exv10w68






Exhibit 10.68




EXECUTION VERSION




REGISTRATION RIGHTS AGREEMENT




     This REGISTRATION RIGHTS AGREEMENT, dated as of October 19, 2010 (the “Agreement”), is
entered into by and among Blue Acquisition Sub, Inc., a Delaware corporation (the “Merger
Sub”), the guarantors listed on the signature pages hereto (the “Guarantors”) and J.P.
Morgan Securities LLC for itself and on behalf of Barclays Capital Inc., Fifth Third Securities,
Inc., Morgan Keegan & Company, Inc. and UniCredit Capital Markets, Inc. (the “Initial
Purchasers”).



     Merger Sub and the Initial Purchasers are parties to the Purchase Agreement dated October 1,
2010 (the “Purchase Agreement”), which provides for the sale by Merger Sub to the Initial
Purchasers of $800.0 million aggregate principal amount of Merger Sub’s 9.875% Senior Notes due
2018 (the “Securities”).



     As an inducement to the Initial Purchasers to enter into the Purchase Agreement, the Company
and the Guarantors have agreed to provide to the Initial Purchasers and their direct and indirect
transferees the registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the closing under the Purchase Agreement.



     Merger Sub, Blue Acquisition Holding Corporation, a Delaware corporation (“Parent”),
and Burger King Holdings, Inc., a Delaware corporation (“Holdings”), have entered into an
Agreement and Plan of Merger, dated as of September 2, 2010 (the “Merger Agreement”),
pursuant to which Merger Sub will be merged with and into Holdings (the “Merger”), and as a
result Holdings will continue as the surviving corporation and an affiliate of 3G Special
Situations Fund II, L.P. (“3G”). Upon the consummation of the Merger, Burger King
Corporation, a Florida corporation (“BKC”), shall assume all rights and obligations of
Merger Sub under this Agreement.



     The Securities will initially be issued by Merger Sub. Upon the entering into of the
Supplemental Indenture (as defined below), the Company will assume the obligations of Merger Sub
under the Securities, and the Securities will be guaranteed on a senior basis, in each case by
Holdings and each of the Company’s subsidiaries listed on Schedule 2 to the Purchase Agreement.



     Immediately upon consummation of the Merger, the Company, Holdings and each other Guarantor
will enter into a joinder agreement to this Agreement (the “Joinder to the Registration Rights
Agreement”), a form of which is attached hereto as Annex A, pursuant to which it will become a
party to this Agreement.



     In consideration of the foregoing, the parties hereto agree as follows:



     1. Definitions. As used in this Agreement, the following terms shall have the
following meanings:



 









 





     “Additional Guarantor” shall mean any affiliate of the Company that issues a Guarantee under
the Indenture after the date of this Agreement.



     “Agreement” shall have the meaning set forth in the preamble.



     “Business Day” shall mean 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.



     “Company” shall mean Merger Sub prior to the Merger and, upon consummation of the Merger and
BKC’s entering into of the Joinder to the Registration Rights Agreement, shall mean BKC and shall
also include BKC’s successors.



     “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended from time to time.



     “Exchange Dates” shall have the meaning set forth in Section 2(a)(ii) hereof.



     “Exchange Offer” shall mean the exchange offer by the Company and the Guarantors of Exchange
Securities for Registrable Securities pursuant to Section 2(a) hereof.



     “Exchange Offer Registration” shall mean a registration under the Securities Act effected
pursuant to Section 2(a) hereof.



     “Exchange Offer Registration Statement” shall mean an exchange offer registration statement on
Form S-4 (or, if applicable, on another appropriate form) and all amendments and supplements to
such registration statement, in each case including the Prospectus contained therein or deemed a
part thereof, all exhibits thereto and any document incorporated by reference therein.



     “Exchange Securities” shall mean senior notes issued by the Company and guaranteed by the
Guarantors under the Indenture containing terms identical to the Securities (except that the
Exchange Securities will not be subject to restrictions on transfer or to any increase in annual
interest rate for failure to comply with this Agreement) and to be offered to Holders of
Registrable Securities in exchange for Securities pursuant to the Exchange Offer.



     “Free Writing Prospectus” means each free writing prospectus (as defined in Rule 405 under the
Securities Act) prepared by or on behalf of the Company or used or referred to by the Company in
connection with the sale of the Securities or the Exchange Securities.



     “Guarantees” shall mean the guarantees of the Securities and guarantees of the Exchange
Securities by the Guarantors under the Indenture.



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     “Guarantors” shall have the meaning set forth in the preamble and shall also include any
Guarantor’s successors and any Additional Guarantors.



     “Holders” shall mean the Initial Purchasers, for so long as they own any Registrable
Securities, and each of their successors, assigns and direct and indirect transferees who become
owners of Registrable Securities under the Indenture; provided that for purposes of
Sections 4 and 6 of this Agreement, the term “Holders” shall include Participating Broker-Dealers.



     “Holdings” shall have the meaning set forth in the preamble.



     “Indemnified Person” shall have the meaning set forth in Section 5(c) hereof.



     “Indemnifying Person” shall have the meaning set forth in Section 5(c) hereof.



     “Indenture” shall mean the Indenture relating to the Securities dated as of October 19,
2010, among Merger Sub and Wilmington Trust FSB, as trustee, as the same may be amended and
supplemented from time to time in accordance with the terms thereof.



     “Initial Purchasers” shall have the meaning set forth in the preamble.



     “Inspector” shall have the meaning set forth in Section 3(a)(xiv) hereof.



     “Issuer Information” shall have the meaning set forth in Section 5(a) hereof.



     “Joinder to the Registration Rights Agreement” shall have the meaning set forth in the
preamble.



     “J.P. Morgan” shall mean J.P. Morgan Securities LLC.



     “Majority Holders” shall mean the Holders of a majority of the aggregate principal amount of
the outstanding Registrable Securities; provided that whenever the consent or approval of
Holders of a specified percentage of Registrable Securities is required hereunder, any Registrable
Securities owned directly or indirectly by the Company or any of its affiliates shall not be
counted in determining whether such consent or approval was given by the Holders of such required
percentage or amount; and provided, further, that if the Company shall issue any
additional Securities under the Indenture prior to consummation of the Exchange Offer or, if
applicable, the effectiveness of any Shelf Registration Statement, such additional Securities and
the Registrable Securities to which this Agreement relates shall be treated together as one class
for purposes of determining whether the consent or approval of Holders of a specified percentage of
Registrable Securities has been obtained.



     “Merger” shall have the meaning set forth in the preamble.



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     “Merger Sub” shall have the meaning set forth in the preamble.



     “Participating Broker-Dealers” shall have the meaning set forth in Section 4(a) hereof.



     “Person” shall mean an individual, partnership, limited liability company, corporation, trust
or unincorporated organization, or a government or agency or political subdivision thereof.



