exv4w2






Exhibit 4.2




EXECUTION VERSION




 





BLUE ACQUISITION SUB, INC.




AND



WILMINGTON TRUST FSB,

AS TRUSTEE



97⁄8% Senior Notes due 2018

 





INDENTURE




Dated as of October 19, 2010

 





 




 









 





Table of Contents




	 	 	 	 	 
	 	 	 	Page	 
	ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE
	 	 	1	 
	 
	 	 	 	 
	SECTION 1.1. Definitions
	 	 	1	 
	SECTION 1.2. Other Definitions
	 	 	35	 
	SECTION 1.3. Incorporation by Reference of Trust Indenture Act
	 	 	38	 
	SECTION 1.4. Rules of Construction
	 	 	38	 
	 
	 	 	 	 
	ARTICLE II THE NOTES
	 	 	39	 
	 
	 	 	 	 
	SECTION 2.1. Form, Dating and Terms
	 	 	39	 
	SECTION 2.2. Execution and Authentication
	 	 	48	 
	SECTION 2.3. Registrar and Paying Agent
	 	 	49	 
	SECTION 2.4. Paying Agent to Hold Money in Trust
	 	 	49	 
	SECTION 2.5. Holder Lists
	 	 	50	 
	SECTION 2.6. Transfer and Exchange
	 	 	50	 
	SECTION 2.7. Form of Certificate to be Delivered upon Termination of
Restricted Period
	 	 	54	 
	SECTION 2.8. Form of Certificate to be Delivered in Connection with
Transfers to Institutional Accredited Investors
	 	 	55	 
	SECTION 2.9. Form of Certificate to be Delivered in Connection with
Transfers Pursuant to Regulation S
	 	 	57	 
	SECTION 2.10. Mutilated, Destroyed, Lost or Stolen Notes
	 	 	58	 
	SECTION 2.11. Outstanding Notes
	 	 	59	 
	SECTION 2.12. Temporary Notes
	 	 	60	 
	SECTION 2.13. Cancellation
	 	 	60	 
	SECTION 2.14. Payment of Interest; Defaulted Interest
	 	 	61	 
	SECTION 2.15. CUSIP, Common Code and ISIN Numbers
	 	 	62	 
	 
	 	 	 	 
	ARTICLE III COVENANTS
	 	 	62	 
	 
	 	 	 	 
	SECTION 3.1. Payment of Notes
	 	 	62	 
	SECTION 3.2. Limitation on Incurrence of Indebtedness and Issuance of
Disqualified Stock and Preferred Stock
	 	 	63	 
	SECTION 3.3. Limitation on Restricted Payments
	 	 	69	 
	SECTION 3.4. Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries
	 	 	79	 
	SECTION 3.5. Limitation on Asset Sales
	 	 	81	 
	SECTION 3.6. Limitation on Liens
	 	 	84	 
	SECTION 3.7. Limitation on Guarantees of Indebtedness by Restricted
Subsidiaries
	 	 	84	 
	SECTION 3.8. Transactions with Affiliates
	 	 	85	 
	SECTION 3.9. Limitation on Activities of Holdings
	 	 	88	 
	SECTION 3.10. Change of Control
	 	 	88	 






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	 	 	Page	 
	SECTION 3.11. Reports and other information
	 	 	90	 
	SECTION 3.12. Maintenance of Office or Agency
	 	 	92	 
	SECTION 3.13. Corporate Existence
	 	 	93	 
	SECTION 3.14. Payment of Taxes
	 	 	93	 
	SECTION 3.15. Payments for Consent
	 	 	93	 
	SECTION 3.16. Compliance Certificate
	 	 	93	 
	SECTION 3.17. Further Instruments and Acts
	 	 	94	 
	SECTION 3.18. Limitation on Lines of Business
	 	 	94	 
	SECTION 3.19. Statement by Officers as to Default
	 	 	94	 
	SECTION 3.20. Suspension of Certain Covenants
	 	 	94	 
	 
	 	 	 	 
	ARTICLE IV SUCCESSOR COMPANY
	 	 	95	 
	 
	 	 	 	 
	SECTION 4.1. Merger, Consolidation or Sale of All or Substantially All
Assets
	 	 	95	 
	 
	 	 	 	 
	ARTICLE V REDEMPTION OF SECURITIES
	 	 	97	 
	 
	 	 	 	 
	SECTION 5.1. Notices to Trustee
	 	 	97	 
	SECTION 5.2. Selection of Notes to Be Redeemed or Purchased
	 	 	97	 
	SECTION 5.3. Notice of Redemption
	 	 	98	 
	SECTION 5.4. Effect of Notice of Redemption
	 	 	99	 
	SECTION 5.5. Deposit of Redemption or Purchase Price
	 	 	99	 
	SECTION 5.6. Notes Redeemed or Purchased in Part
	 	 	99	 
	SECTION 5.7. Optional Redemption
	 	 	99	 
	SECTION 5.8. Mandatory Redemption
	 	 	100	 
	 
	 	 	 	 
	ARTICLE VI DEFAULTS AND REMEDIES
	 	 	100	 
	 
	 	 	 	 
	SECTION 6.1. Events of Default
	 	 	100	 
	SECTION 6.2. Acceleration
	 	 	103	 
	SECTION 6.3. Other Remedies
	 	 	103	 
	SECTION 6.4. Waiver of Past Defaults
	 	 	103	 
	SECTION 6.5. Control by Majority
	 	 	104	 
	SECTION 6.6. Limitation on Suits
	 	 	104	 
	SECTION 6.7. Rights of Holders to Receive Payment
	 	 	104	 
	SECTION 6.8. Collection Suit by Trustee
	 	 	105	 
	SECTION 6.9. Trustee May File Proofs of Claim
	 	 	105	 
	SECTION 6.10. Priorities
	 	 	105	 
	SECTION 6.11. Undertaking for Costs
	 	 	106	 
	 
	 	 	 	 
	ARTICLE VII TRUSTEE
	 	 	106	 
	 
	 	 	 	 
	SECTION 7.1. Duties of Trustee
	 	 	106	 
	SECTION 7.2. Rights of Trustee
	 	 	107	 
	SECTION 7.3. Individual Rights of Trustee
	 	 	109	 
	SECTION 7.4. Trustee’s Disclaimer
	 	 	109	 






ii









 






	 	 	 	 	 
	 	 	Page	 
	SECTION 7.5. Notice of Defaults
	 	 	109	 
	SECTION 7.6. Reports by Trustee to Holders
	 	 	109	 
	SECTION 7.7. Compensation and Indemnity
	 	 	110	 
	SECTION 7.8. Replacement of Trustee
	 	 	110	 
	SECTION 7.9. Successor Trustee by Merger
	 	 	111	 
	SECTION 7.10. Eligibility; Disqualification
	 	 	112	 
	SECTION 7.11. Preferential Collection of Claims Against the Issuer
	 	 	112	 
	SECTION 7.12. Trustee’s Application for Instruction from the Issuer
	 	 	112	 
	 
	 	 	 	 
	ARTICLE VIII LEGAL DEFEASANCE AND COVENANT DEFEASANCE
	 	 	112	 
	 
	 	 	 	 
	SECTION 8.1. Option to Effect Legal Defeasance or Covenant Defeasance;
Defeasance
	 	 	112	 
	SECTION 8.2. Legal Defeasance and Discharge
	 	 	112	 
	SECTION 8.3. Covenant Defeasance
	 	 	113	 
	SECTION 8.4. Conditions to Legal or Covenant Defeasance
	 	 	114	 
	SECTION 8.5. Deposited Money and Government Securities to be Held in
Trust; Other Miscellaneous Provisions
	 	 	115	 
	SECTION 8.6. Repayment to the Issuer
	 	 	115	 
	SECTION 8.7. Reinstatement
	 	 	116	 
	 
