acquisition Period, in each case in connection with the combination of the operations of
such Acquired Entity or Business or Converted Restricted Subsidiary with the operations of the
Borrower and the Restricted Subsidiaries; provided that, (i) at the election of the
Borrower, such Pro Forma Adjustment shall not be required to be determined for any Acquired Entity
or Business or Converted Restricted Subsidiary to the extent the aggregate consideration paid in
connection with such acquisition was less than $2,500,000, (ii) so long as such actions are taken
during such Post-Acquisition Period or such costs are



36









 




incurred during such Post-Acquisition Period, as applicable, for purposes of projecting such
pro forma increase or decrease to such Acquired EBITDA or such Consolidated EBITDA, as the case may
be, it may be assumed that such cost savings will be realizable during the entirety of such Test
Period, or such additional costs, as applicable, will be incurred during the entirety of such Test
Period, and (iii) the aggregate amount of Pro Forma Adjustments in any Test Period shall be limited
to an amount to be determined; provided further that any such pro forma increase or
decrease to such Acquired EBITDA or such Consolidated EBITDA, as the case may be, shall be without
duplication for cost savings or additional costs already included in such Acquired EBITDA or such
Consolidated EBITDA, as the case may be, for such Test Period.




     “Pro Forma Balance Sheet” has the meaning assigned to such term in Section 3.04(b).



     “Pro Forma Basis” means, with respect to the calculation of the Total Leverage Ratio,
the Senior Secured Leverage Ratio, the Interest Coverage Ratio or the Rent-Adjusted Leverage Ratio
as of any date, that (A) to the extent applicable, the Pro Forma Adjustment shall have been made
and (B) such calculation shall give pro forma effect to all Permitted Acquisitions, all Permitted
Sale and Leaseback Transactions, all issuances, incurrences or assumptions of Indebtedness and the
application of the proceeds of such Indebtedness (with any such Indebtedness being deemed to be
amortized over the applicable testing period in accordance with its terms) and all sales, transfers
or other dispositions of any material assets outside the ordinary course of business, in each case
that have occurred during (or, if such calculation is being made for the purpose of determining
whether any proposed acquisition will constitute a Permitted Acquisition, whether any proposed Sale
and Leaseback Transaction will constitute a Permitted Sale and Leaseback Transaction, whether any
Capital Expenditure is permitted under Section 6.14, whether any Incremental Term Loans or
Incremental Revolving Commitments may be made or whether any Subordinated Debt or Indebtedness
under Section 6.01(xviii) may be incurred, since the beginning of) the four consecutive fiscal
quarter period of the Borrower most-recently ended on or prior to such date as if they occurred on
the first day of such four consecutive fiscal quarter period (including cost savings to the extent
such cost savings would be consistent with the definition of “Pro Forma Adjustment” and the
definition of “Consolidated EBITDA”).



     “Proposed Change” has the meaning assigned to such term in Section 9.02(c).



     “Proposed Discounted Prepayment Amount” has the meaning assigned to such term in
Section 2.11(g).



     “Purchase Agreement” has the meaning assigned to such term in the Recitals.



     “Qualified Equity Interests” means Equity Interests of Holdings or the Borrower other
than Disqualified Equity Interests.



     “Qualifying Lenders” has the meaning assigned to such term in Section 2.11(g).



     “Qualifying Loans” has the meaning assigned to such term in Section 2.11(g).



     “Reference Banks” means, JPMorgan Chase Bank, N.A., Barclays Bank plc and any other
major bank in the London interbank market selected by the Administrative Agent.



37









 





     “Register” has the meaning assigned to such term in Section 9.04(b).



     “Reinvestment Deferred Amount” has the meaning assigned to such term in Section
2.11(c).



     “Related Parties” means, with respect to any specified Person, such Person’s
Affiliates and the respective directors, officers, employees, agents, trustees and advisors of such
Person and such Person’s Affiliates.



     “Release” means any release, spill, emission, leaking, dumping, injection, pouring,
deposit, disposal, discharge, dispersal, leaching or migration into or through the environment
(including ambient air, surface water, groundwater, land surface or subsurface strata) or within or
upon any building, structure, facility or fixture.



     “Rent-Adjusted Leverage Ratio” means, as of any date, the ratio of (a) the sum of (i)
an amount equal to eight times Consolidated Rental Expense for the most recent Test Period and (ii)
Consolidated Total Debt as of the last day of such Test Period to (b) Consolidated EBITDAR for such
Test Period.



     “Repricing Event” means (a) any prepayment or repayment of Term Loans with the
proceeds of, or any conversion of Term Loans into, any new or replacement tranche of term loans or
Indebtedness incurred under Section 6.01(xviii) bearing interest with an “effective yield” (taking
into account, for example, upfront fees, interest rate spreads, interest rate benchmark floors and
original issue discount, but excluding the effect of any arrangement, structuring, syndication or
other fees payable in connection therewith that are not shared with all lenders or holders of such
new or replacement loans) less than the “effective yield” applicable to the Term Loans (as such
comparative yields are determined in the reasonable judgment of the Administrative Agent consistent
with generally accepted financial practices) but excluding any new or replacement loans incurred in
connection with a “Change in Control” and (b) any amendment (including pursuant to a replacement
term loan as contemplated by Section 9.02(b)) to the Term Loans or any tranche thereof which
reduces the “effective yield” applicable to such Term Loans.



     “Required Lenders” means, at any time, Lenders having Revolving Exposures, Term Loans
and unused Commitments (other than Swingline Commitments) representing more than 50% of the
aggregate Revolving Exposures, outstanding Term Loans and unused Commitments (other than Swingline
Commitments) at such time. For purposes of this definition, Required Lenders shall be determined
by excluding all Loans and Commitments held or beneficially owned by a Sponsor Affiliated Lender.



     “Requirement of Law” means, with respect to any Person, any statute, law, treaty,
rule, regulation, order, decree, writ, injunction or determination of any arbitrator or court or
other Governmental Authority, in each case applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is subject.



38









 





     “Requisite Period” means either of (i) the period from and including the Effective
Date to and including June 30, 2011 or (ii) the period from and including July 1, 2011 to and
including June 30, 2012, as the case may be.



     “Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interests in Holdings, the Borrower or any
Restricted Subsidiary, or any payment (whether in cash, securities or other property), including
any sinking fund or similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancelation or termination of any Equity Interests in Holdings, the Borrower or any
Restricted Subsidiary or any option, warrant or other right to acquire any such Equity Interests in
Holdings, the Borrower or any Restricted Subsidiary, or any other payment (including any payment
under any Swap Agreement) that has a substantially similar effect to any of the foregoing.



     “Restricted Subsidiary” means any Subsidiary other than an Unrestricted Subsidiary.



     “Revolving Availability Period” means the period from and including the Effective Date
to but excluding the earlier of the Revolving Maturity Date and the date of termination of the
Revolving Commitments.



     “Revolving Borrowing” means a Borrowing comprised of Revolving Loans.



     “Revolving Commitment” means, with respect to each Lender, the sum of such Lender’s
Global Revolving Commitment and such Lender’s U.S. Revolving Commitment.



     “Revolving Exposure” means, at any time, the sum of the aggregate Global Revolving
Exposures and the aggregate U.S. Revolving Exposures. The Revolving Exposure of any Lender at any
time shall be the sum of its Global Revolving Exposure and its U.S. Revolving Exposure at such
time.



     “Revolving Lender” means a Lender with a Revolving Commitment or, if the Revolving
Commitments have terminated or expired, a Lender with Revolving Exposure.



     “Revolving Loan” means a Global Revolving Loan or a U.S. Revolving Loan.



     “Revolving Maturity Date” means October 19, 2015.



     “S&P” means Standard & Poor’s Ratings Group, Inc.



     “Sale and Leaseback Transaction” means any arrangement, directly or indirectly,
whereby Holdings, the Borrower or any Restricted Subsidiary shall sell or transfer any real
property, used or useful in its business, whether now owned or hereafter acquired, and thereafter
rent or lease such real property.



     “SEC” means the Securities and Exchange Commission or any Governmental Authority
succeeding to any of its principal functions.



39









 





     “Security Documents” means the Collateral Agreement, the Foreign Pledge Agreements,
any Mortgages (if any) and each other security agreement or other instrument or document executed
and delivered pursuant to any of the foregoing or pursuant to Section 5.12 or 5.13 to secure any of
the Obligations.



     “Senior Exchange Notes” has the meaning specified in the definition of Senior Notes.



     “Senior Note Documents” means the indenture or indentures under which Senior Notes are
issued, all instruments, agreements and other documents evidencing or governing the Senior Notes,
providing for any Guarantee or other right in respect thereof, and all schedules, exhibits and
annexes to each of the foregoing.



     “Senior Notes” means $800,000,000 in aggregate principal amount of the Borrower’s
9.875% senior unsecured notes due 2018 as the same may be amended, amended and restated, modified,
supplemented and/or extended from time to time in accordance with the terms hereof and thereof, and
any notes issued in exchange or replacement of the foregoing on substantially identical terms (the
“Senior Exchange Notes”).



     “Senior Secured Leverage Ratio” means, with respect to any Test Period, the ratio of
(a) Consolidated Senior Secured Debt as of the last day of such Test Period to (b) Consolidated
EBITDA of the Borrower and its Restricted Subsidiaries for such Test Period.



     “Significant Subsidiary” means, at any date of determination, any Restricted
Subsidiary with assets having an aggregate fair market value of $2,500,000 or more at such date.



     “Sold Entity or Business” has the meaning assigned to such term in the definition of
Consolidated EBITDA.



     “Solvent” and “Solvency” mean, with respect to any Person on any date of
determination, that on such date (i) the sum of the debt (including contingent liabilities) of such
Person does not exceed the present fair saleable value of the present assets of such Person;(ii)
the capital of such Person is not unreasonably small in relation to the business of such Peron,
contemplated as of the date of such determination; and (iii) such Person does not intend to incur,
or believe that it will incur, debts including current obligations beyond its ability to pay such
debt as they mature in the ordinary course of business.



     “SPV” has the meaning assigned to such term in Section 9.04(e).



     “Sponsor” means 3G Capital Partners Ltd.



     “Sponsor Affiliate” means any Affiliate of a Sponsor other than (a) Holdings, the
Borrower and the Subsidiaries and (b) any other operating company or a Person controlled by such an
operating company.



     “Sponsor Affiliated Lender” means the Sponsor and any Affiliate of the Sponsor
(including Holdings, the Borrower and the Subsidiaries).



40









 





     “Statutory Reserve Rate” means, with respect to any currency, a fraction (expressed as
a decimal), the numerator of which is the number one and the denominator of which is the number one
minus the aggregate of the maximum reserve, liquid asset, fees or similar requirements (including
any marginal, special, emergency or supplemental reserves or other requirements) established by any
central bank, monetary authority, the Board, the Financial Services Authority, the European Central
Bank or other Governmental Authority for any category of deposits or liabilities customarily used
to fund loans in such currency, expressed in the case of each such requirement as a decimal. Such
reserve percentages shall, in the case of U.S. Dollar denominated Loans, include those imposed
pursuant to Regulation D of the Board. For purposes of this definition, Eurocurrency Loans shall be
deemed to constitute eurocurrency funding and to be subject to such reserve, liquid asset or
similar requirements without benefit of or credit for proration, exemptions or offsets that may be
available from time to time to any Lender under such Regulation D or any comparable law, rule or
regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective
date of any change in any reserve, liquid asset or similar requirement.



     “Sterling” or “£” refers to lawful money of the United Kingdom.



     “Subordinated Debt” means unsecured Indebtedness of Holdings or the Borrower (other
than intercompany Indebtedness) that (a) does not require any scheduled payment of principal
(including pursuant to a sinking fund obligation) or mandatory redemption or redemption at the
option of the holders thereof (except for redemptions in respect of asset sales and changes in
control on terms that are market terms on the date of issuance) prior to the date that is 180 days
after the Tranche B Maturity Date or, if such Indebtedness is incurred after the Borrower has
obtained any Incremental Term Loans or while any Commitments from Additional Lenders to make
Incremental Term Loans remain in effect, 180 days after the maturity date for such Incremental Term
Loans, unless all such Incremental Term Loans have been repaid in full and all Commitments in
respect thereof have been terminated, (b) contains subordination and guarantee release provisions
that are market terms on the date of issuance, (c) contains other terms (including covenants,
events of default, remedies, redemption provisions and change of control provisions) that are
market terms on the date of issuance (as determined in good faith by the Borrower) or are not
materially more restrictive than the covenants and events of default contained in this Agreement,
provided that the terms of such Indebtedness shall not in any case require the maintenance
or achievement of any financial performance standards other than as a condition to the taking of
specified actions, and (d) bears interest at a rate that is a market rate of interest on the date
of issuance of such Indebtedness as determined by the Borrower in good faith.



     “Subordinated Debt Documents” means the indenture or indentures under which any
Subordinated Debt is issued, all side letters, instruments, agreements and other documents
evidencing or governing any Subordinated Debt, providing for any Guarantee or other right in
respect thereof, and all schedules, exhibits and annexes to each of the foregoing.



     “Subordinated Refinancing Indebtedness” means any Subordinated Debt issued to
refinance, redeem or repurchase (collectively, “refinance”) any other Subordinated Debt,
provided that such Subordinated Debt is in an aggregate principal amount not more than the
aggregate principal amount of the Subordinated Debt being refinanced (plus any accrued but



41









 




unpaid interest, fees or premium thereon, provided that such premium is either payable
by the terms of the Subordinated Debt being refinanced or is not more than a market premium at the
time as determined in good faith by the Borrower).




     “subsidiary” means, with respect to any Person (the “parent”) at any date, any
corporation, limited liability company, partnership, association or other entity the accounts of
which would be consolidated with those of the parent in the parent’s consolidated financial
statements if such financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership, association or other entity
of which securities or other ownership interests representing more than 50% of the equity or more
than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, controlled or held by the parent or one
or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.



     “Subsidiary” means any subsidiary of the Borrower.



     “Subsidiary Loan Party” means (a) any Significant Subsidiary that is a wholly owned
Domestic Subsidiary (other than Excluded Subsidiaries) and (b) any other Subsidiary designated by
the Borrower as a Subsidiary Loan Party pursuant to written notice to the Administrative Agent.



     “Swap Agreement” means any agreement with respect to any swap, forward, future or
derivative transaction or option or similar agreement involving, or settled by reference to, one or
more rates, currencies, commodities, equity or debt instruments or securities, or economic,
financial or pricing indices or measures of economic, financial or pricing risk or value or any
similar transaction or any combination of these transactions, provided that no phantom
stock or similar plan providing for payments only on account of services provided by current or
former directors, officers, employees or consultants of Holdings, the Borrower or the Restricted
Subsidiaries shall be a Swap Agreement.



     “Swingline Borrowing” means a Borrowing comprised of Swingline Loans.



     “Swingline Commitment” means the commitment of the Swingline Lender to make Swingline
Loans.



     “Swingline Exposure” means, at any time, the aggregate principal amount of all
Swingline Loans outstanding at such time. The Swingline Exposure of any Global Revolving Lender at
any time shall be its Applicable Percentage of the Swingline Exposure at such time.



     “Swingline Lender” means JPMorgan Chase Bank, N.A., in its capacity as lender of
Swingline Loans hereunder.



     “Swingline Loan” means a Loan made pursuant to Section 2.04.



     “Syndication Agent” means Barclays Capital, in its capacity as syndication agent for
the Lenders hereunder, and its successors in such capacity.



     “Target” has the meaning assigned to such term in the Recitals.



42









 





     “Taxes” means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority, including any interest,
additions to tax or penalties applicable thereto.



     “Term Borrowing” means a Borrowing comprised of Term Loans.



     “Term Commitments” means the Tranche B Commitments, the Tranche B Euro Commitments and
any commitments to make Incremental Term Loans.



     “Term Lenders” means the Tranche B Lenders, the Tranche B Euro Lenders and any Lenders
with an outstanding Incremental Term Loan or a Commitment to make an Incremental Term Loan.



     “Term Loans” means the Tranche B Term Loans, the Tranche B Euro Term Loans and any
Incremental Term Loans.



     “Test Period” means, at any date of determination, the most recently completed four
consecutive fiscal quarters of the Borrower ending on or prior to such date.



     “Total Assets” means, on any date, the aggregate amount of assets of the Borrower and
the Restricted Subsidiaries on a consolidated basis, as shown on the most recent consolidated
balance sheet of the Borrower and the Restricted Subsidiaries, determined on a consolidated basis
in accordance with GAAP, but giving pro forma effect to the relevant asset sale and the use of
proceeds therefrom.



     “Total Leverage Ratio” means, with respect to any Test Period, the ratio of (a)
Consolidated Total Debt as of the last day of such Test Period to (b) Consolidated EBITDA of the
Borrower for such Test Period.



     “Tranche B Commitment” means, with respect to each Lender, the commitment, if any, of
such Lender under this Agreement to make a Tranche B Term Loan hereunder on the Effective Date,
expressed as an amount representing the maximum principal amount of the Tranche B Term Loan to be
made by such Lender hereunder. The initial amount of each Lender’s Tranche B Commitment is as set
forth on Schedule 2.01. The initial aggregate amount of the Lenders’ Tranche B Commitments on the
Effective Date is $1,510,000,000.



     “Tranche B Euro Commitment” means, with respect to each Lender, the commitment, if
any, of such Lender under this Agreement to make a Tranche B Euro Term Loan hereunder on the
Effective Date, expressed as an amount representing the maximum principal amount of the Tranche B
Euro Term Loan to be made by such Lender hereunder. The initial amount of each Lender’s Tranche B
Euro Commitment is as set forth on Schedule 2.01. The initial aggregate amount of the Lenders’
Tranche B Euro Commitments on the Effective Date is €250,000,000.



     “Tranche B Euro Lender” means a Lender with a Tranche B Euro Commitment or an
outstanding Tranche B Euro Term Loan.



43









 





     “Tranche B Euro Maturity Date” means October 19, 2016.



     “Tranche B Euro Term Loans” means Loans made pursuant to clause (b) of Section 2.01.



     “Tranche B Lender” means a Lender with a Tranche B Commitment or an outstanding
Tranche B Term Loan.



     “Tranche B Maturity Date” means October 19, 2016.



     “Tranche B Term Loans” means Loans made pursuant to clause (a) of Section 2.01.



     “Transactions” has the meaning assigned to such term in the Recitals.



     “Transaction Costs” means all fees, costs and expenses incurred or payable by
Holdings, the Borrower or any Subsidiary in connection with the Transactions.



     “Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the
Adjusted Eurocurrency Rate or the Alternate Base Rate.



     “Unrestricted Subsidiary” means any Subsidiary of the Borrower designated by the board
of directors of Holdings as an Unrestricted Subsidiary pursuant to Section 5.14 subsequent to the
date hereof.



     “U.S. Dollars” or “$” refers to lawful money of the United States of America.



     “U.S. Dollar Equivalent” means, on any date of determination, (a) with respect to any
amount in U.S. Dollars, such amount, and (b) with respect to any amount in any other currency, the
equivalent in U.S. Dollars of such amount, determined by the Administrative Agent pursuant to
Section 1.06 using the Exchange Rate with respect to such currency at the time in effect under the
provisions of such Section.



     “U.S. Revolving Commitment” means, with respect to each Lender, the commitment, if
any, of such Lender to make U.S. Revolving Loans, expressed as an amount representing the maximum
possible aggregate amount of such Lender’s U.S. Revolving Exposure hereunder, as such commitment
may be (a) reduced from time to time pursuant to Section 2.08 and (b) reduced or increased from
time to time pursuant to assignments by or to such Lender pursuant to Section 9.04. The initial
amount of each Lender’s U.S. Revolving Commitment is set forth on Schedule 2.01, or in the
Assignment and Assumption pursuant to which such Lender shall have assumed its U.S. Revolving
Commitment, as the case may be. The initial aggregate amount of the Lenders’ U.S. Revolving
Commitments on the Effective Date is $7,000,000.



     “U.S. Revolving Exposure” means, at any time, the aggregate principal amount of the
U.S. Revolving Loans outstanding at such time. The U.S. Revolving Exposure of any Lender at any
time shall be its Applicable Percentage of the U.S. Revolving Exposure at such time.



44









 





     “U.S. Revolving Lender” means a Lender with a U.S. Revolving Commitment or, if the
U.S. Revolving Commitments have terminated or expired, a Lender with U.S. Revolving Exposure.



     “U.S. Revolving Loan” means a Loan made pursuant to clause (c)(ii) of Section 2.01.



     “wholly owned Subsidiary” means, with respect to any Person at any date, a subsidiary
of such Person of which securities or other ownership interests representing 100% of the Equity
Interests (other than directors’ qualifying shares and shares required by applicable law to be
issued to nationals or citizens) are, as of such date, owned, controlled or held by such Person or
one or more wholly owned Subsidiaries of such Person or by such Person and one or more wholly owned
Subsidiaries of such Person.



     “Withdrawal Liability” means liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.



     “Withholding Agent” means any Loan Party and the Administrative Agent.



     SECTION 1.02 Classification of Loans and Borrowings. For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g., a “Revolving Loan”) or
by Type (e.g., a “Eurocurrency Loan”) or by Class and Type (e.g. , a “Eurocurrency
Revolving Loan”). Borrowings also may be classified and referred to by Class (e.g., a
“Revolving Borrowing”) or by Type (e.g., a “Eurocurrency Borrowing”) or by Class and Type
(e.g., a “Eurocurrency Revolving Borrowing”).



     SECTION 1.03 Terms Generally. The definitions of terms herein shall apply equally
to the singular and plural forms of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The
word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the
context requires otherwise, (a) any definition of or reference to any agreement, instrument or
other document herein shall be construed as referring to such agreement, instrument or other
document as from time to time amended, amended and restated, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such Person’s successors and
assigns, (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular provision hereof,
(d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer
to Articles and Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
“asset” and “property” shall be construed to have the same meaning and effect and to refer to any
and all tangible and intangible assets and properties, including cash, securities, accounts and
contract rights.



     SECTION 1.04 Accounting Terms; GAAP. Except as otherwise expressly provided herein,
all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in
effect from time to time, provided that, if the Borrower notifies the Administrative



45









 




Agent that the Borrower requests an amendment to any provision (including any definition)
hereof to eliminate the effect of any change occurring after the Effective Date in GAAP or in the
application thereof on the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof for such purpose),
regardless of whether any such notice is given before or after such change in GAAP or in the
application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and
applied immediately before such change shall have become effective until such notice shall have
been withdrawn or such provision amended in accordance herewith.




     SECTION 1.05 Pro Forma Calculations. With respect to any period during which any
Permitted Acquisition, any Permitted Sale and Leaseback Transaction or any sale, transfer or other
disposition of any material assets outside the ordinary course of business occurs, calculations of
the Total Leverage Ratio, the Senior Secured Leverage Ratio, the Interest Coverage Ratio and the
Rent-Adjusted Leverage Ratio with respect to such period shall be made on a Pro Forma Basis.


SECTION 1.06 Currency Translation. (a) For purposes of determining compliance as of any
date with Section 6.01, 6.02, 6.03, 6.05, 6.07, 6.08, 6.09 or 6.14, or for purposes of making any
determination under paragraph (f), (g) or (k) of Article VII, amounts incurred or outstanding in
currencies other than U.S. Dollars shall be translated into U.S. Dollars at the exchange rates in
effect on the last Business Day of the fiscal quarter immediately preceding the fiscal quarter in
which such determination occurs or in respect of which such determination is being made, as such
exchange rates shall be determined in good faith by the Borrower by reference to customary indices,
provided that if any Indebtedness is incurred to refinance other Indebtedness denominated
in a currency other than U.S. Dollars, and such refinancing would cause the applicable U.S.
Dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate
in effect on the date of such refinancing, the limitation on the permitted amount of such
Indebtedness will be deemed not to have been exceeded so long as the principal amount of such
refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced
(and, for the purposes of this proviso, if refinancing Indebtedness is to be incurred in a
different currency from the Indebtedness being refinanced, the principal amount of such refinancing
Indebtedness and the Indebtedness being refinanced will be calculated based on the currency
exchange rate in effect on the date of such refinancing with respect to the currencies in which
such respective Indebtedness is denominated). For purposes of determining compliance as of any date
with Section 6.04, amounts incurred or outstanding in currencies other than U.S. Dollars shall be
translated into U.S. Dollars at the exchange rates in effect on the last Business Day of the fiscal
quarter immediately preceding the fiscal quarter in which such amount was incurred, as such
exchange rates shall be determined in good faith by the Borrower by reference to customary indices.
No Default shall arise as a result of any limitation or threshold set forth in U.S. Dollars in
Section 6.01, 6.02, 6.03, 6.04, 6.05, 6.07, 6.08, 6.09 or 6.14 or paragraph (f), (g) or (k) of
Article VII being exceeded solely as a result of changes in currency exchange rates from those
rates applicable on the last day of the fiscal quarter immediately preceding the fiscal quarter in
which such determination occurs or in respect of which such determination is being made or such
amount was incurred, as the case may be. Otherwise, where applicable, amounts expressed in U.S.
Dollars, or required to be calculated in U.S. Dollars, shall be deemed to include any component
thereof denominated in an Alternative Currency based upon the U.S. Dollar Equivalent of such
component.






46









 








          (b) (i) The Administrative Agent shall determine the U.S. Dollar Equivalent of any
Alternative Currency Letter of Credit as of each date (with such date to be reasonably determined
by the Administrative Agent) that is on or about the date of each request for the issuance,
amendment, renewal or extension of such Alternative Currency Letter of Credit, using the Exchange
Rate for the applicable currency in relation to U.S. Dollars in effect on the date of
determination, and each such amount shall be the U.S. Dollar Equivalent of such Letter of Credit
until the next required calculation thereof pursuant to this Section 1.06(b)(i).



          (ii) The Administrative Agent shall determine the U.S. Dollar Equivalent of any Borrowing
denominated in any Alternative Currency as of each date (with such date to be reasonably determined
by the Administrative Agent) that is on or about the date of a Borrowing Request or Interest
Election Request with respect to such Borrowing, in each case using the Exchange Rate for the
applicable currency in relation to U.S. Dollars in effect on the date of determination, and each
such amount shall be the U.S. Dollar Equivalent of such Borrowing until the next required
calculation thereof pursuant to this Section 1.06(b)(ii).



          (iii) The U.S. Dollar Equivalent of any LC Disbursement made by any Issuing Bank in any
Alternative Currency and not reimbursed by the Borrower shall be determined as set forth in
paragraph (e) or (m) of Section 2.05, as applicable. In addition, the U.S. Dollar Equivalent of the
LC Exposure shall be determined as set forth in paragraph (j) of Section 2.05, at the time and in
the circumstances specified therein.



          (iv) The Administrative Agent shall notify the Borrower, the applicable Lenders and the
applicable Issuing Bank of each calculation of the U.S. Dollar Equivalent of each Letter of Credit,
Borrowing and L/C Disbursement.



          (v) The Administrative Agent shall determine the U.S. Dollar Equivalent of the outstanding
principal amount of any Term Loan denominated in Euros as of each date (with such date to be
reasonably determined by the Administrative Agent) that is on or about the date of a prepayment
with respect to such Term Loan, in each case using the Exchange Rate for Euros in relation to U.S.
Dollars in effect on the date of determination.



ARTICLE II

The Credits



          SECTION 2.01 Commitments. Subject to the terms and conditions set forth herein, (a) each
Lender having a Tranche B Commitment agrees to make a Tranche B Term Loan in U.S. Dollars to the
Borrower on the Effective Date in a principal amount not exceeding its Tranche B Commitment, (b)
each Lender having a Tranche B Euro Commitment agrees to make a Tranche B Euro Term Loan in Euros
to the Borrower on the Effective Date in a principal amount not exceeding its Tranche B Euro
Commitment and (c) each Lender having a Revolving Commitment agrees (i) to make Global Revolving
Loans to the Borrower from time to time during the Revolving Availability Period in U.S. Dollars or
in any Alternative Currency in an aggregate principal amount that will not result in such Lender’s
Global Revolving Exposure






47









 







exceeding such Lender’s Global Revolving Commitment and (ii) to make U.S. Revolving Loans to the
Borrower from time to time during the Revolving Availability Period in U.S. Dollars in an aggregate
principal amount that will not result in such Lender’s U.S. Revolving Exposure exceeding such
Lender’s U.S. Revolving Commitment, provided that (x) no Global Revolving Loan shall be
made in an Alternative Currency if, after the making of such Global Revolving Loan, the U.S. Dollar
Equivalent of the aggregate principal amount of outstanding Global Revolving Loans denominated in
an Alternative Currency would exceed $50,000,000 and (y) no more than $50,000,000 of Revolving
Loans shall be made on the Closing Date. Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrower may borrow, prepay and reborrow Revolving Loans. Amounts
repaid or prepaid in respect of Term Loans may not be reborrowed.




     SECTION 2.02 Loans and Borrowings. (a) Each Loan (other than a Swingline Loan)
shall be made as part of a Borrowing consisting of Loans of the same Class and Type made by the
Lenders ratably in accordance with their respective Commitments of the applicable Class. The
failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender
of its obligations hereunder, provided that the Commitments of the Lenders are several and
no Lender shall be responsible for any other Lender’s failure to make Loans as required.



     (b) Subject to Section 2.14, (i) each Revolving Borrowing denominated in an Alternative
Currency and each Term Borrowing of Tranche B Euro Term Loans shall be comprised entirely of
Eurocurrency Loans and (ii) each Revolving Borrowing denominated in U.S. Dollars and each Term
Borrowing of Tranche B Term Loans shall be comprised entirely of ABR Loans or Eurocurrency Loans as
the Borrower may request in accordance herewith. Each Swingline Loan shall be an ABR Loan. Each
Lender at its option may make any Eurocurrency Loan by causing any domestic or foreign branch or
Affiliate of such Lender to make such Loan, provided that any exercise of such option shall
not affect the obligation of the Borrower to repay such Loan in accordance with the terms of this
Agreement.



     (c) At the commencement of each Interest Period for any Eurocurrency Borrowing, such Borrowing
shall be in an aggregate amount that is an integral multiple of the Borrowing Multiple and not less
than the Borrowing Minimum. At the time that each ABR Revolving Borrowing is made, such Borrowing
shall be in an aggregate amount that is an integral multiple of the Borrowing Multiple and not less
than the Borrowing Minimum. Each Swingline Loan shall be in an amount that is an integral multiple
of $100,000 and not less than $1,000,000. Borrowings of more than one Type and Class may be
outstanding at the same time, provided that there shall not at any time be more than a
total of twelve Eurocurrency Borrowings outstanding. Notwithstanding anything to the contrary
herein, an ABR Revolving Borrowing may be in an aggregate amount that is equal to the entire unused
balance of the aggregate Global Revolving Commitments or aggregate U.S. Revolving Commitments, as
the case may be, and a Swingline Loan may be in an aggregate amount that is equal to the entire
unused balance of the aggregate Global Revolving Commitments or that is required to finance the
reimbursement of an LC Disbursement as contemplated by Section 2.05(e).



     (d) Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled
to request, or to elect to convert or continue, any Borrowing if the Interest Period



48









 




requested with respect thereto would end after the Revolving Maturity Date, the Tranche B
Maturity Date or the Tranche B Euro Maturity Date, as the case may be.




     SECTION 2.03 Requests for Borrowings. To request a Revolving Borrowing or Term
Borrowing, the Borrower shall notify the Administrative Agent of such request by telephone, or by
hand delivery or telecopy to the Administrative Agent of a written Borrowing Request in a form
approved by the Administrative Agent and signed by the Borrower (a) in the case of a Eurocurrency
Borrowing denominated in U.S. Dollars, not later than 11:00 a.m., New York City time, three
Business Days before the date of the proposed Borrowing (other than the initial Borrowing
hereunder), (b) in the case of a Eurocurrency Borrowing denominated in an Alternative Currency, not
later than 11:00 am, New York City time, four Business Days before the date of the proposed
Borrowing (other than the initial Borrowing hereunder) or (c) in the case of an ABR Borrowing or
the initial Borrowing hereunder, not later than 1:00 p.m., New York City time, one Business Day
before the date of the proposed Borrowing, provided that any such notice of an ABR
Revolving Borrowing to finance the reimbursement of an LC Disbursement as contemplated by Section
2.05(e) may be given not later than 10:00 a.m., New York City time, on the date of the proposed
Borrowing. Each such telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written Borrowing Request in
a form approved by the Administrative Agent and signed by the Borrower. Each such telephonic and
written Borrowing Request shall specify the following information:



     (i) whether the requested Borrowing is to be a Global Revolving Borrowing, U.S. Revolving
Borrowing, Tranche B Term Borrowing, Tranche B Euro Term Borrowing or a Borrowing of any
Incremental Term Loan;



     (ii) the currency and aggregate amount of such Borrowing;



     (iii) the date of such Borrowing, which shall be a Business Day;



     (iv) whether such Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing;



     (v) in the case of a Eurocurrency Borrowing, the initial Interest Period to be applicable
thereto, which shall be a period contemplated by the definition of the term “Interest Period”;



     (vi) the location and number of the Borrower’s account to which funds are to be disbursed,
which shall comply with the requirements of Section 2.06; and



     (vii) that as of such date Sections 4.02(a) and (b) are satisfied.



     If no currency is specified with respect to any Eurocurrency Revolving Borrowing, then the
Borrower shall be deemed to have selected U.S. Dollars. If no election as to the Type of Borrowing
is specified, then the requested Borrowing shall be (i) in the case of a Borrowing denominated in
U.S. Dollars, an ABR Borrowing, and (ii) in the case of a Borrowing denominated in an Alternative
Currency, a Eurocurrency Borrowing. If no Interest Period is specified with respect to any
requested Eurocurrency Revolving Borrowing, then the Borrower



49









 




shall be deemed to have selected an Interest Period of one month’s duration. Promptly
following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent
shall advise each Lender of the details thereof and of the amount of such Lender’s Loan to be made
as part of the requested Borrowing.




     SECTION 2.04 Swingline Loans. (a) Subject to the terms and conditions set forth
herein, the Swingline Lender agrees to make Swingline Loans to the Borrower in U.S. Dollars from
time to time during the Revolving Availability Period, in an aggregate principal amount at any time
outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline
Loans exceeding $25,000,000 or (ii) the aggregate Global Revolving Exposures exceeding the
aggregate Global Revolving Commitments, provided that the Swingline Lender shall not make a
Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject
to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow
Swingline Loans.



     (b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such
request by telephone (confirmed by telecopy), not later than 12:00 noon, New York City time, on the
day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the
requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The
Administrative Agent will promptly advise the Swingline Lender of any such notice received from the
Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of
a credit to the general deposit account of the Borrower maintained with the Swingline Lender (or,
in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided
in Section 2.05(e), by remittance to the applicable Issuing Bank or, to the extent that the Global
Revolving Lenders have made payments pursuant to Section 2.05(e) to reimburse the applicable
Issuing Bank, to such Lenders and such Issuing Bank as their interests may appear) by 3:00 p.m.,
New York City time, on the requested date of such Swingline Loan.



     (c) The Swingline Lender may by written notice given to the Administrative Agent not later
than 12:00 noon, New York City time, on any Business Day require the Global Revolving Lenders to
acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding.
Such notice shall specify the aggregate amount of Swingline Loans in which Global Revolving Lenders
will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice
thereof to each Global Revolving Lender, specifying in such notice such Lender’s Applicable
Percentage of such Swingline Loan or Swingline Loans. Each Global Revolving Lender hereby
absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the
Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage
of such Swingline Loan or Swingline Loans. Each Global Revolving Lender acknowledges and agrees
that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is
absolute and unconditional and shall not be affected by any circumstance whatsoever, including the
occurrence and continuance of a Default or reduction or termination of the Commitments, and that
each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.
Each Global Revolving Lender shall comply with its obligation under this paragraph by wire transfer
of immediately available funds, in the same manner as provided in Section 2.06 with respect to
Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment
obligations of the



50









 




Global Revolving Lenders), and the Administrative Agent shall promptly pay to the Swingline
Lender the amounts so received by it from the Global Revolving Lenders. The Administrative Agent
shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this
paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the
Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender
from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after
receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be
promptly remitted to the Administrative Agent and any such amounts received by the Administrative
Agent shall be promptly remitted by the Administrative Agent to the Global Revolving Lenders that
shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their
interests may appear, provided that any such payment so remitted shall be repaid to the
Swingline Lender or the Administrative Agent, as the case may be, if and to the extent such payment
is required to be refunded to the Borrower for any reason. The purchase of participations in a
Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the
payment thereof.




     (d) Provisions Related to Extended Revolving Commitments. If the maturity date shall
have occurred in respect of any tranche of Revolving Commitments at a time when another tranche or
tranches of Revolving Commitments is or are in effect with a longer maturity date, then on the
earliest occurring maturity date all then outstanding Swingline Loans shall be repaid in full on
such date (and there shall be no adjustment to the participations in such Swingline Loans as a
result of the occurrence of such maturity date); provided, however, that if on the occurrence of
such earliest maturity date (after giving effect to any repayments of Revolving Loans and any
reallocation of Letter of Credit participations as contemplated in Section 2.05(n)), there shall
exist sufficient unutilized Extended Revolving Commitments so that the respective outstanding
Swingline Loans could be incurred pursuant the Extended Revolving Commitments which will remain in
effect after the occurrence of such maturity date, then there shall be an automatic adjustment on
such date of the participations in such Swingline Loans and same shall be deemed to have been
incurred solely pursuant to the relevant Extended Revolving Commitments, and such Swingline Loans
shall not be so required to be repaid in full on such earliest maturity date.



     SECTION 2.05 Letters of Credit. (a) General. Subject to the terms and
conditions set forth herein, the Borrower may request the issuance of Letters of Credit for its own
account (or for the account of any Subsidiary so long as the Borrower and such Subsidiary are
co-applicants), in a form reasonably acceptable to the Administrative Agent and the applicable
Issuing Bank, at any time and from time to time during the Revolving Availability Period. The
parties hereto agree that the Existing Letters of Credit will automatically, without any further
action on the part of any Person, be deemed to be Letters of Credit hereunder issued hereunder on
the Effective Date for the account of the Borrower or any Restricted Subsidiary and the Borrower as
co-applicant. Without limiting the foregoing (i) each such Existing Letter of Credit shall be
included in the calculation of the LC Exposure, (ii) all liabilities of the Borrower and the other
Loan Parties with respect to such Existing Letters of Credit shall constitute Obligations and (iii)
each Lender shall have reimbursement obligations with respect to such Existing Letters of Credit as
provided in Section 2.05(e). In the event of any inconsistency between the terms and conditions of
this Agreement and the terms and conditions of any form of letter of credit application or other
agreement submitted by the Borrower to, or entered into by the Borrower



51









 




with, an Issuing Bank relating to any Letter of Credit, the terms and conditions of this
Agreement shall control.




     (b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request
the issuance of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter
of Credit), the Borrower shall hand deliver or telecopy (or transmit by electronic communication,
if arrangements for doing so have been approved by the applicable Issuing Bank) to the applicable
Issuing Bank and the Administrative Agent (reasonably in advance of the requested date of issuance,
amendment, renewal or extension) a notice requesting the issuance of a Letter of Credit, or
identifying the Letter of Credit to be amended, renewed or extended, and specifying the date of
issuance, amendment, renewal or extension (which shall be a Business Day), the date on which such
Letter of Credit is to expire (which shall comply with paragraph (c) of this Section), the amount
of such Letter of Credit, the currency in which such Letter of Credit is to be denominated, the
name and address of the beneficiary thereof and such other information as shall be necessary to
prepare, amend, renew or extend such Letter of Credit. If requested by the applicable Issuing Bank,
the Borrower also shall submit a letter of credit application on such Issuing Bank’s standard form
in connection with any request for a Letter of Credit. A Letter of Credit shall be issued, amended,
renewed or extended only if (and upon issuance, amendment, renewal or extension of each Letter of
Credit the Borrower shall be deemed to represent and warrant that), after giving effect to such
issuance, amendment, renewal or extension, (i) the LC Exposure shall not exceed $75,000,000 and
(ii) the aggregate Global Revolving Exposures shall not exceed the aggregate Global Revolving
Commitments.



     (c) Expiration Date. Each Letter of Credit shall expire at or prior to the close of
business on the earlier of (i) the date that is one year after the date of the issuance of such
Letter of Credit (or, in the case of any renewal or extension thereof, one year after such renewal
or extension) and (ii) the date that is five Business Days prior to the Revolving Maturity Date,
provided, however, that a Letter of Credit may, upon the request of the Borrower,
include a provision whereby such Letter of Credit shall be renewed automatically for additional
consecutive periods of one year or less (but not beyond the date that is five Business Days prior
to the Revolving Maturity Date) unless the applicable Issuing Bank notifies the beneficiary thereof
at least 30 days prior to the then-applicable expiration date that such Letter of Credit will not
be renewed.



     (d) Participations. By the issuance of a Letter of Credit (or an amendment to a
Letter of Credit increasing the amount thereof) and without any further action on the part of the
applicable Issuing Bank or the Lenders, such Issuing Bank hereby grants to each Global Revolving
Lender, and each Global Revolving Lender hereby acquires from such Issuing Bank, a participation in
such Letter of Credit equal to such Lender’s Applicable Percentage of the aggregate amount
available to be drawn under such Letter of Credit. In consideration and in furtherance of the
foregoing, each Global Revolving Lender hereby absolutely and unconditionally agrees to pay to the
Administrative Agent, for the account of the applicable Issuing Bank, such Lender’s Applicable
Percentage of (i) each LC Disbursement made by such Issuing Bank in U.S. Dollars and (ii) the U.S.
Dollar Equivalent, using the Exchange Rate in effect on the date such payment is required, of each
LC Disbursement made by such Issuing Bank in an Alternative Currency and, in each case, not
reimbursed by the Borrower on the date due as provided in paragraph (e) of this Section, or of any
reimbursement payment required to be



52









 




refunded to the Borrower for any reason (or if such LC Disbursement or reimbursement payment
was refunded in an Alternative Currency, the U.S. Dollar Equivalent thereof using the Exchange Rate
in effect on the date of such refund). Each Global Revolving Lender acknowledges and agrees that
its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit
is absolute and unconditional and shall not be affected by any circumstance whatsoever, including
any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a
Default or reduction or termination of the Commitments, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever.




     (e) Reimbursement. If the applicable Issuing Bank shall make any LC Disbursement in
respect of a Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying to the
Administrative Agent an amount equal to such LC Disbursement, in the currency in which such LC
Disbursement is made, not later than 3:00 p.m., New York City time, on the date that such LC
Disbursement is made, if the Borrower shall have received notice of such LC Disbursement prior to
10:00 a.m., New York City time, on such date, or, if such notice has not been received by the
Borrower prior to such time on such date, then not later than (i) 3:00 p.m., New York City time, on
the Business Day that the Borrower receives such notice, if such notice is received prior to 10:00
a.m., New York City time, on the day of receipt, or (ii) 12:00 noon, New York City time, on the
Business Day immediately following the day that the Borrower receives such notice, if such notice
is not received prior to 10:00 a.m., New York City time, on the day of receipt, provided
that, if such LC Disbursement is not less than $1,000,000, the Borrower may, subject to the
conditions to borrowing set forth herein, request in accordance with Section 2.03 or 2.04 that such
payment be financed with an ABR Revolving Borrowing or Swingline Loan in an equivalent amount and,
to the extent so financed, the Borrower’s obligation to make such payment shall be discharged and
replaced by the resulting ABR Revolving Borrowing or Swingline Loan. If the Borrower fails to make
such payment when due (or if any such reimbursement payment is required to be refunded to the
Borrower for any reason), then (A) if such payment relates to an Alternative Currency Letter of
Credit, automatically and with no further action required, the Borrower’s obligation to reimburse
the applicable LC Disbursement shall be permanently converted into an obligation to reimburse the
U.S. Dollar Equivalent, calculated using the Exchange Rate on the date when such payment was due,
of such LC Disbursement and (B) in the case of each LC Disbursement, the Administrative Agent shall
notify the applicable Issuing Bank and each Global Revolving Lender of the applicable LC
Disbursement, the payment then due from the Borrower in respect thereof and such Lender’s
Applicable Percentage thereof. Promptly following receipt of such notice, each Global Revolving
Lender shall pay to the Administrative Agent its Applicable Percentage of the payment then due from
the Borrower, in the same manner as provided in Section 2.06 with respect to Loans made by such
Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the
Global Revolving Lenders), and the Administrative Agent shall promptly pay to the applicable
Issuing Bank the amounts so received by it from the Global Revolving Lenders. Promptly following
receipt by the Administrative Agent of any payment from the Borrower pursuant to this paragraph,
the Administrative Agent shall distribute such payment to the applicable Issuing Bank or, to the
extent that Global Revolving Lenders have made payments pursuant to this paragraph to reimburse
such Issuing Bank, then to such Lenders and such Issuing Bank as their interests may appear. Any
payment made by a Global Revolving Lender pursuant to this paragraph to reimburse an Issuing Bank
for any LC Disbursement (other



53









 




than the funding of ABR Revolving Loans or a Swingline Loan as contemplated above) shall not
constitute a Loan and shall not relieve the Borrower of its obligation to reimburse such LC
Disbursement. If the Borrower’s reimbursement of, or obligation to reimburse, any amounts in any
Alternative Currency would subject the Administrative Agent, the applicable Issuing Bank or any
Lender to any stamp duty, ad valorem charge or similar tax that would not be payable if such
reimbursement were made or required to be made in U.S. Dollars, the Borrower shall, at its option,
either (x) indemnify the Administrative Agent, the relevant Issuing Bank or such Lender for the
full amount of any such tax in accordance with, and subject to, the procedures set forth in Section
2.17(c) or (y) reimburse each LC Disbursement made in such Alternative Currency in U.S. Dollars, in
an amount equal to the U.S. Dollar Equivalent, calculated using the applicable Exchange Rate on the
date such LC Disbursement is made, of such LC Disbursement.