     “Prospectus” shall mean the prospectus included in, or, pursuant to the rules and regulations
of the Securities Act, deemed a part of, a Registration Statement, including (i) any preliminary
prospectus and (ii) any such prospectus as amended or supplemented by any prospectus supplement,
including a prospectus supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all other amendments and
supplements to such prospectus, and in each case including any document incorporated by reference
therein.



     “Purchase Agreement” shall have the meaning set forth in the preamble.



     “Registrable Securities” shall mean the Securities; provided that the Securities shall
cease to be Registrable Securities (i) when a Registration Statement with respect to such
Securities has become effective under the Securities Act and such Securities have been exchanged or
disposed of pursuant to such Registration Statement or (ii) when such Securities cease to be
outstanding.



     “Registration Expenses” shall mean any and all expenses incident to performance of or
compliance by the Company and the Guarantors with this Agreement, including without limitation: (i)
all SEC, stock exchange or Financial Industry Regulatory Authority Inc. registration and filing
fees, (ii) all fees and expenses incurred in connection with compliance with state securities or
blue sky laws (including reasonable fees and disbursements of one firm of counsel for any
Underwriters or Holders in connection with blue sky qualification of any Exchange Securities or
Registrable Securities, which firm shall be selected by the Underwriters or the Majority Holders),
(iii) the costs incident to the preparing, word processing, printing and distributing any
Registration Statement, any Prospectus, any Free Writing Prospectus and any amendments or
supplements thereto, any underwriting agreements, securities sales agreements or other similar
agreements and any other documents relating to the performance of and compliance with this
Agreement, (iv) all rating agency fees, (v) all fees and disbursements relating to the
qualification of the Indenture under applicable securities laws, (vi) the fees and disbursements of
the Trustee and its counsel, (vii) the fees and disbursements of counsel for the Company and the
Guarantors and, in the case of a Shelf Registration Statement, the fees and disbursements of one
counsel for the Holders (which counsel shall be selected by the Majority Holders and which counsel
may also be counsel for the Initial Purchasers) and (viii) the fees and disbursements of
the independent public accountants of the Company and the Guarantors, including the



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expenses of any special audits or “comfort” letters required by or incident to the performance of and
compliance with this Agreement, but excluding fees and expenses of counsel to the Underwriters
(other than fees and expenses set forth in clause (ii) above) or the Holders and underwriting
discounts and commissions, brokerage commissions and transfer taxes, if any, relating to the sale
or disposition of Registrable Securities by a Holder.




     “Registration Statement” shall mean any registration statement of the Company and the
Guarantors that covers any of the Exchange Securities or Registrable Securities pursuant to the
provisions of this Agreement, and all amendments and supplements to any such registration
statement, including post-effective amendments, in each case including the Prospectus contained
therein or deemed a part thereof, all exhibits thereto and any document incorporated by reference
therein.



     “SEC” shall mean the United States Securities and Exchange Commission.



     “Securities” shall have the meaning set forth in the preamble.



     “Securities Act” shall mean the Securities Act of 1933, as amended from time to time.



     “Shelf Additional Interest Date” shall have the meaning set forth in Section 2(d) hereof.



     “Shelf Effectiveness Period” shall have the meaning set forth in Section 2(b) hereof.



     “Shelf Registration” shall mean a registration effected pursuant to Section 2(b) hereof.



     “Shelf Registration Statement” shall mean a “shelf” registration statement of the Company and
the Guarantors that covers all or a portion of the Registrable Securities (but no other securities
unless approved by a majority of the Holders whose Registrable Securities are to be covered by such
Shelf Registration Statement) on an appropriate form under Rule 415 under the Securities Act, or
any similar rule that may be adopted by the SEC, and all amendments and supplements to such
registration statement, including post-effective amendments, in each case including the Prospectus
contained therein or deemed a part thereof, all exhibits thereto and any document incorporated by
reference therein.



     “Shelf Request” shall have the meaning set forth in Section 2(b) hereof.



     “Staff” shall mean the staff of the SEC.



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     “Supplemental Indenture” shall mean the supplemental indenture dated October 19, 2010, to be
entered into by the Company, Holdings and each of the Company’s subsidiaries listed on Schedule 2
to the Purchase Agreement.



     “Target Registration Date” shall mean the date which is 365 days from October 19, 2010.



     “Trigger Date” shall have the meaning set forth in Section 2(d) hereof.



     “Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended from time to
time.



     “Trustee” shall mean the trustee with respect to the Securities under the Indenture.



     “Underwriter” shall have the meaning set forth in Section 3(e) hereof.



     “Underwritten Offering” shall mean an offering in which Registrable Securities are sold to an
Underwriter for reoffering to the public.



     2. Registration Under the Securities Act. (a) To the extent not prohibited by any
applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use
their reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement
covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities
and (ii) have such Registration Statement remain effective until 180 days after the date the
Exchange Offer Registration Statement became effective for use by one or more Participating
Broker-Dealers. The Company and the Guarantors shall commence the Exchange Offer promptly after
the Exchange Offer Registration Statement is declared effective by the SEC and use their reasonable
best efforts to complete the Exchange Offer not later than 60 days after such effective date.



     The Company and the Guarantors shall commence the Exchange Offer by mailing the related
Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder
stating, in addition to such other disclosures as are required by applicable law, substantially the
following:




	(i)	 	that the Exchange Offer is being made pursuant to this Agreement and that all Registrable
Securities validly tendered and not properly withdrawn will be accepted for exchange;
	 
	(ii)	 	the dates of acceptance for exchange (which shall be a period of at least 20 Business Days
(in accordance with the Exchange Act) from the date such notice is mailed) (the “Exchange
Dates”);




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	(iii)	 	that any Registrable Security not tendered will remain outstanding and continue to accrue
interest but will not retain any rights under this Agreement, except as otherwise specified
herein;
	 
	(iv)	 	that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange
Offer will be required to (A) surrender such Registrable Security, together with the
appropriate letters of transmittal, to the institution and at the address (located in the
Borough of Manhattan, The City of New York) and in the manner specified in the notice, or
(B) effect such exchange otherwise in compliance with the applicable procedures of the
depositary for such Registrable Security, in each case prior to the close of business on the
last Exchange Date; and
	 
	(v)	 	that any Holder will be entitled to withdraw its election, not later than the close of
business on the last Exchange Date, by (A) sending to the institution and at the address
(located in the Borough of Manhattan, The City of New York) specified in the notice, a
telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the
principal amount of Registrable Securities delivered for exchange, such other information as
may be reasonably required to identify the Securities to be withdrawn and a statement that
such Holder is withdrawing its election to have such Securities exchanged or (B) effecting
such withdrawal in compliance with the applicable procedures of the depositary for the
Registrable Securities.