	 	 	 	 
	ARTICLE IX AMENDMENTS
	 	 	116	 
	 
	 	 	 	 
	SECTION 9.1. Without Consent of Holders
	 	 	116	 
	SECTION 9.2. With Consent of Holders
	 	 	117	 
	SECTION 9.3. Compliance with Trust Indenture Act
	 	 	119	 
	SECTION 9.4. Revocation and Effect of Consents and Waivers
	 	 	119	 
	SECTION 9.5. Notation on or Exchange of Notes
	 	 	120	 
	SECTION 9.6. Trustee to Sign Amendments
	 	 	120	 
	 
	 	 	 	 
	ARTICLE X GUARANTEE
	 	 	120	 
	 
	 	 	 	 
	SECTION 10.1. Guarantee
	 	 	120	 
	SECTION 10.2. Limitation on Liability; Termination, Release and Discharge
	 	 	122	 
	SECTION 10.3. Right of Contribution
	 	 	124	 
	SECTION 10.4. No Subrogation
	 	 	124	 
	 
	 	 	 	 
	ARTICLE XI RESERVED
	 	 	125	 
	 
	 	 	 	 
	ARTICLE XII SATISFACTION AND DISCHARGE
	 	 	125	 
	 
	 	 	 	 
	SECTION 12.1. Satisfaction and Discharge
	 	 	125	 
	SECTION 12.2. Application of Trust Money
	 	 	126	 
	 
	 	 	 	 
	ARTICLE XIII MISCELLANEOUS
	 	 	126	 
	 
	 	 	 	 
	SECTION 13.1. Trust Indenture Act Controls
	 	 	126	 
	SECTION 13.2. Notices
	 	 	126	 






iii









 






	 	 	 	 	 
	 	 	Page	 
	SECTION 13.3. Communication by Holders with other Holders
	 	 	128	 
	SECTION 13.4. Certificate and Opinion as to Conditions Precedent
	 	 	128	 
	SECTION 13.5. Statements Required in Certificate or Opinion
	 	 	128	 
	SECTION 13.6. When Notes Disregarded
	 	 	129	 
	SECTION 13.7. Rules by Trustee, Paying Agent and Registrar
	 	 	129	 
	SECTION 13.8. Legal Holidays
	 	 	129	 
	SECTION 13.9. GOVERNING LAW
	 	 	129	 
	SECTION 13.10. USA Patriot Act
	 	 	129	 
	SECTION 13.11. No Recourse Against Others
	 	 	129	 
	SECTION 13.12. Successors
	 	 	130	 
	SECTION 13.13. Multiple Originals
	 	 	130	 
	SECTION 13.14. Qualification of Indenture
	 	 	130	 
	SECTION 13.15. Table of Contents; Headings
	 	 	130	 
	SECTION 13.16. WAIVERS OF JURY TRIAL
	 	 	130	 
	SECTION 13.17. Force Majeure
	 	 	130	 
	SECTION 13.18. Effectiveness of Provisions for BKC and the Guarantors
	 	 	130	 






	 	 	 

	EXHIBIT A

	 	Form of Series A Note
	EXHIBIT B

	 	Form of Series B Note
	EXHIBIT C

	 	Form of Indenture Supplement for Joinder of BKC and Guarantors
	EXHIBIT D

	 	Form of Indenture Supplement to Add Future Subsidiary Guarantors







iv











 





CROSS-REFERENCE TABLE




	 	 	 	 
	TIA	 	Indenture
	Section	 	Section
	310	(a)(1) 	 	7.10
	 	(a)(2) 	 	7.10
	 	(a)(3) 	 	N.A.
	 	(a)(4) 	 	N.A.
	 	(a)(5) 	 	7.10
	 	(b) 	 	7.3; 7.8; 7.10
	 	(c) 	 	7.10
	311	(a) 	 	7.11
	 	(b) 	 	7.11
	 	(c) 	 	N.A.
	312	(a) 	 	2.5
	 	(b) 	 	13.3
	 	(c) 	 	13.3
	313	(a) 	 	7.6
	 	(b)(1) 	 	7.6; 11.2
	 	(b)(2) 	 	7.6; 11.2
	 	(c) 	 	7.6; 11.2
	 	(d) 	 	7.6
	314	(a) 	 	3.11; 3.16; 13.5
	 	(b) 	 	11.2(b)
	 	(c)(1) 	 	13.4
	 	(c)(2) 	 	13.4
	 	(c)(3) 	 	N.A.
	 	(d) 	 	11.2; 11.6(b)
	 	(e) 	 	13.5
	315	(a) 	 	7.1
	 	(b) 	 	7.5; 13.2
	 	(c) 	 	7.1
	 	(d) 	 	7.1
	 	(e) 	 	6.11
	316	(a)(last sentence) 	 	13.6
	 	(a)(1)(A) 	 	6.5
	 	(a)(1)(B) 	 	6.4
	 	(a)(2) 	 	N.A.
	 	(b) 	 	6.7
	 	(c) 	 	6.5
	317	(a)(1) 	 	6.8
	 	(a)(2) 	 	6.9
	 	(b) 	 	2.4
	318	(a) 	 	13.1






 




     N.A. means Not Applicable.



     Note: This Cross-Reference Table shall not, for any purpose, be deemed to be part of this
Indenture.





v











 





          INDENTURE dated as of October 19, 2010, among BLUE ACQUISITION SUB, INC., a Delaware
corporation (“Merger Sub”), and WILMINGTON TRUST FSB (the “Trustee”), as Trustee.




          Each party agrees as follows for the benefit of the other parties and for the equal and
ratable benefit of the Holders of (i) the Issuer’s 97⁄8% Senior Notes, Series A, due 2018, issued on
the date hereof (the “Initial Notes”), (ii) if and when issued, an unlimited principal
amount of additional 97⁄8% Senior Notes, Series A, due 2018 in a non-registered offering or 97⁄8%
Senior Notes, Series B, due 2018 in a registered offering that may be offered from time to time
subsequent to the Issue Date, in each case subject to Section 2.1 (the “Additional
Notes”) as provided in Section 2.1(a) and (iii) if and when issued, the Issuer’s 97⁄8%
Senior Notes, Series B, due 2018 that may be issued from time to time in exchange for Initial Notes
or any Additional Notes in an offer registered under the Securities Act as provided in the
Registration Rights Agreement, as hereinafter defined, (the “Exchange Notes” and, together
with the Initial Notes and Additional Notes, the “Notes”):




ARTICLE I




DEFINITIONS AND INCORPORATION BY REFERENCE




          SECTION 1.1. Definitions.




          “Acquired Indebtedness” means with respect to any specified Person,





     (1) Indebtedness of any other Person existing at the time such other Person is merged
with or into or became a Restricted Subsidiary of such specified Person, including
Indebtedness incurred in connection with, or in contemplation of, such other Person merging
with or into or becoming a Restricted Subsidiary of such specified Person; and




     (2) Indebtedness secured by a Lien encumbering any asset acquired by such specified
Person.



          “Acquisition” means the transactions contemplated by the Merger Agreement.




          “Additional Interest” means all additional interest then owing pursuant to the
Registration Rights Agreement.




          “Affiliate” of any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with such specified Person.
For purposes of this definition, “control” (including, with correlative meanings, the terms
“controlling,” “controlled by” and “under common control with”), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the ownership of voting
securities, by agreement or otherwise.




          “Applicable Premium” means, with respect to any Note on any Redemption Date, the
greater of:






 









 








          (1) 1.0% of the principal amount of such Note; and




          (2) the excess, if any, of: (a) the present value at such Redemption Date of (i) the
redemption price of such Note at October 15, 2014 (such redemption price being set forth in the
table appearing in Section 5.7(d)), plus (ii) all required interest payments due on such
Note through October 15, 2014 (excluding accrued but unpaid interest to the Redemption Date),
computed using a discount rate equal to the Treasury Rate as of such Redemption Date plus 50 basis
points; over (b) the principal amount of such Note.