     (f) Obligations Absolute. The Borrower’s obligation to reimburse LC Disbursements as
provided in paragraph (e) of this Section shall be absolute, unconditional and irrevocable, and
shall be performed strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any
Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other
document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the
applicable Issuing Bank under a Letter of Credit against presentation of a draft or other document
that does not comply with the terms of such Letter of Credit or (iv) any other event or
circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the
provisions of this Section, constitute a legal or equitable discharge of, or provide a right of
setoff against, the Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders
nor any Issuing Bank, nor any of their Related Parties, shall have any liability or responsibility
by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment
or failure to make any payment thereunder (irrespective of any of the circumstances referred to in
the preceding sentence), or any error, omission, interruption, loss or delay in transmission or
delivery of any draft, notice or other communication under or relating to any Letter of Credit
(including any document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of such Issuing Bank,
provided that the foregoing shall not be construed to excuse the applicable Issuing Bank
from liability to the Borrower to the extent of any direct damages (as opposed to consequential or
punitive damages, claims in respect of which are hereby waived by the Borrower to the extent
permitted by applicable law) suffered by the Borrower that are caused by the applicable Issuing
Bank’s failure to exercise care when determining whether drafts and other documents presented under
a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the
absence of gross negligence or wilful misconduct on the part of the applicable Issuing Bank (as
finally determined by a court of competent jurisdiction), such Issuing Bank shall be deemed to have
exercised care in each such determination. In furtherance of the foregoing and without limiting the
generality thereof, the parties agree that, with respect to documents presented that appear on
their face to be in substantial compliance with the terms of a Letter of Credit, the applicable
Issuing Bank may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice or information to the
contrary, or refuse to accept and make payment upon such documents if such documents are not in
strict compliance with the terms of such Letter of Credit, and any such acceptance or refusal shall
be deemed not to constitute gross negligence or wilful misconduct.



54









 





     (g) Disbursement Procedures. The applicable Issuing Bank shall, promptly following
its receipt thereof, examine all documents purporting to represent a demand for payment under a
Letter of Credit. Such Issuing Bank shall promptly notify the Administrative Agent and the Borrower
by telephone (confirmed by telecopy) of such demand for payment and whether such Issuing Bank has
made or will make an LC Disbursement thereunder, provided that any failure to give or delay in
giving such notice shall not relieve the Borrower of its obligation to reimburse such Issuing Bank
and the Global Revolving Lenders with respect to any such LC Disbursement in accordance with
paragraph (e) of this Section.



     (h) Interim Interest. If an Issuing Bank shall make any LC Disbursement, then, unless
the Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement is made,
the unpaid amount thereof shall bear interest, for each day from and including the date such LC
Disbursement is made to but excluding the date that the Borrower reimburses such LC Disbursement,
(i) if such LC Disbursement is made in U.S. Dollars, at the rate per annum then applicable to ABR
Revolving Loans and (ii) if such LC Disbursement is made in an Alternative Currency, at the rate
per annum then applicable to Eurocurrency Revolving Loans, provided that, in each case, if
the Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph (e) of this
Section, then Section 2.13(c) shall apply. Interest accrued pursuant to this paragraph shall be for
the account of the applicable Issuing Bank, except that interest accrued on and after the date of
payment by any Revolving Lender pursuant to paragraph (e) of this Section to reimburse such Issuing
Bank shall be for the account of such Lender to the extent of such payment.



     (i) Replacement of an Issuing Bank. An Issuing Bank may be replaced at any time by
written agreement among the Borrower, the Administrative Agent, the replaced Issuing Bank and the
successor Issuing Bank. The Administrative Agent shall notify the Lenders of any such replacement
of an Issuing Bank. At the time any such replacement shall become effective, the Borrower shall pay
all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section 2.12(b).
From and after the effective date of any such replacement, (i) the successor Issuing Bank shall
have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters
of Credit to be issued thereafter and (ii) references herein to the term “Issuing Bank” shall be
deemed to refer to such successor or to any previous Issuing Bank, or to such successor and all
previous Issuing Banks, as the context shall require. After the replacement of an Issuing Bank
hereunder, the replaced Issuing Bank shall remain a party hereto and shall continue to have all the
rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit
issued by it prior to such replacement, but shall not be required to issue additional Letters of
Credit.



     (j) Cash Collateralization. If any Event of Default shall occur and be continuing, on
the Business Day on which the Borrower receives notice from the Administrative Agent or the
Required Lenders (or, if the maturity of the Loans has been accelerated, Global Revolving Lenders
with LC Exposure representing greater than 50% of the LC Exposure) demanding the deposit of cash
collateral pursuant to this paragraph, the Borrower shall deposit in an account with the
Administrative Agent, in the name of the Administrative Agent and for the benefit of the Lenders,
an amount in cash in U.S. Dollars equal to the LC Exposure as of such date plus any accrued and
unpaid interest thereon, provided that (i) the portions of such amount attributable to
undrawn Alternative Currency Letters of Credit or LC Disbursements in an Alternative Currency



55









 




that the Borrower is not late in reimbursing shall be deposited in the applicable Alternative
Currencies in the actual amounts of such undrawn Letters of Credit and LC Disbursements and (ii)
the obligation to deposit such cash collateral shall become effective immediately, and such deposit
shall become immediately due and payable, without demand or other notice of any kind, upon the
occurrence of any Event of Default with respect to Holdings or the Borrower described in paragraph
(h) or (i) of Article VII. For the purposes of this paragraph, the Alternative Currency LC Exposure
shall be calculated using the Exchange Rates on the date notice demanding cash collateralization is
delivered to the Borrower. The Borrower also shall deposit cash collateral pursuant to this
paragraph as and to the extent required by Section 2.11(b). Each such deposit shall be held by the
Administrative Agent as collateral for the payment and performance of the obligations of the
Borrower under this Agreement. The Administrative Agent shall have exclusive dominion and control,
including the exclusive right of withdrawal, over such account. Other than any interest earned on
the investment of such deposits, which investments shall be made at the option and sole discretion
of the Administrative Agent and at the Borrower’s risk and expense, such deposits shall not bear
interest. Interest or profits, if any, on such investments shall accumulate in such account. Moneys
in such account shall be applied by the Administrative Agent to reimburse each Issuing Bank for LC
Disbursements for which it has not been reimbursed and, to the extent not so applied, shall be held
for the satisfaction of the reimbursement obligations of the Borrower for the LC Exposure at such
time or, if the maturity of the Loans has been accelerated (but subject to the consent of Global
Revolving Lenders with LC Exposure representing greater than 50% of the LC Exposure), be applied to
satisfy other obligations of the Borrower under this Agreement. If the Borrower is required to
provide an amount of cash collateral hereunder as a result of the occurrence of an Event of
Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrower
within three Business Days after all Events of Default have been cured or waived. If the Borrower
is required to provide an amount of cash collateral hereunder pursuant to Section 2.11(b), such
amount (to the extent not applied as aforesaid) shall be returned to the Borrower as and to the
extent that, after giving effect to such return, the Borrower would remain in compliance with
Section 2.11(b) and no Default shall have occurred and be continuing.




     (k) Additional Issuing Banks. From time to time, the Borrower may by notice to the
Administrative Agent designate a Global Revolving Lender (in addition to JPMorgan Chase Bank, N.A.)
that agrees (in its sole discretion) to act in such capacity and which is reasonably satisfactory
to the Administrative Agent, as an Issuing Bank, provided that the Syndication Agent shall
be deemed reasonably satisfactory to the Administrative Agent for purposes of this paragraph (k).
Such additional Issuing Bank shall execute a counterpart of this Agreement in such capacity and
shall thereafter be an Issuing Bank hereunder for all purposes.



     (l) Issuing Bank Agreements. Unless otherwise requested by the Administrative Agent,
each Issuing Bank shall report in writing to the Administrative Agent (i) on the first Business Day
of each week, the daily activity (set forth by day) in respect of Letters of Credit during the
immediately preceding week, including all issuances, extensions, amendments and renewals, all
expirations and cancelations and all disbursements and reimbursements, (ii) on or prior to each
Business Day on which such Issuing Bank expects to issue, amend, renew or extend any Letter of
Credit, the date of such issuance, amendment, renewal or extension, and the aggregate face amount
of the Letters of Credit to be issued, amended, renewed or extended by it and outstanding after
giving effect to such issuance, amendment, renewal or extension occurred



56









 




(and whether the amount thereof changed), it being understood that such Issuing Bank shall not
permit any issuance, renewal, extension or amendment resulting in an increase in the amount of any
Letter of Credit to occur without first obtaining written (or, with respect to any Issuing Bank, if
the Administrative Agent so agrees with respect to such Issuing Bank, telephonic) confirmation from
the Administrative Agent that such issuance is then permitted under this Agreement, (iii) on each
Business Day on which such Issuing Bank makes any LC Disbursement in respect of any Letter of
Credit, the date of such LC Disbursement and the amount of such LC Disbursement, (iv) on any
Business Day on which the Borrower fails to reimburse an LC Disbursement required to be reimbursed
to such Issuing Bank on such day, the date of such failure and the amount and currency of such LC
Disbursement and (v) on any other Business Day, such other information as the Administrative Agent
shall reasonably request.




     (m) Conversion. In the event that the Loans become immediately due and payable on any
date pursuant to Article VII, all amounts (i) that the Borrower is at the time or thereafter
becomes required to reimburse or otherwise pay to the Administrative Agent in respect of LC
Disbursements made under any Alternative Currency Letter of Credit (other than amounts in respect
of which such Borrower has deposited cash collateral pursuant to paragraph (j) above, if such cash
collateral was deposited in the applicable Alternative Currency to the extent so deposited or
applied), (ii) that the Global Revolving Lenders are at the time or thereafter become required to
pay to the Administrative Agent and the Administrative Agent is at the time or thereafter becomes
required to distribute to the applicable Issuing Bank pursuant to paragraph (e) of this Section in
respect of unreimbursed LC Disbursements made under any Alternative Currency Letter of Credit and
(iii) of each Global Revolving Lender’s participation in any Alternative Currency Letter of Credit
under which an LC Disbursement has been made shall, automatically and with no further action
required, be converted into the U.S. Dollar Equivalent, calculated using the Exchange Rates on such
date (or in the case of any LC Disbursement made after such date, on the date such LC Disbursement
is made), of such amounts. On and after such conversion, all amounts accruing and owed to the
Administrative Agent, the applicable Issuing Bank or any Lender in respect of the obligations
described in this paragraph shall accrue and be payable in U.S. Dollars at the rates otherwise
applicable hereunder.



     (n) Provisions Related to Extended Revolving Commitments. If the maturity date in
respect of any tranche of Revolving Commitments occurs prior to the expiration of any Letter of
Credit, then (i) if one or more other tranches of Revolving Commitments in respect of which the
maturity date shall not have occurred are then in effect, such Letters of Credit shall
automatically be deemed to have been issued (including for purposes of the obligations of the
Revolving Lenders to purchase participations therein and to make Revolving Loans and payments in
respect thereof pursuant to Section 2.05(e)) under (and ratably participated in by Lenders pursuant
to) the Revolving Commitments in respect of such non-terminating tranches up to an aggregate amount
not to exceed the aggregate principal amount of the unutilized Revolving Commitments thereunder at
such time (it being understood that no partial face amount of any Letter of Credit may be so
reallocated) and (ii) to the extent not reallocated pursuant to immediately preceding clause (i),
the Borrower shall cash collateralize any such Letter of Credit in accordance with Section 2.05(j).
If, for any reason, such cash collateral is not provided or the reallocation does not occur, the
Revolving Lenders under the maturing tranche shall continue to be responsible for their
participating interests in the Letters of Credit. Except to the extent of reallocations of
participations pursuant to clause (i) of the second preceding sentence, the occurrence of a



57









 




maturity date with respect to a given tranche of Revolving Commitments shall have no effect
upon (and shall not diminish) the percentage participations of the Revolving Lenders in any Letter
of Credit issued before such maturity date. Commencing with the maturity date of any tranche of
Revolving Commitments, the sublimit for Letters of Credit shall be agreed with the Lenders under
the extended tranches.




     SECTION 2.06 Funding of Borrowings. (a) Each Lender shall make each Loan to be
made by it hereunder on the proposed date thereof by wire transfer of immediately available funds
by 12:00 noon, New York City time, to the account of the Administrative Agent most-recently
designated by it for such purpose by notice to the Lenders, provided that Swingline Loans
shall be made as provided in Section 2.04. The Administrative Agent will make such Loans available
to the Borrower by promptly crediting the amounts so received, in like funds, to an account of the
Borrower maintained with the Administrative Agent or otherwise designated by the Borrower (i) in
the case of Loans denominated in U.S. Dollars, in New York City and (ii) in the case of Loans
denominated in Euro or Sterling, in London, and in each case designated by the Borrower in the
applicable Borrowing Request, provided that Revolving Loans made to finance the
reimbursement of an LC Disbursement as provided in Section 2.05(e) shall be remitted by the
Administrative Agent to the applicable Issuing Bank or, to the extent that Revolving Lenders have
made payments pursuant to Section 2.05(e) to reimburse such Issuing Bank, then to such Lenders and
the applicable Issuing Bank as their interests may appear.



     (b) Unless the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the Administrative Agent
such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has
made such share available on such date in accordance with paragraph (a) of this Section and may, in
reliance upon such assumption and in its sole discretion, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share of the applicable
Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower
severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount
with interest thereon, for each day from and including the date such amount is made available to
the Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case
of such Lender, (x) if such Borrowing is denominated in U.S. Dollars, the greater of the Federal
Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation, and (y) if such Borrowing is denominated in an
Alternative Currency, the rate reasonably determined by the Administrative Agent to be the cost to
it of funding such amount, or (ii) in the case of the Borrower, the interest rate applicable to
such Borrowing. If such Lender pays such amount to the Administrative Agent, then such amount shall
constitute such Lender’s Loan included in such Borrowing.



     SECTION 2.07 Interest Elections. (a) Each Revolving Borrowing and Term Borrowing
initially shall be of the Type specified in the applicable Borrowing Request or designated by
Section 2.03 and, in the case of a Eurocurrency Borrowing, shall have an initial Interest Period as
specified in such Borrowing Request or designated by Section 2.03. Thereafter, the Borrower may
elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the case
of a Eurocurrency Borrowing, may elect Interest Periods therefor, all as provided in this Section,
provided that the Borrower may not elect to convert any Borrowing



58









 




denominated in an Alternative Currency to an ABR Borrowing and may not change the currency in
which any Borrowing is denominated. The Borrower may elect different options with respect to
different portions of the affected Borrowing, in which case each such portion shall be allocated
ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing. This Section shall not apply to
Swingline Borrowings, which may not be converted or continued.




     (b) To make an election pursuant to this Section, the Borrower shall notify the Administrative
Agent of such election by telephone or by hand delivery or telecopy to the Administrative Agent of
a written Interest Election Request in a form approved by the Administrative Agent and signed by
the Borrower by the time that a Borrowing Request would be required under Section 2.03 if the
Borrower were requesting a Revolving Borrowing of the Type resulting from such election to be made
on the effective date of such election. Each such telephonic Interest Election Request shall be
irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative
Agent of a written Interest Election Request in a form approved by the Administrative Agent and
signed by the Borrower.



     (c) Each telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.02:



     (i) the Borrowing to which such Interest Election Request applies and, if different options
are being elected with respect to different portions thereof, the portions thereof to be allocated
to each resulting Borrowing (in which case the information to be specified pursuant to clauses
(iii) and (iv) below shall be specified for each resulting Borrowing);



     (ii) the effective date of the election made pursuant to such Interest Election Request, which
shall be a Business Day;



     (iii) whether the resulting Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing;
and



     (iv) if the resulting Borrowing is a Eurocurrency Borrowing, the Interest Period to be
applicable thereto after giving effect to such election, which shall be a period contemplated by
the definition of the term “Interest Period”.



     If any such Interest Election Request requests a Eurocurrency Borrowing but does not specify
an Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one
month’s duration.



     (d) Promptly following receipt of an Interest Election Request, the Administrative Agent shall
advise each Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.



     (e) If the Borrower fails to deliver a timely Interest Election Request with respect to a
Eurocurrency Borrowing prior to the end of the Interest Period applicable thereto, then, unless
such Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing
shall be converted to an ABR Borrowing (unless such Borrowing is denominated in an Alternative
Currency, in which case the Borrower shall be deemed to have selected an Interest



59









 




Period of one month for such Borrowing). Notwithstanding any contrary provision hereof, if an
Event of Default has occurred and is continuing and (other than in the case of an Event of Default
of the type described in paragraph (h) or (i) of Article VII with respect to Holdings or the
Borrower) the Administrative Agent, at the request of the Required Lenders, so notifies the
Borrower (and, in the case of an Event of Default of the type described in paragraph (h) or (i) of
Article VII with respect to Holdings or the Borrower, automatically), then, so long as an Event of
Default is continuing (i) no outstanding Revolving Borrowing denominated in an Alternative Currency
may be continued for an Interest Period of more than one month’s duration, (ii) no outstanding
Borrowing denominated in U.S. Dollars may be converted to or continued as a Eurocurrency Borrowing
and (iii) unless repaid, each Eurocurrency Borrowing denominated in U.S. Dollars shall be converted
to an ABR Borrowing at the end of the Interest Period applicable thereto.



          SECTION 2.08 Termination and Reduction of Commitments. (a) The Tranche B Commitments of
each Tranche B Lender shall automatically and permanently be reduced to $0 upon the funding of
Tranche B Term Loans on the Effective Date. The Tranche B Euro Commitments of each Tranche B Euro
Lender shall automatically and permanently be reduced to €0 upon the funding of Tranche B Euro Term
Loans on the Effective Date. Unless previously terminated, the Revolving Commitments (other than
any Extended Revolving Commitments) shall terminate on the Revolving Maturity Date. The Extended
Revolving Commitments shall terminate on the respective maturity dates applicable thereto.




          (b) The Borrower may at any time terminate, or from time to time reduce, the Commitments of
any Class, provided that (i) each reduction of the Commitments of any Class shall be in an
amount that is an integral multiple of $1,000,000 and not less than $10,000,000, (ii) the Borrower
may not terminate either Class of Revolving Commitments without also terminating the other Class of
Revolving Commitments, and any reduction of Revolving Commitments shall be allocated pro rata
between the Global Revolving Commitments and the U.S. Revolving Commitments (based on the aggregate
Commitments of each such Class) and (iii) the Borrower shall not terminate or reduce either Class
of the Revolving Commitments if, after giving effect to any concurrent prepayment of the Revolving
Loans of such Class in accordance with Section 2.11, the aggregate Revolving Exposures of such
Class (excluding, in the case of any termination of the Global Revolving Commitments, the portion
of the Global Revolving Exposures attributable to outstanding Letters of Credit if and to the
extent that the Borrower has made arrangements satisfactory to the Administrative Agent and the
applicable Issuing Bank with respect to such Letters of Credit and such Issuing Bank has released
the Global Revolving Lenders from their participation obligations with respect to such Letters of
Credit) would exceed the aggregate Revolving Commitments of such Class.



          (c) The Borrower shall notify the Administrative Agent of any election to terminate or reduce
the Commitments under paragraph (b) of this Section at least three Business Days prior to the
effective date of such termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any such notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by the Borrower pursuant to this Section
shall be irrevocable, provided that a notice of termination of the Revolving Commitments
delivered by the Borrower may state that such notice is conditioned upon the effectiveness of other
credit facilities or the receipt of the proceeds from the issuance of other



60









 




Indebtedness, in which case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such condition is not
satisfied. Any termination or reduction of the Commitments of any Class shall be permanent. Each
reduction of the Commitments of any Class shall be made ratably among the Lenders in accordance
with their respective Commitments of such Class.




     SECTION 2.09 Repayment of Loans; Evidence of Debt. (a) The Borrower hereby
unconditionally promises to pay (i) to the Administrative Agent for the account of each Lender the
then unpaid principal amount of each Revolving Loan of such Lender on the Revolving Maturity Date
(or, with respect to any Loans outstanding with respect to an Extended Revolving Commitment, the
maturity date applicable thereto), (ii) to the Administrative Agent for the account of each Lender
the then unpaid principal amount of each Term Loan of such Lender as provided in Section 2.10 and
(iii) to the Swingline Lender the then unpaid principal amount of each Swingline Loan on the
earlier of the Revolving Maturity Date (or, with respect to any Swingline Loans outstanding with
respect to an Extended Revolving Commitment, the maturity date applicable thereto) and the first
date after such Swingline Loan is made that is the 15th or last day of a calendar month and is at
least three Business Days after such Swingline Loan is made, provided that on each date
that a Revolving Borrowing is made, the Borrower shall repay all Swingline Loans that were
outstanding on the date such Borrowing was requested.



     (b) The Loans made, and the Letters of Credit issued, by each Lender shall be evidenced by one
or more accounts or records maintained by such Lender and evidenced by one or more entries in the
Register maintained by the Administrative Agent pursuant to Section 9.04(b)(iv), in each case in
the ordinary course of business. The accounts or records maintained by each Lender shall be prima
facie evidence absent manifest error of the amount of the Loans made, and the Letters of Credit
issued, by the Lenders to the Borrower and the interest and payments thereon. Any failure to so
record or any error in doing so shall not, however, limit or otherwise affect the obligation of the
Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of any
conflict between the accounts and records maintained by any Lender and the accounts and records of
the Administrative Agent in respect of such matters, the accounts and records of the Administrative
Agent shall control in the absence of manifest error. Promptly following the request of any Lender
made through the Administrative Agent, the Borrower shall execute and deliver to such Lender
(through the Administrative Agent) a promissory note payable to such Lender or its registered
assigns, which shall evidence such Lender’s Loans in addition to such accounts or records. Each
Lender may attach schedules to its promissory note and endorse thereon the date, Type (if
applicable), amount and maturity of its Loans and payments with respect thereto. The Borrower
shall have the right to review the entries made in the Lenders’ accounts maintained pursuant to
this clause from time to time upon reasonable prior notice during normal business hours.



     (c) In addition to the accounts and records referred to in Section 2.09(b), each Lender shall
maintain the Participant Register pursuant to Section 9.04(c).



     (d) Entries made in good faith by the Administrative Agent in the Register pursuant to Section
9.04(b)(iv), and by each Lender in its account or accounts pursuant to Sections 2.09(b) and (c),
shall be prima facie evidence of the amount of principal and interest due and payable or to become
due and payable from the Borrower to, in the case of the Register, each Lender and, in



61









 




the case of such account or accounts, such Lender, under this Agreement and the other Loan
Documents, notwithstanding notice to the contrary; provided that the failure of the
Administrative Agent or such Lender to make an entry, or any finding that an entry is incorrect, in
the Register or such account or accounts shall not limit or otherwise affect the obligations of the
Borrower under this Agreement and the other Loan Documents.




     SECTION 2.10 Amortization of Term Loans. (a) (i) Subject to adjustment pursuant to
paragraph (d) of this Section, the Borrower shall repay Tranche B Term Loan Borrowings on each date
set forth below in the aggregate principal amount set forth opposite such date:



	 	 	 	 	 
	Date	 	Amount	 
	March 31, 2011
	 	$	3,775,000	 
	June 30, 2011
	 	$	3,775,000	 
	September 30, 2011
	 	$	3,775,000	 
	December 31, 2011
	 	$	3,775,000	 
	March 31,2012
	 	$	3,775,000	 
	June 30, 2012
	 	$	3,775,000	 
	September 30, 2012
	 	$	3,775,000	 
	December 31, 2012
	 	$	3,775,000	 
	March 31,2013
	 	$	3,775,000	 
	June 30, 2013
	 	$	3,775,000	 
	September 30, 2013
	 	$	3,775,000	 
	December 31, 2013
	 	$	3,775,000	 
	March 31,2014
	 	$	3,775,000	 
	June 30, 2014
	 	$	3,775,000	 
	September 30, 2014
	 	$	3,775,000	 
	December 31, 2014
	 	$	3,775,000	 
	March 31,2015
	 	$	3,775,000	 
	June 30, 2015
	 	$	3,775,000	 
	September 30, 2015
	 	$	3,775,000	 
	December 31, 2015
	 	$	3,775,000	 
	March 31,2016
	 	$	3,775,000	 
	June 30, 2016
	 	$	3,775,000	 
	September 30, 2016
	 	$	3,775,000	 
	Tranche B Maturity Date
	 	$	1,423,175,000	 






     (ii) Subject to adjustment pursuant to paragraph (d) of this Section, the Borrower shall
repay Tranche B Euro Term Loan Borrowings on each date set forth below in the aggregate principal
amount set forth opposite such date:



	 	 	 	 	 
	Date	 	Amount	 
	March 31, 2011
	 	€	625,000	 
	June 30, 2011
	 	€	625,000	 
	September 30, 2011
	 	€	625,000	 
	December 31, 2011
	 	€	625,000	 
	March 31,2012
	 	€	625,000	 






62









 





	 	 	 	 	 
	Date	 	Amount	 
	June 30, 2012
	 	€	625,000	 
	September 30, 2012
	 	€	625,000	 
	December 31, 2012
	 	€	625,000	 
	March 31,2013
	 	€	625,000	 
	June 30, 2013
	 	€	625,000	 
	September 30, 2013
	 	€	625,000	 
	December 31, 2013
	 	€	625,000	 
	March 31,2014
	 	€	625,000	 
	June 30, 2014
	 	€	625,000	 
	September 30, 2014
	 	€	625,000	 
	December 31, 2014
	 	€	625,000	 
	March 31,2015
	 	€	625,000	 
	June 30, 2015
	 	€	625,000	 
	September 30, 2015
	 	€	625,000	 
	December 31, 2015
	 	€	625,000	 
	March 31,2016
	 	€	625,000	 
	June 30, 2016
	 	€	625,000	 
	September 30, 2016
	 	€	625,000	 
	Tranche B Euro Maturity Date
	 	€	235,625,000	 






     (b) To the extent not previously paid (i) all Tranche B Term Loans shall be due and payable on
the Tranche B Maturity Date and (ii) all Tranche B Euro Term Loans shall be due and payable on the
Tranche B Euro Maturity Date.



     (c) Any prepayment of Term Loans shall be applied ratably to the
Tranche B Euro Term Loans and Tranche B Term Loans according to the
respective outstanding principal amounts of the respective Term Loans
then held by the Term Lenders. Any prepayment of a Term Borrowing of
any Class shall be applied to reduce the subsequent scheduled
repayments of the Term Borrowings of such Class to be made pursuant
to this Section or, except as otherwise provided in any Incremental
Facility Amendment, pursuant to the corresponding section of such
Incremental Facility Amendment, (i) in the case of prepayments
pursuant to Section 2.11(a), to reduce the remaining scheduled
repayments of Term Borrowings pursuant to this Section as directed by
the Borrower and (ii) in the case of prepayments pursuant to Section
2.11(c) or 2.11(d), (A) first, to reduce, in direct order of
maturity, the scheduled repayments of the Term Borrowings to be made
pursuant to this Section on the four consecutive scheduled payment
dates next following the date of such prepayment unless and until
each such scheduled repayment has been eliminated as a result of
reductions thereunder and (B) second, to reduce ratably the remaining
scheduled repayments of the Term Borrowings. If the initial aggregate
amount of the Lenders’ Term Commitments of any Class exceeds the
aggregate principal amount of Term Loans of such Class that are made
on the Effective Date, then the scheduled repayments of Term
Borrowings of such Class to be made pursuant to this Section shall be
reduced ratably by an aggregate amount equal to such excess.




63












 





     (d) Prior to any repayment of any Term Borrowings of any Class hereunder, the Borrower
shall select the Borrowing or Borrowings of the applicable Class to be repaid and shall notify the
Administrative Agent by telephone (confirmed by telecopy) of such election not later than 11:00
a.m., New York City time, three Business Days before the scheduled date of such repayment. Each
repayment of a Borrowing shall be applied ratably to the Loans included in the repaid Borrowing.
Repayments of Term Borrowings shall be accompanied by accrued interest on the amount repaid.



     SECTION 2.11 Prepayment of Loans. (a) The Borrower shall have the right at any time and
from time to time to prepay any Borrowing in whole or in part, subject to the requirements of this
Section; provided that in the event that, on or prior to the first anniversary of the
Effective Date, the Borrower (i) makes any prepayment of Term Loans in connection with any
Repricing Event or (ii) effects any amendment of this Agreement resulting in a Repricing Event, the
Borrower shall pay to the Administrative Agent, for the ratable account of each of the applicable
Term Lenders, (x) in the case of clause (i), a prepayment premium of 1% of the amount of the Term
Loan being prepaid and (y) in the case of clause (ii), an amount equal to 1% of the aggregate
amount of the applicable Term Loans outstanding immediately prior to such amendment.



     (b) In the event and on such occasion that the aggregate Global Revolving Exposures or
aggregate U.S. Revolving Exposures exceed the aggregate Revolving Commitments of such Class, the
Borrower shall prepay Revolving Borrowings of such Class or, if applicable, Swingline Borrowings
(or, if no such Borrowings are outstanding, deposit cash collateral in an account with the
Administrative Agent pursuant to Section 2.05(j)) in an aggregate amount equal to such excess.



     (c) In the event and on each occasion that any Net Proceeds are received by or on behalf of
Holdings, the Borrower or any Restricted Subsidiary in respect of any Prepayment Event, the
Borrower shall, within five Business Days after such Net Proceeds are received, prepay Term
Borrowings in an aggregate amount equal to 100% of the amount of such Net Proceeds,
provided that, in the case of any event described in clause (a) or (b) of the definition of
the term “Prepayment Event”, if the Borrower and the Restricted Subsidiaries reinvest (or commit to
reinvest) the Net Proceeds from such event (or a portion thereof) within 12 months (or, in the case
of a Permitted Sale and Leaseback Transaction, within 6 months) after receipt of such Net Proceeds
(or, if the Borrower or any Restricted Subsidiary enters into a legally binding commitment to
reinvest such Net Proceeds within any applicable 12-month period, within 180 days of the date of
such legally binding commitment) to acquire, restore, repair or replace assets useful in (or,
pursuant to a Permitted Acquisition, to acquire any Person engaged in) its business or any other
business not otherwise prohibited by Section 6.03(b) (provided that, in each case, the
Borrower has delivered to the Administrative Agent within 15 Business Days after such Net Proceeds
are received a certificate of a Financial Officer stating its intention to do so and certifying
that no Event of Default has occurred and is continuing), then no prepayment shall be required
pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion
of such Net Proceeds specified in such certificate, if applicable) (the “Reinvestment Deferred
Amount”) except to the extent of any such Net Proceeds therefrom that have not been so
reinvested by the end of such 12 month (or, in the case of a Permitted Sale and Leaseback
Transaction, 6 month) period (or, if the Borrower or any Restricted Subsidiary enters into a



64









 





legally binding commitment to reinvest such Net Proceeds within any applicable 12-month
period, within 180 days of the date of such legally binding commitment), at which time a prepayment
shall be required in an amount equal to the Reinvestment Deferred Amount that has not been so
reinvested.




     (d) Following the end of each fiscal year of the Borrower, commencing with the first fiscal
year ending on or after June 30, 2011, the Borrower shall prepay Term Borrowings in an aggregate
amount equal to 50% of Excess Cash Flow for such fiscal year, provided that (i) such amount
shall be reduced by the aggregate amount of prepayments of Term Loans made pursuant to Section
2.11(a) during such fiscal year, (ii) such prepayment shall be in an aggregate amount equal to 25%
of Excess Cash Flow for such fiscal year if the Total Leverage Ratio at the end of such fiscal year
is less than 4.50 to 1.00 and greater than 3.50 to 1.00, and (iii) no such prepayment shall be
required if the Total Leverage Ratio at the end of such fiscal year is less than 3.50 to 1.00. Each
prepayment pursuant to this paragraph shall be made on or within five Business Days of the date on
which financial statements are delivered pursuant to Section 5.01 with respect to the fiscal year
for which Excess Cash Flow is being calculated (and in any event within 95 days after the end of
such fiscal year).



     (e) Prior to any optional or mandatory prepayment of Borrowings hereunder, the Borrower shall
select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of
such prepayment pursuant to paragraph (f) of this Section. In the event of any optional or
mandatory prepayment of Term Borrowings made at a time when Term Borrowings of more than one Class
remain outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate
amount of such prepayment is allocated between Tranche B Term Loan Borrowings, the Tranche B Euro
Term Borrowings and, to the extent provided in the Incremental Facility Amendment for any Class of
Incremental Term Loans, the Borrowings of such Class pro rata based on the aggregate principal
amount of outstanding Borrowings of each such Class; provided that any Tranche B Lender,
Tranche B Euro Term Lender and/or Extended Term Lender (and, to the extent provided in the
Incremental Facility Amendment for any Class of Incremental Term Loans, any Lender that holds
Incremental Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone
(confirmed by telecopy) at least one Business Day prior to the prepayment date, to decline all or
any portion of any prepayment of its Tranche B Term Loans, Tranche B Euro Term Loans, Extended Term
Loans or Incremental Term Loans of any such Class pursuant to this Section (other than an optional
prepayment pursuant to paragraph (a) of this Section, which may not be declined), in which case the
aggregate amount of the prepayment that would have been applied to prepay Tranche B Term Loans,
Tranche B Euro Term Loans, Extended Term Loans or Incremental Term Loans of any such Class but was
so declined shall be applied to the prepayment of Tranche B Term Loans, Tranche B Euro Term Loans,
Extended Term Loans and Incremental Term Loans of any Class for which prepayment was not declined
on a pro rata basis based on the outstanding amounts thereof.



     (f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a
Swingline Loan, the Swingline Lender) by telephone (confirmed by telecopy) or by telecopy of any
prepayment hereunder (i) in the case of prepayment of a Eurocurrency Borrowing, not later than
11:00 a.m., New York City time (or, in the case of a Eurocurrency Borrowing denominated in an
Alternative Currency, not later than 11:00 a.m., London time),



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three Business Days before the date of prepayment, (ii) in the case of prepayment of an ABR
Borrowing, not later than 11:00 a.m., New York City time, one Business Day before the date of
prepayment or (iii) in the case of prepayment of a Swingline Loan, not later than 12:00 noon, New
York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify
the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and,
in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such
prepayment, provided that a notice of optional prepayment may state that such notice is
conditional upon the effectiveness of other credit facilities or the receipt of the proceeds from
the issuance of other Indebtedness, in which case such notice of prepayment may be revoked by the
Borrower (by notice to the Administrative Agent on or prior to the specified date) if such
condition is not satisfied. Promptly following receipt of any such notice (other than a notice
relating solely to Swingline Loans), the Administrative Agent shall advise the Lenders of the
contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be
permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02,
except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment
of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments
shall be accompanied by accrued interest to the extent required by Section 2.13.




     (g) (i) Notwithstanding anything to the contrary set forth in this Agreement (including the
penultimate sentence of Section 2.11(f) or 2.18(c)) or any other Loan Document, the Borrower shall
have the right at any time and from time to time to prepay Term Loans to the Lenders at a discount
to the par value of such Loans and on a non pro rata basis (each, a “Discounted Voluntary
Prepayment”) pursuant to the procedures described in this Section 2.11(g), provided
that (A) the aggregate amount expended by the Borrower in connection with all Discounted Voluntary
Prepayments shall not exceed $550,000,000, (B) on the date of the Discounted Prepayment Option
Notice and after giving effect to the Discounted Voluntary Prepayment, no more than $50,000,000
shall be outstanding in Revolving Loans, (C) any Discounted Voluntary Prepayment shall be offered
to all Term Lenders on a pro rata basis, (D) after giving effect to the Discounted Voluntary
Prepayment, the aggregate principal amount of all Term Loans that are held by Sponsor Affiliated
Lenders (by assignment) shall not exceed 20% of the aggregate unpaid principal amount of the Term
Loans then outstanding and (E) the Borrower shall deliver to the Administrative Agent, together
with each Discounted Prepayment Option Notice, a certificate of a Financial Officer of the Borrower
(1) stating that no Event of Default under clauses (a) or (b) of Article VII or under clauses (h),
(i) or (j) (in each case, with respect to the Borrower) of Article VII has occurred and is
continuing or would result from the Discounted Voluntary Prepayment, (2) stating that each of the
conditions to such Discounted Voluntary Prepayment contained in this Section 2.11(g) has been
satisfied and (3) specifying the aggregate principal amount of Term Loans to be prepaid pursuant to
such Discounted Voluntary Prepayment.



     (ii) To the extent the Borrower seeks to make a Discounted Voluntary Prepayment, the Borrower
will provide written notice to the Administrative Agent substantially in the form of Exhibit I
hereto (each, a “Discounted Prepayment Option Notice”) that the Borrower desires to prepay
Term Loans in an aggregate principal amount specified therein by the Borrower (each, a
“Proposed Discounted Prepayment Amount”), in each case at a discount to the par value of
such Loans as specified below. The Proposed Discounted Prepayment Amount of any Loans shall not



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be less than $25,000,000. The Discounted Prepayment Option Notice shall further specify with
respect to the proposed Discounted Voluntary Prepayment (A) the Proposed Discounted Prepayment
Amount for Loans to be prepaid, (B) a discount range (which may be a single percentage) selected by
the Borrower with respect to such proposed Discounted Voluntary Prepayment equal to a percentage of
par of the principal amount of the Loans to be prepaid (the “Discount Range”), and (C) the
date by which Lenders are required to indicate their election to participate in such proposed
Discounted Voluntary Prepayment, which shall be at least five Business Days following the date of
the Discounted Prepayment Option Notice (the “Acceptance Date”).




     (iii) Upon receipt of a Discounted Prepayment Option Notice, the Administrative Agent shall
promptly notify each applicable Lender thereof. On or prior to the Acceptance Date, each such
Lender may specify by written notice substantially in the form of Exhibit J hereto (each, a
“Lender Participation Notice”) to the Administrative Agent (A) a maximum discount to par
(the “Acceptable Discount”) within the Discount Range (for example, a Lender specifying a
discount to par of 20% would accept a purchase price of 80% of the par value of the Loans to be
prepaid) and (B) a maximum principal amount (subject to rounding requirements specified by the
Administrative Agent) of the Loans to be prepaid held by such Lender with respect to which such
Lender is willing to permit a Discounted Voluntary Prepayment at the Acceptable Discount
(“Offered Loans”). Based on the Acceptable Discounts and principal amounts of the Loans to
be prepaid specified by the Lenders in the applicable Lender Participation Notice, the
Administrative Agent, in consultation with the Borrower, shall determine the applicable discount
for such Loans to be prepaid (the “Applicable Discount”), which Applicable Discount shall
be (A) the percentage specified by the Borrower if the Borrower has selected a single percentage
pursuant to Section 2.11(g)(ii)) for the Discounted Voluntary Prepayment or (B) otherwise, the
highest Acceptable Discount at which the Borrower can pay the Proposed Discounted Prepayment Amount
in full (determined by adding the principal amounts of Offered Loans commencing with the Offered
Loans with the highest Acceptable Discount); provided, however, that in the event
that such Proposed Discounted Prepayment Amount cannot be repaid in full at any Acceptable
Discount, the Applicable Discount shall be the lowest Acceptable Discount specified by the Lenders
that is within the Discount Range. The Applicable Discount shall be applicable for all Lenders who
have offered to participate in the Voluntary Discounted Prepayment and have Qualifying Loans (as
defined below). Any Lender with outstanding Loans to be prepaid whose Lender Participation Notice
is not received by the Administrative Agent by the Acceptance Date shall be deemed to have declined
to accept a Discounted Voluntary Prepayment of any of its Loans at any discount to their par value
within the Applicable Discount.



     (iv) The Borrower shall make a Discounted Voluntary Prepayment by prepaying those Loans to be
prepaid (or the respective portions thereof) offered by the Lenders (“Qualifying Lenders”)
that specify an Acceptable Discount that is equal to or greater than the Applicable Discount
(“Qualifying Loans”) at the Applicable Discount, provided that if the aggregate
proceeds required to prepay all Qualifying Loans (disregarding any interest payable at such time)
would exceed the amount of aggregate proceeds required to prepay the Proposed Discounted Prepayment
Amount, such amounts in each case calculated by applying the Applicable Discount, the Borrower
shall prepay such Qualifying Loans ratably among the Qualifying Lenders based on their respective
principal amounts of such Qualifying Loans (subject to rounding requirements specified by the
Administrative Agent). If the aggregate proceeds required to



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prepay all Qualifying Loans (disregarding any interest payable at such time) would be less
than the amount of aggregate proceeds required to prepay the Proposed Discounted Prepayment Amount,
such amounts in each case calculated by applying the Applicable Discount, the Borrower shall prepay
all Qualifying Loans.




     (v) Each Discounted Voluntary Prepayment shall be made within five Business Days of the
Acceptance Date (or such later date as the Administrative Agent shall reasonably agree, given the
time required to calculate the Applicable Discount and determine the amount and holders of
Qualifying Loans), without premium or penalty (but subject to Section 2.16), upon irrevocable
notice substantially in the form of Exhibit K hereto (each a “Discounted Voluntary Prepayment
Notice”), delivered to the Administrative Agent no later than 1:00 p.m. New York City Time,
three Business Days prior to the date of such Discounted Voluntary Prepayment, which notice shall
specify the date and amount of the Discounted Voluntary Prepayment and the Applicable Discount
determined by the Administrative Agent. Upon receipt of any Discounted Voluntary Prepayment
Notice, the Administrative Agent shall promptly notify each relevant Lender thereof. If any
Discounted Voluntary Prepayment Notice is given, the amount specified in such notice shall be due
and payable to the applicable Lenders, subject to the Applicable Discount on the applicable Loans,
on the date specified therein together with accrued interest (on the par principal amount) to but
not including such date on the amount prepaid. The par principal amount of each Discounted
Voluntary Prepayment of a Term Loan shall be applied ratably to reduce the remaining installments
of such Class of Term Loans (as applicable).



     (vi) To the extent not expressly provided for herein, each Discounted Voluntary Prepayment
shall be consummated pursuant to reasonable procedures (including as to timing, rounding, minimum
amounts, Type and Interest Periods and calculation of Applicable Discount in accordance with
Section 2.11(g)(ii) above) established by the Administrative Agent and the Borrower.



     (vii) Prior to the delivery of a Discounted Voluntary Prepayment Notice, (A) upon written
notice to the Administrative Agent, the Borrower may withdraw or modify its offer to make a
Discounted Voluntary Prepayment pursuant to any Discounted Prepayment Option Notice and (B) no
Lender may withdraw its offer to participate in a Discounted Voluntary Prepayment pursuant to any
Lender Participation Notice unless the terms of such proposed Discounted Voluntary Prepayment have
been modified by the Borrower after the date of such Lender Participation Notice.



     (viii) Nothing in this Section 2.11(g) shall require the Borrower to undertake any Discounted
Voluntary Prepayment.



     (h) If at the end of any accrual period (as defined in Section 1272(a)(5) of the Code) ending
after the fifth anniversary of the Effective Date, the aggregate amount of the accrued and unpaid
original issue discount (as defined in Section 1273(a)(1) of the Code) on a Loan would, but for
this paragraph, exceed an amount equal to the product of the Loan’s issue price (as defined in
Sections 1273(b) and 1274(a) of the Code) multiplied by the yield to maturity (as defined in
Section 1.1272-1(b)(1)(i) of the United States Treasury Regulations) (the “Maximum
Accrual”), all accrued and unpaid interest and original issue discount on the Loan as of the
end of such accrual period in excess of an amount equal to the Maximum Accrual shall be paid in



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cash by Borrower to the Lenders (the “AHYDO Interest Payment”) and will be applied
against and reduce the outstanding principal amount of such Loan. For the avoidance of doubt, this
Section shall be construed so as to cause the Loans to not be treated as having been issued with
“significant original issue discount” within the meaning of Section 163(i)(2) of the Code.




     SECTION 2.12 Fees. (a) The Borrower agrees to pay to the Administrative Agent for
the account of each Lender a commitment fee, which shall accrue at a rate equal to the Commitment
Fee Rate on the average daily unused amount of the Revolving Commitment of such Lender during the
period from and including the Effective Date to but excluding the date on which the Revolving
Commitments terminate. Accrued commitment fees shall be payable in arrears on the third Business
Day following the last day of March, June, September and December of each year and on the date on
which the Revolving Commitments terminate, commencing on the first such date to occur after the
Effective Date. All commitment fees shall be computed on the basis of a year of 360 days and shall
be payable for the actual number of days elapsed (including the first day but excluding the last
day). For purposes of computing commitment fees, a Global Revolving Commitment of a Lender shall be
deemed to be used to the extent of the outstanding Global Revolving Loans and LC Exposure of such
Lender (and the Swingline Exposure of such Lender shall be disregarded for such purpose).



     (b) The Borrower agrees to pay (i) to the Administrative Agent for the account of each Global
Revolving Lender a participation fee with respect to its participations in Letters of Credit, which
shall accrue at the same Applicable Rate used to determine the interest rate applicable to
Eurocurrency Revolving Loans on the average daily amount of such Lender’s LC Exposure (excluding
any portion thereof attributable to unreimbursed LC Disbursements) during the period from and
including the Effective Date to but excluding the later of the date on which such Lender’s
Revolving Commitment terminates and the date on which such Lender ceases to have any LC Exposure,
and (ii) to each Issuing Bank a fronting fee in respect of each Letter of Credit issued by such
Issuing Bank, which shall accrue at a rate equal to 0.25% per annum on the average daily amount of
the LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements)
during the period from and including the Effective Date to but excluding the later of the date of
termination of the Revolving Commitments and the date on which there ceases to be any LC Exposure,
as well as such Issuing Bank’s standard fees with respect to the issuance, amendment, renewal or
extension of any Letter of Credit or processing of drawings thereunder. Participation fees and
fronting fees accrued through and including the last day of March, June, September and December of
each year shall be payable on the third Business Day following such last day, commencing on the
first such date to occur after the Effective Date, provided that all such fees shall be
payable on the date on which the Revolving Commitments terminate and any such fees accruing after
the date on which the Revolving Commitments terminate shall be payable on demand. Any other fees
payable to any Issuing Bank pursuant to this paragraph shall be payable within 10 days after
demand. All participation fees and fronting fees shall be computed on the basis of a year of 360
days (or, in the case any such fee is payable in Sterling, 365 days) and shall be payable for the
actual number of days elapsed (including the first day but excluding the last day).