     As a condition to participating in the Exchange Offer, a Holder will be required to represent
to the Company and the Guarantors that (i) any Exchange Securities to be received by it will be
acquired in the ordinary course of its business, (ii) at the time of the commencement of the
Exchange Offer it has no arrangement or understanding with any Person to participate in the
distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of
the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the
Securities Act) of the Company or any Guarantor and (iv) if such Holder is not a broker-dealer,
that it is not engaged in, and does not intend to engage in, the distribution of the Exchange
Securities. Each Holder hereby acknowledges and agrees that any broker-dealer and any such Holder
using the Exchange Offer to participate in a distribution of the securities to be acquired in the
Exchange Offer (1) could not under SEC policy as in effect on the date of this Agreement rely on
the position of the SEC enunciated in Morgan Stanley and Co., Inc. (available June 5, 1991) and
Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in the SEC’s letter to
Shearman & Sterling dated July 2, 1993, and similar no-action letters, and (2) must comply with the
registration and prospectus delivery requirements of the Securities Act in connection with a
secondary resale transaction and that such a secondary resale transaction should be covered by an
effective registration statement containing the selling security holder information required by
Item 507 or 508, as applicable, of Regulation S-K if the resales are of Exchange Securities
obtained by such Holder in exchange for Registrable Securities acquired by such Holder directly
from the Company..



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        As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:




	(i)	 	accept for exchange Registrable Securities or portions thereof validly tendered and not
properly withdrawn pursuant to the Exchange Offer; and
	 
	(ii)	 	deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities
or portions thereof so accepted for exchange by the Company and issue, and cause the Trustee
to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal
amount to the principal amount of the Registrable Securities tendered by such Holder.





     The Company and the Guarantors shall use their reasonable best efforts to complete the
Exchange Offer as provided above and shall comply with the applicable requirements of the
Securities Act, the Exchange Act and other applicable laws and regulations in connection with the
Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the
Exchange Offer does not violate any applicable law or applicable interpretations of the Staff and
customary conditions relating to the delivery of Securities or other actions customarily taken by
Holders participating in the Exchange Offer or the execution and delivery of customary
documentation relating to the Exchange Offer.



     (b) In the event that (i) the Company and the Guarantors determine that the Exchange Offer
Registration provided for in Section 2(a) above is not available or may not be completed as soon as
practicable after the last Exchange Date because it would violate any applicable law or applicable
interpretations of the Staff, (ii) a Holder participating in the Exchange Offer does not receive
Exchange Securities on the date of the exchange that may be sold without restriction under state
and federal securities laws (other than due solely to the status of such Holder as an affiliate of
the Company within the meaning of the Securities Act) and notifies (a “Holder Notice”) the
Company within 30 days after such Holder first becomes aware of such restrictions, (iii) the
Exchange Offer is not for any other reason completed by the Target Registration Date or (iv) upon
receipt of a written request (a “Shelf Request”) from any Initial Purchaser representing
that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange
Offer, the Company and the Guarantors shall use their reasonable best efforts to cause to be filed,
as soon as practicable after such determination, date, Holder Notice or Shelf Request, as the case
may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by
the Holders thereof and to have such Shelf Registration Statement become effective.



     In the event that the Company and the Guarantors are required to file a Shelf Registration
Statement pursuant to clause (iii) or (iv) of the preceding sentence, the Company and the
Guarantors shall use their reasonable best efforts to file and have become effective both an
Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable
Securities and a Shelf Registration Statement (which



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may be a combined Registration Statement with the Exchange Offer Registration Statement) with
respect to offers and sales of Registrable Securities held by the Initial Purchasers after
completion of the Exchange Offer.




     The Company and the Guarantors agree to use their reasonable best efforts to keep the Shelf
Registration Statement continuously effective until the earlier of (i) such period as will
terminate when the Securities covered by the Shelf Registration Statement cease to be Registrable
Securities and (ii) such time as all the Registrable Securities covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness
Period”). The Company and the Guarantors further agree to supplement or amend the Shelf
Registration Statement, the related Prospectus and any Free Writing Prospectus if required by the
rules, regulations or instructions applicable to the registration form used by the Company for such
Shelf Registration Statement or by the Securities Act or by any other rules and regulations
thereunder or if reasonably requested by a Holder of Registrable Securities with respect to
information relating to such Holder, and to use their reasonable best efforts to cause any such
amendment to become effective, if required, and such Shelf Registration Statement, Prospectus or
Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicable.
The Company and the Guarantors agree to furnish to the Holders of Registrable Securities registered
on such Shelf Registration Statement copies of any such supplement or amendment promptly after its
being used or filed with the SEC.



     (c) The Company and the Guarantors shall pay all Registration Expenses in connection with any
registration pursuant to Section 2(a) or Section 2(b) hereof. Each Holder shall pay all
underwriting discounts and commissions, brokerage commissions and transfer taxes, if any, relating
to the sale or disposition of such Holder’s Registrable Securities pursuant to the Shelf
Registration Statement.



     (d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof will not be
deemed to have become effective unless it has been declared effective by the SEC. A Shelf
Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective
unless it has been declared effective by the SEC or is automatically effective upon filing with the
SEC as provided by Rule 462 under the Securities Act.



     In the event that either the Exchange Offer is not completed or the Shelf Registration
Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, is not effective by the
Target Registration Date, the interest rate on the Registrable Securities will be increased by (i)
0.25% per annum for the first 90-day period immediately following the Target Registration Date and
(ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case
until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby,
becomes effective, up to a maximum total increase of 1.00% per annum. In the event that the
Company receives a Holder Notice or Shelf Request pursuant to Section 2(b)(iii) or 2(b)(iv), and
the Shelf Registration Statement required to be filed thereby has not become effective



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by the later of the Target Registration Date or (y) 90 days after delivery of such Holder Notice or
Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest
rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day
period payable commencing from one day after the Shelf Additional Interest Date and (ii) an
additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the
Shelf Registration Statement becomes effective, up to a maximum total increase of 1.00% per annum.




     If the Shelf Registration Statement, if required hereby, is effective and thereafter either
ceases to be effective or the Prospectus contained therein ceases to be usable, in each case
whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and
such failure to remain effective or usable exists for more than 30 days (whether or not
consecutive) in any 12-month period (the 30th such date, the “Trigger Date”), then the
interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first
90-day period immediately following the Trigger Date and (ii) an additional 0.25% per annum with
respect to each subsequent 90-day period, up to a maximum increase of 1.0% per annum, and ending on
such date that the Shelf Registration Statement is again effective or the Prospectus again becomes
usable.



     (e) Without limiting the remedies available to the Initial Purchasers and the Holders, the
Company and the Guarantors acknowledge that any failure by the Company or the Guarantors to comply
with their obligations under Section 2(a) and Section 2(b) hereof may result in material
irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy
at law, that it will not be possible to measure damages for such injuries precisely and that, in
the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may
be required to specifically enforce the Company’s and the Guarantors’ obligations under Section
2(a) and Section 2(b) hereof.