          “Asset Sale” means:




          (1) the sale, conveyance, transfer or other disposition, whether in a single transaction or a
series of related transactions, of property or assets (including by way of a Sale and Lease-Back
Transaction) of the Issuer (other than any Equity Interests of the Issuer) or any of its Restricted
Subsidiaries (each referred to in this definition as a “disposition”); or




          (2) the issuance or sale of Equity Interests of any Restricted Subsidiary (other than
Preferred Stock of Restricted Subsidiaries issued in compliance with Section 3.2 or
directors’ qualifying shares and shares issued to foreign nationals as required under applicable
law), whether in a single transaction or a series of related transactions in each case, other than:




          (a) any disposition of Cash Equivalents or Investment Grade Securities or obsolete or worn out
equipment in the ordinary course of business or any disposition of inventory or goods (or other
assets) held for sale or no longer used in the ordinary course of business of the Issuer and its
Restricted Subsidiaries (it being understood that the sale of inventory or goods (or other assets
other than real property interests) in bulk in connection with the closing of any number of retail
locations in the ordinary course of business shall be considered a sale in the ordinary course of
business);




          (b) the disposition of all or substantially all of the assets of the Issuer in a manner
permitted pursuant to Section 4.1 or any disposition that constitutes a Change of Control
pursuant to the Indenture;




          (c) the making of any Restricted Payment that is permitted to be made, and is made, under
Section 3.3 and the making of any Permitted Investments;




          (d) any disposition of assets or issuance or sale of Equity Interests of any Restricted
Subsidiary in any transaction or series of transactions with an aggregate fair market value of less
than $5.0 million;




          (e) any disposition of property or assets or issuance of securities by a Restricted Subsidiary
of the Issuer to the Issuer or by the Issuer or a Restricted Subsidiary of the Issuer to another
Restricted Subsidiary of the Issuer;




          (f) to the extent allowable under Section 1031 of the Internal Revenue Code of 1986, any
exchange of like property (excluding any boot thereon) for use in a Similar Business;






2









 








          (g) the lease, assignment, sub-lease, license or sublicense of any real or personal property
in the ordinary course of business;




          (h) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an
Unrestricted Subsidiary;




          (i) foreclosures, condemnation or any similar action on assets;




          (j) any disposition of Securitization Assets, or participations therein, in connection with
any Qualified Securitization Financing, or the disposition of an account receivable in connection
with the collection or compromise thereof in the ordinary course of business;




          (k) the granting of a Lien that is permitted by Section 3.6;




          (l) the sale or issuance by a Restricted Subsidiary of Preferred Stock or Disqualified Stock
that is permitted by Section 3.2;




          (m) any financing transaction with respect to property constructed, acquired, replaced,
repaired or improved (including any reconstruction, refurbishment, renovation and/or development of
real property) by the Issuer or any Restricted Subsidiary after the Issue Date, including Sale and
Lease-Back Transactions and asset securitizations, permitted by the Indenture;




          (n) any surrender or waiver of contractual rights or the settlement, release or surrender of
contractual rights or other litigation claims in the ordinary course of business; and




          (o) sales, transfers, leases or other dispositions of restaurants and related assets (other
than the Core Marks (except to the extent licensed for the operation of such restaurants and
related assets)) to Franchisees, including through the sale of Equity Interests of Persons owning
such assets; provided that the aggregate fair market value of all owned real property sold,
transferred or otherwise disposed of to Franchisees shall not exceed $50.0 million pursuant to this
clause.




          “Bankruptcy Code” means Title 11 of the United States Code, as amended.




          “Bankruptcy Law” means the Bankruptcy Code and any similar federal, state or foreign
law for the relief of debtors.




          “BKC” means Burger King Corporation, a Florida corporation.




          “Board Resolution” means a copy of a resolution certified by the Secretary or an
Assistant Secretary of a Person to have been duly adopted by the Board of Directors of such Person
and to be in full force and effect on the date of such certification, and delivered to the Trustee.




          “Business Day” means each day which is not a Legal Holiday.




          “Capital Stock” means:





     (1) in the case of a corporation, corporate stock;



3









 






     (2) in the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of capital stock;




     (3) in the case of a partnership or limited liability company, partnership or
membership interests (whether general or limited); and




     (4) any other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing Person.



          “Capitalized Lease Obligation” means, at the time any determination thereof is to be
made, the amount of the liability in respect of a capital lease that would at such time be required
to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto)
in accordance with GAAP.




          “Cash Equivalents” means:





     (1) United States dollars,




     (2) (a) euro, or any national currency of any participating member state of the EMU, or
(b) any other foreign currency held by the Issuer and the Restricted Subsidiaries in the
ordinary course of business;




     (3) securities issued or directly and fully and unconditionally guaranteed or insured
by the U.S. government or any agency or instrumentality thereof the securities of which are
unconditionally guaranteed as a full faith and credit obligation of such government with
maturities of 24 months or less from the date of acquisition;




     (4) certificates of deposit, time deposits and eurodollar time deposits with maturities
of one year or less from the date of acquisition, bankers’ acceptances with maturities not
exceeding one year and overnight bank deposits, in each case with any commercial bank having
capital and surplus of not less than $500.0 million in the case of U.S. banks and $100.0
million (or the U.S. dollar equivalent as of the date of determination) in the case of
non-U.S. banks, and in each case in a currency permitted under clause (1) or (2) above;




     (5) repurchase obligations for underlying securities of the types described in clauses
(3) and (4) entered into with any financial institution meeting the qualifications specified
in clause (4) above, and in each case in a currency permitted under clause (1) or (2) above;




     (6) commercial paper rated at least P-2 by Moody’s or at least A-2 by S&P and in each
case maturing within 24 months after the date of creation thereof, and in each case in a
currency permitted under clause (1) or (2) above;




     (7) marketable short-term money market and similar securities having a rating of at
least P-2 or A-2 from either Moody’s or S&P, respectively (or, if at any time neither
Moody’s nor S&P shall be rating such obligations, an equivalent rating from another



4









 







Rating Agency) and in each case maturing within 24 months after the date of creation
thereof and in a currency permitted under clause (1) or (2) above;




     (8) investment funds investing 95% of their assets in securities of the types described
in clauses (1) through (7) above;




     (9) readily marketable direct obligations issued by any state, commonwealth or
territory of the United States or any political subdivision or taxing authority thereof
having an Investment Grade Rating from either Moody’s or S&P with maturities of 24 months or
less from the date of acquisition;




     (10) Indebtedness or Preferred Stock issued by Persons with a rating of “A” or higher
from S&P or “A2” or higher from Moody’s with maturities of 24 months or less from the date
of acquisition and in each case in a currency permitted under clause (1) or (2) above;




     (11) Investments with average maturities of 12 months or less from the date of
acquisition in money market funds rated AAA- (or the equivalent thereof) or better by S&P or
Aaa3 (or the equivalent thereof) or better by Moody’s and in each case in a currency
permitted under clause (1) or (2) above; and




     (12) credit card receivables and debit card receivables so long as such are considered
cash equivalents under GAAP and are so reflected on the Issuer’s balance sheet.


Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated in currencies
other than those set forth in clauses (1) and (2) above, provided that such amounts are converted
into any currency listed in clauses (1) and (2) as promptly as practicable and in any event within
ten Business Days following the receipt of such amounts.




          “Cash Management Services” means any of the following to the extent not constituting a
line of credit (other than an overnight overdraft facility that is not in default): ACH
transactions, treasury and/or cash management services, including, without limitation, controlled
disbursement services, overdraft facilities, foreign exchange facilities, deposit and other
accounts and merchant services.




          “Change of Control” means the occurrence of any of the following:





     (1) the sale, lease or transfer, in one or a series of related transactions (other than
by way of merger or consolidation), of all or substantially all of the assets of the Issuer
and its Subsidiaries or Holdings, taken as a whole, to any Person other than to (i) one or
more Permitted Holders or (ii) any Subsidiary Guarantor; or




     (2) the Issuer becomes aware of (by way of a report or any other filing pursuant to
Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) the acquisition
by any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the
Exchange Act, or any successor provision), including any group acting for the purpose of
acquiring, holding or disposing of securities (within the meaning of



5









 







Rule 13d-5(b)(1) under the Exchange Act), other than one or more Permitted Holders, in
a single transaction or in a related series of transactions, by way of merger, consolidation
or other business combination or purchase of beneficial ownership (within the meaning of
Rule 13d-3 under the Exchange Act, or any successor provision) of 50% or more of the total
voting power of the Voting Stock of the Issuer or any of its direct or indirect parent
companies holding directly or indirectly 100% of the total voting power of the Voting Stock
of the Issuer; or




     (3) the Issuer ceases to be a Wholly-Owned Subsidiary of Holdings (except in a
transaction consummated in accordance with the covenant described in Section 4.1).