     (c) The Borrower agrees to pay to the Administrative Agent, for its own account, fees payable
in the amounts and at the times separately agreed upon between the Borrower and the Administrative
Agent.



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     (d) All fees payable hereunder shall be paid on the dates due, in immediately available funds,
to the Administrative Agent (or to the applicable Issuing Bank, in the case of fees payable to it)
for distribution, in the case of commitment fees and participation fees, to the Lenders entitled
thereto. Fees paid shall not be refundable under any circumstances.



     SECTION 2.13 Interest. (a) The Loans comprising each ABR Borrowing (including each
Swingline Loan) shall bear interest at the Alternate Base Rate plus the Applicable Rate.



     (b) The Loans comprising each Eurocurrency Borrowing shall bear interest at the Adjusted
Eurocurrency Rate for the Interest Period in effect for such Borrowing plus the Applicable Rate.



     (c) Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee or
other amount payable by the Borrower hereunder is not paid when due, whether at stated maturity,
upon acceleration or otherwise, after giving effect to any applicable grace period, such overdue
amount shall bear interest, after as well as before judgment, at a rate per annum (the “Default
Rate”) equal to (i) in the case of overdue principal of or interest on any Loan, 2.00% plus the
rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section or
(ii) in the case of any other amount, 2.00% plus the rate applicable to ABR Revolving Loans as
provided in paragraph (a) of this Section; provided that no interest at the Default Rate
shall accrue or be payable to a Defaulting Lender so long as such Lender shall be a Defaulting
Lender.



     (d) Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date
for such Loan and, in the case of Revolving Loans, upon termination of the Revolving Commitments,
provided that (i) interest accrued pursuant to paragraph (c) of this Section shall be
payable on demand, (ii) in the event of any repayment or prepayment of any Loan (other than a
prepayment of an ABR Revolving Loan prior to the end of the Revolving Availability Period), accrued
interest on the principal amount repaid or prepaid shall be payable on the date of such repayment
or prepayment and (iii) in the event of any conversion of any Eurocurrency Loan prior to the end of
the current Interest Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.



     (e) All interest hereunder shall be computed on the basis of a year of 360 days, except that
(i) interest on Loans denominated in Sterling and (ii) interest computed by reference to the
Alternate Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall be
payable for the actual number of days elapsed (including the first day but excluding the last day).
The applicable Alternate Base Rate or Adjusted Eurocurrency Rate shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest error.



     SECTION 2.14 Alternate Rate of Interest. If prior to the commencement of any
Interest Period for a Eurocurrency Borrowing denominated in any currency:



     (a) the Administrative Agent determines (which determination shall be conclusive absent
manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted
Eurocurrency Rate for such Interest Period; or



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     (b) the Administrative Agent is advised by the Required Lenders that the Adjusted Eurocurrency
Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders of
making or maintaining their Loans included in such Borrowing for such Interest Period;



then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by
telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent
notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer
exist, (i) any Interest Election Request that requests the conversion of any Borrowing denominated
in such currency to, or continuation of any Borrowing denominated in such currency as, a
Eurocurrency Borrowing shall be ineffective, and any Eurocurrency Borrowing denominated in such
currency that is requested to be continued (A) if such currency is the U.S. Dollar, shall be
converted to an ABR Borrowing on the last day of the Interest Period applicable thereto and (B) if
such currency is an Alternative Currency, shall be repaid on the last day of the Interest Period
applicable thereto, and (ii) if any Borrowing Request requests a Eurocurrency Borrowing denominated
in such currency (A) if such currency is the U.S. Dollar, such Borrowing shall be made as an ABR
Borrowing and (B) if such currency is an Alternative Currency, such Borrowing Request shall be
ineffective.




     SECTION 2.15 Increased Costs. (a) If any Change in Law shall:



     (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance
charge or similar requirement against assets of, deposits with or for the account of, or credit
extended by, any Lender or Issuing Bank (except any such reserve requirement reflected in the
Adjusted Eurocurrency Rate); or



     (ii) impose on any Lender or Issuing Bank or the London interbank market any other condition,
cost or expense affecting this Agreement or Eurocurrency Loans made by such Lender or any Letter of
Credit or participation therein;



and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurocurrency Loan (or of maintaining its obligation to make any such Loan) or to
increase the cost to such Lender or Issuing Bank of participating in, issuing or maintaining any
Letter of Credit or to reduce the amount of any sum received or receivable by such Lender or
Issuing Bank hereunder (whether of principal, interest or otherwise), then the Borrower will pay to
such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or Issuing Bank, as the case may be, for such additional costs incurred or
reduction suffered.




     (b) If any Lender or Issuing Bank determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such Lender’s or
Issuing Bank’s capital or on the capital of such Lender’s or Issuing Bank’s holding company, if
any, as a consequence of this Agreement or the Loans made by, or participations in Letters of
Credit held by, such Lender, or the Letters of Credit issued by such Issuing Bank, to a level below
that which such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding company
could have achieved but for such Change in Law (taking into consideration such Lender’s or such
Issuing Bank’s policies and the policies of such Lender’s or such Issuing



71









 





Bank’s holding company with respect to capital adequacy), then from time to time the Borrower
will pay to such Lender or such Issuing Bank, as the case may be, such additional amount or amounts
as will compensate such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding
company for any such reduction suffered.




     (c) A certificate of a Lender or an Issuing Bank setting forth the amount or amounts necessary
to compensate such Lender or Issuing Bank or its holding company, as the case may be, as specified
in paragraph (a) or (b) of this Section shall be delivered to the Borrower and shall be conclusive
absent manifest error. The Borrower shall pay such Lender or Issuing Bank, as the case may be, the
amount shown as due on any such certificate within 10 Business Days after receipt thereof.



     (d) Failure or delay on the part of any Lender or any Issuing Bank to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender’s or Issuing Bank’s right to
demand such compensation, provided that the Borrower shall not be required to compensate a
Lender or an Issuing Bank pursuant to this Section for any increased costs or reductions incurred
more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies
the Borrower of the Change in Law giving rise to such increased costs or reductions and of such
Lender’s or Issuing Bank’s intention to claim compensation therefor, provided
further that, if the Change in Law giving rise to such increased costs or reductions is
retroactive, then the 270-day period referred to above shall be extended to include the period of
retroactive effect thereof.



     SECTION 2.16 Break Funding Payments. In the event of (a) the payment of any
principal of any Eurocurrency Loan other than on the last day of an Interest Period applicable
thereto (including as a result of an Event of Default), (b) the conversion of any Eurocurrency Loan
other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow,
convert, continue or prepay any Revolving Loan or Term Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice may be revoked under Section 2.11(f)
and is revoked in accordance therewith) or (d) the assignment of any Eurocurrency Loan other than
on the last day of the Interest Period applicable thereto as a result of a request by the Borrower
pursuant to Section 2.19 or Section 9.02(c), then, in any such event, the Borrower shall compensate
each Lender for the loss, cost and expense attributable to such event. In the case of a
Eurocurrency Loan, such loss, cost or expense to any Lender shall be deemed to include an amount
determined by such Lender to be the excess, if any, of (i) the amount of interest that would have
accrued on the principal amount of such Loan had such event not occurred, at the Adjusted
Eurocurrency Rate that would have been applicable to such Loan, for the period from the date of
such event to the last day of the then current Interest Period therefor (or, in the case of a
failure to borrow, convert or continue, for the period that would have been the Interest Period for
such Loan), over (ii) the amount of interest that would accrue on such principal amount for such
period at the interest rate that such Lender would bid were it to bid, at the commencement of such
period, for dollar deposits of a comparable amount and period from other banks in the eurocurrency
market. A certificate of any Lender setting forth any amount or amounts that such Lender is
entitled to receive pursuant to this Section shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any
such certificate within 10 days after receipt thereof.



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     SECTION 2.17 Taxes. (a) Any and all payments by or on account of any obligation of
any Loan Party under any Loan Document shall be made free and clear of and without deduction for
any Indemnified Taxes or Other Taxes, provided that if a Withholding Agent is required to
deduct any Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable shall be
increased as necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section) the Administrative Agent, Lender or
Issuing Bank (as the case may be) receives an amount equal to the sum it would have received had no
such deductions been made, (ii) the applicable Withholding Agent shall make such deductions and
(iii) the applicable Withholding Agent shall pay the full amounts deducted to the relevant
Governmental Authority in accordance with applicable law.



     (b) Without limiting the provisions of paragraph (a) above, the Borrower shall timely pay any
Other Taxes to the relevant Governmental Authority in accordance with applicable law.



     (c) The Borrower shall indemnify the Administrative Agent, each Lender and each Issuing Bank,
within 10 days after written demand therefor, for the full amount of any Indemnified Taxes or Other
Taxes paid by the Administrative Agent, such Lender or such Issuing Bank, as the case may be, on or
with respect to any payment by or on account of any obligation of the Borrower under any Loan
Document (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section) and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental Authority, provided
that the Borrower shall not be obligated to make payment to the Administrative Agent, such Lender
or such Issuing Bank pursuant to this Section in respect of penalties, interest and other
liabilities attributable to any Indemnified Taxes or Other Taxes if (i) written demand therefor has
not been made by the Administrative Agent, such Lender or such Issuing Bank within 30 days from the
date on which the Administrative Agent, such Lender or such Issuing Bank knew of the imposition of
Indemnified Taxes or Other Taxes by the relevant Governmental Authority, (ii) such penalties,
interest and other liabilities have accrued after the Borrower has indemnified or paid any
additional amount pursuant to this Section or (iii) such penalties, interest and other liabilities
are attributable to the gross negligence or wilful misconduct of the Administrative Agent, such
Lender or such Issuing Bank. After the Administrative Agent, a Lender or an Issuing Bank learns of
the imposition of Indemnified Taxes or Other Taxes, the Administrative Agent, such Lender or such
Issuing Bank, as the case may be, will act in good faith to promptly notify the Borrower of its
obligations hereunder. A certificate as to the amount of such payment or liability delivered to the
Borrower by a Lender or an Issuing Bank, or by the Administrative Agent on its own behalf or on
behalf of a Lender or an Issuing Bank, shall be conclusive absent manifest error. As soon as
practicable after any payment of Indemnified Taxes or Other Taxes by the Borrower to a Governmental
Authority, the Borrower shall deliver to the Administrative Agent the original or a certified copy
of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory to the
Administrative Agent.



     (d) Each Lender shall indemnify the Administrative Agent for the full amount of any Taxes or
similar charges imposed by any Governmental Authority that are attributable to such Lender and that
are payable or paid by the Administrative Agent, together with all reasonable



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costs and expenses arising therefrom or with respect thereto, as determined by the
Administrative Agent in good faith. A certificate as to the amount of such payment or liability
delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error.




     (e) Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax
under the law of the jurisdiction in which the applicable Loan Party is located, or any treaty to
which such jurisdiction is a party, with respect to payments under this Agreement or any other Loan
Document shall deliver to the Borrower (with a copy to the Administrative Agent), at the time or
times prescribed by applicable law, such properly completed and executed documentation prescribed
by applicable law or reasonably requested by the Borrower or the Administrative Agent as will
permit such payments to be made without withholding or at a reduced rate, provided that
such Foreign Lender has received written notice from the applicable Loan Party or Administrative
Agent, as the case may be, advising it of the availability of such exemption or reduction and
supplying all applicable documentation. In addition, each Lender that is a “United States Person”
as defined in Section 7701(a)(30) of the Code shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by law, U.S. Internal Revenue Service Form
W-9 (or any successor form) certifying that such Lender is exempt from United States federal
withholding tax.



     (f) If the Administrative Agent, a Lender or an Issuing Bank determines that it is entitled to
receive a refund from a Governmental Authority in respect of Indemnified Taxes or Other Taxes as to
which it has been indemnified by the Borrower pursuant to this Section, or with respect to which
the Borrower has paid additional amounts pursuant to this Section, it shall promptly notify the
Borrower of the availability of such refund and shall, within 30 days after receipt of a request by
the Borrower (whether as a result of notification that it has made to the Borrower or otherwise),
make a claim to such Governmental Authority for such refund at the Borrower’s expense. If the
Administrative Agent, an Issuing Bank or a Lender determines, in its sole discretion, that it has
received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by
the Borrower or with respect to which the Borrower has paid additional amounts pursuant to this
Section, it shall pay over such refund to the Borrower (but only to the extent of indemnity
payments made, or additional amounts paid, by the Borrower under this Section with respect to the
Indemnified Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of
the Administrative Agent, such Issuing Bank or such Lender and without interest (other than any
interest paid by the relevant Governmental Authority with respect to such refund),
provided, that the Borrower, upon the request of the Administrative Agent, such Issuing
Bank or such Lender, agrees to repay the amount paid over to the Borrower (plus any penalties,
interest or other charges imposed by the relevant Governmental Authority) to the Administrative
Agent, such Issuing Bank or such Lender in the event the Administrative Agent, such Issuing Bank or
such Lender is required to repay such refund to such Governmental Authority. This Section shall not
be construed to require the Administrative Agent, any Issuing Bank or any Lender to make available
its tax returns (or any other information relating to its taxes that it deems confidential) to the
Borrower or any other Person.



     SECTION 2.18 Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) The
Borrower shall make each payment required to be made by it under any Loan Document (whether of
principal, interest, fees or reimbursement of LC Disbursements, or of amounts



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payable under Section 2.15, 2.16 or 2.17, or otherwise) prior to the time expressly required
hereunder or under such other Loan Document for such payment (or, if no such time is expressly
required, prior to 12:00 noon, New York City time), on the date when due, in immediately available
funds, without setoff or counterclaim. Any amounts received after such time on any date may, in the
discretion of the Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments shall be made to the
Administrative Agent to the applicable account designated to the Borrower by the Administrative
Agent, except payments to be made directly to an Issuing Bank or Swingline Lender as expressly
provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be
made directly to the Persons entitled thereto and payments pursuant to other Loan Documents shall
be made to the Persons specified therein. The Administrative Agent shall distribute any such
payments received by it for the account of any other Person to the appropriate recipient promptly
following receipt thereof. If any payment under any Loan Document shall be due on a day that is not
a Business Day, the date for payment shall be extended to the next succeeding Business Day and, in
the case of any payment accruing interest, interest thereon shall be payable for the period of such
extension. All payments under each Loan Document of principal or interest in respect of any Loan
(or of any breakage indemnity in respect of any Loan) shall be made in the currency of such Loan,
and, except as otherwise expressly set forth in any Loan Document, all other payments under each
Loan Document shall be made in U.S. Dollars.




     (b) If at any time insufficient funds are received by and available to the Administrative
Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then
due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due
hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed
LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with
the amounts of principal and unreimbursed LC Disbursements then due to such parties.



     (c) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its Revolving Loans, Term Loans
or participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment
of a greater proportion of the aggregate amount of its Revolving Loans, Term Loans and
participations in LC Disbursements and Swingline Loans and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such greater proportion shall
purchase (for cash at face value) participations in the Revolving Loans, Term Loans and
participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so
that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective Revolving Loans, Term
Loans and participations in LC Disbursements and Swingline Loans, provided that (i) if any
such participations are purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price restored to the extent of
such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed
to apply to any payment made by the Borrower pursuant to and in accordance with the express terms
of this Agreement or any payment obtained by a Lender as consideration for the assignment of or
sale of a participation in any of its Loans or participations



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in LC Disbursements to any assignee or participant. The Borrower consents to the foregoing and
agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the Borrower rights of
setoff and counterclaim with respect to such participation as fully as if such Lender were a direct
creditor of the Borrower in the amount of such participation.




     (d) Unless the Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Administrative Agent for the account of the Lenders or the
applicable Issuing Bank hereunder that the Borrower will not make such payment, the Administrative
Agent may assume that the Borrower has made such payment on such date in accordance herewith and
may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or such
Issuing Bank, as the case may be, the amount due. In such event, if the Borrower has not in fact
made such payment, then each of the Lenders or the applicable Issuing Bank, as the case may be,
severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed
to such Lender or Issuing Bank with interest thereon, for each day from and including the date such
amount is distributed to it to but excluding the date of payment to the Administrative Agent, at
the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation.



     (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section
2.04(c), 2.05(d) or (e), 2.06(a) or (b), 2.18(d) or 9.03(c), then the Administrative Agent may, in
its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter
received by the Administrative Agent for the account of such Lender to satisfy such Lender’s
obligations under such Sections until all such unsatisfied obligations are fully paid.



     (f) Notwithstanding anything to the contrary contained in this Section or elsewhere in this
Agreement, the Borrower may (i) make prepayments of Term Loans at a discount to the par value of
such Loans and on a non pro rata basis in accordance with Section 2.11(g) and (ii) extend the final
maturity of Term Loans and/or Revolving Commitments in connection with an Extension that is
permitted under Section 2.22 without being obligated to effect such extensions on a pro rata basis
among the Lenders (it being understood that no such extension (x) shall constitute a payment or
prepayment of any Term Loans or Revolving Loans, as applicable, for purposes of this Section or
(y) shall reduce the amount of any scheduled amortization payment due under Section 2.10, except
that the amount of any scheduled amortization payment due to a Lender of Extended Term Loans may be
reduced to the extent provided pursuant to the express terms of the respective Extension Offer)
without giving rise to any violation of this Section or any other provision of this Agreement.
Furthermore, the Borrower may take all actions contemplated by Section 2.22 in connection with any
Extension (including modifying pricing, amortization and repayments or prepayments of Extended
Revolving Commitments or Extended Term Loans), and in each case such actions taken in accordance
with Section 2.22 shall be permitted hereunder, and the differing payments contemplated therein
shall be permitted without giving rise to any violation of this Section or any other provision of
this Agreement.



     SECTION 2.19 Mitigation Obligations; Replacement of Lenders. (a) If any Lender
requests compensation under Section 2.15, or if the Borrower is required to pay any additional



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amount to the Administrative Agent, any Issuing Bank or any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, then the Administrative Agent,
such Issuing Bank or such Lender shall use reasonable efforts to designate a different lending
office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder
to another of its offices, branches or affiliates, if, in the judgment of the Administrative Agent,
such Issuing Bank or such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.15 or 2.17, as the case may be, in the future and (ii) would
not subject the Administrative Agent, such Issuing Bank or such Lender to any unreimbursed cost or
expense and would not be inconsistent with its reasonable internal policies or otherwise be
disadvantageous to the Administrative Agent, such Issuing Bank or such Lender. The Borrower hereby
agrees to pay all reasonable costs and expenses incurred by the Administrative Agent, any Issuing
Bank or any Lender in connection with any such designation or assignment.




     (b) If any Lender requests compensation under Section 2.15, or if the Borrower is required to
pay any additional amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.17, or if any Lender becomes a Defaulting Lender, then the Borrower may, at
its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such
Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions
contained in Section 9.04), all its interests, rights and obligations under this Agreement to an
assignee that shall assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment), provided that (i) the Borrower shall have received the prior
written consent of the Administrative Agent (and, if a Revolving Commitment is being assigned, each
Issuing Bank and the Swingline Lender), which consent shall not unreasonably be withheld, (ii) such
Lender shall have received payment of an amount equal to the outstanding principal of its Loans and
participations in LC Disbursements and Swingline Loans, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Borrower (in the case of all other amounts), (iii)
the Borrower or such assignee shall have paid to the Administrative Agent the processing and
recordation fee specified in Section 9.04(b) and (iv) in the case of any such assignment resulting
from a claim for compensation under Section 2.15 or payments required to be made pursuant to
Section 2.17, such assignment will result in a material reduction in such compensation or payments.
A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise (including as a result of any action taken by such
Lender under paragraph (a) above), the circumstances entitling the Borrower to require such
assignment and delegation cease to apply.



     SECTION 2.20 Incremental Facility. (a) At any time and from time to time, subject
to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative
Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders),
request to add one or more additional tranches of term loans (the “Incremental Term Loans”)
or one or more increases in the Revolving Commitments (the “Incremental Revolving
Commitments”), provided that at the time of each such request and upon the
effectiveness of each Incremental Facility Amendment, (A) no Default or Event of Default has
occurred and is continuing or shall result therefrom, (B) the Borrower shall be in compliance on a
Pro Forma Basis with the covenants contained in Sections 6.12 and 6.13 recomputed as of the last
day of the



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most-recently ended Test Period for which financial statements have been delivered pursuant to
Section 5.01(a) or (b), (C) the Senior Secured Leverage Ratio of the Borrower, computed on a Pro
Forma Basis as of the last day of the most-recently ended Test Period for which financial
statements have been delivered pursuant to Section 5.01(a) or (b), shall be no greater than the
Senior Secured Leverage Ratio of the Borrower on the Effective Date (after giving effect to the
Transactions) and (D) the Borrower shall have delivered a certificate of a Financial Officer to the
effect set forth in clauses (A), (B) and (C) above, together with reasonably detailed calculations
demonstrating compliance with clauses (B) and (C) above. Notwithstanding anything to contrary
herein, the principal amount of any Incremental Term Loans or Incremental Revolving Commitments
shall not exceed the Incremental Amount at such time. Each tranche of Incremental Term Loans and
Incremental Revolving Commitments shall be in an integral multiple of $1,000,000 and be in an
aggregate principal amount that is not less than $50,000,000 in case of Incremental Term Loans or
$25,000,000 in case of Incremental Revolving Commitments, provided that such amount may be
less than the applicable minimum amount if such amount represents all the remaining availability
under the Incremental Amount set forth above.




     (b) Any Incremental Term Loans (i) shall rank pari passu or junior in right of payment
in respect of the Collateral and with the Obligations in respect of the Revolving Commitments, the
Tranche B Term Loans and the Tranche B Euro Term Loans, (ii) for purposes of prepayments, shall be
treated substantially the same as (and in any event no more favorably than) the Tranche B Term
Loans and Tranche B Euro Term Loans and (iii) other than amortization, pricing or maturity date,
shall have the same terms as the Tranche B Term Loans or such terms as are reasonably satisfactory
to the Administrative Agent, provided that (A) if the Applicable Rate (which, for such
purposes only, shall be deemed to include all upfront or similar fees or original issue discount
payable to all Lenders providing such Incremental Term Loans and any LIBO or ABR floor applicable
to such Incremental Term Loans) relating to any Incremental Term Loan exceeds the Applicable Rate
(which, for such purposes only, shall be deemed to include all upfront or similar fees or original
issue discount payable to all Lenders providing the Tranche B Term Loans or Tranche B Euro Term
Loans, as applicable, and any EURO LIBO, LIBO or ABR floor applicable to the Tranche B Term Loans
or Tranche B Euro Term Loans, as applicable) relating to the Tranche B Term Loans or Tranche B Euro
Term Loans, as applicable, immediately prior to the effectiveness of the applicable Incremental
Facility Amendment by more than 0.25%, the Applicable Rate relating to the Tranche B Term Loans or
Tranche B Euro Term Loans, as applicable, shall be adjusted to be equal to the Applicable Rate
(which, for such purposes only, shall be deemed to include all upfront or similar fees or original
issue discount payable to all Lenders providing such Incremental Term Loans and any LIBO or ABR
floor applicable to such Incremental Term Loans) relating to such Incremental Term Loans minus
0.25%, (B) any Incremental Term Loan shall not have a final maturity date earlier than the Tranche
B Maturity Date or the Tranche B Euro Maturity Date, as applicable, and (C) any Incremental Term
Loan shall not have a weighted average life that is shorter than the weighted average life of the
then-remaining Tranche B Term Loans or Tranche B Euro Term Loans, as applicable. Any Incremental
Revolving Commitment shall be on terms (other than pricing) and pursuant to the documentation
applicable to the Revolving Commitments; provided that if the Applicable Rate (which, for
such purposes only, shall be deemed to include all upfront or similar fees or original issue
discount payable to all Lenders providing such Incremental Revolving Commitments and any LIBO or
ABR floor applicable to



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such Incremental Revolving Commitments) relating to any Incremental Revolving Commitments
exceeds the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront
or similar fees or original issue discount payable to all Lenders providing the Revolving
Commitments) relating to the Revolving Commitments immediately prior to the effectiveness of the
applicable Incremental Facility Amendment by more than 0.25%, the Applicable Rate relating to the
Revolving Commitments shall be adjusted to be equal to the Applicable Rate (which, for such
purposes only, shall be deemed to include all upfront or similar fees or original issue discount
payable to all Lenders providing such Incremental Revolving Commitments and any LIBO or ABR floor
applicable to such Incremental Revolving Commitments) relating to such Incremental Revolving
Commitments minus 0.25%.




     (c) Each notice from the Borrower pursuant to this Section shall set forth the requested
amount and proposed terms of the relevant Incremental Term Loans and/or Incremental Revolving
Commitments. Any additional bank, financial institution, existing Lender or other Person that
elects to extend Incremental Term Loans or Incremental Revolving Commitments shall be reasonably
satisfactory to the Borrower and the Administrative Agent (any such bank, financial institution,
existing Lender or other Person being called an “Additional Lender”) and, if not already a
Lender, shall become a Lender under this Agreement pursuant to an amendment (an “Incremental
Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed
by Holdings, the Borrower, such Additional Lender and the Administrative Agent. No Incremental
Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with
respect to such Incremental Facility Amendment. No Lender shall be obligated to provided any
Incremental Term Loans or Incremental Revolving Commitments, unless it so agrees. Commitments in
respect of any Incremental Term Loans or Incremental Revolving Commitments shall become Commitments
under this Agreement. An Incremental Facility Amendment may, without the consent of any other
Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the
opinion of the Administrative Agent, to effect the provisions of this Section (including to provide
for voting provisions applicable to the Additional Lenders comparable to the provisions of clause
(B) of the second proviso of Section 9.02(b)). The effectiveness of any Incremental Facility
Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders,
be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing
Date”) of each of the conditions set forth in Section 4.02 (it being understood that all
references to “the date of such Borrowing” in Section 4.02 shall be deemed to refer to the
Incremental Facility Closing Date). The proceeds of any Incremental Term Loans will be used only
for general corporate purposes (including Permitted Acquisitions). Upon each increase in the
Revolving Commitments pursuant to this Section, each Revolving Lender immediately prior to such
increase will automatically and without further act be deemed to have assigned to each Lender
providing a portion of the Incremental Revolving Commitment (each a “Incremental Revolving
Lender”) in respect of such increase, and each such Incremental Revolving Lender will
automatically and without further act be deemed to have assumed, a portion of such Revolving
Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that,
after giving effect to each such deemed assignment and assumption of participations, the percentage
of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii)
participations hereunder in Swingline Loans held by each Revolving Lender (including each such
Incremental Revolving Lender) will equal the percentage of the aggregate Revolving Commitments of
all Revolving Lenders represented by such Revolving Lender’s Revolving



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Commitment. The Administrative Agent and the Lenders hereby agree that the minimum borrowing,
pro rata borrowing and pro rata payment requirements contained
elsewhere in this Agreement shall not apply to the transactions effected pursuant to the
immediately preceding sentence.




     SECTION 2.21 Defaulting Lenders. Notwithstanding any provision of this Agreement to
the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions
shall apply for so long as such Lender is a Defaulting Lender:



     (a) fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such
Defaulting Lender pursuant to Section 2.12(a);



     (b) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be
included in determining whether all Lenders or the Required Lenders have taken or may take any
action hereunder (including any consent to any amendment, waiver or other modification pursuant to
Section 9.02); provided, that any waiver, amendment or modification requiring the consent
of all Lenders or each affected Lender which affects such Defaulting Lender disproportionately when
compared to the other affected Lenders, or increases or extends the Revolving Commitment of any
Defaulting Lender, shall require the consent of such Defaulting Lender;



     (c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a
Defaulting Lender then:




     (i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender
shall be reallocated among the non-Defaulting Lenders in accordance with their respective
Applicable Percentages but only to the extent the sum of all non-Defaulting Lenders’
Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure
does not exceed the total of all non-Defaulting Lenders’ Commitments;




     (ii) if the reallocation described in clause (i) above cannot, or can only partially,
be effected, the Borrower shall within three Business Days following notice by the
Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash
collateralize for the benefit of the Issuing Bank only the Borrower’s obligations
corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial
reallocation pursuant to clause (i) above) in accordance with the procedures set forth in
Section 2.05(j) for so long as such LC Exposure is outstanding;




     (iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC
Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay any fees
to such Defaulting Lender pursuant to Section 2.12(b) with respect to such Defaulting
Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash
collateralized;




     (iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause
(i) above, then the fees payable to the Lenders pursuant to Section 2.12(a) and



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     Section 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’
Applicable Percentages; and




     (v) if all or any portion of such Defaulting Lender’s LC Exposure is neither
reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without
prejudice to any rights or remedies of the Issuing Bank or any other Lender hereunder, all
letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s
LC Exposure shall be payable to the Issuing Bank until and to the extent that such LC
Exposure is reallocated and/or cash collateralized; and



     (d) so long as such Lender is a Defaulting Lender, the Swingline Lender shall not be required
to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase
any Letter of Credit, unless it has received assurances satisfactory to it that non-Defaulting
Lenders will cover the related exposure and/or cash collateral will be provided by the Borrower in
accordance with Section 2.21(c), and participating interests in any newly made Swingline Loan or
any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a
manner consistent with Section 2.21(c)(i) (and such Defaulting Lender shall not participate
therein).



     In the event that the Administrative Agent, the Borrower, the Swingline Lender and the Issuing
Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such
Revolving Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the
Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s
Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans
of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall
determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in
accordance with its Applicable Percentage.



     SECTION 2.22 Extensions of Term Loans and Revolving Commitments.



     (a) Notwithstanding anything to the contrary in this Agreement, pursuant to one or more offers
(each, an “Extension Offer”) made from time to time by the Borrower to all Lenders of Term
Loans with a like maturity date or Revolving Commitments with a like maturity date, in each case on
a pro rata basis (based on the aggregate outstanding principal amount of the respective Term Loans
or Revolving Commitments with a like maturity date, as the case may be) and on the same terms to
each such Lender, the Borrower is hereby permitted to consummate from time to time transactions
with individual Lenders that accept the terms contained in such Extension Offers to extend the
maturity date of each such Lender’s Term Loans and/or Revolving Commitments and otherwise modify
the terms of such Term Loans and/or Revolving Commitments pursuant to the terms of the relevant
Extension Offer (including, without limitation, by increasing the interest rate or fees payable in
respect of such Term Loans and/or Revolving Commitments (and related outstandings) and/or modifying
the amortization schedule in respect of such Lender’s Term Loans) (each, an “Extension”,
and each group of Term Loans or Revolving Commitments, as applicable, in each case as so extended,
as well as the original Term Loans and the original Revolving Commitments (in each case not so
extended), being a “tranche”; any Extended Term Loans shall constitute a separate tranche
of Term Loans from the tranche of Term Loans from which they were converted, and any Extended
Revolving



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Commitments shall constitute a separate tranche of Revolving Commitments from the tranche of
Revolving Commitments from which they were converted), so long as the following terms are
satisfied: (i) no Default or Event of Default shall have occurred and be continuing at the time
the offering document in respect of an Extension Offer is delivered to the Lenders, (ii) except as
to interest rates, fees and final maturity (which shall be determined by the Borrower and set forth
in the relevant Extension Offer), the Revolving Commitment of any Revolving Lender that agrees to
an extension with respect to such Revolving Commitment (an “Extending Revolving Lender”)
extended pursuant to an Extension (an “Extended Revolving Commitment”), and the related
outstandings, shall be a Revolving Commitment (or related outstandings, as the case may be) with
the same terms as the original Revolving Commitments (and related outstandings); provided
that (x) subject to the provisions of Sections 2.04(d) and 2.05(n) to the extent
dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date
when there exist Extended Revolving Commitments with a longer maturity date, all Swingline Loans
and Letters of Credit shall be participated in on a pro rata basis by all Lenders with Revolving
Commitments in accordance with their Applicable Percentage of the Revolving Commitments (and except
as provided in Sections 2.04(d) and 2.05(n), without giving effect to changes
thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit
theretofore incurred or issued) and all borrowings under Revolving Commitments and repayments
thereunder shall be made on a pro rata basis (except for (A) payments of interest and fees at
different rates on Extended Revolving Commitments (and related outstandings) and (B) repayments
required upon the maturity date of the non-extending Revolving Commitments) and (y) at no time
shall there be Revolving Commitments hereunder (including Extended Revolving Commitments and any
original Revolving Commitments) which have more than three different maturity dates, (iii) except
as to interest rates, fees, amortization, final maturity date, premium, required prepayment dates
and participation in prepayments (which shall, subject to immediately succeeding clauses (iv), (v)
and (vi), be determined between the Borrower and set forth in the relevant Extension Offer), the
Term Loans of any Term Lender that agrees to an extension with respect to such Term Loans (an
“Extending Term Lender”) extended pursuant to any Extension (“Extended Term Loans”)
shall have the same terms as the tranche of Term Loans subject to such Extension Offer, (iv) the
final maturity date of any Extended Term Loans shall be no earlier than the then latest maturity
date hereunder and the amortization schedule applicable to Term Loans pursuant to Section
2.10 for periods prior to the Tranche B Maturity Date or Tranche B Euro Maturity Date, as
applicable, may not be increased, (v) the weighted average life of any Extended Term Loans shall be
no shorter than the remaining weighted average life of the Term Loans extended thereby, (vi) any
Extended Term Loans may participate on a pro rata basis or a less than pro rata basis (but not
greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments hereunder,
in each case as specified in the respective Extension Offer, (vii) if the aggregate principal
amount of Term Loans (calculated on the face amount thereof) or Revolving Commitments, as the case
may be, in respect of which Term Lenders or Revolving Lenders, as the case may be, shall have
accepted the relevant Extension Offer shall exceed the maximum aggregate principal amount of Term
Loans or Revolving Commitments, as the case may be, offered to be extended by the Borrower pursuant
to such Extension Offer, then the Term Loans or Revolving Loans, as the case may be, of such Term
Lenders or Revolving Lenders, as the case may be, shall be extended ratably up to such maximum
amount based on the respective principal amounts (but not to exceed actual holdings of record) with
respect to which such Term Lenders or Revolving Lenders, as the case may be, have accepted such
Extension




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Offer, (viii) all documentation in respect of such Extension shall be consistent with the
foregoing, (ix) any applicable Minimum Extension Condition shall be satisfied unless waived by the
Borrower and (x) the Minimum Tranche Amount shall be satisfied unless waived by the Administrative
Agent.




     Notwithstanding the foregoing, (A) if the interest rate margins (which, for such purposes
only, shall be deemed to include all upfront or similar fees or original issue discount payable to
all Lenders providing Extended Term Loans and any EURO LIBO, LIBO or ABR floor applicable to such
Extended Term Loans) relating to any Extended Term Loan exceeds the Applicable Rate (which, for
such purposes only, shall be deemed to include all upfront or similar fees or original issue
discount payable to all Lenders providing the Tranche B Term Loans or Tranche B Euro Term Loans, as
applicable, and any EURO LIBO, LIBO or ABR floor applicable to the Tranche B Term Loans or Tranche
B Euro Term Loans, as applicable) relating to the Tranche B Term Loans or Tranche B Euro Term Loans
immediately prior to the effectiveness of the Extension by more than 0.25%, the Applicable Rate
relating to the Tranche B Term Loans or Tranche B Euro Term Loans, as applicable, shall be adjusted
to be equal to the interest rate margins (which, for such purposes only, shall be deemed to include
all upfront or similar fees or original issue discount payable to all Lenders providing such
Extended Term Loans and any EURO LIBO, LIBO or ABR floor applicable to such Extended Term Loans)
relating to such Extended Term Loans minus 0.25% and the Applicable Rate relating to any
Incremental Term Loans (if any) and any Extended Term Loans which were extended pursuant to one or
more prior Extensions (if any) shall be adjusted so that the difference between the Applicable Rate
relating to the Tranche B Term Loans or Tranche B Euro Term Loans, as applicable (after giving
effect to the foregoing adjustment), and the Applicable Rate relating to such Incremental Term
Loans and prior Extended Term Loans remains the same as immediately prior to the Extension and (B)
if the interest rate margins (which, for such purposes only, shall be deemed to include all upfront
or similar fees or original issue discount payable to all Lenders providing Extended Revolving
Commitments and any LIBO or ABR floor applicable to such Extended Revolving Commitments) or
commitment fee relating to any Extended Revolving Commitments exceeds the Applicable Rate (which,
for such purposes only, shall be deemed to include all upfront or similar fees or original issue
discount payable to all Lenders providing the Revolving Commitments and any LIBO or ABR floor
applicable to the Revolving Commitments) or Commitment Fee Rate relating to the Revolving
Commitments immediately prior to the effectiveness of the Extension by more than 0.25%, the
Applicable Rate and Commitment Fee Rate, as applicable, relating to the Revolving Commitments shall
be adjusted to be equal to the interest rate margins (which, for such purposes only, shall be
deemed to include all upfront or similar fees or original issue discount payable to all Lenders
providing such Extended Revolving Commitments and any LIBO or ABR floor applicable to such Extended
Revolving Commitments) relating to such Extended Revolving Commitments minus 0.25% and the
Applicable Rate relating to any Incremental Revolving Commitments (if any) and any Extended
Revolving Commitments which were extended pursuant to one or more prior Extensions (if any) shall
be adjusted so that the difference between the Applicable Rate relating to the Revolving
Commitments (after giving effect to the foregoing adjustment) and the Applicable Rate relating such
Incremental Revolving Commitments and prior Extended Revolving Commitments remains the same as
immediately prior to the Extension.



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     (b) With respect to all Extensions consummated by the Borrower pursuant to this Section, (i)
such Extensions shall not constitute voluntary or mandatory payments or prepayments for purposes of
Section 2.11 and (ii) no Extension Offer is required to be in any minimum amount or any minimum
increment, provided that (x) the Borrower may at its election specify as a condition (a
“Minimum Extension Condition”) to consummating any such Extension that a minimum amount (to
be determined and specified in the relevant Extension Offer in the Borrower’s sole discretion and
may be waived by the Borrower) of Term Loans or Revolving Commitments (as applicable) of any or all
applicable tranches be tendered and (y) no tranche of Extended Term Loans shall be in an amount of
less than $100,000,000 (the “Minimum Tranche Amount”), unless such Minimum Tranche Amount
is waived by the Administrative Agent. The Administrative Agent and the Lenders hereby consent to
the transactions contemplated by this Section (including, for the avoidance of doubt, payment of
any interest, fees or premium in respect of any Extended Term Loans and/or Extended Revolving
Commitments on the such terms as may be set forth in the relevant Extension Offer) and hereby waive
the requirements of any provision of this Agreement (including, without limitation, Sections 2.11
and 2.18) or any other Loan Document that may otherwise prohibit any such Extension or any other
transaction contemplated by this Section.



     (c) No consent of any Lender or the Administrative Agent shall be required to effectuate any
Extension, other than (A) the consent of each Lender agreeing to such Extension with respect to one
or more of its Term Loans and/or Revolving Commitments (or a portion thereof) and (B) with respect
to any Extension of the Revolving Commitments, the consent of the Issuing Bank, which consent shall
not be unreasonably withheld or delayed. All Extended Term Loans, Extended Revolving Commitments
and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan
Documents that are secured by the Collateral on a pari passu basis with all other applicable
Obligations under this Agreement and the other Loan Documents. The Lenders hereby irrevocably
authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan
Documents with the Borrower as may be necessary in order to establish new tranches or sub-tranches
in respect of Revolving Commitments or Term Loans so extended and such technical amendments as may
be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower
in connection with the establishment of such new tranches or sub-tranches, in each case on terms
consistent with this Section. Without limiting the foregoing, in connection with any Extensions
the respective Loan Parties shall (at their expense) amend (and the Administrative Agent is hereby
directed to amend) any Mortgage that has a maturity date prior to the then latest maturity date so
that such maturity date is extended to the then latest maturity date (or such later date as may be
advised by local counsel to the Administrative Agent).



     (d) In connection with any Extension, the Borrower shall provide the Administrative Agent at
least 5 Business Days’ (or such shorter period as may be agreed by the Administrative Agent) prior
written notice thereof, and shall agree to such procedures (including, without limitation,
regarding timing, rounding and other adjustments and to ensure reasonable administrative management
of the credit facilities hereunder after such Extension), if any, as may be established by, or
acceptable to, the Administrative Agent, in each case acting reasonably to accomplish the purposes
of this Section.



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ARTICLE III




Representations and Warranties



     The Borrower represents and warrants to the Lenders that:



     SECTION 3.01 Organization; Powers. Each Loan Party is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its organization, has all
requisite power and authority to carry on its business as now conducted and as proposed to be
conducted, to execute, deliver and perform its obligations under each Loan Document to which it is
a party and to effect the Transactions and, except where the failure to do so, individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse Effect, is
qualified to do business in, and is in good standing in, every jurisdiction where such
qualification is required.



     SECTION 3.02 Authorization; Enforceability. The Transactions to be entered into by
each Loan Party have been duly authorized by all necessary corporate or other action and, if
required, action by the holders of such Loan Party’s Equity Interests. This Agreement has been duly
executed and delivered by each of Holdings and the Borrower and constitutes, and each other Loan
Document to which any Loan Party is to be a party, when executed and delivered by such Loan Party,
will constitute, a legal, valid and binding obligation of Holdings, the Borrower or such Loan Party
(as the case may be), enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and
subject to general principles of equity, regardless of whether considered in a proceeding in equity
or at law.



     SECTION 3.03 Governmental Approvals; No Conflicts. The Transactions (a) do not
require any material consent or approval of, registration or filing with, or any other action by,
any Governmental Authority, except such as have been obtained or made and are in full force and
effect and except filings necessary to perfect Liens created under the Loan Documents, (b) will not
violate the Organizational Documents of Holdings, the Borrower or any Restricted Subsidiary, (c)
will not violate any Requirement of Law applicable to Holdings, the Borrower or any Subsidiary, (d)
will not violate or result in a default under any indenture, agreement or other instrument
(including all Franchise Agreements) binding upon Holdings, the Borrower or any Subsidiary or their
respective assets, or give rise to a right thereunder to require any payment to be made by
Holdings, the Borrower or any Subsidiary or give rise to a right of, or result in, termination,
cancelation or acceleration of any obligation thereunder, and (e) will not result in the creation
or imposition of any Lien on any asset of Holdings, the Borrower or any Restricted Subsidiary
(except Liens created under the Loan Documents), except, in the cases of clauses (c) and (d), for
any such violations or defaults that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.



     SECTION 3.04 Financial Condition; No Material Adverse Change. (a) Holdings has
heretofore furnished to the Lenders its consolidated balance sheet and consolidated statements of
operations, stockholders’ equity and cash flows as of and for each of the fiscal years ended June
30, 2008, June 30, 2009 and June 30, 2010, reported on by KPMG LLP, independent public accountants
certified by its chief financial officer. Except as otherwise expressly noted therein,



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such financial statements present fairly, in all material respects, the financial position and
results of operations and cash flows of Holdings, the Borrower and the Restricted Subsidiaries as
of such dates and for such periods in accordance with GAAP consistently applied.




     (b) Holdings has heretofore furnished to the Lenders its pro forma consolidated balance sheet
as of June 30, 2010 (the “Pro Forma Balance Sheet”), prepared giving effect to the
Transactions as if the Transactions had occurred on such date. The Pro Forma Balance Sheet (i) has
been prepared in good faith based on the same assumptions used to prepare the pro forma financial
statements included in the Information Memorandum (which assumptions are believed by Holdings to be
reasonable), (ii) is based on information available to Holdings after due inquiry, (iii) accurately
reflects all adjustments necessary to give effect to the Transactions and (iv) presents fairly, in
all material respects, the pro forma financial position of Holdings and the Restricted Subsidiaries
as of June 30, 2010, as if the Transactions had occurred on such date.



     (c) Except as disclosed in the financial statements referred to above or the notes thereto or
in the Information Memorandum and except for the Disclosed Matters, after giving effect to the
Transactions, none of Holdings, the Borrower or the Subsidiaries has, as of the Effective Date, any
material contingent liabilities, unusual long-term commitments or unrealized losses, in each case
outside the ordinary course of business.



     (d) No event, change or condition has occurred that has had, or could reasonably be expected
to have, a material adverse effect on the business, operations or financial condition of Holdings,
the Borrower and the Restricted Subsidiaries, taken as a whole, since June 30, 2010.



     SECTION 3.05 Properties. (a) Each of the Borrower and the Restricted Subsidiaries
has good title to, or valid leasehold interests in, all its real and personal property material to
its business, except for defects in title that do not materially interfere with its ability to
conduct its business as currently conducted or as proposed to be conducted.



     (b) Each of the Borrower and the Restricted Subsidiaries owns, or is licensed or otherwise has
the right to use, all trademarks, tradenames, copyrights, patents and other intellectual property
in the United States of America that is material to and necessary to conduct its business as
currently conducted in the United States of America, and the use thereof by the Borrower and the
Restricted Subsidiaries does not infringe the intellectual property rights of any other Person,
except for any such infringements that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.



     SECTION 3.06 Litigation and Environmental Matters. (a) There are no actions, suits
or proceedings or, to the knowledge of the Borrower, investigations, by or before any arbitrator or
Governmental Authority pending against or, to the knowledge of the Borrower or any Subsidiary,
threatened against or affecting Holdings, the Borrower or any Subsidiary (i) that could reasonably
be expected, individually or in the aggregate, to result in a Material Adverse Effect (other than
the Disclosed Matters) or (ii) that (x) on the Effective Date, involve any of the Loan Documents or
the Transactions or (y) on the date of any credit event after the Effective Date, could affect the
legality, validity or enforceability of any of the Loan Documents.