     3. Registration Procedures. (a) In connection with their obligations pursuant to
Section 2(a) and Section 2(b) hereof, the Company and the Guarantors shall promptly:



     (i) prepare and file with the SEC a Registration Statement on the appropriate form under the
Securities Act, which form (x) shall be selected by the Company and the Guarantors, (y) shall, in
the case of a Shelf Registration, be available for the sale of the Registrable Securities by the
Holders thereof and (z) shall comply as to form in all material respects with the requirements of
the applicable form and include all financial statements required by the SEC to be filed therewith;
and use their reasonable best efforts to cause such Registration Statement to become effective and
remain effective for the applicable period in accordance with Section 2 hereof;



     (ii) prepare and file with the SEC such amendments and post-effective amendments to each
Registration Statement as may be necessary to keep such Registration Statement effective for the
applicable period in accordance with Section 2 hereof and cause each Prospectus to be supplemented
by any required prospectus



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supplement and, as so supplemented, to be filed pursuant to Rule 424 under the Securities Act;
and keep each Prospectus current during the period described in Section 4(3) of and Rule 174 under
the Securities Act that is applicable to transactions by brokers or dealers with respect to the
Registrable Securities or Exchange Securities;




     (iii) to the extent any Free Writing Prospectus is used, file with the SEC any Free Writing
Prospectus that is required to be filed by the Company or the Guarantors with the SEC in accordance
with the Securities Act and to retain any Free Writing Prospectus not required to be filed;



     (iv) in the case of a Shelf Registration, furnish to each Holder of Registrable Securities
included on such Shelf Registration Statement, to counsel for the Initial Purchasers, to counsel
for such Holders and to each Underwriter of an Underwritten Offering of Registrable Securities, if
any, without charge, as many copies of each Prospectus, preliminary prospectus or Free Writing
Prospectus, and any amendment or supplement thereto, as such Holder, counsel or Underwriter may
reasonably request in order to facilitate the sale or other disposition of the Registrable
Securities thereunder; and the Company and the Guarantors consent to the use of such Prospectus,
preliminary prospectus or such Free Writing Prospectus and any amendment or supplement thereto in
accordance with applicable law by each of the Holders of Registrable Securities and any such
Underwriters in connection with the offering and sale of the Registrable Securities covered by and
in the manner described in such Prospectus, preliminary prospectus or such Free Writing Prospectus
or any amendment or supplement thereto in accordance with applicable law;



     (v) in the case of an Exchange Offer Registration Statement, use their reasonable best efforts
to register and qualify the Registrable Securities under all applicable state securities or blue
sky laws and, in the case of a Shelf Registration Statement, cooperate with the selling Holders and
their counsel to register or qualify the Registrable Securities under all applicable state
securities or blue sky laws of such jurisdictions as any Holder of Registrable Securities covered
by a Shelf Registration Statement shall reasonably request in writing by the time the applicable
Shelf Registration Statement becomes effective; cooperate with such Holders in connection with any
filings required to be made with the Financial Industry Regulatory Authority Inc.; and do any and
all other acts and things that may be reasonably necessary or advisable to enable each Holder to
complete the disposition in each such jurisdiction of the Registrable Securities owned by such
Holder; provided that neither the Company nor any Guarantor shall be required to (1)
qualify as a foreign corporation or other entity or as a dealer in securities in any such
jurisdiction where it would not otherwise be required to so qualify, (2) file any general consent
to service of process in any such jurisdiction or (3) subject itself to taxation in any such
jurisdiction if it is not so subject;



     (vi) notify counsel for the Initial Purchasers and, in the case of a Shelf Registration,
notify each Holder of Registrable Securities included on such Shelf Registration Statement and
counsel for such Holders promptly and, if requested by any such Holder or counsel, confirm such
advice in writing (1) when a Registration



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Statement has become effective, when any post-effective amendment thereto has been filed and
becomes effective, when any Free Writing Prospectus has been filed or any amendment or supplement
to the Prospectus or any Free Writing Prospectus has been filed, (2) of any request by the SEC or
any state securities authority for amendments and supplements to a Registration Statement,
Prospectus or any Free Writing Prospectus or for additional information after the Registration
Statement has become effective, (3) of the issuance by the SEC or any state securities authority of
any stop order suspending the effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose, including the receipt by the Company of any notice of objection of
the SEC to the use of a Shelf Registration Statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Securities Act, (4) if, between the applicable effective date
of a Shelf Registration Statement and the closing of any sale of Registrable Securities covered
thereby, the Company or any Guarantor receives any notification with respect to the suspension of
the qualification of the Registrable Securities for sale in any jurisdiction or the initiation of
any proceeding for such purpose, (5) of the happening of any event during the period a Registration
Statement is effective that makes any statement made in such Registration Statement or the related
Prospectus or any Free Writing Prospectus untrue in any material respect or that requires the
making of any changes in such Registration Statement or Prospectus or any Free Writing Prospectus
in order to make the statements therein not misleading (in the case of the Prospectus, in light of
the circumstances under which they were made) and (6) of any determination by the Company or any
Guarantor that a post-effective amendment to a Registration Statement or any amendment or
supplement to the Prospectus or any Free Writing Prospectus would be required;




     (vii) use their reasonable best efforts to obtain the withdrawal of any order suspending the
effectiveness of a Registration Statement or, in the case of a Shelf Registration, the resolution
of any objection of the SEC pursuant to Rule 401(g)(2), including by filing an amendment to such
Shelf Registration Statement on the proper form, as promptly as practicable and provide prompt
notice to each Holder of the withdrawal of any such order or such resolution;



     (viii) in the case of a Shelf Registration, furnish to each Holder of Registrable Securities
included on such Shelf Registration Statement, without charge, at least one conformed copy of each
Registration Statement and any post-effective amendment thereto (without any documents incorporated
therein by reference or exhibits thereto, unless requested in writing);



     (ix) in the case of a Shelf Registration, cooperate with the Holders of Registrable Securities
included on such Shelf Registration Statement to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and not bearing any restrictive legends
and enable such Registrable Securities to be issued in such denominations and registered in such
names (consistent with the provisions of the Indenture) as such Holders may reasonably request at
least one Business Day prior to the closing of any sale of Registrable Securities;



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     (x) in the case of a Shelf Registration, upon the occurrence of any event contemplated by
Section 3(a)(vi)(5) hereof, use their reasonable best efforts to prepare and file with the SEC a
supplement or post-effective amendment to such Shelf Registration Statement or the related
Prospectus or any Free Writing Prospectus or any document incorporated therein by reference or file
any other required document so that, as thereafter delivered (or, to the extent permitted by law,
made available) to purchasers of the Registrable Securities, such Prospectus or Free Writing
Prospectus, as the case may be, will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and the Company and the Guarantors shall notify the
Holders of Registrable Securities to suspend use of the Prospectus or any Free Writing Prospectus
as promptly as practicable after the occurrence of such an event, and such Holders hereby agree to
suspend use of the Prospectus or any Free Writing Prospectus, as the case may be, until the Company
and the Guarantors have amended or supplemented the Prospectus or the Free Writing Prospectus, as
the case may be, to correct such misstatement or omission;