          “Code” means the Internal Revenue Code of 1986, as amended, or any successor thereto.




          “Consolidated Depreciation and Amortization Expense” means, with respect to any Person
for any period, the total amount of depreciation and amortization expense, including the
amortization of deferred financing fees, of such Person and its Restricted Subsidiaries for such
period on a consolidated basis and otherwise determined in accordance with GAAP.




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





	 	(1)	 	consolidated 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 Consolidated Net Income (including (a) amortization of
original issue discount resulting from the issuance of Indebtedness at less
than par, (b) all commissions, discounts and other fees and charges owed with
respect to letters of credit or bankers’ acceptances, (c) non-cash interest
payments (but excluding any non-cash interest expense attributable to the
movement in the mark to market valuation of Hedging Obligations or other
derivative instruments pursuant to GAAP), (d) the interest component of
Capitalized Lease Obligations and (e) net payments, if any, pursuant to
interest rate Hedging Obligations with respect to Indebtedness, and excluding
(v) penalties and interest related to taxes, (w) any Additional Interest with
respect to the Notes, (x) amortization of deferred financing fees, debt
issuance costs, discounted liabilities, commissions, fees and expenses, (y) any
expensing of bridge, commitment and other financing fees and (z) commissions,
discounts, yield and other fees and charges (including any interest expense)
related to any Securitization Facility); plus
	 
	 	(2)	 	consolidated capitalized interest of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued; less
	 
	 	(3)	 	interest income for such period.





            For purposes of this definition, interest on a Capitalized 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 Capitalized Lease Obligation in accordance with GAAP.






6









 








          “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,





     (1) any net after-tax effect of extraordinary, non-recurring or unusual gains or
losses, costs, charges or expenses (less all fees and expenses relating thereto) (including
any such amounts relating to the Transactions to the extent incurred on or prior to the date
that is the one year anniversary of the Issue Date), severance, relocation costs and
curtailments or modifications to pension and post-retirement employee benefit plans shall be
excluded;




     (2) the Net Income for such period shall not include the cumulative effect of a change
in accounting principles during such period;




     (3) any net after-tax effect of income (loss) from disposed, abandoned or discontinued
operations and any net after-tax gains or losses on disposal of disposed, abandoned or
discontinued operations shall be excluded;




     (4) any net after-tax effect of gains or losses (less all fees and expenses relating
thereto) attributable to asset dispositions (including sales or other dispositions of assets
under a Securitization Facility) other than in the ordinary course of business, as
determined in Good Faith by the Issuer, shall be excluded;




     (5) 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 Issuer shall be increased by the
amount of dividends or distributions or other payments that are actually paid in cash or
Cash Equivalents (or to the extent converted into cash or Cash Equivalents) to the referent
Person or a Restricted Subsidiary thereof in respect of such period (without duplication for
purposes of Section 3.3 of any amounts included in Section
3.3(a)(C)(iv)(a));




     (6) solely for the purpose of determining the amount available for Restricted Payments
under Section 3.3(a)(C)(i), the Net Income for such period of any Restricted
Subsidiary (other than any Subsidiary Guarantor) shall be excluded to the extent the
declaration or payment of dividends or similar distributions by that 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, is otherwise
restricted 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 or its stockholders, unless such restriction with respect to the
payment of dividends or similar distributions has been legally waived; provided that
Consolidated Net Income of the Issuer shall 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 Issuer or a Restricted Subsidiary thereof in respect of such period, to the extent
not already included therein;



7









 






     (7) effects of adjustments (including the effects of such adjustments pushed down to
the Issuer and its Restricted Subsidiaries) in such Person’s consolidated financial
statements, including adjustments to the inventory, property and equipment, software and
other intangible assets (including favorable and unfavorable leases and contracts), deferred
revenue and debt 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 consummated acquisition or the amortization or write-off or write-down of any amounts
thereof, net of taxes, shall be excluded;




     (8) any after-tax effect of income (loss) from the early extinguishment or cancellation
of Indebtedness or Hedging Obligations or other derivative instruments shall be excluded;




     (9) any impairment charge, asset write-off or write-down, in each case pursuant to GAAP
and the amortization of intangibles and other assets (including alcoholic beverage licenses)
arising pursuant to GAAP shall be excluded;




     (10) any (i) non-cash compensation charge or expense recorded from grants of stock
appreciation or similar rights, stock options, restricted stock or other rights and (ii)
income (loss) attributable to deferred compensation plans or trusts shall be excluded;




     (11) any fees and expenses incurred during such period, or any amortization thereof for
such period, in connection with any acquisition, Investment, Asset Sale, issuance or
repayment of Indebtedness, issuance of Equity Interests, refinancing transaction or
amendment or modification of any debt instrument (in each case, including any such
transaction consummated prior to the Issue Date and any such transaction undertaken but not
completed) and any charges or non-recurring costs incurred during such period as a result of
any such transaction shall be excluded;




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




     (13) any net unrealized gain or loss resulting from currency translation gains or
losses related to currency remeasurements of Indebtedness (including any unrealized net loss
or gain resulting from hedge agreements for currency exchange risk); and




     (14) any net unrealized gains and losses resulting from Hedging Obligations or embedded
derivatives that require similar accounting treatment and the application of Accounting
Standards Codification Topic 815 and related pronouncements shall be excluded;



          In addition, to the extent not already included in the Net Income of such Person and its
Restricted Subsidiaries, notwithstanding anything to the contrary in the foregoing, Consolidated
Net Income shall include the amount of proceeds received from business interruption insurance and
reimbursements of any expenses and charges that are covered by indemnification or other
reimbursement provisions in connection with any Permitted Investment or any sale, conveyance,
transfer or other disposition of assets permitted under the Indenture.





8












 





          Notwithstanding the foregoing, for the purpose of Section 3.3 only (other than
Section 3.3(a)(C)(iv)), there shall be excluded from Consolidated Net Income any income
arising from any sale or other disposition of Restricted Investments made by the Issuer and its
Restricted Subsidiaries, any repurchases and redemptions of Restricted Investments from the Issuer
and its Restricted Subsidiaries, any repayments of loans and advances which constitute Restricted
Investments by the Issuer or any of its Restricted Subsidiaries, any sale of the stock of an
Unrestricted Subsidiary or any distribution or dividend from an Unrestricted Subsidiary, in each
case only to the extent such amounts increase the amount of Restricted Payments permitted under
Section 3.3(a)(C)(iv).



          “Consolidated Secured Debt Ratio” means, as of any date of determination, the ratio of
(1) Consolidated Total Indebtedness of the Issuer and its Restricted Subsidiaries that is secured
by Liens as of the end of the most recent fiscal period for which internal financial statements are
available immediately preceding the date on which such event for which such calculation is being
made shall occur to (2) the Issuer’s EBITDA for the most recently ended four full fiscal quarters
for which internal financial statements are available immediately preceding the date on which such
event for which such calculation is being made shall occur, in each case with such pro forma
adjustments to Consolidated Total Indebtedness and EBITDA as are appropriate and consistent with
the pro forma adjustment provisions set forth in the definition of Fixed Charge Coverage Ratio.



          “Consolidated Total Indebtedness” means, as at any date of determination, an amount
equal to the sum of (1) the aggregate amount of all outstanding Indebtedness of the Issuer and its
Restricted Subsidiaries on a consolidated basis consisting of Indebtedness for borrowed money,
Obligations in respect of Capitalized Lease Obligations and debt obligations evidenced by
promissory notes and similar instruments (and including, for the avoidance of doubt, all
obligations relating to Qualified Securitization Financings) and (2) the aggregate amount of all
outstanding Disqualified Stock of the Issuer and all Disqualified Stock and Preferred Stock of its
Restricted Subsidiaries on a consolidated basis, with the amount of such Disqualified Stock and
Preferred Stock equal to the greater of their respective voluntary or involuntary liquidation
preferences and maximum fixed repurchase prices, in each case determined on a consolidated basis in
accordance with GAAP; provided that Indebtedness of the Issuer and its Restricted Subsidiaries
under any revolving credit facility or line of credit as at any date of determination shall be
determined using the Average Quarterly Balance of such Indebtedness for the most recently ended
four fiscal quarters for which internal financial statements are available as of such date of
determination (the “Reference Period”).