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     (b) Except for the Disclosed Matters and except with respect to any other matters that,
individually or in the aggregate, could not reasonably be expected to result in a Material Adverse
Effect, neither Holdings, the Borrower nor any Subsidiary (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) has become subject to any Environmental Liability, (iii)
has received notice of any claim with respect to any Environmental Liability or (iv) knows of any
basis for any Environmental Liability.



     (c) Since the date of this Agreement, there has been no change in the status of the Disclosed
Matters that, individually or in the aggregate, has resulted in, or could reasonably be expected to
result in, a Material Adverse Effect.



     SECTION 3.07 Compliance with Laws. (a) Each of Holdings, the Borrower and the Restricted
Subsidiaries is in compliance with its Organizational Documents and (b) each of Holdings, the
Borrower and the Subsidiaries is in compliance with all Requirements of Law applicable to it or its
property, except, in the case of clause (b) of this Section, where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in a Material Adverse
Effect.



     SECTION 3.08 Investment Company Status. None of Holdings, the Borrower or any
Restricted Subsidiary is required to register as an “investment company” as defined in, or subject
to regulation under, the Investment Company Act of 1940.



     SECTION 3.09 Taxes. Each of Holdings, the Borrower and the Subsidiaries (a) has
timely filed or caused to be filed all Tax returns and reports required to have been filed, except
to the extent that failure to do so could not reasonably be expected to result in a Material
Adverse Effect, and (b) has paid or caused to be paid all Taxes required to have been paid by it,
except to the extent that the failure to do so would not reasonably be expected to result in a
Material Adverse Effect.



     SECTION 3.10 ERISA. No ERISA Event has occurred or is reasonably expected to occur
that, when taken together with all other such ERISA Events for which liability is reasonably
expected to occur, could reasonably be expected to result in a Material Adverse Effect.



     SECTION 3.11 Disclosure. Neither the Information Memorandum nor any of the other
reports, financial statements, certificates or other information furnished by or on behalf of any
Loan Party and made available by current management to the Administrative Agent or any Lender in
connection with the negotiation of any Loan Document or delivered thereunder (as modified or
supplemented by other information so furnished), when taken as a whole, contains any material
misstatement of fact or omits to state any material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading as of the date made,
provided that, with respect to projected financial information, the Borrower represents
only that such information was prepared in good faith based upon assumptions believed by it to be
reasonable at the time delivered and, if such projected financial information was delivered (a) on
or prior to the Effective Date or as of the Effective Date (it being understood that such forecasts
and projections are subject to significant uncertainties and



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contingencies, many of which are beyond the Borrower’s control, that no assurance can be given
that forecasts or projections will be realized, and that actual results may differ from projections
and such difference may be material).




     SECTION 3.12 Subsidiaries. Holdings does not have any subsidiaries other than the
Borrower and the Subsidiaries. Schedule 3.12 sets forth the name of, and the ownership interest of
the Borrower and each Subsidiary in, each Subsidiary and identifies each Subsidiary that is a
Subsidiary Loan Party, in each case as of the Effective Date.



     SECTION 3.13 Labor Matters. Except as, in the aggregate, would not reasonably be
expected to have a Material Adverse Effect, (a) as of the Effective Date, there are no strikes or
lockouts or any other material labor disputes against Holdings, the Borrower or any Subsidiary
pending or, to the knowledge of Holdings, the Borrower or any Subsidiary, threatened, (b) there is
no organizing activity involving Holdings, the Borrower or any Subsidiary pending or, to the
knowledge of Holdings, the Borrower or any Subsidiary, threatened by any labor union or group of
employees, (c) there are no representation proceedings pending or, to the knowledge of Holdings,
the Borrower or any Subsidiary, threatened with the National Mediation Board, and no labor
organization or group of employees of Holdings, the Borrower or any Subsidiary has made a pending
demand for recognition, (d) there are no material complaints or charges against Holdings, the
Borrower or any Subsidiary pending or, to the knowledge of Holdings, the Borrower or any
Subsidiary, threatened to be filed with any Governmental Authority or arbitrator based on, arising
out of, in connection with, or otherwise relating to the employment or termination of employment by
Holdings, the Borrower or any Subsidiary of any individual and (e) the consummation of the
Transactions will not give rise to any right of termination or right of renegotiation on the part
of any union under any collective bargaining agreement to which Holdings, the Borrower or any
Subsidiary is bound.



     SECTION 3.14 Solvency. On the Effective Date after giving effect to the
Transactions, Holdings, the Borrower and the Subsidiaries on a consolidated basis, are Solvent.



     SECTION 3.15 Federal Reserve Regulations. (a) No Loan Party is engaged
principally, or as one of its important activities, in the business of extending credit for the
purposes of buying or carrying Margin Stock (as defined under Regulation U).



     (b) No part of the proceeds of any Loan, and no Letter of Credit, will be used, whether
directly or indirectly for any purpose that entails a violation of the provisions of the
Regulations of the Board, including Regulation U or X.



     SECTION 3.16 Use of Proceeds. The proceeds of the Tranche B Term Loans and Tranche
B Euro Term Loans shall be used to finance a portion of the Acquisition, including the refinancing
of certain existing indebtedness of the Target and to pay the Transaction Costs. The proceeds of
the Revolving Loans shall be used to finance a portion of the Transaction and finance working
capital needs and general corporate purposes of the Borrower and its Subsidiaries.



     SECTION 3.17 Regulation H. No Mortgage encumbers improved real property that is
located in an area that has been identified by the Secretary of Housing and Urban Development



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as an area having special flood hazards and in which flood insurance has been made available
under the National Flood Insurance Act of 1968, unless flood insurance has been obtained thereafter
and is in effect.




     SECTION 3.18 Security Documents. (a) The Collateral Agreement is effective to
create in favor of the Administrative Agent, for the benefit of the Lenders, a legal, valid and
enforceable security interest in the Collateral described therein and proceeds thereof, except as
such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other laws affecting creditors’ rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law. In the case of the Pledged
Stock described in the Collateral Agreement, when stock certificates representing such Pledged
Stock are delivered to the Administrative Agent (together with a properly completed and signed
stock power or endorsement) (which delivery shall be made to the Administrative Agent to the extent
delivery is required by the Collateral Agreement), and in the case of the other Collateral
described in the Collateral Agreement, when financing statements and other filings specified on
Schedule 3.18(a) in appropriate form are filed in the offices specified on Schedule 3.18(a), the
Collateral Agreement will constitute a fully perfected Lien on, and security interest in (to the
extent intended to be created thereby and to the extent such perfection is governed by the laws of
the United States, any state thereof or the District of Columbia), all right, title and interest of
the Loan Parties in such Collateral and the proceeds thereof, as security for the Obligations, in
each case prior and superior in right to any other Person (except, in the case of Collateral other
than Pledged Stock, Liens permitted by this Agreement). In the case of Collateral consisting of
Intellectual Property described in the Collateral Agreement, when filings are made as described
above and in the United States Patent and Trademark Office and the United States Copyright Office,
the Collateral Agreement will constitute a valid perfected Lien on, and security interest in, all
right, title and interest of the Loan Parties in such Collateral and the proceeds thereof, as
security for the Obligations, in each case prior and superior in right to any other Person (except
Liens permitted by this Agreement).



     (b) When executed and delivered, each Foreign Pledge Agreement will be effective to create in
favor of the Administrative Agent, for the benefit of the Lenders, a legal, valid and enforceable
security interest in the Collateral described therein and proceeds thereof, except as such
enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other laws affecting creditors’ rights generally. In the case of Collateral described therein
constituting certificated securities, when such certificated securities are delivered to the
Administrative Agent (which delivery shall be made to the Administrative Agent to the extent
delivery is required by such Foreign Pledge Agreement) and the other actions, if any, specified in
such Foreign Pledge Agreements are taken, such Foreign Pledge Agreement shall constitute a fully
perfected Lien on, and security interest in, all right, title and interest of the Loan Parties in
such Collateral and the proceeds thereof, as security for the Obligations, in each case prior and
superior in right to any other Person (except Liens permitted by Section 6.02).



     (c) Upon recording thereof in the appropriate recording office, each of the Mortgages (if any)
is effective to create in favor of the Administrative Agent, for the benefit of the Lenders, a
legal, valid and enforceable Lien on the mortgaged properties described therein and proceeds
thereof, except as such enforceability may be limited by applicable bankruptcy, insolvency,



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reorganization, moratorium or other laws affecting creditors’ rights generally and subject to
general principles of equity, regardless of whether considered in a proceeding in equity or at law.




     SECTION 3.19 Senior Indebtedness. The Obligations constitute “Senior Indebtedness”
(or similar definition) of the Borrower under its Subordinated Debt Documents (if any).



     SECTION 3.20 Certain Documents. As of the Effective Date, the Borrower has
delivered to the Administrative Agent a complete and correct copy of the Merger Agreement and the
Senior Note Documents, including any amendments, supplements or modifications with respect to any
of the foregoing as in effect on the Effective Date.



ARTICLE IV




Conditions



     SECTION 4.01 Conditions to Initial Extension of Credit. The agreement of each
Lender to make the initial extension of credit request to be made by it on the Effective Date is
subject to the satisfaction, prior or concurrently with the making of such extension of credit on
the Effective Date, of the following conditions precedent:



     (a) Credit Agreement; Collateral Agreement. The Administrative Agent shall have
received (i) this Agreement, executed and delivered by the Administrative Agent, the Initial
Borrower, the Borrower and each Person listed on Schedule 2.01 and (ii) the Collateral Agreement,
executed and delivered by Holdings, the Initial Borrower, the Borrower and each Subsidiary Loan
Party.



     (b) Acquisition, etc. The following transactions shall have been consummated
substantially concurrently with the initial extension of credit hereunder:




     (i) the Merger shall have been consummated pursuant to the Purchase Agreement and no
provision thereof shall have been amended or waived, and no consent shall have been given or
request shall have been made by Holdings or Borrower resulting in an action taken by Target
or its subsidiaries thereunder, in any manner materially adverse to the interests of the
Lead Arrangers or the Lenders without the prior written consent of the Lead Arrangers (it
being understood that any amendment to the definition of “Material Adverse Effect” is
material and adverse to the interests of the Lead Arrangers and the Lenders) (not to be
unreasonably withheld or delayed);




     (ii) the Borrower shall have received cash proceeds of common or preferred equity
issued by Holdings, directly or indirectly, to the Sponsor (provided that the
contribution thereof to the Initial Borrower, in the case of any such preferred equity,
shall be on terms and conditions and pursuant to documentation reasonably satisfactory to
the Lead Arrangers) in an amount equal to at least 30% of the total capitalization of
Holdings and the Initial Borrower;




     (iii) the Borrower shall have received at least $900,000,000 in gross cash proceeds
from the issuance of the Senior Notes (or such lesser amount determined by the Borrower to
be necessary to consummate the Transactions); and



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     (iv) after giving effect to the Transactions, neither the Borrower nor any of its
Subsidiaries shall have any material Indebtedness for borrowed money other than Indebtedness
created under the Loan Documents, the Senior Notes and other Indebtedness expressly
contemplated by the Purchase Agreement.



     (c) Pro Forma Balance Sheet; Financial Statements. The Lenders shall have received
(i) the Pro Forma Balance Sheet and a related pro forma consolidated statement of income as of the
twelve-month period ended on June 30, 2010 and (ii) audited consolidated balance sheets and related
statements of income, stockholders’ equity and cash flows of the Target and its Subsidiaries for
the 2010, 2009 and 2008 fiscal years.



     (d) Closing Date Leverage Ratio. The Administrative Agent shall have received a
certificate substantially in the form of Exhibit G, certifying that the Closing Date Leverage Ratio
determined on a pro forma basis after giving effect to the Transactions on the Effective Date and
the use of proceeds thereof shall not exceed 6.20 to 1.0.



     (e) Lien Searches. The Administrative Agent shall have received the results of a
recent lien search in each of the jurisdictions where the Loan Parties are organized, and such
search shall reveal no Liens on any of the assets of the Loan Parties except for Liens (i)
permitted by Section 6.02 or (ii) discharged (or for which effective provision for discharge has
been made) on or prior to the Effective Date pursuant to documentation reasonably satisfactory to
the Administrative Agent.



     (f) Fees. The Lenders, the Administrative Agent and the Lead Arrangers shall have
received all fees required to be paid, and all expenses required to be paid for which invoices have
been presented prior to the Effective Date. All such amounts will be paid with proceeds of Loans
made on the Effective Date and will be reflected in the funding instructions given by the Borrower
to the Administrative Agent on or before the Effective Date.



     (g) Closing Certificate; Certified Certificate of Incorporation; Good Standing
Certificates. The Administrative Agent shall have received (i) a certificate of each Loan
Party, dated the Effective Date, substantially in the form of Exhibit F, with appropriate
insertions and attachments including the certificate of incorporation or similar document of each
Loan Party that is a corporation certified by the relevant authority of the jurisdiction of
organization of such Loan Party, (ii) a long form good standing certificate for each Loan Party
from its jurisdiction of organization and (iii) such “bring-down” good standing certificates dated
the Effective Date or the Business Day immediately preceding the Effective Date as the
Administrative Agent shall reasonably require.



     (h) Legal Opinions. The Administrative Agent shall have received the following
executed legal opinions:




     (i) the legal opinion of Lisa Giles-Klein, associate general counsel of the Borrower,
substantially in the form of Exhibit B;




     (ii) the legal opinion of Kirkland & Ellis LLP, special counsel to the Loan Parties,
substantially in the form of Exhibit B-2; and



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     (iii) the legal opinion of local counsel in each of Florida, Gibraltar, the United
Kingdom, Canada and Mexico, in each case in form and substance reasonably satisfactory to
the Administrative Agent.



     (i) Pledged Stock; Stock Powers. The Administrative Agent shall have received, except
to the extent in the possession of the Administrative Agent, the certificates representing the
shares of Capital Stock pledged pursuant to the Collateral Agreement, except to the extent such
Capital Stock is permitted to be uncertificated pursuant to applicable law or charter, together
with an undated stock power for each such certificate executed in blank by a duly authorized
officer of the pledgor thereof.



     (j) Filings, Registrations and Recordings. The Administrative Agent shall have
received each Uniform Commercial Code financing statement required by the Security Documents or
under law or reasonably requested by the Administrative Agent to be filed in order to create in
favor of the Administrative Agent, for the benefit of the Lenders, a perfected Lien on the
Collateral described therein in proper form for filing.



     (k) Solvency Certificate. The Administrative Agent shall have received a solvency
certificate of the chief financial officer or chief executive officer of the Borrower substantially
in the form of Exhibit H, certifying the solvency of Holdings, the Borrower and the Subsidiaries,
on a consolidated basis, after giving effect to the Transactions contemplated hereby.



     (l) USA Patriot Act. The Administrative Agent shall have received at least five days
prior to the Effective Date all documentation and other information as is reasonably requested in
writing by the Administrative Agent about the Borrower and the Subsidiaries and required by
regulatory authorities under applicable “know your customer” and anti-money laundering rules and
regulations, including the PATRIOT Act.



     (m) Accuracy of Merger Agreement Representations and Specified Representations. The
representations made by Holdings in the Merger Agreement as are material to the interests of the
Lenders, but only to the extent that the Initial Borrower has the right to terminate its
obligations under the Merger Agreement as a result of a breach of such representations in the
Merger Agreement (the “Merger Agreement Representations”) and the representations and
warranties set forth in Sections 3.01, 3.02, 3.03(b), 3.08, 3.14, 3.15, 3.16, 3.18 and 3.19 of this
Agreement (collectively, the “Specified Representations”), shall be true and correct in all
material respects (except that any representation and warranty that is qualified or subject to
“Material Adverse Effect” shall be true and correct in all respects) on and as of the Effective
Date with the same effect as though made on and as of such date, except to the extent such
representations and warranties expressly relate to an earlier date, in which case such
representations and warranties shall be true and correct in all material respects as of such
earlier date (it being understood and agreed that, to the extent any of the Specified
Representations are qualified or subject to “Material Adverse Effect” (or an equivalent term), for
purposes of the making of such Specified Representations as of the Effective Date (or a date prior
thereto), the definition of “Material Adverse Effect” (or such equivalent terms) shall be “Closing
Date Material Adverse Effect”).



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     (n) No Change. Since June 30, 2010, there has not been a Closing Date Material
Adverse Effect.



     SECTION 4.02 Each Credit Event. The obligation of each Lender to make a Loan on the
occasion of any Borrowing, and of any Issuing Bank to issue, amend, renew or extend any Letter of
Credit, in each case, other than any extension of credit on the Effective Date, is subject to
receipt of the request therefor in accordance herewith and to the satisfaction of the following
conditions:



     (a) The representations and warranties of each Loan Party set forth in the Loan Documents that
are qualified by materiality shall be true and correct, and the representations and warranties that
are not so qualified shall be true and correct in all material respects, in each case on and as of
the date of such Borrowing or the date of issuance, amendment, renewal or extension of such Letter
of Credit, as the case may be (other than with respect to any representation and warranty that
expressly relates to an earlier date, in which case such representation and warranty shall be true
and correct, or true and correct in all material respects, as the case may be, as of such earlier
date).



     (b) At the time of and immediately after giving effect to such Borrowing or the issuance,
amendment, renewal or extension of such Letter of Credit, as the case may be, no Default shall have
occurred and be continuing.



     Each Borrowing (provided that a conversion or a continuation of a Borrowing shall not
constitute a “Borrowing” for purposes of this Section) and each issuance, amendment, renewal or
extension of a Letter of Credit shall be deemed to constitute a representation and warranty by
Holdings and the Borrower on the date thereof as to the matters specified in paragraphs (a) and (b)
of this Section.



ARTICLE V




Affirmative Covenants



     Until the Commitments have expired or been terminated and the principal of and interest on
each Loan and all fees, expenses and other amounts (other than contingent amounts not yet due)
payable under any Loan Document shall have been paid in full and all Letters of Credit shall have
expired or been terminated (or, with respect to outstanding Letters of Credit, shall have been
fully cash collateralized or backed by standby letters of credit reasonably acceptable to the
applicable Issuing Bank) and all LC Disbursements shall have been reimbursed, the Borrower
covenants and agrees with the Lenders that:



     SECTION 5.01 Financial Statements and Other Information. The Borrower will furnish
to the Administrative Agent on behalf of each Lender:



     (a) within 105 days after the end of each fiscal year of the Borrower, the Borrower’s
consolidated balance sheet and related consolidated statements of operations, stockholders’ equity
and cash flows as of the end of and for such year, and related notes thereto, setting forth in each
case in comparative form the figures for the previous fiscal year, all reported on by KPMG



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LLP or other independent public accountants of recognized national standing (without a “going
concern” or like qualification or exception and without any qualification or exception as to the
scope of such audit other than any “going concern” or like qualification or exception with respect
to the regularly scheduled maturity of the Revolving Commitments) to the effect that such
consolidated financial statements present fairly in all material respects the financial condition
and results of operations of the Borrower and the Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied;




     (b) within 60 days (or, for the fiscal quarter ending December 31, 2010, 90 days) after the
end of each of the first three fiscal quarters of each fiscal year of the Borrower (or if any
fiscal year contains less than four quarters, each of the quarters other than the quarter ending on
the date corresponding to the end of such fiscal year), the Borrower’s consolidated balance sheet
and related consolidated statements of operations, stockholders’ equity and cash flows as of the
end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth
in each case in comparative form the figures for the corresponding period or periods, if any, of
(or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by
a Financial Officer as presenting fairly in all material respects the financial condition and
results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance
with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of
footnotes;



     (c) within five Business Days of delivery of financial statements under paragraph (a) or (b)
above, a certificate of a Financial Officer substantially in the form of Exhibit E (i) certifying
as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof
and any action taken or proposed to be taken with respect thereto and (ii) setting forth reasonably
detailed calculations (A) demonstrating compliance with the covenants contained in Sections 6.12
and 6.13 and (B) in the case of financial statements delivered under paragraph (a) above, beginning
with the financial statements for the first fiscal year of the Borrower ending on or after June 30,
2011, of Excess Cash Flow;



     (d) within five Business Days of delivery of financial statements under paragraph (a) above, a
certificate of the accounting firm that reported on such financial statements stating whether they
obtained knowledge during the course of their examination of such financial statements of any
Default under Section 6.12 or 6.13 and, if such knowledge has been obtained, describing such
Default (which certificate may be limited to the extent required by accounting rules or
guidelines);



     (e) if, as a result of any change in GAAP or in the application thereof from those in effect
on the Effective Date, the financial statements delivered pursuant to clause (a) or (b) above will
differ in any material respect from the financial statements that would have been delivered
pursuant to such clauses had no such change in GAAP or the application thereof been made, then,
together with the first delivery of financial statements pursuant to paragraph (a) or (b) above
following such change, a schedule prepared by a Financial Officer on behalf of the Borrower or the
relevant reporting entity reconciling such changes to what the financial statements would have been
without giving effect to such change;




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     (f) together with each set of consolidated financial statements referred to in
Sections 5.01(a) and 5.01(b) above, the related consolidating financial statements reflecting the
adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) (which may be
in footnote form only) from such consolidated financial statements.



     (g) no later than 45 days after the commencement of each fiscal year of the Borrower, a
detailed quarterly consolidated budget for such fiscal year (including a projected consolidated
balance sheet and consolidated statements of projected operations, income and cash flows as of the
end of and for each fiscal quarter of such fiscal year and setting forth the assumptions used for
purposes of preparing such budget);



     (h) promptly after the same become publicly available, copies of all annual, regular,
special and periodic reports, proxy statements and registration statements (other than exhibits
thereto and any registration statements on Form S-8 or its equivalent) filed by Holdings, the
Borrower or any Subsidiary with the SEC or with any national securities exchange or, after an IPO,
distributed by Holdings or the Borrower to the holders of its Equity Interests generally, as the
case may be;



     (i) upon the request of the Administrative Agent, copies of any documents described in
Sections 101(k) or 101(l) of ERISA that Borrower or any ERISA Affiliate or Subsidiary may request
with respect to any Multiemployer Plan; provided, that if the Borrower or any of its ERISA
Affiliates or Subsidiaries have not requested such documents or notices from the administrator or
sponsor of the applicable Multiemployer Plan, then, upon reasonable written request of the
Administrative Agent, the Borrower and/or its ERISA Affiliates or Subsidiaries shall promptly make
a request for such documents or notices from such administrator or sponsor and the Borrower shall
provide copies of such documents and notices to the Administrative Agent promptly after receipt
thereof; and



     (j) promptly following any request therefor, such other information regarding the
operations, business affairs and financial condition of Holdings, the Borrower or any Subsidiary,
or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may
reasonably request.



          Notwithstanding the foregoing, the obligations in paragraphs (a) and (b) of this Section may
be satisfied with respect to financial information of the Borrower by furnishing (A) the applicable
financial statements of any direct or indirect parent of the Borrower that holds all of the Equity
Interests of the Borrower or (B) the Borrower’s (or any direct or indirect parent thereof), as
applicable, Form 10-K or 10-Q, as applicable, filed with the SEC; provided that, with
respect to each of clauses (A) and (B), (i) to the extent such information relates to a parent of
the Borrower, such information is accompanied by consolidating information that explains in
reasonable detail the differences between the information relating to the Borrower (or such
parent), on the one hand, and the information relating to the Borrower and the Restricted
Subsidiaries on a standalone basis, on the other hand and (ii) to the extent such information is in
lieu of information required to be provided under Section 5.01(a), such materials are reported on
by KPMG LLP or other independent public accountants of recognized national standing (without a
“going concern” or like qualification or exception and without any qualification or exception as to
the scope of such audit other than any “going concern” or like qualification or exception with



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respect to the regularly scheduled maturity of the Revolving Commitments) to the effect that
such consolidated financial statements present fairly in all material respects the financial
condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied.




     SECTION 5.02 Notices of Material Events. The Borrower will furnish to the
Administrative Agent (for distribution to each Lender through the Administrative Agent) prompt
written notice of the following:



     (a) the occurrence of any Default;



     (b) the filing or commencement of any action, suit or proceeding by or before any
arbitrator or Governmental Authority against or, to the knowledge of Financial Officer or another
executive officer of the Borrower or any Subsidiary, affecting the Borrower or any Affiliate
thereof that could reasonably be expected to result in a Material Adverse Effect;



     (c) the occurrence of any ERISA Event or any fact or circumstance that gives rise to a
reasonable expectation that any ERISA Event will occur that, in either case, alone or together with
any other ERISA Events that have occurred or are reasonably expected to occur, could reasonably be
expected to result in liability of the Borrower and the Subsidiaries in an aggregate amount
exceeding $20,000,000; and



     (d) any other development (including notice of any Environmental Liability) that results
in, or could reasonably be expected to result in, a Material Adverse Effect.



     Each notice delivered under this Section shall be accompanied by a written statement of a
Financial Officer or other executive officer of the Borrower setting forth the details of the event
or development requiring such notice and any action taken or proposed to be taken with respect
thereto.



     SECTION 5.03 Information Regarding Collateral. (a) The Borrower will furnish to
the Administrative Agent prompt written notice of any change (i) in any Loan Party’s corporate
name, (ii) in the jurisdiction of incorporation or organization of any Loan Party or (iii) in any
Loan Party’s organizational identification number. The Borrower agrees not to effect or permit any
change referred to in the preceding sentence unless all filings have been made or will be made
substantially contemporaneously with such change under the Uniform Commercial Code or otherwise
that are required in order for the Administrative Agent to continue at all times following such
change to have a valid, legal and perfected security interest in all the Collateral.



     (b) At the time of delivery of financial statements pursuant to Section 5.01(a), the
Borrower shall deliver to the Administrative Agent a certificate executed by a Financial Officer or
chief legal officer of the Borrower (i) setting forth the information required pursuant to Sections
1 and 4 of the Perfection Certificate or confirming that there has been no change in such
information since the date of the Perfection Certificate delivered on the Effective Date or the
date of the most recent certificate delivered pursuant to this Section and (ii) certifying that all
Uniform Commercial Code financing statements containing a description of the Collateral have



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been filed of record in each governmental, municipal or other appropriate office in each
jurisdiction identified pursuant to clause (i) above to the extent necessary to protect and perfect
the security interests under the Collateral Agreement for a period of not less than 18 months after
the date of such certificate (except as noted therein with respect to any continuation statements
to be filed within such period).




     SECTION 5.04 Existence; Conduct of Business. The Borrower will, and will cause each
Restricted Subsidiary to, if and to the extent the Borrower shall reasonably deem appropriate under
the circumstances in its reasonable business judgment, do or cause to be done all things reasonably
necessary to obtain, preserve, renew and keep in full force and effect its legal existence and the
rights, licenses, permits, privileges and franchises, and the patents, copyrights, trademarks and
trade names owned by the Borrower and the Restricted Subsidiaries in the United States of America,
that, in each case, is necessary for the conduct of its business taken as a whole, provided
that the foregoing shall not prohibit any merger, consolidation, liquidation or dissolution
permitted under Section 6.03.



     SECTION 5.05 Payment of Taxes. The Borrower will, and will cause each Restricted
Subsidiary to, pay its Tax liabilities, before the same shall become delinquent or in default,
except where the validity or amount thereof is being contested in good faith by appropriate
proceedings or other appropriate actions and the failure to make payment pending such contest or
action could not reasonably be expected to result in a Material Adverse Effect.



     SECTION 5.06 Maintenance of Properties. The Borrower will, and will cause each
Restricted Subsidiary to, keep and maintain all property in good working order and condition,
ordinary wear and tear excepted, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse Effect.



     SECTION 5.07 Insurance. The Borrower will, and will cause each Restricted
Subsidiary to, maintain, with financially sound and reputable insurance companies, (a) insurance in
such amounts (with no greater risk retention and giving effect to self-insurance) and against such
risks as is (i) customarily maintained by companies of established repute engaged in the same or
similar businesses operating in the same or similar locations and (ii) considered adequate by
Holdings and the Borrower and (b) all insurance as may be required by law. The Borrower will
furnish to the Lenders, upon request of the Administrative Agent, information in reasonable detail
as to the insurance so maintained.



     SECTION 5.08 Books and Records; Inspection and Audit Rights. The Borrower will, and
will cause each Restricted Subsidiary to, keep proper books of record and account in which full,
true and correct entries are made of all material dealings and transactions in relation to its
business and activities. The Borrower will, and will cause each Restricted Subsidiary to, permit
any representatives designated by the Administrative Agent or any Lender, upon reasonable prior
notice, to visit and inspect its properties, to examine and make extracts from its books and
records, and to discuss its affairs, finances and condition with its officers and independent
accountants, all at such reasonable times during normal business hours and as often as reasonably
requested, provided that visits by the Lenders shall be coordinated with the Administrative
Agent and, so long as no Event of Default has occurred and is continuing, shall not occur more than
twice in any fiscal year of the Borrower.



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     SECTION 5.09 Compliance with Laws. The Borrower will, and will cause each
Restricted Subsidiary to, comply with all material Requirements of Law with respect to it or its
property, except when the failure to do so, individually or in the aggregate, could not reasonably
be expected to have a Material Adverse Effect.



     SECTION 5.10 Environmental Laws. The Borrower will, and will cause each Subsidiary
Loan Party to comply in all material respects with all applicable Environmental Laws, and obtain
and comply in all material respects with and maintain any and all licenses, approvals,
notifications, registrations or permits required by applicable Environmental Laws. This clause
shall be deemed not breached by a noncompliance with the foregoing if such noncompliance in the
aggregate with any other noncompliance with any of the foregoing could not reasonably be expected
to have a Material Adverse Effect.



     SECTION 5.11 [Reserved].



     SECTION 5.12 Additional Subsidiaries. If (a) any additional Restricted Subsidiary
that is required to become a Subsidiary Loan Party hereunder and/or the Equity Interests of which
are required to be pledged pursuant to the Collateral and Guarantee Requirement is formed or
acquired after the Effective Date, (b) any Unrestricted Subsidiary is converted into a Restricted
Subsidiary after the Effective Date or (c) as of the end of any fiscal quarter of the Borrower, any
Restricted Subsidiary that was a De Minimis Foreign Subsidiary no longer constitutes a De Minimis
Foreign Subsidiary, then, in each case, the Borrower will, promptly after (i) in the case of clause
(a) or (b) above, the date such Subsidiary is formed or acquired or converted or (ii) in the case
of clause (c) above, the date on which financial statements are required to be delivered pursuant
to Section 5.01(a) or (b) with respect to such fiscal quarter, notify the Administrative Agent
thereof and, promptly after such Subsidiary is formed or acquired or converted, in the case of
Domestic Subsidiaries, and within 60 calendar days after such Subsidiary is formed or acquired or
converted (or, in the case of clause (c) above, within 60 calendar days after the end of such
fiscal quarter), in the case of Foreign Subsidiaries, cause the Collateral and Guarantee
Requirement to be satisfied unless otherwise agreed by the Administrative Agent in its reasonable
judgment) (x) with respect to such Subsidiary if such Subsidiary is required to become a Subsidiary
Loan Party) and (y) with respect to any Equity Interest in such Subsidiary owned by or on behalf of
any Loan Party to the extent required to be pledged pursuant to the Collateral and Guarantee
Requirement.



     SECTION 5.13 Further Assurances. (a) The Borrower will, and will cause each
Subsidiary Loan Party to, execute any and all further documents, financing statements, agreements
and instruments, and take all such further actions (including and subject to the particular
requirements of the Collateral Agreement, the filing and recording of financing statements and
other documents), that may be required under any applicable law, or that the Administrative Agent
or the Required Lenders may reasonably request, to cause the Collateral and Guarantee Requirement
to be and remain satisfied, all at the expense of the Loan Parties. The Borrower also agrees to
provide to the Administrative Agent, from time to time upon request, evidence reasonably
satisfactory to the Administrative Agent as to the perfection and priority of the Liens created or
intended to be created by the Security Documents.



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     (b) If any fee interest in any real property having a value (together with improvements
thereof) of at least $10,000,000 is acquired by any Loan Party after the Effective Date (other than
any such real property subject to a Lien expressly permitted by Section 6.02(a)(v)), promptly (i)
execute and deliver a first priority Mortgage, in favor of the Administrative Agent, for the
benefit of the Lenders, covering such real property, (ii) if requested by the Administrative Agent,
(x) provide the Lenders with title and extended coverage insurance covering such real property in
an amount at least equal to the purchase price of such real property (or such other amount as shall
be reasonably specified by the Administrative Agent) as well as a current ALTA survey thereof,
together with a surveyor’s certificate and (y) use commercially reasonable efforts to obtain
consents or estoppels reasonably deemed necessary or advisable by the Administrative Agent in
connection with such Mortgage, each of the foregoing in form and substance reasonably satisfactory
to the Administrative Agent and (iii) if requested by the Administrative Agent, deliver to the
Administrative Agent legal opinions relating to the matters described above, which opinions shall
be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent.



     SECTION 5.14 Designation of Subsidiaries. The board of directors of the Borrower
may at any time designate any Restricted Subsidiary as an Unrestricted Subsidiary or any
Unrestricted Subsidiary as a Restricted Subsidiary; provided that (i) immediately before
and after such designation, no Default or Event of Default shall have occurred and be continuing,
(ii) immediately after giving effect to such designation, the Borrower and the Restricted
Subsidiaries shall be in compliance, on a Pro Forma Basis, with the covenants set forth in Sections
6.12 and 6.13 (and, as a condition precedent to the effectiveness of any such designation, the
Borrower shall deliver to the Administrative Agent a certificate setting forth in reasonable detail
the calculations demonstrating such compliance), (iii) no Subsidiary may be designated as an
Unrestricted Subsidiary if it is a “Restricted Subsidiary” for the purpose of the Senior Notes (or
any Permitted Refinancing thereof) or any Subordinated Debt, as applicable, and (iv) no Restricted
Subsidiary may be designated as an Unrestricted Subsidiary if it was previously designated an
Unrestricted Subsidiary. The designation of any Subsidiary as an Unrestricted Subsidiary shall
constitute an Investment by the Borrower therein at the date of designation in an amount equal to
the net book value of the Borrower’s (as applicable) investment therein. The designation of any
Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence at the time of
designation of any Indebtedness or Liens of such Subsidiary existing at such time.



ARTICLE VI




Negative Covenants




     Until the Commitments have expired or been terminated and the principal of and interest on
each Loan and all fees, expenses and other amounts payable (other than contingent amounts not yet
due) under any Loan Document have been paid in full and all Letters of Credit have expired or been
terminated (or, with respect to outstanding Letters of Credit, shall have been fully cash
collateralized or backed by standby letters of credit reasonably acceptable to the applicable
Issuing Bank) and all LC Disbursements shall have been reimbursed, the Borrower (and with regard to
Section 6.15 only, Holdings) covenants and agrees with the Lenders that:



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     SECTION 6.01 Indebtedness. The Borrower will not, and will not permit any
Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:



     (i) Indebtedness created under the Loan Documents;



     (ii) Indebtedness existing on the Effective Date and set forth in Schedule 6.01 and
extensions, renewals and replacements of any such Indebtedness, provided that such
extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was
not an obligor with respect to the Indebtedness being extended, renewed or replaced, (B) shall not
be in a principal amount that exceeds the principal amount of the Indebtedness being extended,
renewed or replaced (plus any accrued but unpaid interest fees and redemption premium payable by
the terms of such Indebtedness thereon), (C) shall not have any earlier maturity date or shorter
weighted average life than the Indebtedness being extended, renewed or replaced and (D) shall be
subordinated to the Obligations on the same terms, if any, as the Indebtedness being extended,
renewed or replaced;



     (iii) Indebtedness of the Borrower to any Subsidiary and of any Restricted Subsidiary to
the Borrower or any other Subsidiary, provided (A) that Indebtedness of any Restricted
Subsidiary that is not a Loan Party to the Borrower or any Subsidiary Loan Party shall be subject
to Section 6.04 and (B) Indebtedness of the Borrower to any Restricted Subsidiary that is not a
Subsidiary Loan Party and Indebtedness of any Subsidiary Loan Party to any Subsidiary that is not a
Subsidiary Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to
the Administrative Agent;



     (iv) Guarantees by the Borrower of Indebtedness of Holdings or any Restricted Subsidiary
and by any Restricted Subsidiary of Indebtedness of Holdings, the Borrower or any other Restricted
Subsidiary, provided that (A) the Indebtedness so Guaranteed is permitted by this Section
(other than clause (a)(ii) or (a)(vi)), (B) Guarantees by the Borrower or any Subsidiary Loan Party
of Indebtedness of any Restricted Subsidiary that is not a Loan Party shall be subject to Section
6.04, (C) Guarantees permitted under this clause (iv) shall be subordinated to the Obligations of
the applicable Restricted Subsidiary to the same extent and on the same terms as the Indebtedness
so Guaranteed is subordinated to the Obligations and (D) no Subordinated Debt shall be Guaranteed
by any Restricted Subsidiary unless such Restricted Subsidiary is a Loan Party that has Guaranteed
the Obligations pursuant to the Collateral Agreement;



     (v) (A) Indebtedness of the Borrower or any Restricted Subsidiary incurred to finance the
acquisition, construction or improvement of any fixed or capital assets, including Capital Lease
Obligations and any Indebtedness assumed by the Borrower or any Restricted Subsidiary in connection
with the acquisition of any such assets or secured by a Lien on any such assets prior to the
acquisition thereof, provided that such Indebtedness is incurred prior to or within 180
days after such acquisition or the completion of such construction or improvement, (B) extensions,
renewals and replacements of any such Indebtedness so long as the principal amount of any such
extensions, renewals or replacements does not exceed the principal amount of the Indebtedness being
extended, renewed or replaced (plus any accrued but unpaid interest, fees and premiums payable by
the terms of such Indebtedness thereon) and (C) Capital Lease Obligations incurred by the Borrower
or any Restricted Subsidiary in respect of any Permitted Sale and



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Leaseback Transaction, provided that the aggregate principal amount of Indebtedness
permitted by sub-clauses (A) and (B) of this clause (v) shall not exceed $150,000,000 at any time
outstanding;




     (vi) Indebtedness of any Person (A) that becomes a Restricted Subsidiary or merges with or
into a Restricted Subsidiary or the Borrower after the Effective Date or (B) all or substantially
all the assets of which are acquired by the Borrower or any Restricted Subsidiary pursuant to a
transaction in which Indebtedness is assumed by the Borrower or any Restricted Subsidiary, in each
case after the Effective Date, provided that such Indebtedness exists at the time such
Person becomes a Restricted Subsidiary or merges with or into a Restricted Subsidiary or the
Borrower or at the time of such asset acquisition, and is not created in contemplation of or in
connection with such Person becoming a Restricted Subsidiary or merging with or into a Restricted
Subsidiary or the Borrower or at the time of such asset acquisition, and extensions, renewals and
replacements of any such Indebtedness so long as the principal amount of such extensions, renewals
and replacements does not exceed the principal amount of the Indebtedness being extended, renewed
or replaced (plus any accrued but unpaid interest and redemption premium payable by the terms of
such Indebtedness thereon), provided that the aggregate principal amount of Indebtedness
permitted by this clause (vi) shall not exceed $175,000,000 at any time outstanding;



     (vii) Indebtedness in respect of netting services, overdraft protection or in connection
with deposit accounts and securities accounts, in each case incurred in the ordinary course of
business;



     (viii) Indebtedness owed to any Person (including obligations in respect of letters of
credit for the benefit of such Person) providing workers’ compensation, health, disability or other
employee benefits or property, casualty or liability insurance, pursuant to reimbursement or
indemnification obligations to such Person, in each case incurred in the ordinary course of
business;



     (ix) Indebtedness of the Borrower or any Restricted Subsidiary in respect of performance
bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar
obligations (other than in respect of other Indebtedness for borrowed money), in each case provided
in the ordinary course of business;



     (x) Indebtedness in respect of Swap Agreements permitted by Section 6.07;



     (xi) (A) Subordinated Debt that is issued for cash payable on the date of issuance thereof
or as consideration for a Permitted Acquisition, provided that (1) if such Subordinated
Debt is issued for cash, the Net Proceeds of such Subordinated Debt are used, promptly after such
Net Proceeds are received by the Borrower, (x) to consummate one or more Permitted Acquisitions, or
(y) to prepay Terms Loans pursuant to Section 2.11(c), (2) no Default has occurred and is
continuing or would result therefrom and (3) the Borrower is in compliance on a Pro Forma Basis
after giving effect to the incurrence of such Subordinated Debt with the covenants contained in
Sections 6.12 and 6.13 recomputed as of the last day of the most-recently ended Test Period prior
to the issuance of such Subordinated Debt for which financial statements have been delivered
pursuant to Section 5.01(a) or (b) and, in the case of any issuance of



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Subordinated Debt in an aggregate principal amount in excess of $15,000,000, has delivered to
the Administrative Agent a certificate of a Financial Officer to such effect, together with all
relevant financial information reasonably requested by the Administrative Agent, including
reasonably detailed calculations demonstrating compliance with clause (3) above and (B)
Subordinated Refinancing Indebtedness in respect of Subordinated Debt issued pursuant to clause (A)
above or this clause (B);




     (xii) Guarantees of, or the assumption of, Indebtedness of Franchisees, suppliers,
distributors or licensees of the Borrower and the Restricted Subsidiaries, in each case to the
extent permitted pursuant to Section 6.04(o);



     (xiii) Indebtedness secured by Liens pursuant to Section 6.02(xiii) in an aggregate
principal amount not exceeding $50,000,000 at any time outstanding;



     (xiv) Indebtedness of Holdings or the Borrower not exceeding $20,000,000 at any time
outstanding, evidenced by promissory notes issued to former or current management, directors,
Franchisees or employees of Holdings, the Borrower or any of the Restricted Subsidiaries in lieu of
any cash payment permitted to be made under Section 6.08(a)(iii), provided that all such
Indebtedness shall be unsecured and expressly subordinated to the prior payment in full in cash of
all Obligations on terms that are reasonably satisfactory to the Administrative Agent;



     (xv) Indebtedness of Foreign Subsidiaries in an aggregate principal amount not exceeding
$20,000,000 at any time outstanding;



     (xvi) the Senior Notes and any Guarantee by Holdings or a Subsidiary Loan Party of the
obligations under the Senior Notes and any Permitted Refinancing thereof;



     (xvii) other Indebtedness in an aggregate principal amount not exceeding $30,000,000 at
any time outstanding; and



     (xviii) Indebtedness incurred by the Borrower to the extent that 100% of the Net Proceeds
therefrom are, immediately after the receipt thereof, applied solely to the prepayment of Term
Loans in accordance with Section 2.11(c); provided that (A) such Indebtedness does not
require any scheduled payment of principal (including pursuant to a sinking fund obligation) or
mandatory redemption or redemption at the option of the holders thereof (except for redemptions in
respect of asset sales and changes in control on terms that are market terms on the date of
issuance) prior to the date that is 180 days after the Tranche B Maturity Date or, if such
Indebtedness is incurred after the Borrower has obtained any Incremental Term Loans or while any
Commitments from Additional Lenders to make Incremental Term Loans remain in effect, 180 days after
the maturity date for such Incremental Term Loans, unless all such Incremental Term Loans have been
repaid in full and all Commitments in respect thereof have been terminated, (B) no Restricted
Subsidiary is a borrower or guarantor with respect to such Indebtedness unless such Restricted
Subsidiary is a Subsidiary Loan Party which shall have previously or substantially concurrently
Guaranteed the Obligations, (C) such Indebtedness contains market terms on the date of issuance,
provided that if such Indebtedness contains any financial maintenance covenants, such
covenants shall not be tighter than those contained in this Agreement, (D) if any Term Loans remain
outstanding after giving effect to the prepayment



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required hereunder, the aggregate principal amount of such outstanding Term Loans shall not be
less than $250,000,000 and (E) the Borrower is in compliance on a Pro Forma Basis after giving
effect to the incurrence of such Indebtedness with the covenants contained in Sections 6.12 and
6.13 recomputed as of the last day of the most recently-ended Test Period prior to the incurrence
of such Indebtedness for which financial statements have been delivered pursuant to Sections
5.01(a) or (b), and the Borrower has delivered to the Administrative Agent a certificate of a
Financial Officer, together with all relevant financial information reasonably requested by the
Administrative Agent, including reasonably detailed calculations demonstrating compliance with
clauses (A), (B), (C), (D) and (E).