     (xi) a reasonable time prior to the filing of any Registration Statement, any Prospectus, any
Free Writing Prospectus, any amendment to a Registration Statement or amendment or supplement to a
Prospectus or a Free Writing Prospectus or other than any document that is to be incorporated by
reference into a Registration Statement, a Prospectus or a Free Writing Prospectus after initial
filing of a Registration Statement, provide copies of such document to the Initial Purchasers and
their counsel (and, in the case of a Shelf Registration Statement, to the Holders of Registrable
Securities included on such Shelf Registration Statement and their counsel) and make such of the
representatives of the Company and the Guarantors as shall be reasonably requested by the Initial
Purchasers or their counsel (and, in the case of a Shelf Registration Statement, the Holders of
Registrable Securities included on such Shelf Registration Statement or their counsel) available
for discussion of such document; and the Company and the Guarantors shall not, at any time after
initial filing of a Registration Statement, use or file any Prospectus, any Free Writing
Prospectus, any amendment of or supplement to a Registration Statement, a Prospectus or any Free
Writing Prospectus, or any document that is to be incorporated by reference into a Registration
Statement, a Prospectus or a Free Writing Prospectus, of which the Initial Purchasers and their
counsel (and, in the case of a Shelf Registration Statement, the Holders of Registrable Securities
and their counsel) shall not have previously been advised and furnished a copy or to which the
Initial Purchasers or their counsel (and, in the case of a Shelf Registration Statement, the
Holders of Registrable Securities or their counsel) shall reasonably object in writing within five
business days after receipt thereof;



     (xii) use reasonable best efforts to obtain a CUSIP number for all Exchange Securities or
Registrable Securities, as the case may be, not later than the initial effective date of a
Registration Statement;



     (xiii) use reasonable best efforts to cause the Indenture to be qualified under the Trust
Indenture Act in connection with the registration of the Exchange Securities or



13









 




Registrable Securities, as the case may be; cooperate with the Trustee and the Holders to
effect such changes to the Indenture as may be required for the Indenture to be so qualified in
accordance with the terms of the Trust Indenture Act; and execute, and use their reasonable best
efforts to cause the Trustee to execute, all documents as may be required to effect such changes
and all other forms and documents required to be filed with the SEC to enable the Indenture to be
so qualified in a timely manner;




     (xiv) in the case of a Shelf Registration, make available for inspection by a representative
of the Holders of the Registrable Securities (an “Inspector”), any Underwriter
participating in any disposition pursuant to such Shelf Registration Statement, any attorneys and
accountants designated by a majority of the Holders of Registrable Securities to be included in
such Shelf Registration and any attorneys and accountants designated by such Underwriter, at
reasonable times and in a reasonable manner, all pertinent financial and other records, documents
and properties of the Company and its subsidiaries, and cause the respective officers, directors
and employees of the Company and the Guarantors to supply all information reasonably requested by
any such Inspector, Underwriter, attorney or accountant in connection with a Shelf Registration
Statement; provided that if any such information is identified by the Company or any
Guarantor as being confidential or proprietary, each Person receiving such information shall take
such actions as are reasonably necessary to protect the confidentiality of such information to the
extent such action is otherwise not inconsistent with, an impairment of or in derogation of the
rights and interests of any Inspector, Holder or Underwriter;



     (xv) in the case of a Shelf Registration, use their reasonable best efforts to cause all
Registrable Securities to be listed on any securities exchange or any automated quotation system on
which similar securities issued or guaranteed by the Company or any Guarantor are then listed if
requested by the Majority Holders, to the extent such Registrable Securities satisfy applicable
listing requirements;



     (xvi) if reasonably requested by any Holder of Registrable Securities covered by a Shelf
Registration Statement, promptly include in a Prospectus supplement or post-effective amendment
such information with respect to such Holder as such Holder reasonably requests to be included
therein and make all required filings of such Prospectus supplement or such post-effective
amendment as soon as the Company has received notification of the matters to be so included in such
filing;



     (xvii) in the case of a Shelf Registration, enter into such customary agreements and take all
such other actions in connection therewith (including those reasonably requested by the Holders of
a majority in principal amount of the Registrable Securities covered by the Shelf Registration
Statement) in order to expedite or facilitate the disposition of such Registrable Securities
including, but not limited to, in an Underwritten Offering and in such connection, (1) to the
extent possible, make such representations and warranties to the Holders and any Underwriters of
such Registrable Securities with respect to the business of the Company and its subsidiaries and
the Registration Statement, Prospectus, any Free Writing Prospectus and documents



14









 




incorporated by reference or deemed incorporated by reference, if any, in each case, in form,
substance and scope as are customarily made by issuers to underwriters in underwritten offerings
and confirm the same if and when requested, (2) obtain opinions of counsel to the Company and the
Guarantors (which counsel and opinions, in form, scope and substance, shall be reasonably
satisfactory to the Holders of a majority in principal amount of the Registrable Securities being
sold and such Underwriters and their respective counsel) addressed to each selling Holder and
Underwriter of Registrable Securities, covering the matters customarily covered in opinions
requested in underwritten offerings, (3) obtain “comfort” letters from the independent certified
public accountants of the Company and the Guarantors (and, if necessary, any other certified public
accountant of any subsidiary of the Company or any Guarantor, or of any business acquired by the
Company or any Guarantor for which financial statements and financial data are or are required to
be included in the Registration Statement) addressed to each selling Holder (to the extent
permitted by applicable professional standards) and Underwriter of Registrable Securities, such
letters to be in customary form and covering matters of the type customarily covered in “comfort”
letters in connection with underwritten offerings, including but not limited to financial
information contained in any preliminary prospectus, Prospectus or Free Writing Prospectus and (4)
deliver such documents and certificates as may be reasonably requested by the Holders of a majority
in principal amount of the Registrable Securities being sold or the Underwriters, and which are
customarily delivered in underwritten offerings, to evidence the continued validity of the
representations and warranties of the Company and the Guarantors made pursuant to clause (1) above
and to evidence compliance with any customary conditions contained in an underwriting agreement; it
being agreed that the representations and warranties, opinions of counsel and comfort letters
delivered in connection with the initial offering of the Securities are customary; and




     (xviii) (a) immediately upon consummation of the Merger, BKC, Holdings and each other
Guarantor enter into the Joinder to the Registration Rights Agreement in the form attached as
Annex A hereto and (b) so long as any Registrable Securities remain outstanding, cause each
Additional Guarantor upon the creation or acquisition by the Company of such Additional Guarantor,
to execute a counterpart to this Agreement in the form attached hereto as Annex B and to
deliver such counterpart to the Initial Purchasers no later than five Business Days following the
execution thereof.



     (b) In the case of a Shelf Registration Statement, the Company may require each Holder of
Registrable Securities to furnish to the Company such information regarding such Holder and the
proposed disposition by such Holder of such Registrable Securities as the Company and the
Guarantors may from time to time reasonably request in writing; provided that if such Holder fails
to provide the requested information within 20 Business Days, the Company may exclude such Holder’s
Registrable Securities from such Shelf Registration Statement until such time as the information is
provided.