          For purposes hereof, (a) the “maximum fixed repurchase price” of any Disqualified Stock or
Preferred Stock that does not have a fixed repurchase price shall be calculated in accordance with
the terms of such Disqualified Stock or Preferred Stock as if such Disqualified Stock or Preferred
Stock were purchased on any date on which Consolidated Total Indebtedness shall be required to be
determined pursuant to the Indenture, and if such price is based upon, or measured by, the fair
market value of such Disqualified Stock or Preferred Stock, such fair market value shall be
determined reasonably and in Good Faith by the Issuer, (b) “Average Quarterly Balance” means, with
respect to any Indebtedness incurred by the Issuer or its Restricted Subsidiaries under a revolving
facility or line of credit, the quotient of (x) the sum of each Individual Quarterly Balance for
each fiscal quarter ended on or prior to such date of determination



9









 




and included in the Reference Period divided by (y) 4, and (c) “Individual Quarterly Balance”
means, with respect to any Indebtedness incurred by the Issuer or its Restricted Subsidiaries under
a revolving credit facility or line of credit during any fiscal quarter of the Issuer, the quotient
of (x) the sum of the aggregate outstanding principal amount of all such Indebtedness at the end of
each day of such quarter divided by (y) the number of days in such fiscal quarter.




          “Contingent Obligations” means, with respect to any Person, any obligation of such
Person guaranteeing any leases, dividends or other obligations that do not constitute Indebtedness
(“primary obligations”) of any other Person (the “primary obligor”) in any manner,
whether directly or indirectly, including, without limitation, any obligation of such Person,
whether or not contingent,




     (1) to purchase any such primary obligation or any property constituting direct or
indirect security therefor,




     (2) to advance or supply funds




	 	(a)	 	for the purchase or payment of any such primary obligation,
or






	 	(b)	 	to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, or






	 	(3)	 	to purchase property, securities or services primarily for
the purpose of assuring the owner of any such primary obligation of the ability
of the primary obligor to make payment of such primary obligation against loss
in respect thereof.





          “Core Marks” has the meaning set forth in the New Credit Facilities.



          “Credit Facilities” means, with respect to the Issuer or any of its Restricted
Subsidiaries, one or more debt facilities, including the New Credit Facilities, or other financing
arrangements (including, without limitation, commercial paper facilities or indentures) providing
for revolving credit loans, term loans, letters of credit or other indebtedness, including any
notes, mortgages, guarantees, collateral documents, instruments and agreements executed in
connection therewith, and any amendments, supplements, modifications, extensions, renewals,
restatements or refunding thereof and any indentures or credit facilities or commercial paper
facilities that replace, refund or refinance any part of the loans, notes, other credit facilities
or commitments thereunder, including any such replacement, refunding or refinancing facility or
indenture that increases the amount permitted to be borrowed thereunder or alters the maturity
thereof (provided that such increase in borrowings is permitted under Section 3.2) or adds
Restricted Subsidiaries as additional borrowers or guarantors thereunder and whether by the same or
any other agent, lender or investor or group of lenders or investors.



          “Default” means any event that is, or with the passage of time or the giving of notice
or both would be, an Event of Default; provided that any Default that results solely from the
taking of an action that would have been permitted but for the continuation of a previous Default
shall be deemed to be cured if such previous Default is cured prior to becoming an Event of
Default.



10









 





          “Definitive Notes” means certificated Notes.



          “Designated Non-cash Consideration” means the fair market value of non-cash
consideration received by the Issuer or a Restricted Subsidiary in connection with an Asset Sale
that is so designated as Designated Non-cash Consideration pursuant to an Officer’s Certificate,
setting forth the basis of such valuation, executed by the principal financial officer of the
Issuer, less the amount of cash or Cash Equivalents received in connection with a subsequent sale
of or collection on such Designated Non-cash Consideration.



          “Designated Preferred Stock” means Preferred Stock of the Issuer or any parent company
thereof (in each case other than Disqualified Stock) that is issued for cash (other than to a
Restricted Subsidiary or an employee stock ownership plan or trust established by the Issuer or any
of its Subsidiaries) and is so designated as Designated Preferred Stock, pursuant to an Officer’s
Certificate executed by the principal financial officer of the Issuer or the applicable parent
company thereof, as the case may be, on the issuance date thereof, the cash proceeds of which are
excluded from the calculation set forth in Section 3.3(a)(C).



          “Disqualified Stock” means, with respect to any Person, any Capital Stock of such
Person which, by its terms, or by the terms of any security into which it is convertible or for
which it is putable or exchangeable, or upon the happening of any event, matures or is mandatorily
redeemable (other than solely as a result of a change of control or asset sale) pursuant to a
sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof (other
than solely as a result of a change of control or asset sale), in whole or in part, in each case
prior to the date 91 days after the earlier of the maturity date of the Notes or the date the Notes
are no longer outstanding; provided, however, that if such Capital Stock is issued to any plan for
the benefit of employees of the Issuer or its Subsidiaries or by any such plan to such employees,
such Capital Stock shall not constitute Disqualified Stock solely because it may be required to be
repurchased by the Issuer or its Subsidiaries in order to satisfy applicable statutory or
regulatory obligations.



          “DTC” means The Depository Trust Company, its nominees and their respective successors
and assigns, or such other depository institution hereinafter appointed by the Issuer.



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



          (1) increased (without duplication) by:




	 	(a)	 	provision for taxes based on income or profits or capital,
including, without limitation, state, franchise and similar taxes and foreign
withholding taxes of such Person paid or accrued during such period deducted
(and not added back) in computing Consolidated Net Income; plus






	 	(b)	 	Fixed Charges of such Person for such period (including (x)
net losses on Hedging Obligations or other derivative instruments entered into
for the purpose of hedging interest rate risk and (y) costs of surety bonds in
connection with financing activities, plus amounts excluded from the definition
of “Consolidated Interest Expense” pursuant to clauses 1(x)




11









 












	 	 	 	through 1(z) thereof, to the extent the same were deducted (and not added
back) in calculating such Consolidated Net Income; plus






	 	(c)	 	Consolidated Depreciation and Amortization Expense of such
Person for such period to the extent the same were deducted (and not added
back) in computing Consolidated Net Income; plus






	 	(d)	 	any expenses or charges (other than depreciation or
amortization expense) related to any Equity Offering, Permitted Investment,
acquisition, disposition, recapitalization or the incurrence of Indebtedness
permitted to be incurred by the Indenture (including a refinancing thereof)
(whether or not successful), including






	 	(i)	 	such fees, expenses or charges related to the offering of the Notes
and the New Credit Facilities and any Securitization Fees, and,






	 	(ii)	 	any amendment or other modification of the Notes, the New Credit
Facilities and any Securitization Fees, in each case, deducted (and not
added back) in computing Consolidated Net Income; plus






	 	(e)	 	the amount of any restructuring charge or reserve,
integration cost or other business optimization expense or cost associated with
establishing new facilities that is certified by the chief financial officer of
the Issuer and deducted (and not added back) in such period in computing
Consolidated Net Income, including any one-time costs incurred in connection
with acquisitions after the Issue 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 (e) in any period of
four consecutive fiscal quarters shall not exceed (x) 15% of EBITDA for any
period of four consecutive fiscal quarters completed on or prior to the first
anniversary of the Issue Date or (y) 10% of EBITDA for any period of four
consecutive fiscal quarters completed thereafter; provided, further, 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 Issue Date shall be
increased up to 15% of EBITDA, but only to the extent the aggregate amount
added back under this clause (e) for the corresponding period of four
consecutive fiscal quarters of the previous fiscal year was less than 15% of
Consolidated EBITDA; plus