     SECTION 6.02 Liens. (a) The Borrower will not, nor will it permit any Restricted
Subsidiary to, create, incur, assume or permit to exist any Lien on any property or asset now owned
or hereafter acquired by it, except:



     (i) Liens created under the Loan Documents;



     (ii) Permitted Encumbrances;



     (iii) any Lien on any property or asset of the Borrower or any Restricted Subsidiary
existing on the Effective Date and set forth in Schedule 6.02, provided that (A) such Lien
shall not apply to any other property or asset of the Borrower or any Restricted Subsidiary and (B)
such Lien shall secure only those obligations that it secures on the Effective Date and extensions,
renewals and replacements thereof so long as the principal amount of such extensions, renewals and
replacements does not exceed the principal amount of the obligations being extended, renewed or
replaced (plus any accrued but unpaid interest, fees and premiums payable by the terms of such
obligations thereon);



     (iv) any Lien existing on any property or asset prior to the acquisition thereof by the
Borrower or any Restricted Subsidiary or existing on any property or asset any Person that becomes
a Restricted Subsidiary or merges with or into a Restricted Subsidiary or the Borrower after the
Effective Date prior to the time such Person becomes a Restricted Subsidiary or such merger,
provided that (A) such Lien is not created in contemplation of or in connection with such
acquisition or such Person becoming a Restricted Subsidiary or merging with or into a Restricted
Subsidiary or the Borrower, as the case may be, (B) such Lien shall not apply to any other property
or asset of the Borrower or any Restricted Subsidiary and (C) such Lien shall secure only those
obligations that it secures on the date of such acquisition or the date such Person becomes a
Restricted Subsidiary or merges with or into a Restricted Subsidiary or the Borrower, as the case
may be, and extensions, renewals and replacements thereof so long as the principal amount of such
extensions, renewals and replacements does not exceed the principal amount of the obligations being
extended, renewed or replaced (plus any accrued but unpaid interest, fees and premiums payable by
the terms of such obligations thereon);



     (v) Liens on fixed or capital assets acquired, constructed or improved (including any such
assets made the subject of a Capital Lease Obligation incurred) by the Borrower or any Restricted
Subsidiary, provided that (A) such Liens secure Indebtedness incurred or assumed to finance
such acquisition, construction or improvement and are permitted by clause (v)(A) of Section 6.01 or
to extend, renew or replace such Indebtedness and are permitted by clause (v)(B)



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of Section 6.01, (B) such Liens and the Indebtedness secured thereby are incurred or assumed
prior to or within 180 days after such acquisition or the completion of such construction or
improvement (provided that this clause (B) shall not apply to any Indebtedness permitted by
clause (v)(B) of Section 6.01 or any Lien securing such Indebtedness), (C) the Indebtedness secured
thereby does not exceed the lesser of the cost of acquiring, constructing or improving such fixed
or capital asset or, in the case of Indebtedness permitted by clause (v)(A) of Section 6.01, its
fair market value at the time such security interest attaches, and in any event, the aggregate
principal amount of such Indebtedness does not exceed $125,000,000 at any time outstanding and (D)
such Liens shall not apply to any other property or assets of the Borrower or any Subsidiary;




     (vi) Liens of a collecting bank arising in the ordinary course of business under Section
4-208 of the Uniform Commercial Code in effect in the relevant jurisdiction covering only the items
being collected upon;



     (vii) Liens representing any interest or title of a licensor, lessor or sublicensor or
sublessor under any lease or license permitted by this Agreement;



     (viii) Liens that are rights of setoff relating to deposit accounts in favor of banks and
other depositary institutions arising in the ordinary course of business;



     (ix) Liens granted by a Restricted Subsidiary that is not a Loan Party in favor of the
Borrower or another Loan Party in respect of Indebtedness or other obligations owed by such
Subsidiary to such Loan Party;



     (x) Liens granted in connection with any Permitted Sale and Leaseback Transaction;



     (xi) Liens in favor of customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of goods;



     (xii) Liens on not more than $5,000,000 of cash and cash equivalents securing Swap
Agreements that (A) are permitted by Section 6.07 and (B) hedge or mitigate risks as a result of
currency fluctuations;



     (xiii) Liens on assets, other than Equity Interests, receivables, inventory and
intellectual property, securing Indebtedness outstanding pursuant to Section 6.01(xiii);



     (xiv) Liens on the assets of a Foreign Subsidiary that secure Indebtedness of such Foreign
Subsidiary that is incurred pursuant to Section 6.01(xv);



     (xv) Liens not otherwise permitted by this Section to the extent that neither (A) the
aggregate outstanding principal amount of the obligations secured thereby nor (B) the aggregate
fair market value (determined as of the date such Lien is incurred) of the assets subject thereto
exceeds $15,000,000 at any time outstanding; and



     (xvi) Liens securing Indebtedness permitted pursuant to Section 6.01(xviii);
provided that such Liens may be either a first priority Lien on the Collateral that is pari
passu with the Lien securing the Obligations or a Lien ranking junior to the Lien on the Collateral
securing the



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Obligations (but may not be secured by any other assets that are not Collateral) and, in any
such case, the beneficiaries thereof (or an agent on their behalf) shall have entered into an
intercreditor agreement with the Administrative Agent that is reasonably satisfactory to the
Administrative Agent.




     SECTION 6.03 Fundamental Changes. (a) The Borrower will not, nor will it permit
any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other
Person to merge into or consolidate with it, or liquidate or dissolve, except that, if at the time
thereof and immediately after giving effect thereto no Default shall have occurred and be
continuing (i) any Person may merge into the Borrower in a transaction in which the Borrower is the
surviving corporation, (ii) any Person (other than the Borrower) may merge into any Restricted
Subsidiary in a transaction in which the surviving entity is a Restricted Subsidiary and (if any
party to such merger is a Subsidiary Loan Party) is a Subsidiary Loan Party, (iii) any Restricted
Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation
or dissolution is in the best interests of the Borrower and is not materially disadvantageous to
the Lenders and (iv) any Restricted Subsidiary may merge into another Person in connection with the
disposition of such Restricted Subsidiary if such disposition is permitted pursuant to Section
6.05, provided that any such merger involving a Person that is not a wholly owned
Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted
by Sections 6.04, 6.05 and 6.06.



     (b) The Borrower will not, and the Borrower will not permit any Restricted Subsidiary to,
engage to any material extent in any business other than businesses of the type conducted by the
Borrower and the Restricted Subsidiaries on the Effective Date and businesses reasonably related,
complementary or ancillary thereto.



     SECTION 6.04 Investments, Loans, Advances, Guarantees and Acquisitions. The
Borrower will not, nor will it permit any Restricted Subsidiary to, purchase, hold or acquire
(including pursuant to any merger with any Person that was not a wholly owned Restricted Subsidiary
prior to such merger) any Equity Interests in or evidences of Indebtedness or other securities
(including any option, warrant or other right to acquire any of the foregoing) of, make or permit
to exist any loans or advances to, Guarantee any Indebtedness of, or make or permit to exist any
investment or any other interest in, any other Person, or purchase or otherwise acquire (in one
transaction or a series of transactions) any assets of any other Person constituting a business
unit (any such purchase, holding, acquisition, loan, advance, Guarantee, investment or interest, an
“Investment”), except:



     (a) Permitted Investments;



     (b) Permitted Acquisitions that are not Foreign Acquisitions;



     (c) Investments existing on the Effective Date and set forth on Schedule 6.04 and any
modification, replacement, renewal, reinvestment or extension thereof; provided that the
amount of any Investment permitted pursuant to this Section 6.04(c) is not increased from the
amount of such Investment on the Effective Date except pursuant to the terms of such Investment as
of the Effective Date or as otherwise permitted by this Section 6.04;



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     (d) Foreign Acquisitions and Investments (other than loans, advances and Guarantees, which
are covered by paragraphs (e) and (f) below) by the Borrower and the Restricted Subsidiaries in
Equity Interests of Restricted Subsidiaries, provided that (i) any such Equity Interests
directly held by a Loan Party shall be pledged pursuant to the Collateral Agreement (subject to the
limitations applicable to Equity Interests of a Foreign Subsidiary referred to in the definition of
the term “Collateral and Guarantee Requirement”) and (ii) the aggregate amount of (x) Foreign
Acquisitions and (y) Investments made pursuant to this clause (ii)(y) by Loan Parties in Restricted
Subsidiaries that are not Loan Parties (including in connection with a Permitted Acquisition by a
Restricted Subsidiary that is not a Loan Party), together with intercompany loans made under the
proviso to paragraph (e) of this Section and Guarantees given under the proviso to paragraph (f) of
this Section, shall not exceed $300,000,000 in the aggregate and, if made on or prior to June 30,
2012, $100,000,000 in any Requisite Period (in each case determined at the time made and without
regard to any subsequent write-downs or write-offs and net of all returns of capital in respect of
such Foreign Acquisition or Investment and excluding any Investments received in respect of, or
consisting of, the transfer or contribution of Equity Interests in any Foreign Subsidiary to any
other Foreign Subsidiary), provided that the conversion or capitalization of any loan or
advance into Equity Interests shall not constitute a new Investment so long as such loan or advance
was permitted pursuant to paragraph (e) below at the time of its incurrence or was outstanding on
the Effective Date and is set forth on Schedule 6.04;



     (e) loans or advances made by the Borrower to any Restricted Subsidiary and made by any
Restricted Subsidiary to the Borrower or any other Restricted Subsidiary, provided that the
amount of such loans and advances made pursuant to this paragraph (e) by Loan Parties to Restricted
Subsidiaries that are not Loan Parties (including in connection with a Permitted Acquisition by a
Restricted Subsidiary that is not a Loan Party), together with Investments and Foreign Acquisitions
made under clause (ii) of the proviso to paragraph (d) of this Section and Guarantees given under
the proviso to paragraph (f) of this Section, shall not exceed $300,000,000 in the aggregate and,
if made on or prior to June 30, 2012, $100,000,000 in any Requisite Period (in each case determined
at the time made and without regard to any subsequent write-downs or write-offs and net of all
returns of principal in respect of such loans or advances and excluding any Investments consisting
of intercompany notes received in connection with the transfer or contribution of Equity Interests
in any Foreign Subsidiary to any other Foreign Subsidiary);



     (f) Guarantees of Indebtedness of the Borrower or any Restricted Subsidiary that are
permitted by Section 6.01, provided that the aggregate principal amount of Indebtedness of
Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party (together
with Investments and Foreign Acquisitions made under clause (ii) of the proviso to paragraph (d) of
this Section and intercompany loans made under the proviso to paragraph (e) of this Section) shall
not exceed $300,000,000 in the aggregate and, if made on or prior to June 30, 2012, $100,000,000 in
any Requisite Period (in each case determined at the time the Guarantee is given (with any
subsequent increases in the amount of Indebtedness that is Guaranteed being deemed an additional
Guarantee) without regard to any subsequent write-downs or write-offs and net of all returns of
principal in respect of such Guarantee);



106









 





     (g) loans or advances to employees of Holdings (or any direct or indirect parent thereof),
the Borrower or any Restricted Subsidiary made in the ordinary course of business of Holdings, the
Borrower or any Restricted Subsidiary not exceeding $10,000,000 in the aggregate outstanding at any
time (determined without regard to any write-downs or write-offs of such loans or advances);



     (h) payroll, travel, relocation and similar advances to cover matters that are expected at
the time of such advances ultimately to be treated as expenses of Holdings, the Borrower or any
Restricted Subsidiary for accounting purposes and that are made in the ordinary course of business;



     (i) Investments received in connection with the bankruptcy or reorganization of, or
settlement of delinquent accounts or other obligations and disputes with, customers, suppliers and
Franchisees, in each case in the ordinary course of business;



     (j) Investments in the form of Swap Agreements permitted by Section 6.07;



     (k) (i) Investments of any Person existing at the time such Person becomes a Restricted
Subsidiary or consolidates or merges with the Borrower or any Restricted Subsidiary (including in
connection with a Permitted Acquisition) so long as such Investments were not made in contemplation
of such Person becoming a Restricted Subsidiary or of such consolidation or merger; and (ii) any
modification, replacement, renewal, reinvestment or extension thereof; provided that the
amount of any Investment permitted pursuant to this Section 6.04(k) is not increased from the
amount of such Investment on the date such Person becomes a Restricted Subsidiary except pursuant
to the terms of such Investment as of such date or as otherwise permitted by this Section 6.04.



     (l) Investments resulting from pledges or deposits described in clause (c) or (d) of the
definition of the term “Permitted Encumbrance”;



     (m) Investments received in connection with the disposition or license of any asset
permitted by Section 6.05;



     (n) receivables or other trade payables owing to the Borrower or a Restricted Subsidiary
if created or acquired in the ordinary course of business and payable or dischargeable in
accordance with customary trade terms, provided that such trade terms may include such
concessionary trade terms, as the Borrower or any Restricted Subsidiary deems reasonable under the
circumstances;



     (o) Investments consisting of (i) Guarantees of or the assumption of Indebtedness (to the
extent permitted by Section 6.01) of, or (ii) loans made to, or the acquisition of loans made to or
Equity Interests in, Franchisees, suppliers, distributors or licensees of the Borrower and the
Restricted Subsidiaries in an aggregate amount not exceeding $300,000,000 in the aggregate and, if
made on or prior to June 30, 2012, $100,000,000 in any Requisite Period (in each case determined at
the time made and without regard to any subsequent write-downs or write-offs and net of returns of
capital or principal in respect of such Investments), provided that any such Investments
(other than Guarantees and non-cash Investments) in excess of $35,000,000 in any fiscal year shall
be deemed Capital Expenditures for purposes of Section 6.14;



107









 





     (p) Investments the consideration for which consists solely of shares of Qualified Equity
Interests or which are made from the proceeds of a sale of Qualified Equity Interests (other than
any Cure Amount) within 365 days after the date of such sale of Qualified Equity Interests;



     (q) Investments as valued at cost at the time each such Investment is made and including
all related commitments for future Investments, in an amount not exceeding the Available Amount,
provided that (x) at the time of any such Investment, no Default shall have occurred and be
continuing or would result therefrom, (y) at the time of such Investment and after giving effect
thereto and to any borrowing in connection therewith, the Borrower complies, on a Pro Forma Basis,
with the covenants set out in Sections 6.12 and 6.13 and (z) in the case of any such Investment in
an amount in excess of $15,000,000, the Borrower has delivered to the Administrative Agent a
certificate of a Financial Officer, together with all relevant financial information reasonably
requested by the Administrative Agent, demonstrating the calculation of the Available Amount;



     (r) other Investments by the Borrower or any Restricted Subsidiary in an aggregate amount,
as valued at cost at the time each such Investment is made and including all related commitments
for future Investments, not exceeding $25,000,000 in the aggregate for all such Investments made or
committed to be made from and after the Effective Date plus an amount equal to any returns of
capital or sale proceeds actually received in cash in respect of any such Investments (which amount
shall not exceed the amount of such Investment valued at cost at the time such Investment was
made);



     (s) Investments consisting of (i) Indebtedness, (ii) Liens, (iii) fundamental changes,
(iv) sales, transfers, leases or other dispositions of assets and (v) Restricted Payments permitted
under Section 6.01, Section 6.02, Section 6.03, Section 6.05 and Section 6.08, respectively;



     (t) contributions to a “rabbi” trust within the meaning of Revenue Procedure 92-64 or
other grantor trust subject to the claims of creditors in the case of a bankruptcy of the Borrower;
and



     (u) loans or advances to officers, directors and employees of Holdings (or any direct or
indirect parent thereof), the Borrower or any Restricted Subsidiary in connection with such
Person’s purchase of Equity Interests of Holdings (or any direct or indirect parent thereof);
provided, that, the amount of such loans and advances shall be contributed to Holdings in cash as
common equity.



     SECTION 6.05 Asset Sales. The Borrower will not, nor will it permit any Restricted
Subsidiary to, sell, transfer, lease or otherwise dispose of any asset, including any Equity
Interest owned by it, nor will Holdings or the Borrower permit any Restricted Subsidiary to issue
any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’
qualifying shares, issuing shares required by applicable law to be issued to nationals or citizens
and issuing Equity Interests to the Borrower or another Subsidiary), except:



108









 





     (a) sales, transfers, leases and other dispositions of (i) inventory, (ii) used, obsolete
or surplus equipment and (iii) Permitted Investments, in each case in the ordinary course of
business;



     (b) sales, transfers, leases and other dispositions to the Borrower or a Restricted
Subsidiary, provided that any such sales, transfers, leases or other dispositions from the
Borrower or a Restricted Subsidiary that is a Loan Party to a Restricted Subsidiary that is not a
Loan Party shall be made (i) in compliance with Section 6.09(a)(i) or (ii) to the extent not made
in compliance with Section 6.09(a)(i), shall be treated as an Investment in such Restricted
Subsidiary and shall be permitted only to the extent permitted pursuant to Section 6.04;



     (c) sales, transfers and other dispositions of accounts receivable or other rights to
payment in connection with the compromise, settlement or collection thereof in the ordinary course
of business;



     (d) sales, transfers, leases and other dispositions of property to the extent that such
property constitutes an Investment permitted by clause (i), (k), (m), (q) or (r) of Section 6.04 or
another asset received as consideration for the disposition of any asset permitted by this Section
(in each case, other than Equity Interests in a Restricted Subsidiary, unless all Equity Interests
in such Restricted Subsidiary are sold in accordance with this Section 6.05);



     (e) Permitted Sale and Leaseback Transactions;



     (f) leases or subleases entered into in the ordinary course of business, including any
increase in the frequency or amount of ordinary course leasing as compared to the Effective Date,
to the extent that they do not materially interfere with the business of Holdings, the Borrower or
any Restricted Subsidiary;



     (g) (i) licenses or sublicenses of intellectual property (A) in the ordinary course of
business or (B) to any Restricted Subsidiary, and licenses, sublicenses or contributions of
non-U.S. goodwill and non-U.S. going-concern value to any Restricted Subsidiary, and/or (ii) any
abandonment, failure to maintain, non-renewal or other disposition of any intellectual property in
the ordinary course of business;



     (h) dispositions resulting from any casualty or other insured damage to, or any taking
under power of eminent domain or by condemnation or similar proceeding of, any property or asset of
the Borrower or any Subsidiary;



     (i) Restricted Payments, to the extent permitted pursuant to Section 6.08;



     (j) sales, transfers and other dispositions of assets resulting in aggregate Net Proceeds
not exceeding $1,000,000 in the case of any single transaction or series of related transactions;



     (k) sales, transfers and other dispositions of assets (other than Equity Interests in a
Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are
not permitted by any other clause of this Section, provided that the aggregate fair market
value of all assets sold, transferred or otherwise disposed of in reliance upon this clause (k),
together with



109









 







the aggregate fair market value of all real property sold in excess of $25,000,000 in
any fiscal
year in reliance on clause (l), shall not exceed during any fiscal year of the Borrower 10.0%
of Consolidated Tangible Assets of Holdings as of the end of the fiscal year of the Borrower
most-recently ended prior to such fiscal year;



     (l) sales, transfers, leases or other dispositions of restaurants and related assets to
Franchisees, including through the sale of Equity Interests of Persons owning such assets;
provided that to the extent that the aggregate fair market value of all owned real property
sold to Franchisees in reliance on this clause (l) exceeds $25,000,000 during any fiscal year of
the Borrower, the amount in excess of $25,000,000 per fiscal year, together with the aggregate fair
market value of all assets sold, transferred or otherwise disposed of in reliance on clause (k),
shall not exceed during any fiscal year of the Borrower 10.0% of Consolidated Tangible Assets of
Holdings as of the end of the fiscal year of the Borrower most-recently ended prior to such fiscal
year; and



     (m) the exchange by the Borrower or any of its Restricted Subsidiaries of any of its
restaurant properties and related assets for any current or planned restaurant property and related
assets of any third Person (any such exchange, an “Asset Swap”); provided, that,
(i) the fair market value of the property being received by the Borrower or any of its Restricted
Subsidiaries in connection with any Asset Swap shall be substantially equivalent to, or greater
than, the fair market value of the property being exchanged by the Borrower or any of its
Restricted Subsidiaries (except to the extent of any other exception available under this Section
6.05), (ii) after giving effect to any such Asset Swap, the Borrower is in compliance on a Pro
Forma Basis with the covenants contained in Sections 6.12 and 6.13, recomputed as of the last day
of the most-recently ended fiscal quarter of the Borrower prior to such Asset Swap for which
financial statements have been delivered pursuant to Section 5.01(a) or (b), (iii) no Default shall
have occurred and be continuing at the time of or after giving effect to any such Asset Swap and
(iv) the Borrower or the relevant Restricted Subsidiary shall take all steps reasonably requested
by the Administrative Agent to provide the Administrative Agent on behalf of the Lenders with a
fully perfected Lien on or security interest in the property being received by the Borrower or any
of its Restricted Subsidiaries in connection with any such Asset Swap to the same extent as the
Lien or security interest, if any, which the Administrative Agent had in the property being
exchanged by the Borrower or any of its Restricted Subsidiaries and to the extent required by the
Loan Documents;


provided that:




          (A) all sales, transfers, leases and other dispositions permitted hereby (other than those
permitted by clause (a)(i) or (a)(ii), clause (b), clause (c), clause (d), clause (f) (unless the
lessee is a Person that is not a Franchisee), clause (g), clause (h) or clause (i)) shall be made
for fair value, and



          (B) all sales, transfers, leases and other dispositions permitted hereby (other than those
permitted by clause (a)(i) or (a)(ii), clause (b) (unless the disposition is a disposition of
assets (other than (x) Franchise Agreements with non-U.S. Franchisees or assets consisting solely
of non-U.S. goodwill and/or non-U.S. going-concern value that, in each case, are disposed of to a
Foreign Subsidiary (i) all the Equity Interests of which are owned directly or indirectly by



110









 







a Loan
Party, (ii) that is not limited by any of its Organizational Documents, any Requirement of
 Law (other than statutory restrictions relating to the payment of dividends that are
customarily imposed based on capital, surplus, profits or other similar measures) or any agreement
or instrument applicable to it from declaring and paying dividends or other distributions to the
Borrower or any Restricted Subsidiary (and will not agree to any such consensual limitation) and
(iii) that has not incurred (and thereafter shall not incur) any Indebtedness other than
intercompany Indebtedness incurred for the purpose of acquiring or licensing such Franchise
Agreements, non-U.S. goodwill, non-U.S. going-concern value or rights to intellectual property
owned by the Borrower or a Subsidiary and Indebtedness incurred pursuant to Section 6.01(xv) and
(y) the transfer or contribution of Equity Interests in any Foreign Subsidiary to any other Foreign
Subsidiary) by a Loan Party to a Restricted Subsidiary that is not a Loan Party), clause (c),
clause (d), clause (f) (unless the lessee is a Person that is not a Franchisee), clause (g), clause
(h), clause (i), clause (j), clause (l) (but excluding sales of owned real property to the extent
that the aggregate fair market value of all owned real property sold to Franchisees exceeds
$25,000,000 during any fiscal year of the Borrower) or clause (m)) shall be made for consideration
at least 75% of which consists of cash or Permitted Investments payable at the time of such sale,
transfer or other disposition or, in the case of a disposition to a Franchisee, notes payable in
cash within 365 days from the date of such disposition (excluding, for the purposes of such
calculation, any assumption of liabilities of the Borrower or any Restricted Subsidiary by the
transferee thereof); provided that for purposes of this clause (B) (x) any securities or
other obligations received by the Borrower or the Restricted Subsidiary from such transferee that
are converted by the Borrower or such Restricted Subsidiary into cash or Permitted Investments (to
the extent of the cash or Permitted Investments received) within 180 days following the closing of
such sale, transfer, lease or other disposition, and (y) any Designated Non-Cash Consideration
received by the Borrower or the Restricted Subsidiary in such sale, transfer, lease or other
disposition having an aggregate fair market value, taken together with all other Designated
Non-Cash Consideration received pursuant to this clause (y) that is at that time outstanding, not
to exceed the lesser of 1.0% of Total Assets at the time of the receipt of such Designated Non-Cash
Consideration and $35,000,000 (with the fair market value of each item of Designated Non-Cash
Consideration being measured at the time received and without giving effect to subsequent changes
in value) shall, in each case of clauses (x) and (y), be deemed to be cash.




     SECTION 6.06 [Reserved].



     SECTION 6.07 Swap Agreements. The Borrower will not, nor will it permit any
Restricted Subsidiary to, enter into any Swap Agreement for speculative purposes, except (a) Swap
Agreements entered into to hedge or mitigate risks to which the Borrower or any Subsidiary has
actual or anticipated exposure (other than those in respect of shares of capital stock or other
equity ownership interests of the Borrower or any Subsidiary), (b) Swap Agreements entered into in
order to effectively cap, collar or exchange interest rates (from fixed to floating rates, from one
floating rate to another floating rate or otherwise) with respect to any interest-bearing liability
or investment of the Borrower or any Subsidiary and (c) Swap Agreements entered into to hedge
commodities, currencies, general economic conditions, raw materials prices, revenue streams or
business performance.



111









 





     SECTION 6.08 Restricted Payments; Certain Payments of Indebtedness. (a) The
Borrower will not, nor will it permit any Restricted Subsidiary to, declare or make, or agree to
pay or make, directly or indirectly, any Restricted Payment, or incur any obligation
(contingent or otherwise) to do so, except:



     (i) the Restricted Subsidiaries may declare and pay dividends or make other distributions
ratably with respect to their Equity Interests;



     (ii) the Borrower may declare and pay dividends with respect to its Equity Interests
payable solely in shares of Qualified Equity Interests;



     (iii) the Borrower may make Restricted Payments, not exceeding, taken together with the
aggregate principal amount of all Indebtedness incurred under Section 6.01(xiv) during such fiscal
year, $20,000,000 during any fiscal year, pursuant to and in accordance with stock option plans or
other benefit plans approved by Holdings’, any direct or indirect parent’s of Holdings or the
Borrower’s board of directors for former or current management, directors, Franchisees or employees
of Holdings, any direct or indirect parent of Holdings, the Borrower or any of the Restricted
Subsidiaries;



     (iv) the Borrower may make Restricted Payments to Holdings at such times and in such
amounts (A) not exceeding $5,000,000 during any fiscal year, as shall be necessary to permit
Holdings or any direct or indirect parent of Holdings to discharge its general corporate and
overhead (including franchise taxes and directors fees and, following the completion of an IPO,
costs and expenses necessary for or incidental to Holdings’s or any direct or indirect parent of
Holdings continued existence as a public company) expenses incurred in the ordinary course and
other permitted liabilities, (B) as shall be necessary to pay the Tax liabilities of Holdings or
any direct or indirect parent of Holdings directly attributable to (or arising as a result of) the
operations of the Borrower and the Subsidiaries and (C) to the extent of amounts paid by
Unrestricted Subsidiaries to the Borrower or any Restricted Subsidiary, as shall be necessary to
pay the Tax liabilities of or allocable to Unrestricted Subsidiaries, provided,
however, that (1) the amount of Restricted Payments pursuant to clause (B) of this clause
(iv) shall not exceed the amount that the Borrower and the Restricted Subsidiaries would be
required to pay in respect of Federal, State and local taxes were the Borrower and the Restricted
Subsidiaries to pay such taxes as stand-alone taxpayers and (2) all Restricted Payments made to
Holdings pursuant to this clause (iv) are used by Holdings or any direct or indirect parent of
Holdings for the purposes specified herein within five Business Days after Holdings’s or such
parent’s receipt thereof;



     (v) the Borrower may make Restricted Payments to the extent necessary to permit Holdings
or any direct or indirect parent of Holdings to make payments of or on account of (A) management,
consulting, investment banking and advisory fees and (B) reimbursement of out-of-pocket costs and
expenses incurred in connection with management, consulting, investment banking and advisory
services, in each case to the Sponsors or Sponsor Affiliates to the extent permitted by Section
6.09, provided that no Default shall have occurred and be continuing or would result
therefrom;



     (vi) on or after July 1, 2011, the Borrower may declare and pay dividends and
distributions to Holdings up to an amount not to exceed the Available Amount, provided that
(x)



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at the time of any such dividend, distribution, repurchase, redemption or retirement, no
Default shall have occurred and be continuing or would result therefrom, (y) at the time of such
dividend,
 distribution, repurchase, redemption or retirement and after giving effect thereto and to any
borrowing in connection therewith, the Borrower complies, on a Pro Forma Basis, with the covenants
set out in Sections 6.12 and 6.13 and (z) in the case of any such Restricted Payment in an amount
in excess of $15,000,000, the Borrower has delivered to the Administrative Agent a certificate of a
Financial Officer, together with all relevant financial information reasonably requested by the
Administrative Agent, demonstrating the calculation of the Available Amount;




     (vii) [Reserved.]



     (viii) the Borrower may make Restricted Payments to Holdings in such amounts as shall be
necessary to pay out-of-pocket legal, accounting and filing fees, costs and expenses incurred in
connection with a proposed offering of Qualified Equity Interests of Holdings or any direct or
indirect parent of Holdings, provided that no Default shall have occurred and be continuing
or would result therefrom;



     (ix) [Reserved.]



     (x) [Reserved.]



     (xi) the Borrower may make Restricted Payments to Holdings in an amount necessary to
enable Holdings or any direct or indirect parent of Holdings to make required payments in respect
of Disqualified Equity Interests or Subordinated Debt issued by Holdings or any direct or indirect
parent of Holdings, provided that (i) such payments are permitted (x) in the case of
Disqualified Equity Interests, by another clause of this Section 6.08 or (y) in the case of
Subordinated Debt, by paragraph (b) of this Section 6.08 and (ii) Holdings or such parent promptly
applies such proceeds in the manner required by such Disqualified Equity Interests or Subordinated
Debt;



     (xii) the Borrower or any Restricted Subsidiary may acquire, redeem or retire any Equity
Interests of any other Subsidiary provided that such acquisition, redemption or retirement
is permitted pursuant to Sections 6.03 and 6.04; and



     (xiii) substantially concurrently with an IPO, and in any event, no later than 30 Business
Days following the issue or transfer of Equity Interests pursuant to such IPO, the Borrower may
make Restricted Payments to Holdings to the extent necessary to permit Holdings or any direct or
indirect parent of Holdings to make the payment of the fees permitted to be paid pursuant to
Section 6.09(ix)(B), provided that (A) no Default shall have occurred and be continuing or
would result therefrom and (B) at the time of such payment and after giving effect thereto, the
Borrower complies, on a Pro Forma Basis, with the covenants set out in Sections 6.12 and 6.13.



     (b) The Borrower will not, nor will it permit any Restricted Subsidiary to, make or agree
to pay or make, directly or indirectly (other than agreeing to customary provisions in respect of
repayment and repurchase upon asset sales in the Senior Note
Documents or any Subordinated Debt Documents), any payment or other distribution (whether in cash, securities or other property) of or
in respect of principal of or interest on the Senior Notes or any



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Subordinated Debt, or any payment
or other distribution (whether in cash, securities or other property), including any sinking fund
or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancelation or termination of the Senior Notes or any
Subordinated
Debt, or any other payment (including any payment under any Swap Agreement) that has a
substantially similar effect to any of the foregoing, except:




     (i) payment of regularly scheduled interest, any accrued and unpaid interest and original
issue discount, if any, on the Senior Notes and any Subordinated Debt to the extent needed under
the Code and applicable United States Treasury Regulations so as to cause the Senior Notes and any
Subordinated Debt to not be treated as having been issued with “significant original issue
discount” within the meaning of Section 163(i)(2) of the Code, and principal payments as, in the
form of payment and when due in respect of the Senior Notes and any Subordinated Debt, payments due
upon a change of control under the Senior Notes or any Subordinated Debt or upon acceleration of
the maturity of the Senior Notes or any Subordinated Debt, in each case other than payments in
respect of Subordinated Debt prohibited by the subordination provisions thereof;



     (ii) refinancings of Indebtedness to the extent permitted by Section 6.01;



     (iii) payment or other distribution in respect of principal or interest on, or payment or
other distribution on account of the purchase, redemption, retirement, acquisition, cancelation or
termination of, the Senior Notes or any Subordinated Debt, in each case in exchange for, or out of
the Net Proceeds of, the substantially concurrent sale of Qualified Equity Interests of Holdings or
any direct or indirect parent of Holdings; and



     (iv) on or after July 1, 2011, payments or other distributions in an amount not to exceed
the Available Amount, provided that (x) at the time of any such payment or other
distribution, no Default shall have occurred and be continuing or would result therefrom, (y) at
the time of such payment or other distribution and after giving effect thereto and to any borrowing
in connection therewith, the Borrower complies, on a Pro Forma Basis, with the covenants set out in
Sections 6.12 and 6.13 and (z) in the case of any such payment or other distribution in an amount
in excess of $15,000,000, the Borrower has delivered to the Administrative Agent a certificate of a
Financial Officer, together with all relevant financial information reasonably requested by the
Administrative Agent, demonstrating the calculation of the Available Amount.



     SECTION 6.09 Transactions with Affiliates. (a) The Borrower will not, nor will it
permit any Restricted Subsidiary to, sell, lease or otherwise transfer any property or assets to,
or purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any
other transactions with, any of its Affiliates, except:



     (i) transactions at prices and on terms and conditions not less favorable to the Borrower
or such Restricted Subsidiary than could be obtained on an arm’s-length basis from unrelated third
parties,



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     (ii) transactions between or among (A) the Borrower and/or the Subsidiary Loan Parties and
(B) Restricted Subsidiaries that are not Subsidiary Loan Parties, in each case, not involving any
other Affiliate,



     (iii) loans or advances to employees permitted under Section 6.04(g),



     (iv) payroll, travel, relocation and similar advances to cover matters permitted under
Section 6.04(h),



     (v) any contribution to the capital of Holdings by the Permitted Investors or any purchase
of Equity Interests in Holdings by any Permitted Investor not prohibited by this Agreement,



     (vi) the payment of reasonable fees to directors of Holdings or any direct or indirect
parent of Holdings, the Borrower or any Restricted Subsidiary who are not employees of Holdings or
any direct or indirect parent of Holdings, the Borrower or any Restricted Subsidiary, and
compensation and employee benefit arrangements paid to, and indemnities provided for the benefit
of, directors, officers or employees of Holdings or any direct or indirect parent of Holdings, the
Borrower or the Restricted Subsidiaries in the ordinary course of business,



     (vii) any issuances of securities or any payments, awards or grants in cash, securities or
otherwise pursuant to, or the funding of, employment agreements, stock options and stock ownership
plans approved by Holdings’s or the Borrower’s board of directors or any committee thereof,



     (viii) employment and severance arrangements entered into in the ordinary course of
business between Holdings or any direct or indirect parent of Holdings, the Borrower or any
Restricted Subsidiary and any employee thereof in accordance with such employee’s employee
agreement or the Borrower’s severance policy approved by the board of directors of Holdings (or any
direct or indirect parent of Holdings) or the Borrower, or any committee thereof,



     (ix) any payments permitted under Section 6.09(b) and any payments to the Sponsors or any
Sponsor Affiliate for reimbursement of out-of-pocket costs and expenses,



     (x) any Restricted Payment permitted by Section 6.08,



     (xi) the grant of stock options or similar rights in respect of Equity Interests of
Holdings or any direct or indirect parent of Holdings to officers, employees, Franchisees,
consultants and directors of the Borrower or any Subsidiary pursuant to plans approved by the board
of directors of Holdings or any direct or indirect parent of Holdings, or any committee thereof and
the payment of amounts of the issuance of Equity Interests pursuant thereto in each case to the
extent not prohibited by this Agreement,



     (xii) transactions constituting Investments permitted pursuant to Section 6.04(d), (e),
(f) or (p), or constituting Investments in a Subsidiary permitted pursuant to Section 6.04(q) or
(r),



     (xiii) transactions permitted pursuant to Section 6.05(b)(ii) or (g) (other than
transactions permitted pursuant to clause (g)(i)) and Investments permitted pursuant to Section



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6.04 received in connection with transactions permitted pursuant to Section 6.05(g) (other than
transactions permitted pursuant to clause (g)(i)),



     (xiv) entry into a Tax sharing agreement with Holdings or any direct or indirect parent of
Holdings providing for (in each case subject to compliance with Section 6.08) the payments of Taxes
(including interest and penalties) and expenses, control of tax filings and contests, and other
normal, usual and customary provisions, and



     (xv) the provision of legal, accounting, purchasing, treasury or administrative services
to Holdings or any direct or indirect parent of Holdings, the Borrower or any Restricted Subsidiary
in the ordinary course of business.



     (b) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary
to, make any payment of or on account of monitoring or management or similar fees payable to the
Sponsor or any Sponsor Affiliate (i) in an aggregate amount in any fiscal year in excess of the
lesser of (x) 0.5% of consolidated total revenues of the Borrower for the immediately preceding
fiscal year or (y) $10,000,000 or (ii) after the consummation of an IPO.



     SECTION 6.10 Restrictive Agreements. The Borrower will not, nor will it permit any
Restricted Subsidiary to, directly or indirectly, enter into, incur or permit to exist any
agreement or other consensual arrangement that prohibits, restricts or imposes any condition upon
(a) the ability of Holdings, the Borrower or any Restricted Subsidiary to create, incur or permit
to exist any Lien upon any Equity Interests of any Restricted Subsidiary owned by such Person
securing the Obligations or (b) the ability of any Restricted Subsidiary to pay dividends or other
distributions with respect to any of its Equity Interests or to make or repay loans or advances to
the Borrower or any other Restricted Subsidiary or to Guarantee Indebtedness of the Borrower or any
other Restricted Subsidiary, provided that:



     (i) the foregoing shall not apply to restrictions and conditions imposed by (A) law, (B)
any Loan Document or (C) the Senior Notes;



     (ii) the foregoing shall not apply to restrictions and conditions existing on the
Effective Date or to any extension, renewal, amendment, modification or replacement thereof, except
to the extent any such amendment, modification or replacement expands the scope of any such
restriction or condition;



     (iii) the foregoing shall not apply to customary restrictions and conditions contained in
agreements relating to the sale of a Subsidiary or any assets pending such sale, provided
that such restrictions and conditions apply only to the Subsidiary or assets that is or are to be
sold and such sale is permitted hereunder;



     (iv) clause (a) of the foregoing shall not apply to customary provisions in leases,
licenses and other contracts restricting the assignment thereof;



     (v) the foregoing shall not apply to restrictions imposed by any agreement relating to
secured Indebtedness permitted by this Agreement to the extent such restriction applies only to the
property securing such Indebtedness;



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     (vi) the foregoing shall not apply to any restrictions or conditions set forth in any
agreement in effect at any time any Person becomes a Restricted Subsidiary (but not any
modification or amendment expanding the scope of any such restriction or condition),
provided
 that such agreement was not entered into in contemplation of such Person becoming a Restricted
Subsidiary and the restriction or condition set forth in such agreement does not apply to the
Borrower or any other Restricted Subsidiary;




     (vii) restrictions or conditions in any Indebtedness permitted pursuant to Section 6.01 to
the extent such restrictions or conditions are no more restrictive than the restrictions and
conditions in the Loan Documents or, in the case of Subordinated Debt, are market terms at the time
of issuance or, in the case of Indebtedness of any Foreign Subsidiary, are imposed solely on such
Foreign Subsidiary and its Subsidiaries, provided that any such restrictions or conditions
permit compliance with the Collateral and Guarantee Requirement and Section 5.12; and



     (viii) restrictions on cash or other deposits imposed by agreements entered into in the
ordinary course of business.



     SECTION 6.11 Amendment of Material Documents. The Borrower will not, nor will it
permit any Restricted Subsidiary to, amend, modify or waive any provision of the Senior Note
Documents or any Subordinated Debt Documents if the effect of such amendment, modification or
waiver is to (i) increase the rate of interest payable with respect to the Senior Notes or such
Subordinated Debt, as applicable, (ii) change the dates upon which payments of principal or
interest are due on the Senior Notes or such Subordinated Debt, as applicable, other than to extend
such dates, (iii) change any default or event of default other than to delete or make less
restrictive any default or event of default provision therein with respect to the Senior Notes or
such Subordinated Debt, as applicable, (iv) change the redemption or prepayment provisions of the
Senior Notes or such Subordinated Debt, as applicable, other than to extend the dates therefor or
to reduce the premiums payable in connection therewith, (v) grant any security or collateral to
secure payment of the Senior Notes or such Subordinated Debt, as applicable, or (vi) change or
amend any other term, if such change or amendment would (x) materially increase the obligations of
Holdings, the Borrower or any Subsidiary party thereto thereunder, (y) confer additional material
rights on the holder of the Senior Notes or such Subordinated Debt, as applicable, or (z) result in
such Subordinated Debt being subject to a term or condition that would not be permitted (under the
definition of the term “Subordinated Debt”) if such Subordinated Debt were being issued on the date
of such amendment, modification or waiver.



     SECTION 6.12 Interest Coverage Ratio. The Borrower will not permit the Interest
Coverage Ratio for any Test Period ending during any period set forth below to be less than the
ratio set forth opposite such period below:



	 	 	 
	Period	 	Ratio
	March 31, 2011 through September 30, 2011

	 	1.60 to 1.00
	December 31, 2011 through June 30, 2013

	 	1.70 to 1.00
	September 30, 2013 through June 30, 2014

	 	1.80 to 1.00
	September 30, 2014 through June 30, 2015

	 	1.90 to 1.00
	Thereafter

	 	2.00 to 1.00






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     SECTION 6.13 Total Leverage Ratio. The Borrower will not permit the Total Leverage
Ratio for any Test Period ending during any period set forth below to be greater than the ratio set
forth opposite such period below:



	 	 	 
	Period	 	Ratio
	March 31, 2011 through June 30, 2011

	 	7.50 to 1.00
	September 30, 2011

	 	7.25 to 1.00
	December 31, 2011

	 	7.00 to 1.00
	March 31, 2012 through June 30, 2012

	 	6.75 to 1.00
	September 30, 2012 through December 31, 2012

	 	6.25 to 1.00
	March 31, 2013 through June 30, 2013

	 	6.00 to 1.00
	September 30, 2013 through March 31, 2014

	 	5.75 to 1.00
	June 30, 2014 through June 30, 2015

	 	5.25 to 1.00
	September 30, 2015 through June 30, 2016

	 	4.75 to 1.00
	Thereafter

	 	4.50 to 1.00






     SECTION 6.14 Maximum Capital Expenditures. (a) The aggregate amount of
Capital Expenditures made by the Borrower and the Restricted Subsidiaries in any fiscal year shall
not exceed (i) $160,000,000 if the Rent-Adjusted Leverage Ratio as of the last day of the most
recently ended fiscal year of the Borrower is greater than or equal to 5.00 to 1.00, (ii)
$180,000,000 if the Rent-Adjusted Leverage Ratio as of the last day of the most recently ended
fiscal year of the Borrower is greater than or equal to 4.00 to 1.00 but less than 5.00 to 1.00 and
(iii) $220,000,000 if the Rent-Adjusted Leverage Ratio as of the last day of the most recently
ended fiscal year of the Borrower is less than 4.00 to 1.00.



     (b) The amount of Capital Expenditures set forth in Section 6.14(a) in respect of any
fiscal year shall be increased (but not decreased) by an amount equal to 50% of (i) the amount of
unused Capital Expenditures for the immediately preceding fiscal year less (ii) the amount of
unused Capital Expenditures carried forward to such immediately preceding fiscal year pursuant to
this paragraph.



     SECTION 6.15 Holdings Covenants. (a) Holdings will not own or acquire any assets
(other than Equity Interests of the Borrower, cash and Permitted Investments) or engage in any
business or activity other than (i) the ownership of all the outstanding Equity Interests of the
Borrower and activities incidental thereto, (ii) the maintenance of its corporate existence and
activities incidental thereto, including general and corporate overhead, provided that
Holdings may change its form of organization, so long as (A) it is organized under the laws of the
United States of America, any State thereof or the District of Columbia and (B) its Guarantee of
the Obligations and the Lien on or security interest in any Collateral held by it under the Loan
Documents shall remain in effect to the same extent as immediately prior to such change, (iii)
activities required to comply with applicable law, (iv) maintenance and administration of stock
option and stock ownership plans and activities incidental thereto, (v) the receipt of Restricted
Payments to the extent permitted by Section 6.08 and the making of Restricted Payments, (vi) to the
extent not otherwise covered by the other clauses of this Section 6.15, any of the activities of
Holdings referred to in Section 6.08, (vii) concurrently with any issuance of Qualified Equity
Interests, the redemption, purchase or retirement of any Equity Interests of Holdings using the
proceeds of, or conversion or exchange of any Equity Interests of Holdings for, such Qualified
Equity Interests, (viii) the obtainment of, and the payment of any fees and expenses for,



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management, consulting, investment banking and advisory services to the extent otherwise permitted
by this Agreement, (ix) compliance with its obligations under the Loan Documents, the Senior Note
Documents (or any Permitted Refinancing thereof) and any Subordinated Debt Documents, (x) in
connection with, and following the completion of, an IPO, activities necessary
or reasonably advisable for or incidental to the initial registration and listing of Holdings
common stock and the continued existence of Holdings as a public company and (xi) activities
incidental to legal, tax and accounting matters in connection with any of the foregoing activities.




     (b) Holdings will not create, incur, assume or permit to exist any Indebtedness or other
liabilities except (i) Indebtedness created under the Loan Documents and the Senior Note Documents
(or any Permitted Refinancing thereof), (ii) Subordinated Debt or unsecured Guarantees of any
Subordinated Debt, provided that such Guarantees shall be subordinated to the Obligations
to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the
Obligations, (iii) other unsecured Indebtedness in an aggregate principal amount not exceeding
$5,000,000 at any time outstanding and (iv) liabilities imposed by law, including tax liabilities,
and other liabilities incidental to its existence and permitted business and activities.



     (c) Holdings will not create, incur, assume or permit to exist any Lien (other than
Permitted Encumbrances) on any of the Equity Interests issued by the Borrower to Holdings.