     (c) In the case of a Shelf Registration Statement, each Holder of Registrable Securities
covered in such Shelf Registration Statement agrees that, upon receipt of



15









 




any notice from the Company and the Guarantors of the happening of any event of the kind
described in Section 3(a)(vi)(3) or 3(a)(vi)(5) hereof, such Holder will forthwith discontinue
disposition of Registrable Securities pursuant to the Shelf Registration Statement until such
Holder’s receipt of the copies of the supplemented or amended Prospectus and any Free Writing
Prospectus contemplated by Section 3(a)(x) hereof and, if so directed by the Company and the
Guarantors, such Holder will deliver to the Company and the Guarantors all copies in its
possession, other than permanent file copies then in such Holder’s possession, of the Prospectus
and any Free Writing Prospectus covering such Registrable Securities that is current at the time of
receipt of such notice.




     (d) If the Company and the Guarantors shall give any notice to suspend the disposition of
Registrable Securities pursuant to a Registration Statement, the Company and the Guarantors shall
extend the period during which such Registration Statement shall be maintained effective pursuant
to this Agreement by the number of days during the period from and including the date of the giving
of such notice to and including the date when the Holders of such Registrable Securities shall have
received copies of the supplemented or amended Prospectus or any Free Writing Prospectus necessary
to resume such dispositions. The Company and the Guarantors may give any such notice only twice
during any 365-day period, any such suspensions shall not exceed 45 days for each suspension and
there shall not be more than two suspensions in effect during any 365-day period.



     (e) The Holders of Registrable Securities covered by a Shelf Registration Statement who desire
to do so may sell such Registrable Securities in an Underwritten Offering. In any such
Underwritten Offering, the investment bank or investment banks and manager or managers (each an
“Underwriter”) that will administer the offering will be selected by the Holders of a
majority in principal amount of the Registrable Securities included in such offering and reasonably
acceptable to the Company. However, each Holder agrees that, neither such Holder nor any
Underwriter participating in any disposition pursuant to any Registration Statement on such
Holder’s behalf, will make any offer relating to the Registrable Securities that would constitute
an Issuer Free Writing Prospectus (as defined in Rule 433 under the Securities Act) or that would
otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Securities Act)
required to be filed by the Company with the Commission or retained by the Company under Rule 433
of the Securities Act, unless it has obtained the prior written consent of the Company.



     4. Participation of Broker-Dealers in Exchange Offer. (a) The Company has been
advised that the Staff has taken the position that any broker-dealer that receives Exchange
Securities for its own account in the Exchange Offer in exchange for Securities that were acquired
by such broker-dealer as a result of market-making or other trading activities (a
“Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of
the Securities Act and must deliver a prospectus meeting the requirements of the
Securities Act in connection with any resale of such Exchange Securities.




16












 





     The Company and the Guarantors have been advised that it is the Staff’s position that if
the Prospectus contained in the Exchange Offer Registration Statement includes a plan of
distribution containing a statement to the above effect and the means by which Participating
Broker-Dealers may resell the Exchange Securities, without naming the Participating Broker-Dealers
or specifying the amount of Exchange Securities owned by them, such Prospectus may be delivered by
Participating Broker-Dealers (or, to the extent permitted by law, made available to purchasers) to
satisfy their prospectus delivery obligation under the Securities Act in connection with resales of
Exchange Securities for their own accounts, so long as the Prospectus otherwise meets the
requirements of the Securities Act.



     (b) In light of the above, and notwithstanding the other provisions of this Agreement, the
Company and the Guarantors agree to use their reasonable best efforts to amend or supplement the
Prospectus contained in the Exchange Offer Registration Statement for a period ending on the
earlier of (i) 180 days after the date the Exchange Offer Registration Statement becomes effective
(as such period may be extended pursuant to Section 3(d) of this Agreement) and (ii) the date on
which each Participating Broker-Dealer is no longer required to deliver a prospectus in connection
with market making or other trading activities, in each case to the extent necessary to ensure that
it is available for resales. The Company and the Guarantors further consent to the delivery of
such Prospectus (or, to the extent permitted by law, agree to make available) by Participating
Broker-Dealers during such period in connection with the resales contemplated by this Section 4.



     (c) The Initial Purchasers shall have no liability to the Company, any Guarantor or any Holder
with respect to any such request that they may make pursuant to Section 4(b) above.



     5. Indemnification and Contribution. (a) The Company and each Guarantor, jointly and
severally, agree to indemnify and hold harmless each Initial Purchaser and each Holder, their
respective affiliates, directors and officers and each Person, if any, who controls any Initial
Purchaser or any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages and liabilities (including,
without limitation, reasonable legal fees and other expenses incurred in connection with any suit,
action or proceeding or any claim asserted, as such fees and expenses are incurred), joint or
several, that arise out of, or are based upon, (1) any untrue statement or alleged untrue statement
of a material fact contained in any Registration Statement or any omission or alleged omission to
state therein a material fact required to be stated therein or necessary in order to make the
statements therein not misleading, or (2) any untrue statement or alleged untrue statement of a
material fact contained in any Prospectus, any Free Writing Prospectus or any “issuer information”
(“Issuer Information”) filed or required to be filed pursuant to Rule 433(d) under the
Securities Act, or any omission or alleged omission to state therein a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made,
not misleading, in each case except insofar as such losses, claims, damages or liabilities arise
out of, or are based upon,



17









 




any untrue statement or omission or alleged untrue statement or omission made in reliance upon
and in conformity with any information relating to any Initial Purchaser, or information relating
to any Holder furnished to the Company in writing through J.P. Morgan or any selling Holder,
respectively, expressly for use therein. In connection with any Underwritten Offering permitted by
Section 3, the Company and the Guarantors, jointly and severally, will also indemnify the
Underwriters, if any, their respective affiliates and each Person who controls such Persons (within
the meaning of the Securities Act and the Exchange Act) to the same extent as provided above with
respect to the indemnification of the Holders, if requested in connection with any Registration
Statement, any Prospectus, any Free Writing Prospectus or any Issuer Information.




     (b) Each Holder agrees, severally and not jointly, to indemnify and hold harmless the Company,
the Guarantors, the Initial Purchasers and the other selling Holders, the directors of the Company
and the Guarantors, each officer of the Company and the Guarantors who signed the Registration
Statement and each Person, if any, who controls the Company, the Guarantors, any Initial Purchaser
and any other selling Holder within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act to the same extent as the indemnity set forth in paragraph (a) above, but only
with respect to any losses, claims, damages or liabilities that arise out of, or are based upon,
any untrue statement or omission or alleged untrue statement or omission made in reliance upon and
in conformity with any information relating to such Holder furnished to the Company in writing by
or on behalf of such Holder expressly for use in any Registration Statement, any Prospectus or any
Free Writing Prospectus.