	 	(f)	 	any other non-cash charges, expenses or losses reducing
Consolidated Net Income for such period (including any impairment charges or
the impact of purchase accounting), excluding any such charge that represents
an accrual or reserve for a cash expenditure for a future period; plus






	 	(g)	 	the amount of management, monitoring, consulting and
advisory fees (including termination fees) and related indemnities and expenses
paid or




12









 












	 	 	 	accrued in such period to the Sponsor to the extent otherwise permitted
under Section 3.8; plus






	 	(h)	 	the amount of “run-rate” cost savings projected by the
Issuer in good faith and certified by the chief financial officer of the Issuer
to be realized as a result of specified actions either taken or initiated prior
to or during such period (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
Issuer shall have certified 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 Issuer to
be realized within 12 months, (B) no cost savings shall be added pursuant to
this clause (h) to the extent duplicative of any expenses or charges relating
to such cost savings that are included in clause (e) above with respect to such
period or duplicative of any pro forma adjustments made pursuant to the
definition of “Fixed Charge Coverage Ratio” and (C) the aggregate amount of
cost savings added pursuant to this clause (h) shall not exceed 10% of EBITDA
for any period of four consecutive fiscal quarters; plus






	 	(i)	 	the amount of loss on sale of Securitization Assets and
related assets to the Securitization Subsidiary in connection with a Qualified
Securitization Financing; plus






	 	(j)	 	any costs or expense incurred by the Issuer 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 Issuer or net
cash proceeds of an issuance of Equity Interest of the Issuer (other than
Disqualified Stock) solely to the extent that such net cash proceeds are
excluded from the calculation set forth in Section 3.3(a)(C); plus






	 	(k)	 	cash receipts (or any netting arrangements resulting in
reduced cash expenditures) not representing EBITDA or Net Income in any period
to the extent non-cash gains relating to such income were deducted in the
calculation of EBITDA pursuant to clause (2) below for any previous period and
not added back; plus






	 	(l)	 	any net loss included in the consolidated financial
statements due to the application of Financial Accounting Standards No. 160
“Non-controlling Interests in Consolidated Financial Statements (“FAS 160”);
plus




13









 












	 	(m)	 	rent expense as determined in accordance with GAAP not
actually paid in cash during such period (net of rent expense paid in cash
during such period over and above rent expense as determined in accordance with
GAAP); plus






	 	(n)	 	realized foreign exchange losses resulting from the impact
of foreign currency changes on the valuation of assets or liabilities on the
balance sheet of the Issuer and its Restricted Subsidiaries; plus






	 	(o)	 	net realized losses from Hedging Obligations or embedded
derivatives that require similar accounting treatment and the application of
Accounting Standard Codification Topic 815 and related pronouncements;






	 	(2)	 	decreased (without duplication) by: (a) non-cash 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 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 EBITDA in such prior period; plus (b)
realized foreign exchange income or gains resulting from the impact of foreign
currency changes on the valuation of assets or liabilities on the balance sheet
of the Issuer and its Restricted Subsidiaries; plus (c) any net realized income
or gains from Hedging Obligations or embedded derivatives that require similar
accounting treatment and the application of Accounting Standard Codification
Topic 815 and related pronouncements, plus (d) any net income included in the
consolidated financial statements due to the application of FAS 160, plus (e)
rent expense actually paid in cash during such period (net of rent expense paid
in cash during such period in an amount equal to rent expense determined in
accordance with GAAP), and






	 	(3)	 	increased or decreased by (without duplication), as applicable,
any adjustments resulting from the application of Accounting Standards
Codification Topic 460 or any comparable regulation.





          “EMU” means economic and monetary union as contemplated in the Treaty on European
Union.



          “Equity Interests” means Capital Stock and all warrants, options or other rights to
acquire Capital Stock, but excluding any debt security that is convertible into, or exchangeable
for, Capital Stock.



          “Equity Offering” means any public or private sale of common stock or Preferred Stock
of the Issuer or any of its direct or indirect parent companies (excluding Disqualified Stock),
other than:



          (1) public offerings with respect to the Issuer’s or any direct or indirect parent company’s
common stock registered on Form S-4 or Form S-8;



14









 





          (2) issuances to any Subsidiary of the Issuer; and



          (3) any such public or private sale that constitutes an Excluded Contribution.




     “euro” means the single currency of participating member states of the EMU.



          “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the SEC promulgated thereunder.



          “Exchange Notes” means any notes issued in exchange for Notes pursuant to the
Registration Rights Agreement or similar agreement.



          “Excluded Contribution” means net cash proceeds, marketable securities or Qualified
Proceeds received by the Issuer from




	 	(1)	 	contributions to its common equity capital, and






	 	(2)	 	the sale (other than to a Subsidiary of the Issuer or to
any management equity plan or stock option plan or any other management or
employee benefit plan or agreement of the Issuer) of Capital Stock (other than
Disqualified Stock and Designated Preferred Stock) of the Issuer,




in each case designated as Excluded Contributions pursuant to an Officer’s Certificate executed by
the principal financial officer of the Issuer on the date such capital contributions are made or
the date such Equity Interests are sold, as the case may be, which are excluded from the
calculation set forth in Section 3.3(a)(C).




          “Fiscal Year” means the fiscal year of the Issuer ending on June 30 of each year or
such other date as the board of directors of the Issuer may approve.



          “Fixed Charge Coverage Ratio” means, with respect to any Person for any period, the
ratio of EBITDA of such Person for such period to the Fixed Charges of such Person for such period.
In the event that the Issuer or any Restricted Subsidiary incurs, assumes, guarantees, redeems,
retires or extinguishes any Indebtedness (other than Indebtedness incurred under any revolving
credit facility unless such indebtedness has been permanently repaid and has not been replaced) or
issues or redeems Disqualified Stock or Preferred Stock subsequent to the commencement of the
period for which the Fixed Charge Coverage Ratio is being calculated but prior to or simultaneously
with the event for which the calculation of the Fixed Charge Coverage Ratio is made (the “Fixed
Charge Coverage Ratio Calculation Date”), then the Fixed Charge Coverage Ratio shall be calculated
giving pro forma effect to such incurrence, assumption, guarantee, redemption, retirement or
extinguishment of Indebtedness, or such issuance or redemption of Disqualified Stock or Preferred
Stock, as if the same had occurred at the beginning of the applicable four-quarter period.



          For purposes of making the computation referred to above, Investments, acquisitions,
dispositions, mergers, consolidations and discontinued operations (as determined in accordance with
GAAP) that have been made by the Issuer or any of its Restricted Subsidiaries during the
four-quarter reference period or subsequent to such reference period and on or prior to



15









 




or simultaneously with the Fixed Charge Coverage Ratio Calculation Date shall be calculated on
a pro forma basis assuming that all such Investments, acquisitions, dispositions, mergers,
consolidations and discontinued operations (and the change in any associated fixed charge
obligations and the change in EBITDA resulting therefrom) had occurred on the first day of the
four-quarter reference period. If since the beginning of such period any Person that subsequently
became a Restricted Subsidiary or was merged with or into the Issuer or any of its Restricted
Subsidiaries since the beginning of such period shall have made any Investment, acquisition,
disposition, merger, consolidation or discontinued operations that would have required adjustment
pursuant to this definition, then the Fixed Charge Coverage Ratio shall be calculated giving pro
forma effect thereto for such period as if such Investment, acquisition, disposition, merger,
consolidation or discontinued operations had occurred at the beginning of the applicable
four-quarter period.