ARTICLE VII

Events of Default




     If any of the following events (any such event, an “Event of Default”) shall occur:



     (a) the Borrower shall fail to pay any principal of any Loan or any reimbursement
obligation in respect of any LC Disbursement when and as the same shall become due and payable,
whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;



     (b) the Borrower shall fail to pay any interest on any Loan or any fee or any other amount
(other than an amount referred to in paragraph (a) of this Article) payable under any Loan
Document, when and as the same shall become due and payable, and such failure shall continue
unremedied for a period of five Business Days;



     (c) any representation or warranty made or deemed made by or on behalf of Holdings, the
Borrower or any Restricted Subsidiary in or in connection with any Loan Document or any amendment
or modification thereof or waiver thereunder, or in any report, certificate, financial statement or
other document furnished pursuant to or in connection with any Loan Document or any amendment or
modification thereof or waiver thereunder shall, if qualified by materiality, prove to have been
incorrect or, if not so qualified, prove to have been incorrect in any material respect, in each
case when made or deemed made;



     (d) Holdings or the Borrower shall fail to observe or perform any covenant, condition or
agreement contained in Section 5.02 or 5.04 (with respect to the existence of Holdings or the
Borrower) or in Article VI;



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     (e) any Loan Party shall fail to observe or perform any covenant, condition or agreement
contained in any Loan Document (other than those specified in paragraph (a), (b) or (d) of this
Article), and such failure shall continue unremedied for a period of 30 days after notice thereof
from any Lender or the Administrative Agent to the Borrower;



     (f) Holdings, the Borrower or any Restricted Subsidiary shall fail to make any payment
(whether of principal or interest and regardless of amount) in respect of any Material
Indebtedness, when and as the same shall become due and payable;



     (g) any event or condition occurs that results in any Material Indebtedness becoming due
prior to its scheduled maturity or that enables or permits (with all applicable grace periods
having expired) the holder or holders of any Material Indebtedness or any trustee or agent on its
or their behalf to cause any Material Indebtedness to become due, or to require the prepayment,
repurchase, redemption or defeasance thereof, prior to its scheduled maturity, provided
that this paragraph (g) shall not apply to secured Indebtedness that becomes due as a result of the
sale, transfer or other disposition (including as a result of a casualty or condemnation event) of
any property or assets securing such Indebtedness (to the extent such sale, transfer or other
disposition is not prohibited under this Agreement);



     (h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed
seeking (i) liquidation, reorganization or other relief in respect of Holdings, the Borrower or any
Significant Subsidiary or its debts, or of a substantial part of its assets, under any Federal,
state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or
(ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar
official for Holdings, the Borrower or any Significant Subsidiary or for a substantial part of its
assets, and, in any such case, such proceeding or petition shall continue undismissed for 60 days
or an order or decree approving or ordering any of the foregoing shall be entered;



     (i) Holdings, the Borrower or any Significant Subsidiary shall (i) voluntarily commence
any proceeding or file any petition seeking liquidation, reorganization or other relief under any
Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in
effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner,
any proceeding or petition described in paragraph (h) of this Article, (iii) apply for or consent
to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official
for Holdings, the Borrower or any Significant Subsidiary or for a substantial part of its assets,
(iv) file an answer admitting the material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for
the purpose of effecting any of the foregoing;



     (j) Holdings, the Borrower or any Significant Subsidiary shall become unable, admit in
writing its inability or fail generally to pay its debts as they become due;



     (k) one or more judgments for the payment of money in an aggregate amount in excess of
$20,000,000 shall be rendered against Holdings, the Borrower, any Restricted Subsidiary or any
combination thereof and the same shall remain undischarged for a period of 45 consecutive days
during which execution shall not be effectively stayed, or any action shall be



120









 







legally taken by a
judgment creditor to attach or levy upon any assets of Holdings, the Borrower or any Restricted
Subsidiary to enforce any such judgment;



     (l) an ERISA Event shall have occurred that when taken together with all other ERISA
Events that have occurred could reasonably be expected to result in a Material Adverse Effect;



     (m) any Lien purported to be created under any Security Document shall cease to be, or
shall be asserted by any Loan Party not to be, a valid and perfected Lien on any Collateral, with
the priority required by the applicable Security Document, except (i) in respect of Collateral
having an aggregate value not in excess of $5,000,000, (ii) as a result of the sale or other
disposition of the applicable Collateral in a transaction permitted under the Loan Documents or
(iii) as a result of the Administrative Agent’s failure to maintain possession of any stock
certificates or other instruments delivered to it under the Collateral Agreement;



     (n) any Loan Document or any Guarantee of the Loan Document Obligations shall for any
reason be asserted by any Loan Party not to be a legal, valid and binding obligation of any Loan
Party that is a party thereto;



     (o) the Guarantees of the Loan Document Obligations by Holdings, the Borrower and the
Subsidiary Loan Parties pursuant to the Collateral Agreement shall cease to be in full force and
effect (in each case, other than in accordance with the terms of the Loan Documents);



     (p) (i) any Subordinated Debt or any Guarantee thereof shall cease, for any reason, to be,
or shall be asserted by any Loan Party or the holders of at least 25% in aggregate principal amount
of any series of Subordinated Debt not to be, validly subordinated to the Loan Document Obligations
or the obligations of Holdings and the Subsidiary Loan Parties in respect of their Guarantees under
the Collateral Agreement, as the case may be, as provided in the Subordinated Debt Documents or
(ii) the Loan Document Obligations shall cease to constitute, or shall be asserted by any Loan
Party or the holders of at least 25% in aggregate principal amount of any series of Subordinated
Debt not to constitute, “Senior Indebtedness” or “Designated Senior Indebtedness” (or the
equivalent thereof) under the subordination provisions of any Subordinated Debt Document; or



     (q) a Change in Control shall occur;


then, and in every such event (other than an event with respect to the Borrower described in
paragraph (h) or (i) of this Article), and at any time thereafter during the continuance of such
event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to
the Borrower, take either or both of the following actions, at the same or different times: (i)
terminate the Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part, in which case any
principal not so declared to be due and payable may thereafter be declared to be due and payable),
and thereupon the principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall become
due and payable immediately, without presentment, demand, protest or other notice of any kind, all
of which are hereby waived by the Borrower; and in case of any


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event with respect to the Borrower
described in paragraph (h) or (i) of this Article, the Commitments shall automatically terminate
and the principal of the Loans then outstanding, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall automatically become due and
payable, without presentment, demand, protest or other notice of any kind, all of which are hereby
waived by the Borrower.




     Notwithstanding anything in this Article VII to the contrary;



     (A) in the event that the Borrower fails to comply with the requirements of any covenant set
forth in Sections 6.12 and 6.13, until the tenth Business Day after the date on which the financial
statements with respect to the Test Period for which the applicable covenant set forth in such
Sections 6.12 and 6.13 is being measured are required to be delivered pursuant to Section 5.01(a)
or (b), Holdings shall have the right to make a cash equity investment in the Borrower in the form
of Qualified Equity Interests (the “Cure Right”), and upon the receipt by the Borrower of
net cash proceeds from such equity investment (the amount of such net cash proceeds, the “Cure
Amount”), the applicable covenant set forth in Sections 6.12 and 6.13 shall be recalculated,
giving effect to a pro forma increase to Consolidated EBITDA for the relevant Test Period in an
amount equal to such Cure Amount; provided that such pro forma adjustment to Consolidated
EBITDA shall be given solely for the purpose of determining the existence of an Event of Default
under the applicable covenant set forth in Sections 6.12 and 6.13 with respect to any Test Period
that includes the fiscal quarter for which such Cure Right was exercised and not for any other
purpose under any Loan Document;



     (B) if, after the exercise of the Cure Right and the recalculations pursuant to clause
(1)(A) above, the Borrower shall then be in compliance with the requirements of the covenants set
forth in Sections 6.12 and 6.13 for any period of four consecutive fiscal quarters, the Borrower
shall be deemed to have satisfied the requirements of such covenant as of the relevant date of
determination with the same effect as though there had been no failure to comply therewith at such
date, and the applicable Default or Event of Default under Article VII that had occurred shall be
deemed cured; provided that (i) the Cure Right may be exercised no more than twice during
any period of four consecutive fiscal quarters, (ii) the Cure Right may be exercised on no more
than four occasions, (iii) with respect to any exercise of the Cure Right, the Cure Amount shall be
no greater than the amount required to cause the Loan Parties to be in compliance with the
financial covenants under Sections 6.12 and 6.13 and (iv) the net cash proceeds from the Cure Right
may not reduce the amount of Consolidated Total Debt for purposes of calculating compliance with
the covenant in Section 6.13; and



     (C) upon the Administrative Agent’s receipt of a notice from the Borrower that it intends
to exercise the Cure Right (a “Notice of Intent to Cure”), until the tenth Business Day
following date of required delivery of the related Compliance Certificate to which such Notice of
Intent to Cure relates, neither the Administrative Agent nor any Lender shall exercise the right to
accelerate the Loans or terminate or suspend the Commitments and neither the Administrative Agent
nor any other Lender shall exercise any right to foreclose on or take possession of the Collateral
solely on the basis of an allegation of an Event of Default having occurred and being continuing
under Article VII due to failure by the Borrower to comply with the requirements of Sections 6.12
and 6.13 for the applicable Test Period.



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ARTICLE VIII




The Administrative Agent




     Each of the Lenders and each Issuing Bank hereby irrevocably appoints the Administrative Agent
as its agent and authorizes the Administrative Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent by the terms of the Loan
Documents, together with such actions and powers as are reasonably
incidental thereto. In addition, to the extent required under the laws of any jurisdiction
other than the United States, each of the Lenders and the Issuing Banks hereby grants to the
Administrative Agent any required powers of attorney to execute and enforce any Security Document
governed by the laws of such jurisdiction on such Lender’s or Issuing Bank’s behalf. The provisions
of this Article are solely for the benefit of the Administrative Agent, the Lenders and the Issuing
Banks, and the Borrower shall not have rights as a third party beneficiary of any of such
provisions.



     The bank serving as the Administrative Agent hereunder shall have the same rights and powers
in its capacity as a Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with Holdings, the Borrower or any Subsidiary or other
Affiliate thereof as if it were not the Administrative Agent hereunder.



     The Administrative Agent shall not have any duties or obligations except those expressly set
forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the
Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any
duty to take any discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is
required to exercise in writing as directed by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary or believed by the Administrative Agent in good
faith to be necessary under the circumstances as provided in Section 2.05(j) or Section 9.02) and
for which it is indemnified to its satisfaction by the Lenders with regard to any and all liability
and expense that may be incurred by it by reason of taking or continuing to take any such action,
and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not
have any duty to disclose, and shall not be liable for the failure to disclose, any information
relating to Holdings, the Borrower or any Subsidiary that is communicated to or obtained by the
bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative
Agent shall not be liable for any action taken or not taken by it with the consent or at the
request of the Required Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 2.05(j) or Section 9.02) or in the absence
of its own gross negligence or wilful misconduct. The Administrative Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement and the other Loan
Documents in accordance with a request of the Required Lenders (or, if so specified by this
Agreement, all Lenders), and such request and any action taken or failure to act pursuant thereto
shall be binding upon all the Lenders and all future holders of the Loans. The Administrative Agent
shall be deemed not to have knowledge of any Default unless and until written notice thereof is
given to the Administrative Agent by Holdings, the Borrower or a Lender, and the Administrative
Agent shall not be responsible for or have any



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duty to ascertain or inquire into (i) any statement,
warranty or representation made in or in connection with any Loan Document, (ii) the contents of
any certificate, report or other document delivered thereunder or in connection therewith, (iii)
the performance or observance of any of the covenants, agreements or other terms or conditions set
forth in any Loan Document or the occurrence of any Default, (iv) the validity, enforceability,
effectiveness or genuineness of any Loan Document or any other agreement, instrument or document or
(v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document,
other than to confirm receipt of items expressly required to be delivered to the Administrative
Agent.



     The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing (including any electronic message, Internet or intranet website posting or other
distribution) believed by it to be genuine and to have been signed or sent or otherwise
authenticated by the proper Person. The Administrative Agent also may rely upon any statement made
to it orally or by telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Administrative Agent may consult with legal counsel
(who may be counsel for the Borrower), independent accountants and other experts selected by it,
and shall not be liable for any action taken or not taken by it in accordance with the advice of
any such counsel, accountants or experts.



     The Administrative Agent may perform any and all its duties and exercise its rights and powers
by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative
Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers
by or through their respective Related Parties. The exculpatory provisions of this Article shall
apply to any such subagent and to the Related Parties of the Administrative Agent and any such
sub-agent, and shall apply to their respective activities in connection with the syndication of the
credit facilities provided for herein as well as activities as Administrative Agent.



     Subject to the appointment and acceptance of a successor Administrative Agent as provided in
this paragraph, the Administrative Agent may resign at any time upon notice to the Lenders, the
Issuing Banks and the Borrower. Upon any such resignation, the Required Lenders shall have the
right, in consultation with the Borrower, to appoint a successor Administrative Agent reasonably
acceptable to the Borrower, which acceptance shall not be unreasonably withheld or delayed
(provided that the Borrower’s approval shall not be required if an Event of Default under
Section 8.01(h), (i) or (j) then exists. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 15 days after the retiring
Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may,
on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent reasonable
acceptable to the Borrower, which acceptance shall not be unreasonably withheld or delayed
(provided that the Borrower’s approval shall not be required if an Event of Default then
exists) that shall be a bank with an office in New York, New York, or an Affiliate of any such
bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such
successor shall succeed to and become vested with all the rights, powers, privileges and duties of
the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from
all its duties and obligations under the Loan Documents. If no successor agent has accepted
appointment as Administrative Agent by the date that is 30 days



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following a retiring Administrative
Agent’s notice of resignation, the retiring Administrative Agent’s resignation shall nevertheless
thereupon become effective, and the Lenders shall assume and perform all of the duties of the
Administrative Agent hereunder until such time, if any, as the Required Lenders appoint a successor
agent as provided for above. The fees payable by the Borrower to a successor Administrative Agent
shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower
and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this
Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative
Agent, its sub-agents and
 their respective Related Parties in respect of any actions taken or omitted to be taken by any
of them while the retiring Administrative Agent was acting as Administrative Agent.




     Each Lender and each Issuing Bank acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender or any of their Related Parties and based on such
documents and information as it has deemed appropriate, made its own credit analysis and decision
to enter into this Agreement. Each Lender and each Issuing Bank also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other Lender or any of
their Related Parties and based on such documents and information as it shall from time to time
deem appropriate, continue to make its own decisions in taking or not taking action under or based
upon this any Loan Document or any related agreement or any document furnished thereunder.



     Notwithstanding anything herein to the contrary, none of the Syndication Agent, Joint
Bookrunners or Co-Lead Arrangers listed on the cover page hereof shall have any powers, duties or
responsibilities under any Loan Document, except in its capacity, as applicable, as the
Administrative Agent, a Lender or an Issuing Bank hereunder.



ARTICLE IX




Miscellaneous




     SECTION 9.01 Notices. Except in the case of notices and other communications
expressly permitted to be given by telephone, all notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by telecopy, as follows:



     (a) if to Holdings or the Borrower, to it at 5505 Blue Lagoon Drive, Miami, Florida 33126
(Telecopy No. (305) 378-7230);



     (b) if to the Administrative Agent, to JPMorgan Chase Bank, N.A., 1111 Fannin, 10th Floor,
Houston, Texas 77002, Attention of Amanda Ryan (Telecopy No.: (713) 750-2956), with a
copy to JPMorgan Chase Bank, N.A., 383 Madison Avenue, 24th Floor, New York, New York
10179, Attention of Malwina Siedlinska (Telecopy No. (212) 270-3279);



     (c) if to an Issuing Bank or Swingline Lender other than the Administrative Agent, to it
at the address or telecopy number set forth separately in writing; and



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     (d) if to any other Lender, to it at its address (or telecopy number) set forth in its
Administrative Questionnaire.



     Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. Notices and other communications to
the Lenders and an Issuing Bank hereunder may also be delivered or furnished by electronic
communication (including e-mail and Internet or intranet websites) pursuant to procedures approved
by the Administrative Agent, provided that the foregoing shall not apply to notices to any
Lender or an Issuing Bank pursuant to Article II if such Lender or such Issuing Bank, as
applicable, has notified the Administrative Agent that it is incapable of
receiving notices under such Article by electronic communication. The Administrative Agent or
the Borrower may, in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it, provided that
approval of such procedures may be limited to particular notices or communications. All notices and
other communications given to any party hereto in accordance with the provisions of this Agreement
shall be deemed to have been given on the date of receipt.



     SECTION 9.02 Waivers; Amendments. (a) No failure or delay by the Administrative
Agent, any Issuing Bank or any Lender in exercising any right or power under any Loan Document
shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any
other or further exercise thereof or the exercise of any other right or power. The rights and
remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the
other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provision of any Loan Document or consent to any departure by any
Loan Party therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. Without limiting the generality of the
foregoing, the making of a Loan or the issuance, amendment, renewal or extension of a Letter of
Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative
Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
No notice or demand on the Borrower or Holdings in any case shall entitle the Borrower or Holdings
to any other or further notice or demand in similar or other circumstances.



     (b) Except as provided in Section 2.20 with respect to any Incremental Facility Amendment,
neither any Loan Document nor any provision thereof may be waived, amended or modified except, in
the case of this Agreement, pursuant to an agreement or agreements in writing entered into by
Holdings, the Borrower and the Required Lenders or, in the case of any other Loan Document,
pursuant to an agreement or agreements in writing entered into by the Administrative Agent and the
Loan Party or Loan Parties that are parties thereto, in each case with the consent of the Required
Lenders, provided that no such agreement shall (i) increase the Commitment of any Lender
without the written consent of such Lender, (ii) reduce or forgive the principal amount of any Loan
or LC Disbursement or reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby, provided that any amendment to
the financial covenant definitions in this Agreement shall not constitute a reduction in the rate
of interest for purposes of this clause (ii), (iii) postpone or



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 otherwise extend the maturity of
any Loan, or the date of any scheduled payment of the principal amount of any Term Loan under
Section 2.10 or the applicable Incremental Facility Amendment, or the required date of
reimbursement of any LC Disbursement, or any date for the payment of any interest or fees payable
hereunder, or reduce or forgive the amount of, waive or excuse any such payment, or postpone or
otherwise extend the scheduled date of expiration of any Commitment, without the written consent of
each Lender affected thereby, (iv) change any of the provisions of this Section or the percentage
set forth in the definition of “Required Lenders” or any other provision of any Loan Document
specifying the number or percentage of Lenders (or Lenders of any Class) required to waive, amend
or modify any rights thereunder or make any determination or grant any consent thereunder, without
the written consent of each Lender (or
each Lender of such Class, as the case may be) (it being understood that, other than pursuant
to any Incremental Facility Amendment (the consent requirements for which are set forth in Section
2.20), with the consent of the Required Lenders, additional extensions of credit pursuant to this
Agreement may be included in the determination of the Required Lenders on substantially the same
basis as the Term Loans and Revolving Commitments on the date hereof), (v) release all or
substantially all of the Subsidiary Loan Parties from their Guarantee under the Collateral
Agreement (except as expressly provided in the Collateral Agreement), without the written consent
of each Lender, or (vi) release all or substantially all the Collateral from the Liens of the
Security Documents, without the written consent of each Lender, provided further
that (A) no such agreement shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent, an Issuing Bank or the Swingline Lender or change Section 2.21 without the
prior written consent of the Administrative Agent, such Issuing Bank or the Swingline Lender, as
the case may be, and (B) any waiver, amendment or modification of this Agreement that by its terms
affects the rights or duties under this Agreement of Lenders holding Loans or Commitments of a
particular Class (but not the Lenders holding Loans or Commitments of any other Class) may be
effected by an agreement or agreements in writing entered into by Holdings, the Borrower and the
requisite percentage in interest of the affected Class of Lenders that would be required to consent
thereto under this Section if such Class of Lenders were the only Class of Lenders hereunder at the
time.




     (c) In connection with any proposed amendment, modification, waiver or termination (a
“Proposed Change”) requiring the consent of all Lenders or all affected Lenders, if the
consent of the Required Lenders to such Proposed Change is obtained, but the consent to such
Proposed Change of other Lenders whose consent is required is not obtained (any such Lender whose
consent is not obtained as described in paragraph (b) of this Section being referred to as a
“Non-Consenting Lender”), then, the Borrower may, at its sole expense and effort, upon
notice to such Non-Consenting Lender and the Administrative Agent, require such Non-Consenting
Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions
contained in Section 9.04), all its interests, rights and obligations under this Agreement to an
assignee that shall assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment), provided that (a) the Borrower shall have received the prior
written consent of the Administrative Agent (and, if a Revolving Commitment is being assigned, each
Issuing Bank and the Swingline Lender), which consent shall not unreasonably be withheld, (b) such
Non-Consenting Lender shall have received payment of an amount equal to the outstanding principal
of its Loans and participations in LC Disbursements and Swingline Loans, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder from the assignee (to the extent of such
outstanding principal and accrued interest and fees) or the Borrower (in the



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case of all other
amounts) and (c) the Borrower or such assignee shall have paid to the Administrative Agent the
processing and recordation fee specified in Section 9.04(b).



     SECTION 9.03 Expenses; Indemnity; Damage Waiver. (a) If the Effective Date occurs,
the Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by the Administrative
Agent and its Affiliates, including the reasonable fees, charges and disbursements of one counsel
for the Administrative Agent and the Lead Arrangers taken as a whole and, if necessary, of one
local and one regulatory counsel in any applicable jurisdiction (and solely in case of any conflict
of interest, one additional counsel to the affected Lenders, taken as a whole), in connection with
the syndication of the credit facilities provided for herein, the preparation and
administration of the Loan Documents or any amendments, modifications or waivers of the
provisions thereof, (ii) all reasonable out-of-pocket expenses incurred by any Issuing Bank in
connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand
for payment thereunder and (iii) all out-of-pocket expenses incurred by the Administrative Agent,
any Issuing Bank or the Lenders, including the fees, charges and disbursements of one counsel for
the Administrative Agent, the Issuing Bank and the Lenders, taken as a whole and, if necessary, of
one local and one regulatory counsel in any applicable jurisdiction (and solely in case of any
conflict of interest, one additional counsel to the affected Lenders, taken as a whole), in
connection with the enforcement of the Loan Documents, including its rights under this Section and
during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.



     (b) The Borrower shall indemnify the Administrative Agent, each Issuing Bank and each
Lender, and each Related Party of any of the foregoing Persons (each such Person being called an
“Indemnitee”), against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including those relating to Environmental Laws and
including the reasonable fees, charges and disbursements of one counsel to the affected Indemnitees
taken as a whole (and solely in the case of any conflict of interest, one additional counsel to the
affected Indemnitees, taken as a whole), incurred by or asserted against any Indemnitee by any
third party or by Holdings, the Borrower or any Subsidiary arising out of, in connection with, or
as a result of (i) the execution or delivery of any Loan Document or any other agreement or
instrument contemplated thereby, the performance by the parties to the Loan Documents of their
respective obligations thereunder or the consummation of the Transactions or any other transactions
contemplated thereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom
(including any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if
the documents presented in connection with such demand do not strictly comply with the terms of
such Letter of Credit) or (iii) any actual or prospective claim, litigation, investigation or
proceeding relating to any of the foregoing, whether based on contract, tort or any other theory,
whether brought by a third party or by Holdings, the Borrower or any Subsidiary and regardless of
whether any Indemnitee is a party thereto, provided that such indemnity shall not, as to
any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or
related expenses are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from (i) the gross negligence, bad faith or willful misconduct of such
Indemnitee or its Related Parties or (ii) a material breach by such Indemnitee of its obligations
under any Loan Document.



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     (c) To the extent that the Borrower fails to pay any amount required to be paid by it to
the Administrative Agent or the applicable Issuing Bank under paragraph (a) or (b) of this Section,
and without limiting the Borrower’s obligation to do so, each Lender severally agrees to pay to the
Administrative Agent or such Issuing Bank, as the case may be, such Lender’s pro rata share
(determined as of the time that the applicable unreimbursed expense or indemnity payment is sought)
of such unpaid amount, provided that the unreimbursed expense or indemnified loss, claim,
damage, liability or related expense, as the case may be, was incurred by or asserted against the
Administrative Agent or such Issuing Bank in its capacity as such. For purposes hereof, a Lender’s
“pro rata share” shall be determined based upon its share of the aggregate Revolving Exposures,
outstanding Term Loans and unused Commitments at the time, provided that, for purposes of
indemnifying the Issuing Bank hereunder, such “pro rata share” shall be
based upon the aggregate Revolving Exposures and unused Revolving Commitments. The obligations
of the Lenders under this paragraph (c) are subject to the last sentence of Section 2.02(a) (which
shall apply mutatis mutandis to the Lenders’ obligations under this paragraph (c)).



     (d) None of Holdings, the Borrower, the Subsidiaries or any Indemnitees shall be liable
for special, indirect, consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, any Loan Document or any agreement or
instrument contemplated thereby, the Transactions, any Loan or Letter of Credit or the use of the
proceeds thereof, provided that nothing contained in this paragraph (d) shall limit the
obligations of the Borrower under Section 9.03(b).



     (e) All amounts due under this Section shall be payable not later than ten days after
written demand therefor.



     SECTION 9.04 Successors and Assigns. (a) The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby (including any Affiliate of an Issuing Bank that issues any Letter of
Credit), except that (i) the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder (other than pursuant to the Merger) without the prior written consent of each
Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null
and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder
except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby (including any Affiliate of an Issuing Bank that issues any Letter of
Credit), Participants (to the extent provided in paragraph (c) of this Section) and, to the extent
expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing
Banks and the Lenders) any legal or equitable right, remedy or claim under or by reason of this
Agreement.



     (b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may
assign to one or more assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans at the time owing to it) with the prior
written consent (such consent not to be unreasonably withheld or delayed) of (A) the Borrower,
provided that no consent of the Borrower shall be required for an assignment of a Term Loan
to a Lender, an Affiliate of a Lender or an Approved Fund (as defined below) or, if



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an Event of
Default under clauses (a) or (b) of Article VII or under clauses (h), (i) or (j) (in each case with
respect to the Borrower) of Article VII has occurred and is continuing, any other assignee, (B)
the Administrative Agent, provided that no consent of the Administrative Agent shall be
required for an assignment of all or any portion of a Term Loan to a Lender, an Affiliate of a
Lender or an Approved Fund and (C) each Issuing Bank, provided that no consent of an
Issuing Bank shall be required for an assignment of all or any portion of a Term Loan or Term
Commitment.



     (ii) Assignments shall be subject to the following additional conditions:



          (A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an
Approved Fund or an assignment of the entire remaining amount of the assigning Lender’s Commitment
or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to
each such assignment (determined as of the trade date specified in the Assignment and Acceptance
with respect to such assignment or, if no trade date is so specified, as of the date the Assignment
and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not
be less than $5,000,000 or, in the case of a Term Loan, $1,000,000 in the case of a Tranche B Term
Loan and €1,000,000 in the case of a Tranche B Euro Term Loan, unless the Borrower and the
Administrative Agent otherwise consent (such consent not to be unreasonably withheld or delayed),
provided that no such consent of the Borrower shall be required if an Event of Default
under clauses (a) or (b) of Article VII or under clauses (h), (i) or (j) (in each case with respect
to the Borrower) has occurred and is continuing,



          (B) each partial assignment shall be made as an assignment of a proportionate part of all
the assigning Lender’s rights and obligations under this Agreement, provided that this
clause (B) shall not be construed to prohibit assignment of a proportionate part of all the
assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans,



          (C) the parties to each assignment shall execute and deliver to the Administrative Agent
an Assignment and Assumption, together with a processing and recordation fee of $3,500,
provided that assignments made pursuant to Section 2.19(b) or Section 9.02(c) shall not
require the signature of the assigning Lender to become effective, provided,
further, that only one such processing and recordation fee shall be payable in connection
with simultaneous assignments to two or more assignees that are Affiliates of one another, or to
two or more Approved Funds that are managed or advised by the same investment advisor,



          (D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent
an Administrative Questionnaire in which the assignee designates one or more credit contacts to
whom all syndicate-level information (which may contain material non-public information about the
Borrower and its Affiliates and their related parties or their respective securities) will be made
available and who may receive such information in accordance with the assignee’s compliance
procedures and applicable laws, including Federal and state securities laws and any tax forms
required by Section 2.17(e),



          (E) in case of an assignment to Holdings or its Subsidiaries or a Sponsor Affiliated
Lender, (1) no Event of Default under clauses (a) or (b) of Article VII or under clauses (h), (i)
or (j) (in each case, with respect to the Borrower) of Article VII shall have occurred and



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be
continuing, (2) on the date of such assignment and after giving effect thereto, no more than
$50,000,000 shall be outstanding in Revolving Loans, (3) after giving effect to such assignment, to
all other assignments with all Sponsor Affiliated Lenders, the aggregate principal amount of all
Term Loans then held by all Sponsor Affiliated Lenders (by assignment) shall not exceed 20% of the
aggregate unpaid principal amount of the Term Loans then outstanding, (4) the assignee shall
execute a waiver in form and substance reasonably satisfactory to Administrative Agent that it
shall have no right whatsoever so long as such Person is a Sponsor Affiliated Lender (i) to vote
with respect to any amendment, modification, waiver, consent or other such action with respect to
any of the terms of this Agreement or any other Loan Document, provided that,
notwithstanding the foregoing, such assignee shall be permitted to vote if such amendment,
modification, waiver, consent or other such action (x) requires the vote of all Lenders or all
affected Lenders and all Lenders or all affected Lenders, as the case may be, have given their
consent thereto, or (y) disproportionately affects such Sponsor Affiliated Lender in its capacity
as a Lender as compared to other Lenders, (ii) subject to subclause (i) of clause (4) of this
paragraph, to otherwise vote on any matter related to this Agreement or any other Loan Document,
(iii) to attend (or receive any notice of) any meeting, conference call or correspondence with the
Administrative Agent or any Lender or receive any information from the Administrative Agent or any
Lender or (iv) to make or bring any claim, in its capacity as Lender, against the Administrative
Agent or any Lender with respect to the duties and obligations of such Persons under the Loan
Documents, but no amendment, modification, waiver, consent or other action shall deprive any
Sponsor Affiliated Lender of its share of any payments which the Lenders are entitled to share on a
pro rata basis hereunder, (5) each Sponsor Affiliated Lender shall acknowledges and agree that the
Loans owned by it shall be non-voting under sections 1126 and 1129 of the Bankruptcy Code in the
event that any proceeding thereunder shall be instituted by or against Borrower or any other Loan
Party, or, alternatively, to the extent that the foregoing non-voting designation is deemed
unenforceable for any reason, each Sponsor Affiliated Lender shall vote in such proceedings in the
same proportion as the allocation of voting with respect to such matter by those Lenders who are
not Sponsor Affiliated Lenders, except to the extent that any plan of reorganization proposes to
treat the Obligations held by such Sponsor Affiliated Lender in a manner that is less favorable in
any material respect to such Sponsor Affiliated Lender than the proposed treatment of similar
Obligations held by Lenders that are not Sponsor Affiliated Lenders, (6) no Revolving Loans or
Revolving Commitments shall be assigned to any Sponsor Affiliated Lender except that Revolving
Loans and Revolving Commitments held by a Lender that becomes a Defaulting Lender may be assigned
to a Sponsor Affiliated Lender, and (7) any Loans assigned to the Borrower or the Subsidiaries
shall be cancelled promptly upon such assignment, and



          (F) the Borrower shall, upon reasonable request by the Administrative Agent, provide such
documentation to the Administrative Agent in connection with any assignment by a Lender to an
assignee that bears a relationship to the Borrower under Section 108(e)(4) of the Code, so as to
allow the Administrative Agent to determine whether the assigned portion of the Loan will have
original issue discount for U.S. federal income tax purposes and, if so, the amount of such
original issue discount.



     For purposes of paragraph (b) of this Section, the term “Approved Fund” and “CLO” have the
following meanings:



131









 





     “Approved Fund” means (a) a CLO and (b) with respect to any Lender that is a fund that
invests in bank loans and similar extensions of credit, any other fund that invests in bank loans
and similar extensions of credit and is managed or advised by the same investment advisor as such
Lender or by an Affiliate of such investment advisor.



     “CLO” means an entity (whether a corporation, partnership, trust or otherwise) that is
engaged in making, purchasing, holding or otherwise investing in bank loans and similar extensions
of credit in the ordinary course and is administered or managed by a Lender or an Affiliate of such
Lender.



     (iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(v) of this
Section, from and after the effective date specified in each Assignment and Assumption, the
assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and
the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment
and Assumption, be released from its obligations under this Agreement (and, in the case of an
Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this
Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.15, 2.16, 2.17 and 9.03 and to any fees payable hereunder that have accrued
for such Lender’s account but have not yet been paid). Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this Section shall be treated
for purposes of this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (c)(i) of this Section.



     (iv) The Administrative Agent, acting for this purpose as an agent of the Borrower, shall
maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the Commitment of, and
principal amount (and stated interest) of the Loans and LC Disbursements owing to, each Lender
pursuant to the terms hereof from time to time (the “Register”). The entries in the
Register shall be conclusive absent manifest error, and Holdings, the Borrower, the Administrative
Agent, the Issuing Banks and the Lenders shall treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for inspection by the
Borrower, any Issuing Bank and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.



     (v) Upon its receipt of a duly completed Assignment and Assumption executed by an
assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire and any tax
forms required by Section 2.17(e) (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b)(ii) of this Section and any written
consent to such assignment required by paragraph (b)(i) of this Section, the Administrative Agent
shall accept such Assignment and Assumption and record the information contained therein in the
Register. No assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.



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     (vi) The words “execution”, “signed”, “signature” and words of like import in any
Assignment and Assumption shall be deemed to include electronic signatures or the keeping of
records in electronic form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based recordkeeping system,
as the case may be, to the extent and as provided for in any applicable law, including the Federal
Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures
and Records Act or any other similar state laws based on the Uniform Electronic Transactions Act.



     (c) (i) Any Lender may, without the consent of the Borrower, the Administrative Agent, any
Issuing Bank or the Swingline Lender, sell participations to one or more banks or
other entities (a “Participant”) in all or a portion of such Lender’s rights and
obligations under this Agreement (including all or a portion of its Commitment and the Loans owing
to it), provided that (A) such Lender’s obligations under this Agreement shall remain
unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (C) Holdings, the Borrower, the Administrative Agent, the Issuing
Banks and the other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this Agreement and (D) the Borrower
shall, upon reasonable request of a Lender that sells a participation in all or a portion of such
Lender’s rights and obligations under this Agreement (including all or a portion of its Commitments
and the Loans owing to it) to the Borrower or to a Participant that bears a relationship to the
Borrower under Section 108(e)(4) of the Code, provide such documentation to such Lender so as to
allow such Lender to determine whether the participated portion of the Loan will have original
issue discount for U.S. federal income tax purposes and, if so, the amount of such original issue
discount. Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce the Loan Documents and to approve
any amendment, modification or waiver of any provision of the Loan Documents, provided that
such agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver described in clause (i), (ii), (iii) or
(vi) of the first proviso to Section 9.02(b) that affects such Participant. Subject to paragraph
(c)(ii) of this Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.15, 2.16 and 2.17 to the same extent as if it were a Lender and had acquired
its interest by assignment pursuant to paragraph (b) of this Section. To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 9.08 as though it were a
Lender, provided that such Participant agrees to be subject to Section 2.18(c) as though it
were a Lender. Each Lender that sells a participation, acting solely for this purpose as a
non-fiduciary agent of the Borrower (solely for tax purposes), shall maintain a register on which
it enters the name and address of each Participant and the principal amounts (and stated interest)
of each Participant’s interest in the Loans or other obligations under this Agreement (the
“Participant Register”); provided that no Lender shall have any obligation to
disclose all or any portion of the Participant Register to any Person (including the identity of
any Participant or any information relating to a Participant’s interest in any Commitments, Loans,
Letters of Credit or its other obligations under any Loan Document) except to the extent that such
disclosure is necessary to establish that such Commitment, Loan, Letter of Credit or other
obligation is in registered form under Section 5f.103-1(c) of the United States Treasury
Regulations. The entries in the Participant Register shall be conclusive, and such Lender, each
Loan Party and the Administrative Agent shall treat each person whose name is recorded in the
Participant Register



133









 







pursuant to the terms hereof as the owner of such participation for all
purposes of this Agreement, notwithstanding notice to the contrary.



     (ii) A Participant shall not be entitled to receive any greater payment under Section 2.15
or Section 2.17 than the applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to such Participant is
made with the Borrower’s prior written consent. A Participant shall not be entitled to the benefits
of Section 2.17 unless the Borrower is notified of the participation sold to such Participant and
such Participant agrees, for the benefit of the Borrower, to comply with Section 2.17(e) as though
it were a Lender.



     (d) Any Lender may, without the consent of the Borrower or the Administrative Agent, at
any time pledge or assign a security interest in all or any portion of its rights under this
Agreement to secure obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest, provided that no such pledge or assignment of a security
interest shall release a Lender from any of its obligations hereunder or substitute any such
pledgee or assignee for such Lender as a party hereto.



     (e) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting
Lender”) may grant to a special purpose funding vehicle (an “SPV”), identified as such
in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower,
the option to provide to the Borrower all or any part of any Loan that such Granting Lender would
otherwise be obligated to make to the Borrower pursuant to this Agreement, provided that
(i) nothing herein shall constitute a commitment by any SPV to make any Loan and (ii) if an SPV
elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the
Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a
Loan by an SPV hereunder shall utilize the Commitment of the Granting Lender to the same extent,
and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPV
shall be liable for any indemnity or similar payment obligation under this Agreement (all liability
for which shall remain with the Granting Lender). In furtherance of the foregoing, each party
hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior
to the date that is one year and one day after the payment in full of all outstanding commercial
paper or other senior indebtedness of any SPV, such party will not institute against, or join any
other person in instituting against, such SPV any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under the laws of the United States or any State thereof. In
addition, notwithstanding anything to the contrary contained in this Section 9.04, any SPV may (i)
with notice to, but without the prior written consent of, the Borrower and the Administrative Agent
and without paying any processing fee therefor, assign all or a portion of its interests in any
Loans to the Granting Lender or to any financial institutions (consented to by the Borrower and
Administrative Agent) providing liquidity or credit support to or for the account of such SPV to
support the funding or maintenance of Loans and (ii) disclose on a confidential basis any
non-public information relating to its Loans to any rating agency, commercial paper dealer or
provider of any surety, guarantee or credit or liquidity enhancement to such SPV.



134









 





     SECTION 9.05 Survival. All covenants, agreements, representations and warranties
made by the Loan Parties in the Loan Documents and in the certificates or other instruments
delivered in connection with or pursuant to any Loan Document shall be considered to have been
relied upon by the other parties hereto and shall survive the execution and delivery of the Loan
Documents and the making of any Loans and issuance of any Letters of Credit, regardless of any
investigation made by any such other party or on its behalf and notwithstanding that the
Administrative Agent, any Issuing Bank or any Lender may have had notice or knowledge of any
Default or incorrect representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any accrued interest on any
Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not expired or terminated. The
provisions of Sections 2.15, 2.16, 2.17 and 9.03 and Article VIII shall survive
and remain in full force and effect regardless of the consummation of the transactions
contemplated hereby, the repayment of the Loans, the expiration or termination of the Letters of
Credit and the Commitments or the termination of this Agreement or any provision hereof.



     SECTION 9.06 Counterparts; Integration. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
This Agreement, the other Loan Documents and any separate letter agreements with respect to fees
payable to the Administrative Agent, the Syndication Agent or the syndication of the Loans and
Commitments constitute the entire contract among the parties relating to the subject matter hereof
and supersede any and all previous agreements and understandings, oral or written, relating to the
subject matter hereof.



     SECTION 9.07 Severability. Any provision of this Agreement held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability without affecting the validity, legality
and enforceability of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.



     SECTION 9.08 Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender, each Issuing Bank and each of their respective Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or demand, provisional or final, in
whatever currency) at any time held and other obligations (in whatever currency) at any time owing
by such Lender, such Issuing Bank or any such Affiliate to or for the credit or the account of the
Borrower against any of and all the obligations of the Borrower now or hereafter existing under
this Agreement held by such Lender or such Issuing Bank, irrespective of whether or not such Lender
or such Issuing Bank shall have made any demand under this Agreement and although such obligations
may be unmatured or are owed to a branch or office of such Lender or such Issuing Bank different
from the branch or office holding such deposit or obligated on such Indebtedness. The applicable
Lender and the applicable Issuing Bank shall notify the Borrower and the Administrative Agent of
such setoff and application, provided that any failure to give or any delay in giving such
notice shall not affect the validity of any such setoff and application under this Section. The
rights of each Lender, each Issuing Bank and their respective Affiliates



135









 







under this Section are in
addition to other rights and remedies (including other rights of setoff) that such Lender, such
Issuing Bank and their respective Affiliates may have.



     SECTION 9.09 Governing Law; Jurisdiction; Consent to Service of Process. (a) This
Agreement shall be construed in accordance with and governed by the law of the State of New York;
provided, however, that the interpretation of the definition of Closing Date
Material Adverse Effect (and whether or not a Closing Date Material Adverse Effect has occurred)
shall be governed by, and construed and interpreted in accordance with, the laws of the State of
Delaware.



     (b) Each of Holdings and the Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the exclusive jurisdiction of the Supreme Court of the State of New
York sitting in the Borough of Manhattan and of the United States District Court of the
Southern District of New York, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to any Loan Document, or for recognition or enforcement of
any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined in such New York
State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees
that, to the extent permitted by applicable law, a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any
other manner provided by law. Nothing in any Loan Document shall affect any right that the
Administrative Agent, any Issuing Bank or any Lender may otherwise have to bring any action or
proceeding relating to any Loan Document against Holdings, the Borrower or their respective
properties in the courts of any jurisdiction.



     (c) Each of Holdings and the Borrower hereby irrevocably and unconditionally waives, to
the fullest extent not prohibited by law, any right it might have to claim or recover in any legal
action or proceeding referred to in this Section any special, exemplary, punitive or consequential
damages, and waives to the fullest extent it may legally and effectively do so, any objection that
it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out
of or relating to any Loan Document in any court referred to in paragraph (b) of this Section. Each
of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.



     (d) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.01. Nothing in any Loan Document will affect the right of any
party to this Agreement to serve process in any other manner permitted by law.



     SECTION 9.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD



136









 







NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
IN THIS SECTION.



     SECTION 9.11 Headings. Article and Section headings and the Table of Contents used
herein are for convenience of reference only, are not part of this Agreement and shall not affect
the construction of, or be taken into consideration in interpreting, this Agreement.



     SECTION 9.12 Confidentiality. Each of the Administrative Agent, the Issuing Banks
and the Lenders agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its and its Affiliates’ directors, officers,
employees and agents, including accountants, legal counsel and other advisors (it being
understood that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information confidential), (b)
to the extent requested by any regulatory authority, (c) to the extent required by applicable laws
or regulations or by any subpoena or similar legal process (in which case notice of such subpoena
or similar legal process shall, to the extent not prohibited by such subpoena or legal process, be
provided to the Borrower prior to the disclosure of such Information), (d) to any other party to
this Agreement, (e) in connection with the exercise of any remedies hereunder or any suit, action
or proceeding relating to any Loan Document or the enforcement of rights thereunder, (f) subject to
an agreement containing provisions substantially the same as those of this Section, to (i) any
assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights
or obligations under this Agreement, (ii) any actual or prospective counterparty (or its advisors)
to any Swap Agreement relating to any Loan Party and its obligations under the Loan Documents and
(iii) to any pledgee referred to in Section 9.04(d), (g) with the consent of the Borrower or (h) to
the extent such Information (i) becomes publicly available other than as a result of a breach of
this Section or (ii) becomes available to the Administrative Agent, any Issuing Bank or any Lender
on a nonconfidential basis from a source other than Holdings or the Borrower (provided that
the source is not actually known by such disclosing party to be bound by an agreement containing
provisions substantially the same as those contained in this Section 9.12). For the purposes of
this Section, “Information” means all information received from Holdings or the Borrower
relating to Holdings or the Borrower or its business, other than any such information that is
available to the Administrative Agent, any Issuing Bank or any Lender on a nonconfidential basis
prior to disclosure by Holdings or the Borrower. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own confidential
information.



     SECTION 9.13 Interest Rate Limitation. Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to any Loan or participation in any LC
Disbursement, together with all fees, charges and other amounts that are treated as interest on
such Loan or LC Disbursement or participation therein under applicable law (collectively the
“Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) that may be
contracted for, charged, taken, received or reserved by the Lender holding such Loan or LC
Disbursement or participation therein in accordance with applicable law, the rate of interest



137









 







payable in respect of such Loan hereunder, together with all Charges payable in respect thereof,
shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would
have been payable in respect of such Loan or LC Disbursement or participation therein but were not
payable as a result of the operation of this Section shall be cumulated and the interest and
Charges payable to such Lender in respect of other Loans or LC Disbursement or participation
therein or periods shall be increased (but not above the Maximum Rate therefor) until such
cumulated amount, together with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by such Lender.



     SECTION 9.14 USA Patriot Act. Each Lender hereby notifies Holdings and the Borrower
that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the “Act”), it is required to obtain, verify and record information
that identifies Holdings and the Borrower, which information includes the name and
 address of Holdings and the Borrower and other information that will allow such Lender to
identify Holdings and the Borrower in accordance with the Act.




     SECTION 9.15 Conversion of Currencies. (a) If, for the purpose of obtaining
judgment in any court, it is necessary to convert a sum owing hereunder in one currency into
another currency, each party hereto agrees, to the fullest extent that it may effectively do so,
that the rate of exchange used shall be that at which in accordance with normal banking procedures
in the relevant jurisdiction the first currency could be purchased with such other currency on the
Business Day immediately preceding the day on which final judgment is given.



     (b) The obligations of the Borrower in respect of any sum due to any party hereto or any
holder of the obligations owing hereunder (the “Applicable Creditor”) shall,
notwithstanding any judgment in a currency (the “Judgment Currency”) other than the
currency in which such sum is stated to be due hereunder (the “Agreement Currency”), be
discharged, to the fullest extent permitted by applicable law, only to the extent that, on the
Business Day following receipt by the Applicable Creditor of any sum adjudged to be so due in the
Judgment Currency, the Applicable Creditor may in accordance with normal banking procedures in the
relevant jurisdiction purchase the Agreement Currency with the Judgment Currency; if the amount of
the Agreement Currency so purchased is less than the sum originally due to the Applicable Creditor
in the Agreement Currency, such Borrower agrees, as a separate obligation and notwithstanding any
such judgment, to indemnify, to the fullest extent permitted by applicable law, the Applicable
Creditor against such loss. The obligations of the Borrower contained in this Section 9.15 shall
survive the termination of this Agreement and the payment of all other amounts owing hereunder.



     SECTION 9.16 Effectiveness of the Merger; Assumption by the Borrower. Upon
consummation of the Merger, Holdings shall automatically succeed to all the rights and obligations
of the Initial Borrower under this Agreement and the other Loan Documents, and the Borrower shall
immediately thereafter assume all such rights and obligations of Holdings as the “Borrower” under
this Agreement and the other Loan Documents.



138









 



     IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and
year first above written.




	 	 	 	 	 
	 	BURGER KING HOLDINGS, INC.

 	 
	 	By  	/s/ Ben K. Wells
 	 
	 	 	Name:  	Ben K. Wells 	 
	 	 	Title:  	Chief Financial Officer 	 
	 
	 	BLUE ACQUISITION SUB, INC.