     (c) If any suit, action, proceeding (including any governmental or regulatory investigation),
claim or demand shall be brought or asserted against any Person in respect of which indemnification
may be sought pursuant to either paragraph (a) or (b) above, such Person (the “Indemnified
Person”) shall promptly notify the Person against whom such indemnification may be sought (the
“Indemnifying Person”) in writing; provided that the failure to notify the
Indemnifying Person shall not relieve it from any liability that it may have under paragraph (a) or
(b) above except to the extent that it has been materially prejudiced (through the forfeiture of
substantive rights or defenses) by such failure; and provided, further, that the
failure to notify the Indemnifying Person shall not relieve it from any liability that it may have
to an Indemnified Person otherwise than under paragraph (a) or (b) above. If any such proceeding
shall be brought or asserted against an Indemnified Person and it shall have notified the
Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably satisfactory
to the Indemnified Person to represent the Indemnified Person and any others entitled to
indemnification pursuant to this Section 5 that the Indemnifying Person may designate in such
proceeding and shall pay the fees and expenses of such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding, as incurred. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of
such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person
and the Indemnified Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person
has failed within a



18









 




reasonable time to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the
Indemnified Person shall have reasonably concluded that there may be legal defenses available to it
that are different from or in addition to those available to the Indemnifying Person; or (iv) the
named parties in any such proceeding (including any impleaded parties) include both the
Indemnifying Person and the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests between them. It is
understood and agreed that the Indemnifying Person shall not, in connection with any proceeding or
related proceeding in the same jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all Indemnified Persons, and that all such
fees and expenses shall be reimbursed as they are incurred. Any such separate firm (x) for any
Initial Purchaser or its affiliates, directors and officers and any control Persons of such Initial
Purchaser shall be designated in writing by J.P. Morgan, (y) for any Holder, its directors and
officers and any control Persons of such Holder shall be designated in writing by the Majority
Holders and (z) in all other cases shall be designated in writing by the Company. The Indemnifying
Person shall not be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for the plaintiff, the
Indemnifying Person agrees to indemnify each Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. No Indemnifying Person shall, without the
written consent of the Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a party and
indemnification could have been sought hereunder by such Indemnified Person, unless such settlement
(A) includes an unconditional release of such Indemnified Person, in form and substance reasonably
satisfactory to such Indemnified Person, from all liability on claims that are the subject matter
of such proceeding and (B) does not include any statement as to or any admission of fault,
culpability or a failure to act by or on behalf of any Indemnified Person.




     (d) If the indemnification provided for in paragraphs (a) and (b) above is unavailable to an
Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying
such Indemnified Person thereunder, shall contribute to the amount paid or payable by such
Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by Merger Sub, the Company
and the Guarantors from the offering of the Securities and the Exchange Securities, on the one
hand, and by the Holders from receiving Securities or Exchange Securities registered under the
Securities Act, on the other hand, or (ii) if the allocation provided by clause (i) is not
permitted by applicable law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) but also the relative fault of the Company and the Guarantors on
the one hand and the Holders on the other in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company and the Guarantors on the one hand and the
Holders on the other shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of



19









 




a material fact or the omission or alleged omission to state a material fact relates to information
supplied by the Company and the Guarantors or by the Holders, as applicable, and the parties’
relative intent, knowledge, access to information and opportunity to correct or prevent such
statement or omission.




     (e) The Company, the Guarantors and the Holders agree that it would not be just and equitable
if contribution pursuant to this Section 5 were determined by pro rata allocation
(even if the Holders were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations referred to in paragraph (d)
above. The amount paid or payable by an Indemnified Person as a result of the losses, claims,
damages and liabilities referred to in paragraph (d) above shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses incurred by such Indemnified Person in
connection with any such action or claim. Notwithstanding the provisions of this Section 5, in no
event shall a Holder be required to contribute any amount in excess of the amount by which the
total price at which the Securities or Exchange Securities sold by such Holder exceeds the amount
of any damages that such Holder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent misrepresentation. The Holders’
obligations to contribute pursuant to this Section 5 are several and not joint.



     (f) The remedies provided for in this Section 5 are not exclusive and shall not limit any
rights or remedies that may otherwise be available to any Indemnified Person at law or in equity.



     (g) The indemnity and contribution provisions contained in this Section 5 shall remain
operative and in full force and effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of the Initial Purchasers or any Holder or any Person
controlling any Initial Purchaser or any Holder, or by or on behalf of the Company or the
Guarantors or the officers or directors of or any Person controlling the Company or the Guarantors,
(iii) acceptance of any of the Exchange Securities and (iv) any sale of Registrable Securities
pursuant to a Shelf Registration Statement.



     6. General.



     (a) No Inconsistent Agreements. The Company and the Guarantors represent, warrant and agree
that (i) the rights granted to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of any other outstanding securities issued or
guaranteed by the Company or any Guarantor under any other agreement and (ii) neither the Company
nor any Guarantor has entered into, or on or after the date of this Agreement will enter into, any
agreement that is inconsistent with the rights granted to the Holders of Registrable Securities in
this Agreement or otherwise conflicts with the provisions hereof.



20









 





     (b) Amendments and Waivers. The provisions of this Agreement, including the provisions of
this sentence, may not be amended, modified or supplemented, and waivers or consents to departures
from the provisions hereof may not be given unless the Company and the Guarantors have obtained the
written consent of Holders of at least a majority in aggregate principal amount of the outstanding
Registrable Securities affected by such amendment, modification, supplement, waiver or consent;
provided that no amendment, modification, supplement, waiver or consent to any departure
from the provisions of Section 6 hereof shall be effective as against any Holder of Registrable
Securities unless consented to in writing by such Holder. Any amendments, modifications,
supplements, waivers or consents pursuant to this Section 6(b) shall be by a writing executed by
each of the parties hereto.



     (c) Notices. Except as otherwise specified herein, all notices and other communications
provided for or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight delivery (i) if to a
Holder, at the most current address given by such Holder to the Company by means of a notice given
in accordance with the provisions of this Section 6(c), which address initially is, with respect to
the Initial Purchasers, the address set forth in the Purchase Agreement; (ii) if to the Company and
the Guarantors, initially at the Company’s address set forth in the Purchase Agreement and
thereafter at such other address, notice of which is given in accordance with the provisions of
this Section 6(c); and (iii) if to such other persons, at their respective addresses as provided in
the Purchase Agreement and thereafter at such other address, notice of which is given in accordance
with the provisions of this Section 6(c). All such notices and communications shall be deemed to
have been duly given: at the time delivered by hand, if personally delivered; five Business Days
after being deposited in the mail, postage prepaid, if mailed; when answered back, if telexed; when
receipt is acknowledged, if telecopied; and on the next Business Day if timely delivered to an air
courier guaranteeing overnight delivery. Copies of all such notices, demands or other
communications shall be concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.