          For purposes of this definition, whenever pro forma effect is to be given to a transaction,
the pro forma calculations shall be (x) made in good faith by a responsible financial or accounting
officer of the Issuer (and may include, for the avoidance of doubt, cost savings and operating
expense reductions resulting from such Investment, acquisition, merger or consolidation (including
the Transactions) or discontinued operations which is being given pro forma effect that have been
or are expected to be realized or (y) determined in accordance with Regulation S-X. If any
Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on
such Indebtedness shall be calculated as if the rate in effect on the Fixed Charge Coverage Ratio
Calculation Date had been the applicable rate for the entire period (taking into account any
Hedging Obligations applicable to such Indebtedness). Interest on a Capitalized Lease Obligation
shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or
accounting officer of the Issuer to be the rate of interest implicit in such Capitalized Lease
Obligation in accordance with GAAP. For purposes of making the computation referred to above,
interest on any Indebtedness under a revolving credit facility computed on a pro forma basis shall
be computed based upon the average daily balance of such Indebtedness during the applicable period
except as set forth in the first paragraph of this definition. Interest on Indebtedness that may
optionally be determined at an interest rate based upon a factor of a prime or similar rate, a
eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the
rate actually chosen, or, if none, then based upon such optional rate chosen as the Issuer may
designate.



          “Fixed Charges” means, with respect to any Person for any period, the sum of:



          (1) Consolidated Interest Expense of such Person for such period;




	 	(2)	 	all cash dividends or other distributions paid (excluding
items eliminated in consolidation) on any series of Preferred Stock during such
period; and






	 	(3)	 	all cash dividends or other distributions paid (excluding
items eliminated in consolidation) on any series of Disqualified Stock during
such period.





          “Foreign Subsidiary” means, with respect to any Person, any Restricted Subsidiary of
such Person that is not organized or existing under the laws of the United States, any state



16









 




thereof, the District of Columbia, or any territory thereof and any Restricted Subsidiary of
such Foreign Subsidiary.




          “GAAP” means generally accepted accounting principles in the United States which are
in effect on the Issue Date.



          “Good Faith by the Issuer” means the decision in good faith by a responsible financial
officer of the Issuer; provided that (a) if such decision involves a determination of fair market
value in excess of $7.5 million, the decision is made in good faith by the Senior Management of the
Issuer and (b) if such decision involves a determination of fair market value in excess of $25.0
million, the decision is made in good faith by the board of directors of the Issuer.



          “Government Securities” means securities that are:




	 	(1)	 	direct obligations of the United States of America for the
timely payment of which its full faith and credit is pledged; or






	 	(2)	 	obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States of America the
timely payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America,




which, in either case, are not callable or redeemable at the option of the issuers thereof, and
shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act), as custodian with respect to any such Government Securities or a specific payment
of principal of or interest on any such Government Securities held by such custodian for the
account of the holder of such depository receipt; provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the Government
Securities or the specific payment of principal of or interest on the Government Securities
evidenced by such depository receipt.




          “guarantee” means a guarantee (other than by endorsement of negotiable instruments for
collection in the ordinary course of business), direct or indirect, in any manner (including
letters of credit and reimbursement agreements in respect thereof), of all or any part of any
Indebtedness or other obligations.



          “Guarantee” means the guarantee by any Guarantor of the Issuer’s Obligations under
this Indenture and the Notes.



          “Guarantor” means Holdings and each Subsidiary Guarantor, until such time as such
Person’s Guarantee may be released in accordance with this Indenture.



          “Hedging Obligations” means, with respect to any Person, the obligations of such
Person under any interest rate swap agreement, interest rate cap agreement, interest rate collar
agreement, commodity swap agreement, commodity cap agreement, commodity collar agreement, foreign
exchange contract, currency swap agreement or similar agreement providing for the



17









 




transfer or mitigation of interest rate, commodity price or currency risks either generally or
under specific contingencies.




          “Holder” means the Person in whose name a Note is registered on the registrar’s books.



          “Holdings” means Burger King Holdings, Inc., a Delaware corporation.



          “IAI” means an institutional “accredited investor” as described in Rule 501(a)(1),
(2), (3) or (7) under the Securities Act.



          “Indebtedness” means, with respect to any Person, without duplication:




	 	(1)	 	any indebtedness (including principal and premium) of such
Person, whether or not contingent:






     (a) in respect of borrowed money;




     (b) evidenced by bonds, notes, debentures or similar instruments or letters of
credit or bankers’ acceptances (or, without duplication, reimbursement agreements in respect
thereof);




     (c) representing the balance deferred and unpaid of the purchase price of any
property (including Capitalized Lease Obligations), except (i) any such balance that
constitutes an obligation in respect of a commercial letter of credit, a trade payable or
similar obligation to a trade creditor, in each case accrued in the ordinary course of
business (and with respect to commercial letters of credit repaid in a timely manner) and
(ii) any earn-out obligations until such obligation becomes a liability on the balance sheet
of such Person in accordance with GAAP and is not paid after becoming due and payable; or




     (d) representing any Hedging Obligations;




     if and to the extent that any of the foregoing Indebtedness (other than letters of
credit and Hedging Obligations) would appear as a liability upon a balance sheet (excluding
the footnotes thereto) of such Person prepared in accordance with GAAP;




	 	(2)	 	to the extent not otherwise included, any obligation by
such Person to be liable for, or to pay, as obligor, guarantor or otherwise, on
the obligations of the type referred to in clause (1) of a third Person
(whether or not such items would appear upon the balance sheet of such obligor
or guarantor), other than by endorsement of negotiable instruments for
collection in the ordinary course of business, and






	 	(3)	 	to the extent not otherwise included, the obligations of
the type referred to in clause (1) of a third Person secured by a Lien on any
asset owned by such first Person, whether or not such Indebtedness is assumed
by such first Person;






18












 





provided, however, that notwithstanding the foregoing, Indebtedness shall be deemed not to
include Contingent Obligations incurred in the ordinary course of business. For the avoidance of
doubt, Indebtedness does not include Cash Management Services.



          “Indenture” means this Indenture as amended or supplemented from time to time.


          “Independent Financial Advisor” means an accounting, appraisal, investment banking
firm or consultant to Persons engaged in Similar Businesses of nationally recognized standing that
is, in the good faith judgment of the Issuer, qualified to perform the task for which it has been
engaged.


          “Initial Notes” has the meaning ascribed to it in the second introductory paragraph of
this Indenture.


          “Initial Purchasers” means J.P. Morgan Securities LLC, Barclays Capital Inc., Fifth
Third Securities, Inc., Morgan Keegan & Company, Inc. and UniCredit Capital Markets, Inc.


          “Investment Grade Rating” means a rating equal to or higher than Baa3 (or the
equivalent) by Moody’s and BBB- (or the equivalent) by S&P or, in either case, an equivalent rating
by any other Rating Agency.


          “Investment Grade Securities” means:




	 	(1)	 	securities issued or directly and fully guaranteed or insured
by the United States government or any agency or instrumentality thereof (other
than Cash Equivalents);
	 
	 	(2)	 	debt securities or debt instruments with an Investment Grade
Rating, but excluding any debt securities or instruments constituting loans or
advances among the Issuer and its Subsidiaries;
	 
	 	(3)	 	investments in any fund that invests exclusively in investments
of the type described in clauses (1) and (2) which fund may also hold
immaterial amounts of cash pending investment or distribution; and
	 
	 	(4)	 	corresponding instruments in countries other than the United
States customarily utilized for high quality investments.




          “Investments” means, with respect to any Person, all investments by such Person in
other Persons (including Affiliates) in the form of loans (including guarantees), advances or
capital contributions (excluding accounts receivable, credit card and debit card receivables, trade
credit, advances to customers, commission, travel and similar advances to officers and employees,
in each case made in the ordinary course of business), purchases or other acquisitions for
consideration of Indebtedness, Equity Interests or other securities issued by any other Person and
investments that are required by GAAP to be classified on the balance sheet (excluding the
footnotes) of the Issuer in the same manner as the other investments included in this definition to
the extent such transactions involve the transfer of cash or other property. For purposes of the
definition of “Unrestricted Subsidiary” and Section 3.3,



19









 









     (1) “Investments” shall include the portion (proportionate to the Issuer’s equity
interest in such Subsidiary) of the fair market value of the net assets of a Subsidiary of
the Issuer at the time that such Subsidiary is designated an Unrestricted Subsidiary;
provided, however, that upon a redesignation of such Subsidiary as a Restricted Subsidiary,
the Issuer shall be deemed to continue to have a permanent “Investment” in an Unrestricted
Subsidiary in an amount (if positive) equal to:




	 	(a)	 	the Issuer’s “Investment” in such Subsidiary at the time of
such redesignation; less
	 
	 	(b)	 	the portion (proportionate to the Issuer’s equity interest in
such Subsidiary) of the fair market value of the net assets of such Subsidiary
at the time of such redesignation; and






     (2) any property transferred to or from an Unrestricted Subsidiary shall be valued at
its fair market value at the time of such transfer, in each case as determined in Good Faith
by the Issuer.