 	 
	 	By  	/s/ Daniel Schwartz
 	 
	 	 	Name:  	Daniel Schwartz 	 
	 	 	Title:  	Vice President 	 
	 
	 	BURGER KING CORPORATION

 	 
	 	By  	/s/ Ben K. Wells
 	 
	 	 	Name:  	Ben K. Wells 	 
	 	 	Title:  	Chief Financial Officer 	 



[Blue Credit Agreement Signature Page]




 









 








	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A., as Administrative

Agent and Lender

 	 
	 	By  	/s/ Barry Bergman
 	 
	 	 	Name:  	Barry Bergman 	 
	 	 	Title:  	Managing Director 	 
	 



[Blue Credit Agreement Signature Page]





 









 








	 	 	 	 	 
	 	Banco de Credito e Inversiones S.A., Miami

Branch

 	 
	 	By  	/s/ Maria Grisel Vega
 	 
	 	 	Name:  	Maria Grisel Vega 	 
	 	 	Title:  	General Manager 	 
	 



[Blue Credit Agreement Signature Page]





 









 








	 	 	 	 	 
	 	Banco do Brasil, S.A., New York Branch

 	 
	 	By  	/s/ Daniel Faria Costa
 	 
	 	 	Name:  	Daniel Faria Costa 	 
	 	 	Title:  	General Manager 	 
	 
	 	 	 
	 	By  	
/s/ Joao Carlos Telles
 	 
	 	 	Name:  	Joao Carlos Telles 	 
	 	 	Title:  	Deputy General Manager 	 



2









 






	 	 	 	 	 
	 	Barclays Bank PLC

 	 
	 	By  	/s/ Ritam Bhalla
 	 
	 	 	Name:  	Ritam Bhalla 	 
	 	 	Title:  	Vice President 	 



3









 






	 	 	 	 	 
	 	BAWAG PSK Bank fur Arbeit und Wirtschaft und

Osterreichische Postsparkasse AG

 	 
	 	By  	/s/ Christoph Rauschen
 	 
	 	 	Name:  	Christoph Rauschen 	 
	 	 	Title:  	Senior VP 	 
	 
	 	 	 
	 	By  	
/s/ Denise R Hamer
 	 
	 	 	Name:  	Denise R Hamer 	 
	 	 	Title:  	Head of International Corporates
Legal 	 



4









 






	 	 	 	 	 
	 	California First National Bank

 	 
	 	By  	/s/ D.N. Lee
 	 
	 	 	Name:  	D.N. Lee 	 
	 	 	Title:  	SVP 	 



5









 






	 	 	 	 	 
	 	Coöperatieve Centrale

Raiffeisen-Boerenleenbank B.A. “Rabobank

Nederland,” New York Branch

 	 
	 	By  	/s/ Lissy Smit
 	 
	 	 	Name:  	Lissy Smit 	 
	 	 	Title:  	Executive Director 	 
	 
	 	 	 
	 	By  	
/s/ Brett Delfino
 	 
	 	 	Name:  	Brett Delfino 	 
	 	 	Title:  	Executive Director 	 



6









 






	 	 	 	 	 
	 	DZ Bank AG

Deutsche Zentral-Genossenschaftsbank

Frankfurt am Main

New York Branch

 	 
	 	By  	/s/ Mark Markowski
 	 
	 	 	Name:  	Mark Markowski 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	 	 
	 	By  	
/s/ Oliver Hildenbrand
 	 
	 	 	Name:  	Oliver Hildenbrand 	 
	 	 	Title:  	Senior Vice President 	 



7









 






	 	 	 	 	 
	 	Fifth Third Bank, an Ohio Banking Corporation

 	 
	 	By  	/s/ John A. Marian
 	 
	 	 	Name:  	John A. Marian 	 
	 	 	Title:  	Vice President 	 



8









 






	 	 	 	 	 
	 	Israel Discount Bank of New York

 	 
	 	By  	
/s/  Christopher Meade
 	 
	 	 	Name:  	Christopher Meade	 
	 	 	Title:  	Vice President 	 
	 
	 	By  	
/s/ Rajesh Melwani
 	 
	 	 	Name:  	Rajesh Melwani 	 
	 	 	Title:  	Assistant Vice President 	 



9









 






	 	 	 	 	 
	 	Mediobanca International (Luxembourg) S.A.

 	 
	 	By  	/s/ Alastair Brown
 	 
	 	 	Name:  	Alastair Brown 	 
	 	 	Title:  	Executive Director 	 



10









 






	 	 	 	 	 
	 	Raymond James Bank, FSB

 	 
	 	By  	/s/ Kathy Bennett
 	 
	 	 	Name:  	Kathy Bennett 	 
	 	 	Title:  	VP 	 



11









 






	 	 	 	 	 
	 	Regions Bank

 	 
	 	By  	/s/ Stephen Hanas
 	 
	 	 	Name:  	Stephen Hanas 	 
	 	 	Title:  	Senior Vice President 	 



12









 






	 	 	 	 	 
	 	SAFRA INTERNATIONAL BANK AND TRUST LTD.

 	 
	 	By  	/s/ Wilder Gonzalez Penino
 	 
	 	 	Name:  	Wilder Gonzalez Penino 	 
	 	 	Title:  	Director 	 
	 
	 	 	 
	 	   	 /s/ Jose Bouzas
 	 
	 	 	Name:  	Jose Bouzas 	 
	 	 	Title:  	Attorney-in-fact 	 



13









 






	 	 	 	 	 
	 	Safra National Bank of New York

 	 
	 	By  	/s/ Courtney Walker
 	 
	 	 	Name:  	Courtney Walker 	 
	 	 	Title:  	Assistant Vice President 	 
	 
	 	 	 
	 	   	 /s/ Philip Montemurro
 	 
	 	 	Name:  	Philip Montemurro 	 
	 	 	Title:  	Senior Vice President and Chief
Credit Officer 	 



14









 






	 	 	 	 	 
	 	State Bank of India

 	 
	 	By  	/s/ C. Sreenivasulu Setty
 	 
	 	 	Name:  	C. Sreenivasulu Setty 	 
	 	 	Title:  	Vice President & Head
(Syndications) 	 



15









 






	 	 	 	 	 
	 	The Bank of Tokyo-Mitsubishi UFJ, Ltd.

 	 
	 	By  	/s/ Charles Stewart
 	 
	 	 	Name:  	Charles Stewart 	 
	 	 	Title:  	Vice President 	 



16









 






	 	 	 	 	 
	 	UniCredit Bank AG, New York Branch

 	 
	 	By  	/s/ Kimberly Sousa
 	 
	 	 	Name:  	Kimberly Sousa 	 
	 	 	Title:  	Director 	 
	 
	 	 	 
	 	By  	/s/ Fabienne Lelievre
 	 
	 	 	Name:  	Fabienne Lelievre 	 
	 	 	Title:  	Director 	 
	 




17











 





EXHIBIT A




FORM OF

ASSIGNMENT AND ASSUMPTION




     This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the
Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the
“Assignor”) and [Insert name of Assignee] (the “Assignee”). Capitalized terms used
but not defined herein shall have the meanings given to them in the Credit Agreement identified
below (as amended, supplemented or otherwise modified, from time to time, the “Credit
Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard
Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated
herein by reference and made a part of this Assignment and Assumption as if set forth herein in
full.



     For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to
and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the
Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s
rights and obligations in its capacity as a Lender under the Credit Agreement and any other
documents or instruments delivered pursuant thereto to the extent related to the amount and
percentage interest identified below of all of such outstanding rights and obligations of the
Assignor under the respective facilities identified below (including any letters of credit,
guarantees, and swingline loans included in such facilities) and (ii) to the extent permitted to be
assigned under applicable law, all claims, suits, causes of action and any other right of the
Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under
or in connection with the Credit Agreement, any other documents or instruments delivered pursuant
thereto or the loan transactions governed thereby or in any way based on or related to any of the
foregoing, including contract claims, tort claims, malpractice claims, statutory claims and all
other claims at law or in equity related to the rights and obligations sold and assigned pursuant
to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii)
above being referred to herein collectively as the “Assigned Interest”). Such sale and
assignment is without recourse to the Assignor and, except as expressly provided in this Assignment
and Assumption, without representation or warranty by the Assignor.



	 	 	 	 	 

	 

	 	1. Assignor:
	 	____________________________
	 
	 	 	 	 
	 

	 	2. Assignee:
	 	____________________________
	 

	 	 	 	[and is an Affiliate/Approved Fund of [identify Lender]][and is a Sponsor Affiliated Lender]
	 
	 	 	 	 
	 

	 	3. Borrower:
	 	Burger King Corporation
	 
	 	 	 	 
	 

	 	4. Administrative Agent:
	 	JPMorgan Chase Bank, N.A., as the administrative agent under the Credit Agreement
	 
	 	 	 	 
	 

	 	5. Credit Agreement:
	 	Credit Agreement dated as of [______], 2010
among Blue Acquisition Sub, Inc., Burger King Holdings, Inc., Burger King
Corporation, the Lenders from time to time
party thereto, JPMorgan Chase Bank, N.A., as
Administrative Agent, and the other agents
party thereto
	 
	 	 	 	 
	 

	 	6. Assignment Interest:	 	 






 









 






	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Aggregate Amount of	 	 	Amount of	 	 	 	 
	 	 	Commitment/Loans	 	 	Commitment/Loans	 	 	Percentage Assigned of	 
	Facility Assigned	 	for all Lenders	 	 	Assigned	 	 	Commitment/Loans1	 
	Global Revolving
Commitment
	 	[$][€][£]	 	 	 	[$][€][£]	 	 	 	 	%	 
	U.S. Revolving
Commitment
	 	$	 	 	 	$	 	 	 	 	%	 
	Tranche B Commitment
	 	$	 	 	 	$	 	 	 	 	%	 
	Tranche B Euro
Commitment
	 	€	 	 	 	€	 	 	 	 	%	 






     Effective Date: _____________ ___, 20___ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND
WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]



     The Assignee agrees to deliver to the Administrative Agent a completed Administrative
Questionnaire in which the Assignee designates one or more credit contacts to whom all
syndicate-level information (which may contain material non-public information about the Borrower
and its Affiliates and their related parties or their respective securities) will be made
available and who may receive such information in accordance with the Assignee’s compliance
procedures and applicable laws, including Federal and state securities laws.





 




			
	1	 	Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.




2









 









The terms set forth in this Assignment and Assumption are hereby agreed to:




	 	 	 	 	 
	 	ASSIGNOR





[NAME OF ASSIGNOR]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 
	 	ASSIGNEE





[NAME OF ASSIGNEE]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 


[Consented to and]2 Accepted:




	 	 	 	 	 
	JPMORGAN CHASE BANK, N.A., as

     Administrative Agent

 	 
	By  	 	 
	 	Title: 	 
	 


[Consented to:]3




	 	 	 	 	 
	[NAME OF RELEVANT PARTY]

 	 
	By  	 	 
	 	Title: 	 
	 





 




			
	2	 	To be added only if the consent of the
Administrative Agent is required by the terms of the Credit Agreement.
	 
	3	 	To be added only if the consent of the
Borrower and/or other parties (e.g. Swingline Lender, Issuing Bank) is required
by the terms of the Credit Agreement.




3









 










ANNEX 1




STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION




1. Representations and Warranties.





	1.1	 	Assignor. The Assignor (a) represents and warrants that (i) it is the legal and beneficial
owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien,
encumbrance or other adverse claim and (iii) it has full power and authority, and has taken
all action necessary, to execute and deliver this Assignment and Assumption and to consummate
the transactions contemplated hereby; and (b) assumes no responsibility with respect to (i)
any statements, warranties or representations made in or in connection with the Credit
Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii)
the financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other
Person obligated in respect of any Loan Document or (iv) the performance or observance by the
Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Loan Document.






	1.2	 	Assignee. The Assignee (a) represents and warrants that (i) it has full power and authority,
and has taken all action necessary, to execute and deliver this Assignment and Assumption and
to consummate the transactions contemplated hereby and to become a Lender under the Credit
Agreement, (ii) it satisfies the requirements, if any, specified in the Credit Agreement that
are required to be satisfied by it in order to acquire the Assigned Interest and become a
Lender, (iii) from and after the Effective Date, it shall be bound by the provisions of the
Credit Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall
have the obligations of a Lender thereunder, (iv) it has received and/or had the opportunity
to review a copy of the Credit Agreement to the extent it has in its sole discretion deemed
necessary, together with copies of the most recent financial statements delivered pursuant to
Section 5.01 thereof, as applicable, and such other documents and information as it has in its
sole discretion deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Assumption and to purchase the Assigned Interest on the basis of which it
has made such analysis and decision independently and without reliance on the Administrative
Agent or any other Lender, and (v) if it is a Non-U.S. Lender, attached to the Assignment and
Assumption is any documentation required to be delivered by it pursuant to the terms of the
Credit Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) it
will, independently and without reliance on the Administrative Agent, the Assignor or any
other Lender, and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action under the Loan
Documents, and (ii) it will perform in accordance with their terms all of the obligations
which by the terms of the Loan Documents are required to be performed by it as a Lender.






	2.	 	Payments. From and after the Effective Date, the Administrative Agent shall make all
payments in respect of the Assigned Interest (including payments of principal, interest, fees
and other amounts) to the Assignor for amounts which have accrued to but excluding the




4









 






	 	 	Effective
Date and to the Assignee for amounts which have accrued from and after the Effective Date.
	 
	3.	 	General Provisions. This Assignment and Assumption shall be binding upon, and inure to the
benefit of, the parties hereto and their respective successors and assigns. This Assignment
and Assumption may be executed in any number of counterparts, which together shall constitute
one instrument. Delivery of an executed counterpart of a signature page of this Assignment
and Assumption by telecopy shall be effective as delivery of a manually executed counterpart
of this Assignment and Assumption. This Assignment and Assumption shall be governed by, and
construed in accordance with, the law of the State of New York.






5











 





PERFECTION CERTIFICATE




     Reference is made to the Credit Agreement dated as of October 19, 2010 (as amended, and
restated, supplemented or otherwise modified from time to time, the “Credit Agreement”),
among Blue Acquisition Sub, Inc., a Delaware corporation (to be merged with and into the Holdings
(as herein defined), the “Borrower”), Burger King Holdings, Inc., a Delaware corporation
(“Holdings”), Burger King Corporation, a Florida corporation (the “Target”), the
lenders from time to time party thereto (the “Lenders”), JPMorgan Chase Bank, N.A., as
Administrative Agent, Barclays Capital, as Syndication Agent, and Fifth Third Bank, Regions Bank
and UniCredit Bank AG, as Documentation Agents. Capitalized terms used but not defined herein have
the meanings assigned in the Credit Agreement or the Guarantee and Collateral Agreement referred to
therein, as applicable.



     The undersigned associate general counsel or chief legal officer of the Target hereby
certifies, on behalf of the Target, and not in his or her personal capacity, to the Administrative
Agent and each other Secured Party as follows:




     1. Names. (a) The exact legal name of each Grantor, as such name appears in its
respective certificate of incorporation, certificate of formation or equivalent document, is
set forth in Schedule 1(a). Each Grantor is the type of entity disclosed next to its name in
Schedule 1(a). Also set forth in Schedule 1(a) is the organizational identification number, if
any, of each Grantor that is a registered organization, the jurisdiction of formation or
incorporation of each Grantor and the address of the chief executive office of each Grantor.




     (b) Set forth below on Schedule 1(b) is each other corporate name each Grantor has had in
the past 5 years, together with the date of the relevant change.




     (c) Except as set forth in Schedule 1(c) hereto, no Grantor has changed its identity or
corporate structure in any way within the past 5 years. Changes in identity or corporate
structure would include mergers, consolidations and acquisitions, as well as any change in the
form, nature or jurisdiction of corporate organization. If any such change has occurred,
include in Schedule 1 the information required by Section 1 of this certificate as to each
acquiree or constituent party to a merger or consolidation.




     2. File Search Reports. File search reports have been obtained from the Uniform
Commercial Code filing offices where each Grantor is incorporated or formed.




     3. UCC Filings. Financing statements on Form UCC-1 in substantially the form of
Schedule 3 hereto have been prepared for filing in the Uniform Commercial Code filing office
in each jurisdiction of formation or incorporation of each Grantor.




     4. Intellectual Property. Attached hereto as Schedule 4(A) in proper form for
filing with the United States Patent and Trademark Office is a schedule setting forth each
Patent and Trademark owned by any Grantor (in each case, that is registered in the United
States Patent and Trademark Office or for which an application for registration in the United
States Patent and Trademark Office has been filed), including the name of the registered owner
and the registration number of each such Patent and Trademark. Attached hereto as
Schedule 4(B) in proper form for filing with the United States Copyright Office is a schedule
setting forth each Copyright owned by any Grantor (in each case, that is registered in the
United States or for which an application for registration in the United



 









 







States has been filed), including the name of the registered owner and the registration
number of such Copyright, and each material stand-alone license agreement under which a
Grantor is an exclusive licensee of a third party copyright registered or applied for, if any,
in the United States Copyright Office.




     5. Schedule of Filings. Attached hereto as Schedule 5 is a schedule setting forth,
with respect to the filings described in Section 3 above, each filing and the filing office in
which such filing is to be made.




     6. Stock Ownership and other Equity Interests. Attached hereto as Schedule 6 is a
true and correct list of all the Equity Interests of or owned by any Loan Party and the record
and beneficial owners of such Equity Interests. Each such entry on Schedule 6 includes an
indication of whether such Equity Interests or equity investments are currently certificated
or uncertificated.




     7. Debt Instruments. Attached hereto as Schedule 7 is a true and correct list of
all promissory notes and other evidence of indebtedness in excess of $1,000,000 held by any
Grantor that are required to be pledged under the Collateral and Guarantee Requirement,
including all intercompany notes between Loan Parties.



[Remainder of Page Intentionally Left Blank]



 









 




IN WITNESS WHEREOF, the undersigned have duly executed this certificate on this [__] day of [_____]
2010.




	 	 	 	 	 
	 
	 	BURGER KING CORPORATION

 	 
	 	by  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[Signature Page to Perfection Certificate]



 









 





EXHIBIT E




BURGER KING CORPORATION




COMPLIANCE CERTIFICATE




          Reference is made to the Credit Agreement dated as of October 19, 2010 (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”), among Blue
Acquisition Sub, Inc., Burger King Corporation, a Florida corporation (the “Borrower”),
Burger King Holdings, Inc., a Delaware corporation (“Holdings”), the Lenders party thereto,
JPMorgan Chase Bank, N.A., as Administrative Agent, Barclays Capital, as Syndication Agent, and the
other agents party thereto. Capitalized terms used in this Certificate and not otherwise defined
herein have the meanings specified in the Credit Agreement. Pursuant to Section 5.01(c) of the
Credit Agreement, the undersigned, in his/her capacity as a Financial Officer of the Borrower,
certifies as follows:





	 	1.	 	[Attached hereto as Exhibit A is a true and complete copy of the
[Borrower’s][                    ]1 [consolidated balance sheet and related consolidated
statements of operations, stockholders’ equity and cash flows as of the end of and for
the fiscal year of the Borrower ended [•], and related notes thereto, setting forth in
each case in comparative form the figures for the previous fiscal year, all reported on
by [KPMG LLP]2 (without a “going concern” or like qualification or exception
and without any qualification or exception as to the scope of such audit other than any
“going concern” or like qualification or exception with respect to the regularly
scheduled maturity of the Revolving Commitments) to the effect that such consolidated
financial statements present fairly in all material respects the financial condition
and results of operations of the Borrower and the Subsidiaries on a consolidated basis
in accordance with GAAP consistently applied] [Form 10-K filed with the SEC]
[consolidated balance sheet and related consolidated statements of operations,
stockholders’ equity and cash flows as of the end of and for the fiscal quarter ended
[•] and the then elapsed portion of the fiscal year, setting forth in each case in
comparative form the figures for the corresponding period or periods, if any, of (or,
in the case of the balance sheet, as of the end of) the previous fiscal year, all of
which presents fairly in all material respects the financial condition and results of
operations of the Borrower and the Subsidiaries







 




			
	1	 	In lieu of supplying the consolidated balance
sheet and related consolidated statements of operations, stockholders’ equity
and cash flows of the Borrower for the applicable period, the Borrower may
furnish (A) the applicable financial statements of any direct or indirect
parent of the Borrower that holds all of the Equity Interests of the Borrower
or (B) the Form 10-K or 10-Q, as applicable, filed with the SEC of the Borrower
or any direct or indirect parent of the Borrower.
	 
	2	 	Or other independent public accountants of
recognized national standing




 









 











	 	 	 	on a consolidated basis in accordance with GAAP consistently applied, subject to
normal year-end audit adjustments and the absence of footnotes][Form
10-Q].3
	 
	 	2.	 	[Attached hereto as Exhibit A-2 is consolidating information detailing
the differences between the information relating to the Borrower (or the direct or
indirect parent of the Borrower), on the one hand, and the information relating to the
Borrower and the Restricted Subsidiaries on the other hand.] 4
	 
	 	3.	 	[The materials attached as Exhibit A were reported on by [KPMG
LLP]5 (without a “going concern” or like qualification or exception and
without any qualification or exception as to the scope of such audit other than any
“going concern” or like qualification or exception with respect to the regularly
schedule maturity of the Revolving Commitments) to the effect that the consolidated
financial statements attached as Exhibit A present fairly in all material
respects the financial condition and results of operations of the Borrower and the
Subsidiaries on a consolidated basis in accordance with GAAP consistently
applied.]6
	 
	 	4.	 	[Attached hereto as Exhibit A-3 is consolidating financial statements
reflecting the adjustments7 necessary to eliminate the accounts of
Unrestricted Subsidiaries from the consolidated financial statements attached as
Exhibit A.]8
	 
	 	5.	 	Except as otherwise disclosed to the Administrative Agent in writing pursuant
to the Credit Agreement, at no time during the period beginning [•]9 and
ending [•]10 (the “Certificate Period”) did a Default or an Event of
Default exist. [If unable to provide the foregoing certification, fully describe the
reasons therefor and circumstances thereof and any action taken or proposed to be taken
with respect







 




			
	3	 	Include this paragraph in certificate
delivered with financial statements. If compliance certificate is delivered
after delivery of financial statements, a separate certificate with this
paragraph must be provided with the financial statements.
	 
	4	 	Include this paragraph to the extent the
information provided in paragraph 1 relates to a direct or indirect parent of
the Borrower.
	 
	5	 	Or other independent public accountants of
recognized national standing
	 
	6	 	Include this paragraph if in lieu of
providing the audited financial statements of the Borrower for the previous
fiscal year as described in paragraph 1, the Borrower provides (A) the
financial statements for the previous fiscal year of any direct or indirect
parent of the Borrower or (B) the Form 10-K filed with the SEC of any direct or
indirect parent of the Borrower.
	 
	7	 	The adjustments may be in footnote form only.
	 
	8	 	Include this paragraph if there are
Unrestricted Subsidiaries.
	 
	9	 	First day of applicable fiscal year/quarter.
	 
	10	 	Last day of applicable fiscal year/quarter
(which period shall cover the most recently completed four consecutive fiscal
quarters).




 









 











	 	 	 	thereto (including delivery of a Notice of Intent to Cure concurrently with delivery
of this Compliance Certificate).]
	 
	 	6.	 	The following represents true and accurate calculations, as of the last day of
the Certificate Period, demonstrating that the Borrower is in compliance, as
applicable, with the covenants set forth in Sections 6.12 and 6.13 of the Credit
Agreement [and of Excess Cash Flow]11:





	 	 	 	 	 	 	 

	 

	 	(i) Total Leverage Ratio.	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Consolidated Total Debt as of the last day of the
Certificate Period
	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Consolidated EBITDA for the four consecutive fiscal
quarters ended on the last day of the Certificate Period
	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Total Leverage Ratio for the last day of the Certificate
Period
	 	[     ]: 1.00	 	 
	 
	 	 	 	 	 	 
	 

	 	Required Total Leverage Ratio for the last day of the
Certificate Period
	 	[     ]: 1.00	 	 






	 	 	 	 	 	 	 

	 

	 	(ii) Interest Coverage Ratio.	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Consolidated EBITDA of the Borrower for the four
consecutive fiscal quarters ended on the last day of the
Certificate Period
	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Consolidated Interest Expense of the Borrower for the four
consecutive fiscal quarters ended on the last day of the
Certificate Period
	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Interest Coverage Ratio for the last day of the
Certificate Period
	 	[       ]: 1.00	 	 
	 
	 	 	 	 	 	 
	 

	 	Required Interest Coverage Ratio for the last day of the
Certificate Period
	 	[       ]: 1.00	 	 








 




			
	11	 	Only to be included for compliance
certificates delivered at fiscal year end.




 









 










	 	 	 	 	 	 	 

	 

	 	(iii) [Excess Cash Flow	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Excess Cash Flow for the fiscal year ended on the last
day of the Certificate Period
	 	 

	] 	 







	 	 	 	Supporting detail showing the calculation of Consolidated Total Debt is attached
hereto as Schedule 1. Supporting detail showing the calculation of Consolidated
EBITDA is attached hereto as Schedules 2 and 3. Supporting detail showing the
calculation of Consolidated Interest Expense is attached hereto as Schedule 4.
[Supporting detail showing the calculation of Excess Cash Flow is attached hereto as
Schedule 5.]
	 
	 	7.	 	At no time since the Effective Date of the Credit Agreement has there been a
change in GAAP or in the application thereof with respect to the financial statements
delivered for the Certificate Period that would cause such financial statements to
materially differ from those that would have been delivered for the Certificate Period
had there been no such change. [If unable to provide the foregoing certification, a
schedule must be prepared by a Financial Officer on behalf of the Borrower or the
relevant reporting entity reconciling such changes to what the financial statements
would have been without giving effect to such change and attached hereto on Annex A.]
	 
	 	8.	 	Since [the Effective Date]12, there has been no change to the
information required pursuant to Sections 1 and 4 of the Perfection Certificate. [If
unable to provide the foregoing certification, attach updated Sections 1 and/or 4 of
the Perfection Certificate as Annex B and insert the following certification as
paragraph 8: Attached hereto as Annex B [is an][are] updated Section[s] [1][and][4] of
the Perfection Certificate. All Uniform Commercial Code financing statements containing
a description of the Collateral have been filed of record in each governmental,
municipal or other appropriate office in each jurisdiction identified on such updated
Perfection Certificate to the extent necessary to protect and perfect the security
interests under the Collateral Agreement for a period of not less than 18 months after
the date of such updated Perfection Certificate.]13
	 
	 	9.	 	As of the last day of the Certificate Period, all Restricted Subsidiaries that
constituted De Minimis Foreign Subsidiaries as of the first day of the Certificate
Period continue to constitute De Minimis Foreign Subsidiaries. [If unable to







 




			
	12	 	If an updated Perfection Certificate has
been previously provided, insert date of such update instead of “Effective
Date”.
	 
	13	 	Only to be included for compliance
certificates delivered at fiscal year end.




 









 











	 	 	 	provide the foregiong certification, in the case of Foreign Subsidiaries, the
Borrower shall cause the Collateral and Guarantee Requirement to be satisfied
(unless otherwise agreed by the Administrative Agent in its reasonable judgment) (x)
with respect to such Subsidiary if such Subsidiary is required to become a
Subsidiary Loan Party and (y) with respect to any Equity Interest in such
Subsidiary owned by or on behalf of any Loan Party to the extent required to be
pledged pursuant to the Collateral and Guarantee Requirement.]





          IN WITNESS WHEREOF, the undersigned, in his/her capacity as a Financial Officer, has executed
this certificate for and on behalf of the Borrower and has caused this certificate to be delivered
this ____ day of [ • ].




	 	 	 	 	 
	 	BURGER KING CORPORATION

 	 
	 	by  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 











 





Schedule 1




Consolidated Total Debt of Burger King Corporation as of [•] — Worksheet



Amounts listed hereon should include the aggregate principal amounts for Burger King Corporation
and the Restricted Subsidiaries (“Burger King”) as of the last date of the Certificate
Period, without duplication, determined on a consolidated basis in accordance with U.S. GAAP to the
extent reflected as a liability on the balance sheet (but excluding the effects of any discounting
of Indebtedness resulting from the application of purchase accounting in connection with the
Transactions or any Permitted Acquisition). Consolidated Total Debt should not include Letters of
Credit (or other letters of credit or bankers’ acceptances) , except to the extent of unreimbursed
amounts thereunder and obligations under Swap Agreements permitted by the Section 6.07 of the
Credit Agreement.




	 	 	 	 	 

	1.

	 	All Indebtedness for borrowed money	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	2.

	 	All debt obligations evidenced by bonds, debentures, notes
or similar instruments
	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	3.

	 	All Capital Lease Obligations	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	minus
	 	 	 	 
	 
	 	 	 	 
	4.

	 	The aggregate amount of cash and Permitted Investments
included in the consolidated balance sheet of Burger King
in excess of $25,000,000, but not to exceed $150,000,000	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Consolidated Total Debt (sum of lines 1-3 minus
lines 4)	 	 
	 

	 	 	 	 





 









 






Schedule 2




Consolidated EBITDA for four fiscal quarter period ending [•] — Worksheet



All amounts to be determined on a consolidated basis in accordance with U.S. GAAP. Amounts listed
in lines 2 through 10 and lines 12 through 14 should be listed without duplication and only to the
extent deducted in calculating Consolidated Net Income. Amounts listed in lines 15 through 17
should be listed without duplication and should be listed only to the extent included in
determining Consolidated Net Income. Amounts listed in line 11 and lines 18 through 23 should be
included in determining Consolidated EBITDA without duplication.




	 	 	 	 	 

	1.

	 	Consolidated Net Income	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Plus
	 	 	 	 
	 
	 	 	 	 
	2.

	 	Provision for Income Taxes paid or accrued	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	3.

	 	Consolidated Interest Expense	 	 
	 
	 	 	 	 
	 

	 	plus amounts excluded from Consolidated Interest Expense as	 	 
	 
	 	 	 	 
	 

	 	(a) penalties and interest relating to taxes,	 	 
	 
	 	 	 	 
	 

	 	(b) any additional cash interest owing pursuant to any
registration rights agreement with respect to securities,	 	 
	 
	 	 	 	 
	 

	 	(c) any expensing of bridge, commitment and other financing
fees, and	 	 
	 
	 	 	 	 
	 

	 	(d) any accretion of accrued interest on discounted liabilities	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	4.

	 	Any expenses (other than depreciation or amortization expense)
related to any equity offering, Investment, acquisition,
disposition, or recapitalization permitted under the Credit
Agreement or the incurrence of Indebtedness	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	5.

	 	Consolidated Depreciation and Amortization Expense	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	6.

	 	Any non-cash extraordinary, unusual or non-recurring expenses,
charges or losses	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	7.

	 	(a) Any cash extraordinary, unusual or non-recurring expenses,
charges or losses plus	 	 
	 
	 	 	 	 
	 

	 	(b) any restructuring charges, integration costs or other
business optimization expenses, costs associated with establishing new facilities or reserves, and costs related to
the closure and/or consolidation of facilities14	 	 
	 

	 	 	 	 





 









 






	 	 	 	 	 

	8.

	 	Any non-cash charges, expenses or losses	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	9.

	 	The amount of any minority interest expense consisting of
Subsidiary income attributable to minority equity interests of
third parties in any non-wholly owned Subsidiary	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	10.

	 	The amount of management, monitoring, consulting and advisory
fees and related indemnities and expenses paid or accrued to
the Sponsor	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	11.

	 	The amount of “run-rate” cost savings projected by the
Borrower in good faith and certified by the chief financial
officer of the Borrower to result from actions either taken or
initiated prior to or during the prior four fiscal quarters
(which cost savings shall be calculated on a pro forma basis
as though such cost savings had been realized on the first day
of such period), net of the amount of actual benefits realized
or expected to be realized prior to or during such period from
such actions15	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	12.

	 	Any costs or expense incurred by the Borrower or a Restricted
Subsidiary pursuant to any management equity plan or stock
option plan or any other management or employee benefit plan
or agreement or any stock subscription or shareholder
agreement, to the extent that such cost or expenses are funded
with cash proceeds contributed to the capital of the Borrower
or Net Proceeds of an issuance of Equity Interests (other than
Disqualified Equity Interests) of the Borrower	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	13.

	 	Any net loss from disposed or discontinued operations	 	 
	 

	 	 	 	 







 




			
	14	 	The aggregate amount of all charges,
expenses, costs and losses added back under this line [7] in any period of four
consecutive fiscal quarters shall not exceed (x) 15% of Consolidated EBITDA for
any period of four consecutive fiscal quarters completed on or prior to the
first anniversary of the Effective Date or (y) 10% of Consolidated EBITDA for
any period of four consecutive fiscal quarters completed thereafter;
provided that the cap under this clause (y) for any period of four
consecutive fiscal quarters completed on or prior to the second anniversary of
the Effective Date shall be increased up to 15% of Consolidated EBITDA, but
only to the extent the aggregate amount added back under this line [7] for the
corresponding period of four consecutive fiscal quarters of the previous fiscal
year was less than 15% of Consolidated EBITDA.
	 
	15	 	No cost savings shall be added pursuant to
this line [11] to the extent duplicative of any expenses or charges relating to
such cost savings that are included in line [7] above with respect to such
period or duplicative of any Pro Forma Adjustment pursuant to line [22]. The
aggregate amount of cost savings added pursuant to this line [11] shall not
exceed 10% of Consolidated EBITDA for any period of four consecutive fiscal
quarters.




 









 










	 	 	 	 	 

	14.

	 	Cash receipts (or any netting arrangements resulting in
reduced cash expenditures) not representing Consolidated
EBITDA or Consolidated Net Income in any period to the extent
non-cash gains relating to such income were deducted in the
calculation of Consolidated EBITDA pursuant to lines [15
through 17] for any previous period and not added back	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Minus
	 	 	 	 
	 
	 	 	 	 
	15.

	 	Any extraordinary, unusual or non-recurring income or gains	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	16.

	 	Non-cash income or gains increasing Consolidated Net Income of
such Person for such period, excluding any non-cash gains to
the extent they represent the reversal of an accrual or
reserve for a potential cash item that reduced Consolidated
EBITDA in any prior period and any non-cash gains with respect
to cash actually received in a prior period so long as such
cash did not increase Consolidated EBITDA in such prior period	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	17.

	 	Any net income from disposed or discontinued operations	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Plus or minus, as applicable	 	 
	 
	 	 	 	 
	18.

	 	Any adjustments resulting from the application of FASB
Interpretation No. 45 (Guarantees) or any comparable
regulation	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Plus
	 	 	 	 
	 
	 	 	 	 
	19.

	 	Any Pro Forma Adjustments (to the extent not already included
in determining Consolidated EBITDA)	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Minus
	 	 	 	 
	 
	 	 	 	 
	20.

	 	Any Restricted Payments made pursuant to Section 6.08(a)(iv)
of the Credit Agreement (to the extent not already deducted in
determining Consolidated EBITDA)	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Plus
	 	 	 	 
	 
	 	 	 	 
	21.

	 	The Acquired EBITDA of any Person, property, business or asset
acquired by the Borrower or any Restricted Subsidiary to the
extent not subsequently sold, transferred or otherwise
disposed of by the Borrower or such Restricted Subsidiary,
based on the actual Acquired EBITDA of such Acquired Entity or
Business (excluding any applicable Disposed EBITDA)	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	22.

	 	The Acquired EBITDA of any Unrestricted Subsidiary that is
converted into a Restricted Subsidiary, based on the actual
Acquired EBITDA of such Converted Restricted Subsidiary
(including the portion thereof occurring prior to such
conversion) (excluding any applicable Disposed EBITDA)	 	 
	 

	 	 	 	 





 









 






	 	 	 	 	 

	23.

	 	Any Pro Forma Adjustment in respect of each Acquired Entity or
Business (including the portion thereof occurring prior to
such acquisition) (excluding any applicable Disposed EBITDA)	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Consolidated EBITDA (Sum of lines 1-14, 18 (if applicable), 19
and 21-23 minus sum of lines 15-17, 18 (if applicable) and
20)16	 	 
	 

	 	 	 	 







 




			
	16	 	Consolidated EBITDA shall be deemed to be
$106,200,000 and $117,200,000 for the fiscal quarters ended March 31, 2010 and
June 30, 2010, respectively.




 









 










Schedule 3




Consolidated Net Income for period ending [•] — Worksheet



All amounts to be determined on a consolidated basis in accordance with U.S. GAAP. Amounts listed
in lines 2 through [15] should be listed without duplication (including for purposes of determining
consolidated EBITDA).




	 	 	 	 	 

	1.

	 	The aggregate of the Net Income of the Borrower and the
Restricted Subsidiaries on a consolidated basis	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	2.

	 	Any net after-tax effect of extraordinary gains or losses	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	3.

	 	The cumulative effect of a change in accounting principles
and changes as a result of the adoption or modification of
accounting policies during such period	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	4.

	 	Any after-tax gains or losses on disposal of disposed,
abandoned or discontinued operations	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	5.

	 	Any after-tax effect of gains or losses (less all fees and
expenses relating thereto) attributable to asset dispositions
or abandonments or the sale or other disposition of any
Equity Interests of any Person other than in the ordinary
course of business	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	6.

	 	The Net Income for such period of any Person that is not a
Subsidiary, or is an Unrestricted Subsidiary, or that is
accounted for by the equity method of accounting	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	7.

	 	Effects of adjustments (including the effects of such
adjustments pushed down to the Borrower and its Restricted
Subsidiaries) in the inventory, property and equipment,
software, goodwill, other intangible assets, in-process
research and development, deferred revenue, debt and
unfavorable or favorable lease line items in such Person’s
consolidated financial statements pursuant to GAAP resulting
from the application of purchase accounting in relation to
the Transactions or any acquisition consummated prior to the
Effective Date and any permitted acquisitions or the
amortization or write-off of any amounts thereof, net of
taxes	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	8.

	 	Any after-tax effect of income (loss) from the early
extinguishment of (i) Indebtedness, (ii) obligations under
any Swap Agreements or (iii) other derivative instruments	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	9.

	 	Any impairment charge or asset write-off or write-down,
including impairment charges or asset write-offs or
write-downs related to intangible assets, long-lived assets,
investments in debt and equity securities or as a result of a
change in law or regulation, in each case, pursuant to GAAP,
and the amortization of intangibles arising pursuant to GAAP	 	 
	 

	 	 	 	 





 









 






	 	 	 	 	 

	10.

	 	Any non-cash compensation charge or expense, including any
such charge arising from the grants of stock appreciation or
similar rights, stock options, restricted stock or other
rights	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	11.

	 	Transaction Costs	 	 
	 

	 	 	 	 
	 
	12.

	 	Any fees and expenses incurred during such period, or any
amortization thereof for such period, in connection with any
acquisition (other than the Transactions), Investment,
disposition, issuance or repayment of Indebtedness, issuance
of Qualified Equity Interests, refinancing transaction or
amendment or modification of any debt instrument (in each
case, including any such transaction consummated prior to the
Effective Date and any such transaction undertaken but not
completed) and any charges or non-recurring merger costs
incurred during such period as a result of any such
transaction	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	13.

	 	Accruals and reserves that are established within twelve
months after the Effective Date that are so required to be
established as a result of the Transactions in accordance
with GAAP	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	14.

	 	Any net unrealized gain or loss (after any offset) resulting
in such period from obligations under any Swap Agreements in
accordance with GAAP	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	15.

	 	Any net unrealized gain or loss (after any offset) resulting
in such period from currency translation gains or losses
including those (x) related to currency remeasurements of
Indebtedness and (y) resulting from hedge agreements for
currency exchange risk	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Consolidated Net Income (Sum of line 1 minus lines 2 through
[15])17	 	 
	 

	 	 	 	 







 




			
	17	 	To the extent not already included in the
Consolidated Net Income of such Person and its Restricted Subsidiaries,
notwithstanding anything to the contrary in the foregoing, Consolidated Net
Income shall include (i) any expenses and charges that are reimbursed by
indemnification or other reimbursement provisions in connection with any
investment or any sale, conveyance, transfer or other disposition of assets
permitted hereunder and (ii) to the extent covered by insurance and actually
reimbursed, expenses with respect to liability or casualty events or business
interruption.




 









 










Schedule 4




Consolidated Interest Expense for period ending [•] — Worksheet




	 	 	 	 	 

	1.

	 	Consolidated cash interest expense of the Borrower and its Restricted
Subsidiaries, to the extent such expense was deducted (and not added back) in
computing Consolidated Net Income	 	 
	 
	 	 	 	 
	 

	 	Including:	 	 
	 
	 	 	 	 
	 

	 	(i) all cash commissions, discounts and other fees and charges owed with
respect to letters of credit or bankers acceptances,	 	 
	 
	 	 	 	 
	 

	 	(ii) the cash interest component of Capital Lease Obligations18, and	 	 
	 
	 	 	 	 
	 

	 	(iii) net cash payments, if any, made (less net payments, if any, received)
pursuant to interest rate obligations under any Swap Agreements with respect
to Indebtedness	 	 
	 
	 	 	 	 
	 

	 	Excluding:	 	 
	 
	 	 	 	 
	 

	 	(w) penalties and interest relating to taxes,	 	 
	 
	 	 	 	 
	 

	 	(x) any additional cash interest owing pursuant to any registration rights
agreement with respect to securities,	 	 
	 
	 	 	 	 
	 

	 	(y) any expensing of bridge, commitment and other financing fees, and	 	 
	 
	 	 	 	 
	 

	 	(z) any accretion of accrued interest on discounted liabilities)	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	2.

	 	Cash interest income	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Consolidated Interest Expense (line 1 minus line 2)19	 	 
	 

	 	 	 	 







 




			
	18	 	Interest on a Capital Lease Obligation shall
be deemed to accrue at an interest rate reasonably determined by the Borrower
to be the rate of interest implicit in such Capital Lease Obligation in
accordance with GAAP.
	 
	19	 	Consolidated Interest Expense shall be
deemed to be (a) for the four fiscal quarter period ended March 31, 2011,
Consolidated Cash Interest Expense for such fiscal quarter, multiplied by four,
(b) for the four fiscal quarter period ended June 30, 2011, Consolidated Cash
Interest Expense for the two fiscal quarters ended June 30, 2011, multiplied by
two, and (c) for the four fiscal quarter period ended September 30, 2011,
Consolidated Cash Interest Expense for the three fiscal quarters ended
September 30. 2011, multiplied by 4/3.




 









 










Schedule 5




Excess Cash Flow for fiscal year ending [ • ] — Worksheet



Amounts listed in lines 1 through 16 should be listed without duplication.




	 	 	 	 	 

	1.

	 	Consolidated Net Income	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	2.

	 	All non-cash charges (including depreciation and
amortization) to the extent deducted in arriving at
Consolidated Net Income	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	3.

	 	Decreases in Consolidated Working Capital (other than any
such decreases arising from acquisitions by the Borrower and
the Restricted Subsidiaries completed or the application of
purchase accounting)	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	4.

	 	The aggregate net non-cash loss on dispositions by the
Borrower and the Restricted Subsidiaries (other than
dispositions in the ordinary course of business) to the
extent deducted in arriving at Consolidated Net Income	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	5.

	 	An amount equal to the amount of all non-cash charges
included in arriving at Consolidated Net Income and cash
charges included in lines [2] through [7] in the calculation
of Consolidated Net Income	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	6.

	 	Without duplication of amounts deducted pursuant to line [14]
below in prior fiscal years, the amount of Capital
Expenditures or acquisitions of intellectual property made in
cash, except to the extent that such Capital Expenditures or
acquisitions were financed by incurring Long-Term
Indebtedness, by issuing Equity Interests or with the
proceeds of any Reinvestment Deferred Amount	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	7.

	 	The aggregate amount of all principal payments of
Indebtedness of the Borrower and the Restricted Subsidiaries,
except to the extent financed by incurring Long-Term
Indebtedness, by issuing Equity Interests or with the
proceeds of any Reinvestment Deferred Amount	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	8.

	 	An amount equal to the aggregate net non-cash gain on
dispositions by the Borrower and the Restricted Subsidiaries
(other than dispositions in the ordinary course of business)
to the extent included in arriving at Consolidated Net Income	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	9.

	 	Any increase in Consolidated Working Capital (other than any
such increases arising from completed acquisitions by the
Borrower and the Restricted Subsidiaries or the application
of purchase accounting)	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	10.

	 	Cash payments by the Borrower and the Restricted Subsidiaries
in respect of long-term liabilities of the Borrower and the
Restricted Subsidiaries other than Indebtedness (including
such Indebtedness specified in line [7] above)	 	 
	 

	 	 	 	 





 









 






	 	 	 	 	 

	11.

	 	Without duplication of amounts deducted pursuant to lines [15
and 16] below in prior fiscal years, the amount of
investments and acquisitions, except to the extent that such
investments and acquisitions were financed by incurring
Long-Term Indebtedness or by issuing Equity Interests	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	12.

	 	The amount of Restricted Payments paid pursuant to clauses
(iii), (iv), (v), (viii) and (xiii) of Section 6.08 of the
Credit Agreement, except to the extent such Restricted
Payments were financed by incurring Long-Term Indebtedness or
by issuing Equity Interests	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	13.

	 	The aggregate amount of expenditures actually made by the
Borrower and the Restricted Subsidiaries in cash (including
expenditures for the payment of financing fees) to the extent
that such expenditures are not expensed	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	14.

	 	The aggregate amount of any premium, make-whole or penalty
payments actually paid in cash by the Borrower and the
Restricted Subsidiaries that are required to be made in
connection with any prepayment of Indebtedness	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	15.

	 	Without duplication of amounts deducted from Excess Cash Flow
in prior periods, the aggregate consideration required to be
paid in cash by the Borrower or any of the Restricted
Subsidiaries pursuant to binding contracts (the “Contract
Consideration”) entered into prior to or during such period
relating to Permitted Acquisitions, Capital Expenditures or
acquisitions of intellectual property to be consummated or
made during the period of four consecutive fiscal quarters of
the Borrower following the end of such period except to the
extent intended to be financed by incurring Long-Term
Indebtedness, or by issuing Equity Interests	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	16.