     (d) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon
the successors, assigns and transferees of each of the parties, including, without limitation and
without the need for an express assignment, subsequent Holders; provided that nothing
herein shall be deemed to permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms of the Purchase Agreement or the Indenture. If any transferee
of any Holder shall acquire Registrable Securities in any manner, whether by operation of law or
otherwise, such Registrable Securities shall be held subject to all the terms of this Agreement,
and by taking and holding such Registrable Securities such Person shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of this Agreement and
such Person shall be entitled to receive the benefits hereof. The Initial Purchasers (in their
capacity as Initial Purchasers) shall have no liability or obligation to the Company or the
Guarantors with respect to any failure by a Holder to



21









 




comply with, or any breach by any Holder of, any of the obligations of such Holder under this
Agreement.




     (e) Third-Party Beneficiaries. Each Holder shall be a third-party beneficiary to the
agreements made hereunder between the Company and the Guarantors, on the one hand, and the Initial
Purchasers, on the other hand, and shall have the right to enforce such agreements directly to the
extent it deems such enforcement necessary or advisable to protect its rights or the rights of
other Holders hereunder.



     (f) Counterparts. This Agreement may be signed on counterparts (which may include counterparts
delivered by any standard form of telecommunication), each of which shall be an original and all of
which together shall constitute one and the same instrument.



     (g) Headings. The headings in this Agreement are for convenience of reference only, are not a
part of this Agreement and shall not limit or otherwise affect the meaning hereof.



     (h) Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.



     (i) Entire Agreement; Severability. This Agreement contains the entire agreement between the
parties relating to the subject matter hereof and supersedes all oral statements and prior writings
with respect thereto. If any term, provision, covenant or restriction contained in this Agreement
is held by a court of competent jurisdiction to be invalid, void or unenforceable or against public
policy, the remainder of the terms, provisions, covenants and restrictions contained herein shall
remain in full force and effect and shall in no way be affected, impaired or invalidated. The
Company, the Guarantors and the Initial Purchasers shall endeavor in good faith negotiations to
replace the invalid, void or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, void or unenforceable provisions.



22









 





     IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.



	 	 	 	 	 
	 	BLUE ACQUISITION SUB, INC.

 	 
	 	By  	/s/ Daniel S. Schwartz	 
	 	 	Name:  	Daniel S. Schwartz	 
	 	 	Title:  	Vice President	 
	 



[Signature Page to Registration Rights Agreement]





 









 







Confirmed and accepted as of the date first above written:



J.P. MORGAN SECURITIES LLC




For itself and on behalf of the

several Initial Purchasers




	 	 	 	 	 
	 	 	 
	By:  	/s/ Gerry Murray	 
	 	Gerry Murray	 
	 	Managing Director
Authorized Signatory	 
	 	 	 	 
	 



[Signature Page to Registration Rights Agreement]







 









 








Schedule 1




Initial Purchasers




J.P. Morgan Securities LLC

Barclays Capital Inc.

Fifth Third Securities, Inc.

Morgan Keegan & Company, Inc.

UniCredit Capital Markets, Inc.





 









 





Annex A




Form of Joinder to Registration Rights Agreement




October [     ], 2010




J.P. Morgan Securities LLC

c/o J.P. Morgan Securities LLC

383 Madison Avenue

New York, New York 10179



Ladies and Gentlemen:




     Reference is made to the Registration Rights Agreement (the “Registration Rights
Agreement”) dated as of October 19, 2010 by and among Blue Acquisition Sub, Inc., a Delaware
corporation (“Merger Sub”), and J.P. Morgan Securities LLC (“J.P. Morgan”), and
Barclays Capital Inc., Fifth Third Securities, Inc., Morgan Keegan & Company, Inc. and UniCredit
Capital Markets, Inc. and, together with J.P. Morgan, the (“Initial Purchasers”) concerning
the sale by Merger Sub to the Initial Purchasers of $800.0 million aggregate principal amount of
Merger Sub’s 9.875% Senior Notes due 2018 (the “Securities”). Capitalized terms used herein
but not defined herein shall have the meanings assigned to such terms in the Registration Rights
Agreement.



     Burger King Corporation, a Florida corporation (“BKC”), Burger King Holdings, Inc., a
Delaware corporation (“Holdings”), and each of the subsidiaries listed on Schedule [1]
hereto (collectively with Holdings, the “Guarantors”) agree that this letter agreement is
being executed and delivered in connection with the issue and sale of the Securities pursuant to
the Purchase Agreement.



          1. Joinder of the Successor Company. BKC hereby agrees to become bound by the terms,
conditions and other provisions of the Registration Rights Agreement with all attendant rights,
duties and obligations stated therein, with the same force and effect as if originally named as
“BKC” and the “Company” therein and as if such party executed the Registration Rights Agreement on
the date thereof.




          2. Joinder of the Guarantors. Each of the Guarantors hereby agrees to become bound
by the terms, conditions and other provisions of the Registration Rights Agreement with all
attendant rights, duties and obligations stated therein, with the same force and effect as if
originally named as a Guarantor therein and as if such party executed the Registration Rights
Agreement on the date thereof.




          3. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.




          4. Counterparts. This agreement may be executed in any number of counterparts and by
the parties hereto in separate counterparts, each of which when so






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executed shall be deemed to be an original and all of which taken together shall constitute
one and the same agreement.




          5. Amendments. No amendment or waiver of any provision of this letter agreement, nor
any consent or approval to any departure therefrom, shall in any event be effective unless the same
shall be in writing and signed by the parties hereto.




          6. Headings. The headings in this letter agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.






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          If the foregoing is in accordance with your understanding of our agreement, kindly sign and
return to us a counterpart hereof, whereupon this letter agreement will become a binding agreement
among BKC, Holdings and the other Guarantors party hereto and the several Initial Purchasers in
accordance with its terms.




	 	 	 	 	 
	 	Very truly yours,



BURGER KING CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 
	 	BURGER KING HOLDINGS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 
	 	[EACH OF THE GUARANTORS LISTED ON SCHEDULE 1 HERETO]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



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SCHEDULE 1




Guarantors






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Annex B




Counterpart to Registration Rights Agreement





     The undersigned hereby absolutely, unconditionally and irrevocably agrees as a Guarantor (as
defined in the Registration Rights Agreement, dated as of October [    ], 2010, by and among Blue
Acquisition Sub, Inc. and J.P. Morgan Securities LLC and the several other initial purchasers party
thereto), as supplemented by the Joinder to the Registration Rights Agreement, dated as of [          
], 20[10], by and among Burger King Corporation and the guarantors party thereto to be bound
by the terms and provisions of such Registration Rights Agreement.



     IN WITNESS WHEREOF, the undersigned has executed this counterpart as of [            ],
20[     ].



	 	 	 	 	 
	 	 	 
	 	By  	
 	 
	 	 	Name:  	[                                                              ] 	 
	 	 	Title:  	[                                                              ] 	 
	 
	 	 	 
	 	By  	
 	 
	 	 	Name:  	[                                                              ] 	 
	 	 	Title:  	[                                                              ] 	 
	 
	 	 	 
	 	By  	
 	 
	 	 	Name:  	[                                                              ] 	 
	 	 	Title:  	[                                                              ] 	 
	 




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