	 	The amount by which the aggregate amount utilized to finance
Permitted Acquisitions, Capital Expenditures or acquisitions
of intellectual property referred to line [15] during such
period of four consecutive fiscal quarters is less than the
Contract Consideration, less the amount financed by incurring
Long-Term Indebtedness or by issuing Equity Interests	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	17.

	 	The amount of cash taxes paid or tax reserves set aside or
payable (without duplication) in this period to the extent
they exceed the amount of tax expense deducted in determining
Consolidated Net Income	 	 
	 

	 	 	 	 





 









 






	 	 	 	 	 

	 

	 	Excess Cash Flow (Sum of Lines 1-4 and 16 minus Sum of Lines
5-15 and 17)	 	 
	 

	 	 	 	 






 











 





EXHIBIT F




CERTIFICATE OF [ASSISTANT SECRETARY] OF

[______________]

October __, 2010




     The undersigned, being the [Assistant Secretary] of [________], a
[Florida][Delaware][Louisiana][Texas] [corporation][limited liability company] (the “Company”),
hereby certifies as follows:



     1. Attached hereto as Exhibit A is a true, complete and correct copy of the Company’s
[Articles of Incorporation][Certificate of Formation] and all amendments thereto, which [Articles
of Incorporation][Certificate of Formation] have not been modified, amended or rescinded in any
respect and are in full force and effect as of the date hereof.



     2. Attached hereto as Exhibit B is a true, complete and correct copy of the Company’s
[Bylaws][Limited Liability Company Operating Agreement] and all amendments thereto, which
[Bylaws][Limited Liability Company Operating Agreement] have not been modified, amended or
rescinded in any respect and are in full force and effect as of the date hereof.



     3. Attached hereto as Exhibit C is a true, complete and correct copy of resolutions duly
adopted by the Company, which resolutions have not been modified, amended or rescinded in any
respect and are in full force and effect as of the date hereof.



     [4. The following named persons, whose true and genuine signatures are shown below, are duly
elected, qualified and incumbent as of the date hereof and are acting officers of the Company and
have the authority to execute the documents described in the attached resolutions on behalf of the
Company:



	 	 	 	 	 
	Name	 	Office	 	Signature
	 
	 	 	 	 
	[Ben Wells]

	 	[Chief Financial Officer]	 	 
	 
	 	 	 	 
	[                    ]

	 	[                                        ]	 	 
	 
	 	 	 	 
	[Lisa Giles-Klein]

	 	[Associate General Counsel

And Assistant Secretary]
	 	]






     IN WITNESS WHEREOF, I have executed this Certificate as of the date first set forth above.



________________________________________________




1









 








EXHIBIT F




[Lisa Giles-Klein], [Assistant Secretary]          




     I, [_______], [Chief Financial Officer] of the Company, do hereby certify that [Lisa
Giles-Klein] is the duly elected, qualified and acting [Assistant Secretary] of the Company and the
signature above is such person’s true and genuine signature.



     IN WITNESS WHEREOF, I have executed this Certificate as of the date first set forth above.


___________________________________

[________],








2









 









EXHIBIT F




Exhibit “A”




[Articles of Incorporation][Certificate of Formation]



3









 





EXHIBIT F




Exhibit “B”




[Bylaws][Limited Liability Company Operating Agreement]



4









 





EXHIBIT F




Exhibit “C”




Resolutions



5









 





EXHIBIT G




FORM OF CLOSING DATE LEVERAGE RATIO CERTIFICATE




[____], 2010




     This Closing Date Leverage Ratio Certificate is being executed and delivered pursuant to
Section 4.01(d) of that certain Credit Agreement dated as of October 19, 2010, among Blue
Acquisition Sub, Inc., Burger King Corporation, a Florida corporation (the “Borrower”),
Burger King Holdings, Inc., a Delaware corporation (“Holdings”), the Lenders party thereto,
JPMorgan Chase Bank, N.A., as Administrative Agent, Barclays Capital, as Syndication Agent and the
other agents part thereto (as amended, restated, amended and restated, extended, supplemented or
otherwise modified in writing from time to time, the “Credit Agreement”; the terms defined
therein being used herein as therein defined).



     I, [                ], the [Chief Financial Officer][Chief Executive Officer] of [Holdings][the Borrower], in
such capacity and not in an individual capacity, hereby certify that I am the [Chief Financial
Officer][Chief Executive Officer] of [Holdings][the Borrower] and that as of the date hereof and
after giving effect to the Transactions and the use of proceeds thereof, the Closing Date Leverage
Ratio for the four most-recent fiscal quarters ended [________], 20101, determined on a
pro forma basis does not exceed 6.20 to 1.00.



[Remainder of page intentionally left blank]






 




			
	1	 	Insert the last day of the fiscal quarter
which ended not less than 45 days prior to the Effective Date.




 









 










          IN WITNESS WHEREOF, I have executed this Closing Date Leverage Ratio Certificate on
the date first written above.




	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	[_____] 	 
	 	 	Title:  	[Chief Financial Officer] 
[Chief Executive Officer] 	 
	 



Closing Date Leverage Ratio Certificate Signature Page




 









 








EXHIBIT H




FORM OF SOLVENCY CERTIFICATE




[____], 2010




          This Solvency Certificate is being executed and delivered pursuant to Section 4.01(k) of that
certain Credit Agreement dated as of October 19, 2010, among Blue Acquisition Sub, Inc., Burger
King Corporation, a Florida corporation (the “Borrower”), Burger King Holdings, Inc., a
Delaware corporation (“Holdings”), the Lenders party thereto, JPMorgan Chase Bank, N.A., as
Administrative Agent, Barclays Capital, as Syndication Agent and the other agents party hereto (as
amended, restated, amended and restated, extended, supplemented or otherwise modified in writing
from time to time, the “Credit Agreement”; the terms defined therein being used herein as
therein defined).





     I, [                ], the [Chief Financial Officer][Chief Executive Officer] of [Holdings][the Borrower], in
such capacity and not in an individual capacity, hereby certify that I am the [Chief Financial
Officer][Chief Executive Officer] of [Holdings][the Borrower] and that I am generally familiar with
the businesses and assets of Holdings and its Subsidiaries (taken as a whole) and am duly
authorized to execute this Solvency Certificate on behalf of [Holdings][the Borrower] pursuant to
the Credit Agreement.



     I further certify, in my capacity as [Chief Financial Officer][Chief Executive Officer] of
[Holdings][the Borrower], and not in my individual capacity, as of the date hereof and after giving
effect to the Transactions and the incurrence of the indebtedness and obligations being incurred in
connection with the Credit Agreement and the Transactions, that, (i) the sum of the debt (including
contingent liabilities) of Holdings, the Borrower and its subsidiaries, taken as a whole, does not
exceed the present fair saleable value of the present assets of Holdings, the Borrower and its
subsidiaries, taken as a whole; (ii) the capital of Holdings, the Borrower and its subsidiaries,
taken as a whole, is not unreasonably small in relation to the business of Holdings, the Borrower
or its subsidiaries, taken as a whole, contemplated as of the date hereof; and (iii) Holdings,
Borrower and its subsidiaries, taken as a whole, do not intend to incur, or believe that they will
incur, debts including current obligations beyond their ability to pay such debt as they mature in
the ordinary course of business. For the purposes hereof, the amount of any contingent liability at
any time shall be computed as the amount that, in light of all of the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to become an actual or
matured liability (irrespective of whether such contingent liabilities meet the criteria for
accrual under Statement of Financial Accounting Standard No. 5).



[Remainder of page intentionally left blank]






 









 








          IN WITNESS WHEREOF, I have executed this Solvency Certificate on the date first
written above.




	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	[_____] 	 
	 	 	Title:  	[Chief Financial Officer]
[Chief Executive Officer] 	 
	 



Solvency Certificate Signature Page





 











 





EXHIBIT I




FORM OF DISCOUNTED PREPAYMENT OPTION NOTICE




Date: __________, 20__




To: JPMORGAN CHASE BANK, N.A., as Administrative Agent




Ladies and Gentlemen:




     This Discounted Prepayment Option Notice is delivered to you pursuant to Section 2.11(g)(ii)
of that certain Credit Agreement, dated as of October 19, 2010 (as amended, restated, extended,
supplemented or otherwise modified from time to time, the “Credit Agreement”, the terms
defined therein being used herein as therein defined), among Burger King Holdings, Inc.
(“Holdings”), Blue Acquisition Sub, Inc., as the initial borrower prior to the Merger,
Burger King Corporation, as the borrower and the Target (the “Borrower”), the lenders from
time to time party thereto (the “Lenders”), JPMorgan Chase Bank, N.A. (“JPMorgan Chase
Bank”), as administrative agent (the “Administrative Agent”), Barclays Bank, as
syndication agent and Fifth Third Bank, Regions Bank and UniCredit Bank AG, as Documentation
Agents.



     Borrower hereby notifies you that, effective as of [ ], 20[ ], pursuant to Section
2.11(g)(ii) of the Credit Agreement, Borrower hereby notifies each Lender that it is seeking:




	 	1	 	to prepay [Tranche B Term][Tranche B Euro Term][Incremental Term] Loans at a
discount in an aggregate principal amount of $[ ]1 (the “Proposed
Discounted Prepayment Amount”);
	 
	 	2	 	a percentage discount to the par value of the principal amount of [Tranche B
Term][Tranche B Euro Term][Incremental Term] Loans [greater than or equal to [ ]% of
par value but less than or equal to [ ]% of par value][equal to [ ]% of par value]
(the “Discount Range”);2 and
	 
	 	3	 	a Lender Participation Notice on or before [ ], 20[ ]3, as
determined pursuant to Section 2.11(h)(iii) of the Credit Agreement (the
“Acceptance Date”).





     Borrower expressly agrees that this Discounted Prepayment Option Notice is subject to the
provisions of Section 2.11(g) of the Credit Agreement.



     Borrower hereby represents and warrants to the Administrative Agent on behalf of the
Administrative Agent and the Lenders as follows:





 




			
	1	 	Insert amount that is minimum of $25.0
million.
	 
	2	 	Borrower may specify different Discount
Ranges for Tranche B Term Loans, Tranche B Euro Term Loans and Incremental Term
Loans.
	 
	3	 	Insert date (a Business Day) that is at least
five Business Days after date of the Discounted Prepayment Option Notice.




 









 











	 	1.	 	No Event of Default under clauses (a) or (b) of Article VII of the Credit
Agreement or under clauses (h), (i) or (j) (in each case, with respect to the Borrower)
of Article VII of the Credit Agreement has occurred and is continuing, or would result
from Borrower making the Discounted Voluntary Prepayment.
	 
	 	2.	 	On the date hereof and after giving effect to such Discounted Voluntary
Prepayment, no more than $50,000,000 will be outstanding on Revolving Loans.
	 
	 	3.	 	After giving effect to this Discounted Voluntary Prepayment, the aggregate
principal amount of all Term Loans that are held by Sponsor Affiliated Lenders (by
assignment) will not exceed 20% of the aggregate unpaid principal amount of the Term
Loans outstanding as of the date of the Discounted Voluntary Prepayment.
	 
	 	4.	 	Each of the other conditions to such Discounted Voluntary Prepayment contained
in Section 2.11(g) of the Credit Agreement has been satisfied.





     Borrower respectfully requests that Administrative Agent promptly notify each of the Lenders
party to the Credit Agreement of this Discounted Prepayment Option Notice.



2









 





     IN WITNESS WHEREOF, the undersigned has executed this Discounted Prepayment Option Notice as
of the date first above written.



	 	 	 	 	 
	 	BURGER KING CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




3











 






EXHIBIT J




FORM OF LENDER PARTICIPATION NOTICE




Date: ____________, 20__




To:     JPMORGAN CHASE BANK, N.A.

           [  ]




Ladies and Gentlemen:




     Reference is made to (a) certain Credit Agreement, dated as of October 19, 2010 (as amended,
restated, extended, supplemented or otherwise modified from time to time, the “Credit
Agreement”, the terms defined therein being used herein as therein defined), among Burger King
Holdings, Inc. (“Holdings”), Blue Acquisition Sub, Inc., as the initial borrower prior to
the Merger, Burger King Corporation, as the borrower and the Target (the “Borrower”), the
lenders from time to time party thereto (the “Lenders”), JPMorgan Chase Bank, N.A.
(“JPMorgan Chase Bank”), as administrative agent (the “Administrative Agent”),
Barclays Bank, as syndication agent and Fifth Third Bank, Regions Bank and UniCredit Bank AG, as
Documentation Agents, and (b) that certain Discounted Prepayment Option Notice, dated [ ], 20[ ],
from Borrower (the “Discounted Prepayment Option Notice”). Capitalized terms used herein
and not defined herein shall have the meaning ascribed to such terms in the Credit Agreement or the
Discounted Prepayment Option Notice, as applicable.



     The undersigned Lender hereby gives you notice, pursuant to Section 2.11(g)(iii) of the Credit
Agreement, that it is willing to accept a Discounted Voluntary Prepayment on Loans held by such
Lender:




	 	1.	 	in a maximum aggregate principal amount of
	 
	 	 	 	[$[  ] of Tranche B Term Loans]
	 
	 	 	 	[$[  ] of Tranche B Euro Term Loans]
	 
	 	 	 	[$[  ] of Incremental Term Loans] ([collectively,] the “Offered
Loans”), and
	 
	 	2.	 	at a percentage discount to par value of the principal amount of [Tranche B
Term] [Tranche B Euro Term] [Incremental Term] Loans equal to [ ]%[4] of
par value (the “Acceptable Discount”).[5]





     The undersigned Lender expressly agrees that this offer is subject to the provisions of
Section 2.11(g) of the Credit Agreement. Furthermore, conditioned upon the Applicable Discount
determined pursuant to Section 2.11(g)(iii) of the Credit Agreement being a percentage of par value
less than or equal to the Acceptable Discount, the undersigned Lender hereby expressly consents and
agrees to a prepayment of its [Tranche B Term] [Tranche B Euro Term] [Incremental Term] Loans
pursuant to





 




			
	4	 	Insert amount within Discount Range that is a
multiple of 25 basis points.
	 
	5	 	Lender may specify different Acceptable
Discounts for Tranche B Term Loans, Tranche B Euro Term Loans and Incremental
Term Loans.




 









 









Section 2.11(g) of the Credit Agreement in an aggregate principal amount equal to the Offered
Loans, as such principal amount may be reduced if the aggregate proceeds required to prepay
Qualifying Loans (disregarding any interest payable in connection with such Qualifying Loans) would
exceed the aggregate proceeds required to prepay the Proposed Discounted Prepayment Amount for the
relevant Discounted Voluntary Prepayment, and acknowledges and agrees that such prepayment of its
Loans will be allocated at par value.







5









 








     IN WITNESS WHEREOF, the undersigned has executed this Lender Participation Notice as of the
date first above written.



	 	 	 	 	 
	 	[NAME OF LENDER]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	[By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:]6	 	 
	 





 




			
	6	 	If a second signature is required.




6









 










EXHIBIT K




FORM OF DISCOUNTED VOLUNTARY PREPAYMENT NOTICE




Date:________, 20__




To: JPMORGAN CHASE BANK, N.A., as Administrative Agent




Ladies and Gentlemen:





     This Discounted Voluntary Prepayment Notice is delivered to you pursuant to Section 2.11(g)(v)
of that certain Credit Agreement, dated as of October 19, 2010 (as amended, restated, extended,
supplemented or otherwise modified from time to time, the “Credit Agreement”, the terms
defined therein being used herein as therein defined), among Burger King Holdings, Inc.
(“Holdings”), Blue Acquisition Sub, Inc., as the initial borrower prior to the Merger,
Burger King Corporation, as the borrower and the Target (the “Borrower”), the lenders from
time to time party thereto (the “Lenders”), JPMorgan Chase Bank, N.A. (“JPMorgan Chase
Bank”), as administrative agent (the “Administrative Agent”), Barclays Bank, as
syndication agent and Fifth Third Bank, Regions Bank and UniCredit Bank AG, as Documentation
Agents.



     Borrower hereby irrevocably notifies you that, pursuant to Section 2.11(g)(iv) of the Credit
Agreement, Borrower will make a Discounted Voluntary Prepayment to each Lender with Qualifying
Loans, which shall be made:




	 	1.	 	on or before [ ], 20[ ]7 , as determined pursuant to Section
2.11(g)(v) of the Credit Agreement,
	 
	 	2.	 	in the aggregate principal amount of
	 
	 	 	 	[$[  ] of Tranche B Term Loans]
	 
	 	 	 	[$[  ] of Tranche B Euro Term Loans]
	 
	 	 	 	[$[  ] of Incremental Term Loans], and
	 
	 	3.	 	at a percentage discount to the par value of the principal amount of the
[Tranche B Term] [Tranche B Euro Term] [Incremental Term] Loans equal to [ ]% of par
value (the “Applicable Discount”).8





     Borrower expressly agrees that this Discounted Voluntary Prepayment Notice is irrevocable and
is subject to the provisions of Section 2.11(g) of the Credit Agreement.





 




			
	7	 	Insert date (a Business Day) that is no later
than three Business Days after date of this Notice and no later than five
Business Days after the Acceptance Date (or such later date as the
Administrative Agent shall reasonably agree, given the time required to
calculate the Applicable Discount and determine the amount and holders of
Qualifying Loans).
	 
	8	 	The Applicable Discount for Tranche BTerm
Loans, Tranche B Euro Term Loans and Incremental Term Loans may differ.




 









 










     Borrower hereby represents and warrants to the Administrative Agent on behalf of the
Administrative Agent and the Lenders as follows:




	 	1.	 	No Default or Event of Default under clauses (a) or (b) of Article VII of the
Credit Agreement or under clauses (h), (i) or (j) (in each case, with respect to the
Borrower) of Article VII of the Credit Agreement, has occurred and is continuing or
would result from Borrower making the Discounted Voluntary Prepayment.
	 
	 	2.	 	After giving effect to this Discounted Voluntary Prepayment, the aggregate
principal amount of all Term Loans that are held by Sponsor Affiliated Lenders (by
assignment) will not exceed 20% of the aggregate unpaid principal amount of the Term
Loans outstanding as of the date of the Discounted Voluntary Prepayment.
	 
	 	3.	 	On the date hereof and after giving effect to such Discounted Voluntary
Prepayment, no more than $50,000,000 will be outstanding on Revolving Loans.
	 
	 	4.	 	Each of the other conditions to the Discounted Voluntary Prepayment contained
in Section 2.11(g) of the Credit Agreement has been satisfied.





     Borrower agrees that if prior to the date of the Discounted Voluntary Prepayment, any
representation or warranty made herein by it will not be true and correct as of the date of the
Discounted Voluntary Prepayment as if then made, it will promptly notify the Administrative Agent
in writing of such fact, who will promptly notify each participating Lender. After such
notification, any participating Lender may revoke its Lender Participation Notice within two
Business Days of receiving such notification.



     Borrower respectfully requests that Administrative Agent promptly notify each of the Lenders
party to the Credit Agreement of this Discounted Voluntary Prepayment Notice.



8









 





     IN WITNESS WHEREOF, the undersigned has executed this Discounted Voluntary Prepayment Notice
as of the date first above written.



	 	 	 	 	 
	 	BURGER KING CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 




9













 






Schedule 2.01

Commitments



US Lenders




	 	 	 	 	 	 	 	 	 
	Lender	 	Revolver	 	Term Loan
	JPMorgan Chase Bank, N.A.
	 	 	29,000,000.00	 	 	 	1,268,000,000.00	 
	Barclays Bank plc
	 	 	15,000,000.00	 	 	 	1,500,000.00	 
	Banco Do Brasil SA
	 	 	20,000,000.00	 	 	 	84,000,000.00	 
	Rabobank Nederland
	 	 	17,500,000.00	 	 	 	25,000,000.00	 
	Fifth Third Bank
	 	 	17,500,000.00	 	 	 	35,000,000.00	 
	UniCredit Bank AG, New York Branch
	 	 	17,500,000.00	 	 	 	0.00	 
	Regions Financial Corp
	 	 	17,500,000.00	 	 	 	0.00	 
	Raymond James Bank FSB
	 	 	7,000,000.00	 	 	 	14,000,000.00	 
	DZ Bank
	 	 	3,500,000.00	 	 	 	0.00	 
	Bank of Tokyo-Mitsubishi
	 	 	3,000,000.00	 	 	 	5,000,000.00	 
	Israel Discount Bank Limited
	 	 	2,500,000.00	 	 	 	5,000,000.00	 
	California First National Bank
	 	 	0.00	 	 	 	1,000,000.00	 
	Banco De Credito E Inversiones
	 	 	0.00	 	 	 	7,500,000.00	 
	Safra National Bank of New York
	 	 	0.00	 	 	 	30,000,000.00	 
	Safra International Bank and Trust Ltd
	 	 	0.00	 	 	 	30,000,000.00	 
	State Bank of India
	 	 	0.00	 	 	 	4,000,000.00	 





EURO Term Loan




	 	 	 	 	 
	Lender and allocation	 	Allocation EUR
	JPMorgan Chase Bank, N.A.
	 	 	197,000,000	 
	Banco do Brazil SA., New York Branch
	 	 	5,000,000.00	 
	BAWAG P.S.K. Bank fuer Arbeit und Wirtschaft und Oesterreichische Postsparkasse Aktiengesellschaft
	 	 	16,000,000.00	 
	DZ Bank AG
Deutsche Zentral-Genossenschaftsbank
New York Branch
	 	 	3,500,000.00	 
	Mediobanca International (Luxembourg) S.A.
	 	 	10,000,000.00	 
	Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., “Rabobank Nederland”, New York Branch
	 	 	18,500,000.00	 






 









 






Schedule 3.06

Disclosed Matters



On September 3, 2010, four purported class action complaints were filed in the Circuit Court for
the County of Miami-Dade, Florida, captioned Darcy Newman v. Burger King Holdings, Inc. et. al.,
Case No. 10-48422CA30, Belle Cohen v. David A. Brandon, et. al., Case No. 10-48395CA32, Melissa
Nemeth v. Burger King Holdings, Inc. et. al., Case No. 10-48424CA05 and Vijayalakshmi Venkataraman
v. John W. Chidsey, et. al., Case No. 10-48402CA13, by purported shareholders of the Company, in
connection with the tender offer and the merger. Each of the four complaints (collectively, the
“Florida Actions”) names as defendants Burger King Holdings, Inc. (the “Company”), each member of
the Company’s board of directors (the “Individual Defendants”) and 3G Capital. The suits generally
allege that the Individual Defendants breached their fiduciary duties to the Company’s shareholders
in connection with the proposed sale of the Company and that 3G Capital and the Company aided and
abetted the purported breaches of fiduciary duties. The complaint filed on behalf of Belle Cohen
includes, among others, allegations that the Individual Defendants have failed to explore
alternatives to the tender offer, that the consideration to be received by the holders of shares of
Company common stock is unfair and inadequate; and that the proposed transaction employs a process
that does not maximize shareholder value. The complaints filed on behalf of Melissa Nemeth and
Darcy Newman generally allege that the Individual Defendants breached their fiduciary duties by
engaging in self-dealing and obtaining for themselves personal benefits not shared equally by the
other holders of shares. Those complaints include allegations that the consideration to be received
by the holders of shares is unfair and inadequate, and that the proposed transaction employs a
process which renders it unlikely that a higher bid will emerge for the Company. The complaint
filed on behalf of Vijayalakshmi Venkataraman generally alleges that the Individual Defendants
breached their fiduciary duties by pursuing a transaction that fails to maximize shareholder value.
The complaint includes, among others, allegations that the 40-day “go-shop” period is inadequate
and the proposed transaction is intended to enable the Company’s private equity investors to “dump”
their shares. Each of the complaints seeks injunctive relief and one complaint also seeks
compensatory damages. The plaintiffs in the Florida Action have filed a joint agreed motion to
consolidate these actions and to appoint plaintiff’s co-lead counsel. In addition, the Court has
granted a motion to transfer the actions to the Complex Business Litigation Section.



On September 20, 2010, an Amended Complaint was filed on behalf of two of the plaintiffs in the
Florida Action. The Amended Complaint generally alleges, among other things, that the board of
directors breached their fiduciary duties in connection with the merger and that 3G Capital, Parent
and the Company aided and abetted the purported breaches of fiduciary duty. The Amended Complaint
also adds allegations related to purported deficiencies in the Company’s public disclosures about
the offer and the process leading up to it. On September 22, 2010, a Motion to Stay Proceedings
Pending Disposition of Related Delaware Action was filed in the Florida Actions.



On September 8, 2010, another putative shareholder class action suit captioned Roberto S. Queiroz
v. Burger King Holdings, Inc., et al., Case No. 5808-VCP was filed in the Delaware Court of
Chancery against the Individual Defendants, the Company, 3G, 3G Capital, Parent, and Merger Sub.
The complaint generally alleges that the Individual Defendants breached their





 









 







fiduciary duty to maximize shareholder value by entering into the proposed transaction via an
unfair process and at an unfair price, and that the merger agreement contains provisions that
unreasonably dissuade potential suitors from making competing offers. The complaint further alleges
that the Individual Defendants engaged in self-dealing and obtained for themselves personal
benefits not shared equally by the shareholders. Specifically, the complaint includes allegations
that the “Top-Up” will likely lead to a short form merger without obtaining shareholder approval,
that the termination fees are unreasonable, that the “no shop” restriction impermissibly constrains
the Company’s ability to communicate with potential acquirers, and that the consideration to be
received by the Company’s shareholders is unfair and inadequate. The complaint also alleges that
the Company and 3G aided and abetted these alleged breaches of fiduciary duty. The complaint seeks
class certification, injunctive relief, including enjoining the merger and rescinding the merger
agreement, unspecified damages, and costs of the action as well as attorneys’ and experts’ fees.
The Company and the Individual Defendants filed an answer to the complaint on September 9, 2010,
substantially denying the allegations of wrongdoing contained therein. 3G filed its answer in this
action on September 15, 2010.



On September 27, 2010, another putative shareholder class action suit captioned Robert
Debardelaben v. Burger King Holdings, Inc., et al, Court of Chancery of the State of Delaware,
Case No. 5850-UA was filed in the Delaware Court of Chancery against the Individual Defendants.
Like the first Delaware Action, the Debardelaben Complaint asserts that Burger King’s directors
breached their fiduciary duties in connection with the tender offer, and that the Company and 3G
Capital aided and abetted that breach. This action also seeks both monetary and injunctive relief.







 









 








Schedule 3.12

Subsidiaries




	 	 	 	 	 
	Entity Name	 	Jurisdiction	 	Ownership
	Burger King Corporation

	 	Florida
	 	100% owned by Burger King Holdings, Inc.
	 
	 	 	 	 
	Burger King Interamerica, LLC

	 	Florida
	 	100% owned by Burger King Corporation
	 
	 	 	 	 
	Burger King Sweden Inc.

	 	Florida
	 	100% owned by Burger King Corporation
	 
	 	 	 	 
	Distron Transportation Systems, Inc.

	 	Florida
	 	100% owned by Burger King Corporation
	 
	 	 	 	 
	BK Acquisition, Inc.

	 	Delaware
	 	100% owned by Burger King Corporation
	 
	 	 	 	 
	BK CDE, Inc.

	 	Delaware
	 	100% owned by Burger King Corporation
	 
	 	 	 	 
	TPC Number Four, Inc.

	 	Delaware
	 	100% owned by Burger King Corporation
	 
	 	 	 	 
	Moxie’s, Inc.

	 	Louisiana
	 	100% owned by TPC Number Four, Inc.
	 
	 	 	 	 
	The Melodie Corporation

	 	New Mexico
	 	100% owned by Distron Transportation Systems, Inc
	 
	 	 	 	 
	TQW Company

	 	Texas
	 	100% owned by Burger King Corporation
	 
	 	 	 	 
	Burger King Korea, Ltd

	 	Korea
	 	100% owned by BK AsiaPac, Pte. Ltd
	 
	 	 	 	 
	Burger King A.B

	 	Sweden
	 	100% owned by Burger King (Luxembourg) S.a.r.l.
	 
	 	 	 	 
	Burger King Restaurants of Canada Inc.

	 	Canada
	 	100% owned by Burger King Corporation
	 
	 	 	 	 
	Burger King Restaurant Operations of Canada, Inc.

	 	Canada
	 	100% owned by Burger King Restaurants of Canada, Inc.
	 
	 	 	 	 
	F.P.M.I. Food Services, Inc.

	 	Canada
	 	100% owned by Burger King Restaurant Operations of Canada, Inc.
	 
	 	 	 	 
	Administracion de Comidas Rapidas, S.A. de C.V.

	 	Mexico
	 	>99% owned by Burger King Corporation
	 
	 	 	 	 
	 

	 	 	 	<1% owned by Burger King Interamerica, LLC
	 
	 	 	 	 
	Burger King Mexicana, S.A. de C.V.

	 	Mexico
	 	>99% owned by Burger King Corporation
	 
	 	 	 	 
	 

	 	 	 	<1% owned by Burger King Interamerica, LLC
	 
	 	 	 	 
	Burger King Beteiligungs GmbH

	 	Germany
	 	100% owned by Burger King (Luxembourg) S.a.r.l.
	 
	 	 	 	 
	Burger King GmbH

	 	Germany
	 	100% owned by Burger King Beteiligungs GmbH
	 
	 	 	 	 
	BK Grundstucksverwaltungs Beteiligungs GmbH

	 	Germany
	 	100% owned by Burger King Beteiligungs GmbH
	 
	 	 	 	 
	BK Grundstucksverwaltungs GmbH & Co. KG

	 	Germany
	 	99% owned by Burger King Beteiligungs GmbH
	 
	 	 	 	 
	 

	 	 	 	1% owned by BK Grundstucksverwaltungs Beteiligungs GmbH
	 
	 	 	 	 
	Burger King Espana S.L.U.

	 	Spain
	 	100% owned by Burger King (Luxembourg) S.a.r.l.
	 
	 	 	 	 
	Burger King Italia, S.r.L.

	 	Italy
	 	100% owned by Burger King (Luxembourg) S.a.r.l.
	 
	 	 	 	 
	Burger King do Brasil Assessoria a Restaurantes Ltda.

	 	Brazil
	 	99.9% owned by Burger King Corporation
	 
	 	 	 	 
	 

	 	 	 	.1% owned by Burger King Interamerica, LLC
	 
	 	 	 	 
	Burger King de Puerto Rico, Inc.

	 	Puerto Rico
	 	100% owned by Burger King Corporation
	 
	 	 	 	 
	BK Argentina Servicios, S.A.

	 	Argentina
	 	95% owned by Burger King Corporation
	 

	 	 	 	5% director shares
	 
	 	 	 	 
	BK Venezuela Servicios, C.A.

	 	Venezuela
	 	100% owned by Burger King Corporation






 









 






	 	 	 	 	 
	Entity Name	 	Jurisdiction	 	Ownership
	BK AsiaPac, Pte. Ltd

	 	Singapore
	 	100% owned by Burger King (Luxembourg) S.a.r.l.
	 
	 	 	 	 
	Burger King Singapore Pte. Ltd

	 	Singapore
	 	100% owned by BK AsiaPac, Pte. Ltd
	 
	 	 	 	 
	Burger King (Hong Kong) Limited

	 	Hong Kong
	 	100% owned by BK AsiaPac, Pte. Ltd
	 
	 	 	 	 
	Burger King (Hong Kong) Development Co. Limited

	 	Hong Kong
	 	100% owned by BK AsiaPac, Pte. Ltd
	 
	 	 	 	 
	Burger King (Shanghai) Commercial Consulting Co. Ltd.

	 	Hong Kong
	 	100% owned by Burger King (Hong Kong) Limited
	 
	 	 	 	 
	Burger King (Shanghai) Restaurant Company Ltd.

	 	Hong Kong
	 	100% owned by Burger King (Hong Kong) Limited
	 
	 	 	 	 
	BK Asiapac (Japan) Y.K.

	 	Japan
	 	100% owned by BK AsiaPac, Pte. Ltd
	 
	 	 	 	 
	Burger King (Gibraltar) Ltd.

	 	Gibraltar
	 	>99% owned by Burger King Corporation
	 
	 	 	 	 
	 

	 	 	 	<1% owned by Burger King Interamerica, LLC
	 
	 	 	 	 
	Burger King (Luxembourg) S.a r.l.

	 	Luxembourg
	 	100% owned by Burger King (Gibraltar) Ltd.
	 
	 	 	 	 
	Burger King (Nederland) Services B.V.

	 	Netherlands
	 	100% owned by Burger King (Luxembourg) S.a.r.l.
	 
	 	 	 	 
	Burger King (Rus) LLC

	 	Russia
	 	99% owned by Burger King Europe GmbH
	 
	 	 	 	 
	 

	 	 	 	1% owned by Burger King Espana S.L.U.
	 
	 	 	 	 
	Burger King Schweiz GmbH

	 	Switzerland
	 	100% owned by Burger King (Luxembourg) S.a.r.l.
	 
	 	 	 	 
	Burger King Europe GmbH

	 	Switzerland
	 	100% owned by Burger King (Luxembourg) S.a.r.l.
	 
	 	 	 	 
	Burger King Gida Sanayive Ticaret Limited Sirketi

	 	Turkey
	 	99.5% owned by Burger King Espana S.L.U.
	 
	 	 	 	 
	 

	 	 	 	0.5% owned by Burger King Europe GmbH
	 
	 	 	 	 
	Burger King Israel, Ltd

	 	Israel
	 	100% owned by Burger King Europe GmbH
	 
	 	 	 	 
	Burgerking Ltd

	 	United Kingdom
	 	100% owned by Burger King Corporation*
	 
	 	 	 	 
	Hayescrest Limited

	 	United Kingdom
	 	100% owned by Burgerking Ltd
	 
	 	 	 	 
	Huckleberry’s Limited

	 	United Kingdom
	 	100% owned by Burgerking Ltd
	 
	 	 	 	 
	Mini Meals Limited

	 	United Kingdom
	 	100% owned by Burgerking Ltd
	 
	 	 	 	 
	Burger King UK Pension Plan Trustee Company Limited

	 	United Kingdom
	 	100% owned by Burgerking Ltd
	 
	 	 	 	 
	Montrass Limited**

	 	United Kingdom
	 	100% owned by Burgerking Ltd
	 
	 	 	 	 
	Montrap Limited**

	 	United Kingdom
	 	99% owned by Montrass Limited
	 
	 	 	 	 
	 

	 	 	 	1% owned by Burgerking Ltd
	 
	 	 	 	 
	Golden Egg Franchises Limited**

	 	United Kingdom
	 	99% owned by Montrass Limited
	 
	 	 	 	 
	 

	 	 	 	1% owned by Burgerking Ltd
	 
	 	 	 	 
	Empire International Restaurants Limited**

	 	United Kingdom
	 	99% owned by Montrass Limited
	 
	 	 	 	 
	 

	 	 	 	1% owned by Burgerking Ltd
	 
	 	 	 	 
	Empire Catering Company Limited**

	 	United Kingdom
	 	99% owned by Empire International Restaurants Limited
	 
	 	 	 	 
	 

	 	 	 	1% owned by Montrass Limited
	 
	 	 	 	 
	J C Baker & Herbert Bale Limited**

	 	United Kingdom
	 	99% owned by Empire International Restaurants Limited
	 
	 	 	 	 
	 

	 	 	 	1% owned by Montrass Limited
	 
	 	 	 	 
	Burger King (United Kingdom) Ltd.

	 	United Kingdom
	 	100% owned by Burger King (Luxembourg) S.a.r.l.






 









 








 




			
	*	 	65% of the shares of Burgerking Ltd have been pledged to JPMorgan Chase Bank, N.A. in
connection with the Company’s senior secured credit facility. Under U.K. law, this share pledge
constitutes a transfer of the shares.
	 
	**	 	In dissolution.






 











 





Schedule 3.18(a)

UCC Filing Jurisdictions




	 	 	 	 	 
	Grantor	 	Type of Filing	 	Filing Office
	Burger King Corporation
	 	UCC-1 Financing Statement	 	Florida Department of State
	 
	 	 	 	 
	Burger King Holdings, Inc.
	 	UCC-1 Financing Statement	 	Delaware Secretary of State
	 
	 	 	 	 
	BK Acquisition, Inc.
	 	UCC-1 Financing Statement	 	Delaware Secretary of State
	 
	 	 	 	 
	BK CDE, Inc.
	 	UCC-1 Financing Statement	 	Delaware Secretary of State
	 
	 	 	 	 
	Burger King Interamerica, LLC
	 	UCC-1 Financing Statement	 	Florida Department of State
	 
	 	 	 	 
	Burger King Sweden Inc.
	 	UCC-1 Financing Statement	 	Florida Department of State
	 
	 	 	 	 
	Distron Transportation
Systems, Inc.
	 	UCC-1 Financing Statement	 	Florida Department of State
	 
	 	 	 	 
	Moxie’s, Inc.
	 	UCC-1 Financing Statement	 	Louisiana Secretary of State
	 
	 	 	 	 
	The Melodie Corporation
	 	UCC-1 Financing Statement	 	New Mexico Secretary of State
	 
	 	 	 	 
	TPC Number Four, Inc.
	 	UCC-1 Financing Statement	 	Delaware Secretary of State
	 
	 	 	 	 
	TQW Company
	 	UCC-1 Financing Statement	 	Texas Secretary of State






 









 





Schedule 6.02

Existing Liens




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	JURISDICTION	 	DEBTOR	 	SECURED PARTY	 	JUDGMENTS, SUITS	 	TYPE OF UCC	 	DATE & FILE NO.	 	DESCRIPTION
	DE — Secretary of State

	 	Burger King Corporation
5505 Blue Lagoon Dr.
Miami, FL 33126
	 	NCR Corporation
1700 South Patterson Blvd.
Dayton, OH 45479
	 	 	 	UCC-1
	 	 	5/23/2007

2007 1947950	 	 	All products acquired from or financed by secured party
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	FL — Secretary of State

	 	Burger King Corporation;
17777 Old Cutler Road, Mailstop 5N,
Miami, FL, 33157
	 	Dell Financial Services, L.P.;
14050 Summit Drive, Building A,
Suite 101, Austin, TX, 78758
	 	 	 	UCC-1 Financing Statement



UCC-3

Continuation
	 	 	06/22/2000

200000144945



05/18/2005

200509715379



05/18/2005

200509715379



07/27/2010

201002935162	 	 	All computer equipment and peripherals 


Amendment to 200000144945 changing name and address of secured party to Dell Financial Services L.L.C.; Mail stop-PS2DF-23 One Dell Way, Round Rock, TX, 78682






 









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	JURISDICTION	 	DEBTOR	 	SECURED PARTY	 	JUDGMENTS, SUITS	 	TYPE OF UCC	 	DATE & FILE NO.	 	DESCRIPTION
	FL — Secretary of State

	 	Burger King Corporation;
17777 Old Cutler Road,
Miami, FL, 33157
	 	LaSalle Bank national Association, f/k/a LaSalle National bank as Indenture Trustee for the registered holders of FFCA Secured Franchise Loan Trust
2000-1; 17207 North Perimeter Drive,
Scottsdale, AZ, 85255
	 	 	 	UCC-1


UCC-3 Amendment
	 	 	 03/25/2004

200406482290


12/29/2008

20080976622


12/29/2008

200809766475


12/30/2008

20080977723X	 	 	All of the debtor’s right, title, and interest in to and under listed property 







Amendment to 200406482290 changing the address of the secured party to LaSalle Bank national Association, as Indenture Trustee for the registered holders of FFCA Secured Franchise; 135 South LaSalle Street, Suite 1625, Chicago, IL, 60674
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	FL — Secretary of State

	 	Burger King Corporation;
5505 Blue Lagoon Drive,
Miami, FL, 33126
	 	The CIT Group/Equipment Financing, Inc.;
1540 West Fountainhead Parkway,
Tempe, AZ, 85282
	 	 	 	UCC-1


UCC-3 Continuation and Amendment
	 	 	09/01/2004

200407794865


03/31/2009

200900277422	 	 	Equipment lease 


Amendment to 200407794865 changing the address of secured party to The CIT Group/Equipment Financing, Inc.; Two Lincoln Centre, Suite 410, 5420 LBJ Freeway, Dallas, TX, 75240






 









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	JURISDICTION	 	DEBTOR	 	SECURED PARTY	 	JUDGMENTS, SUITS	 	TYPE OF UCC	 	DATE & FILE NO.	 	DESCRIPTION
	FL — Secretary of State

	 	Burger King Corporation;
17777 Old Cutler Road,
Miami, FL, 33157-6347
	 	FFCA Acquisition Corporation;
17207 North Perimeter Drive,
Scottsdale, AZ, 85255
	 	 	 	UCC-1


UCC-3 Continuation

Amendment
	 	 	03/10/2005

200509157821


09/14/2009

200901193753


09/14/2009

200901193818	 	 	All personal property and equipment at listed property 


Amendment to 200509157821 changing the address of secured party to GE Capital Franchise Finance Corporation; 8377 E. Hartford Drive, Suite 200, Scottsdale, AZ, 85255
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	FL — Secretary of State

	 	Burger King Corporation;
5505 Blue Lagoon Drive,
Miami, FL, 33126
	 	Cessna Finance Corporation;
220 W. Douglas, Suite 300
P.O. Box 308, Wichita, KS, 67202
	 	 	 	UCC-1
	 	 	10/24/2005

200501003094	 	 	Equipment lease
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	FL — Secretary of State

	 	Burger King Corporation;
5505 Blue Lagoon Drive,
Miami, FL, 33126
	 	Wachovia Financial Services, Inc.;
1111 Old Eagle School Road,
Wayne, Pa, 19087
	 	 	 	UCC-1
	 	 	03/30/2006

20060227753X	 	 	Equipment lease
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	FL — Secretary of State

	 	Burger King Corporation;
5505 Blue Lagoon Drive,
Miami, FL, 33126
	 	IOS Capital;
1738 Bass RD,
Macon, GA, 312101043
	 	 	 	UCC-1
	 	 	05/09/2006

200602596686	 	 	Equipment lease






 









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	JURISDICTION	 	DEBTOR	 	SECURED PARTY	 	JUDGMENTS, SUITS	 	TYPE OF UCC	 	DATE & FILE NO.	 	DESCRIPTION
	FL — Secretary of State

	 	Burger King Corporation;
5505 Blue Lagoon Drive,
Miami, FL, 33126
	 	IOS Capital;
1738 Bass RD,
Macon, GA, 312101043
	 	 	 	UCC-1
	 	 	05/10/2006

200602602740	 	 	Equipment lease
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	FL — Secretary of State

	 	Burger King Corporation;
5505 Blue Lagoon Drive,
Miami, FL, 33126
	 	IOS Capital;
1738 Bass RD,
Macon, GA, 312101043
	 	 	 	UCC-1
	 	 	05/23/2006

200602717343	 	 	Equipment lease
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	FL — Secretary of State

	 	Burger King Corporation;
5505 Blue lagoon Drive,
Miami, Fl, 331262029
	 	IKON Financial SVCS;
1738 Bass RD, Macon,
GA, 312101043
	 	 	 	UCC-1
	 	 	12/24/2007

200707277300	 	 	Equipment lease
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	FL — Secretary of State

	 	Burger King Corporation;
5505 Blue Lagoon Drive,
Miami, FL, 33126
	 	AT&T Capital Services, Inc.;
2000 W. AT&T Center Drive,
Hoffman Estates, IL, 60192
	 	 	 	UCC-1
	 	 	08/05/2008

200808887678	 	 	Equipment lease
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	FL — Secretary of State

	 	Burger King Corporation;
5505 Blue Lagoon Drive,
Miami, FL, 33126
	 	Axis Capital, Inc.;
308 N Locust street, Suite 100,
Grand Island, NE, 68801
	 	 	 	UCC-1
	 	 	08/13/2008

200808944329	 	 	Equipment lease
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	FL — Secretary of State

	 	Burger King Corporation

5505 Blue Lagoon Dr

Miami, FL 33126-2029
	 	IKON Financial Svcs

1738 Bass Rd

Macon, GA 31210-1043
	 	 	 	UCC-1
	 	 	4/16/2009

200900371410	 	 	Leased equipment
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	FL — Secretary of State

	 	Burger King Corporation

5505 Blue Lagoon Dr

Miami, FL 33126-2029
	 	Face to Face Live, Inc.
14500 N. Northsight Blvd.
Suite 314
Scottsdale, AZ 85260
	 	 	 	UCC-1
	 	 	9/8/2009

200901160189	 	 	Leased equipment






 









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	JURISDICTION	 	DEBTOR	 	SECURED PARTY	 	JUDGMENTS, SUITS	 	TYPE OF UCC	 	DATE & FILE NO.	 	DESCRIPTION
	FL — Secretary of State

	 	Burger King Corporation

5505 Blue Lagoon Dr, 8th Floor

Miami, FL 33126
	 	Spirit Master Funding III, LLC
14631 N. Scottsdale Road, Suite 200
Scottsdale, AZ 85254-2711
	 	 	 	UCC-1
	 	 	9/28/2009

200901267919	 	 	All personal property at location described in attached exhibit to secure payment of all Rental and other Monetary Obligations
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Ontario

	 	Burger King Corporation
	 	De Lage Landen Financial Services Canada Inc.
1235 North Service Road West, Suite 100,
Oakville, ON L6M 2W2
	 	 	 	PPSA
	 	 	632682135	 	 	Leased equipment
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Miami-Dade County

	 	Burger King Corporation
	 	Park Finance of Broward, Inc.
	 	Judgment lien 03-08560 for $9,460.93
	 	 	 	 	5/27/2007	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Miami-Dade County

	 	Burger King Corporation
	 	Leons Lawn Service
	 	Judgment lien 09-13924-SP-05(1) for $3,796.00
	 	 	 	 	12/15/2009	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Miami-Dade County

	 	Burger King Corporation
	 	IDT Carmel, Inc.
	 	Judgment lien 08-11344 SP 05 for $2,861.95
	 	 	 	 	06/23/2010