          “Issue Date” means October 19, 2010.


          “Issuer” means (a) prior to the consummation of the Acquisition, Merger Sub and not
any of its Affiliates and (b) from and after the consummation of the Acquisition, BKC and not any
of its Subsidiaries.


          “Legal Holiday” means a Saturday, a Sunday or a day on which commercial banking
institutions are not required to be open in the State of New York


          “Lien” means, with respect to any asset, any mortgage, lien (statutory or otherwise),
pledge, hypothecation, charge, security interest, preference, priority or encumbrance of any kind
in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable
law, including any conditional sale or other title retention agreement, any lease in the nature
thereof, any option or other agreement to sell or give a security interest in and any filing of or
agreement to give any financing statement under the Uniform Commercial Code (or equivalent
statutes) of any jurisdiction; provided that in no event shall an operating lease be deemed to
constitute a Lien.


          “Merger Agreement” means the Agreement and Plan of Merger, dated as of September 2,
2010, among Blue Acquisition Holding Corporation, Merger Sub and Holdings, as the same may be
amended prior to the Issue Date


          “Moody’s” means Moody’s Investors Service, Inc. and any successor to its rating agency
business.


          “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.



20









 







          “Net Proceeds” means the aggregate cash proceeds received by the Issuer or any of its
Restricted Subsidiaries in respect of any Asset Sale, including any cash received upon the sale or
other disposition of any Designated Non-cash Consideration received in any Asset Sale, net of the
direct costs relating to such Asset Sale and the sale or disposition of such Designated Non-cash
Consideration, including legal, accounting and investment banking fees, and brokerage and sales
commissions, any relocation expenses incurred as a result thereof; taxes paid or payable as a
result thereof (after taking into account any available tax credits or deductions and any tax
sharing arrangements), amounts required to be applied to the repayment of principal, premium, if
any, and interest on Senior Indebtedness secured by a Lien on the assets disposed of required
(other than required by Section 3.5(b)(1)) to be paid as a result of such transaction and
any deduction of appropriate amounts to be provided by the Issuer or any of its Restricted
Subsidiaries as a reserve in accordance with GAAP against any liabilities associated with the asset
disposed of in such transaction and retained by the Issuer or any of its Restricted Subsidiaries
after such sale or other disposition thereof, including pension and other post-employment benefit
liabilities and liabilities related to environmental matters or against any indemnification
obligations associated with such transaction.


          “New Credit Facilities” means the Credit Facility under the Credit Agreement to be
entered into as of the Issue Date by and among Blue Acquisition Holding Corporation, the Issuer,
the lenders party thereto in their capacities as lenders thereunder and J.P. Morgan Securities LLC,
as Administrative Agent, including any guarantees, collateral documents, instruments and agreements
executed in connection therewith, and any amendments, supplements, modifications, extensions,
renewals, restatements, refundings or refinancings thereof and any indentures or credit facilities
or commercial paper facilities with banks or other institutional lenders or investors that replace,
refund or refinance any part of the loans, notes, other credit facilities or commitments
thereunder, including any such replacement, refunding or refinancing facility or indenture that
increases the amount borrowable thereunder or alters the maturity thereof (provided that such
increase in borrowings is permitted by Section 3.2).


          “Non-Guarantor Subsidiary” means any Restricted Subsidiary that is not a Subsidiary
Guarantor.


          “Non-U.S. Person” means a Person who is not a U.S. Person (as defined in
Regulation S).


          “Notes” has the meaning ascribed to it in the second introductory paragraph of this
Indenture.


          “Notes Custodian” means the custodian with respect to the Global Notes (as appointed
by DTC), or any successor Person thereto and shall initially be the Trustee.


          “Obligations” means any principal, interest (including any interest accruing
subsequent to the filing of a petition in bankruptcy, reorganization or similar proceeding at the
rate provided for in the documentation with respect thereto, whether or not such interest is an
allowed claim under applicable state, federal or foreign law), premium, penalties, fees,
indemnifications, reimbursements (including reimbursement obligations with respect to letters of
credit and bankers’ acceptances), damages and other liabilities, and guarantees of payment of such
principal, interest,



21









 








penalties, fees, indemnifications, reimbursements, damages and other liabilities, payable
under the documentation governing any Indebtedness.



          “Offering Memorandum” means the final offering memorandum, dated October 1, 2010
relating to the offering by the Issuer of $800.0 million principal amount of Notes and any future
offering memorandum relating to Additional Notes.


          “Officer” means the Chairman of the Board, the Chief Executive Officer, the President,
any Executive Vice President, Senior Vice President or Vice President, the Treasurer or the
Secretary of the Issuer or any other Person, as the case may be.


          “Officer’s Certificate” means a certificate signed on behalf of the Issuer by an
Officer of the Issuer or on behalf of any other Person, as the case may be, who must be the
principal executive officer, the principal financial officer, the treasurer or the principal
accounting officer of the Issuer or such other Person that meets the requirements set forth in the
Indenture.


          “Opinion of Counsel” means a written opinion from legal counsel who is acceptable to
the Trustee and that meets the requirements set forth in this Indenture. The counsel may be an
employee of or counsel to the Issuer or the Trustee.


          “Permitted Asset Swap” means the concurrent purchase and sale or exchange of Related
Business Assets or a combination of Related Business Assets and cash or Cash Equivalents between
the Issuer or any of its Restricted Subsidiaries and another Person; provided that any cash or Cash
Equivalent received must be applied in accordance with Section 3.5.


          “Permitted Holders” means the Sponsor and members of management of the Issuer (or its
direct parent) who are holders of Equity Interests of the Issuer (or any of its direct or indirect
parent companies) on the Issue Date and any group (within the meaning of Section 13(d)(3) or
Section 14(d)(2) of the Exchange Act or any successor provision) of which any of the foregoing are
members; provided that, in the case of such group and without giving effect to the existence of
such group or any other group, the Sponsor and members of management, collectively, have beneficial
ownership of more than 50% of the total voting power of the Voting Stock of the Issuer or any of
its direct or indirect parent companies held by such group. Any Person or group whose acquisition
of beneficial ownership constitutes a Change of Control in respect of which a Change of Control
Offer is made in accordance with the requirements of the Indenture shall thereafter, together with
its Affiliates, constitute an additional Permitted Holder.


          “Permitted Investments” means




	 	(1)	 	any Investment in the Issuer or any of its Restricted
Subsidiaries;
	 
	 	(2)	 	any Investment in cash and Cash Equivalents or Investment Grade
Securities;
	 
	 	(3)	 	any Investment by the Issuer or any of its Restricted
Subsidiaries in a Person that is engaged in a Similar Business if as a result
of such Investment:




22









 







	 	(a)	 	such Person becomes a Restricted Subsidiary; or






     (b) such Person, in one transaction or a series of related transactions, is merged or
consolidated with or into, or transfers or conveys substantially all of its assets to, or is
liquidated into, the Issuer or a Restricted Subsidiary,




	 	 	 	and, in each case, any Investment held by such Person; provided that such
Investment was not acquired by such Person in contemplation of such
acquisition, merger, consolidation or transfer;
	 
	 	(4)	 	any Investment in securities or other assets not constituting
cash, Cash Equivalents or Investment Grade Securities and received in
connection with an Asset Sale made pursuant to the provisions of Section
3.5 or any other disposition of assets not constituting an Asset Sale;
	 
	 	(5)	 	any Investment existing on the Issue Date and any extension,
modification, replacement or renewal of any such Investments existing on the
Issue Date, but only to the extent not involving additional advances,
contributions or other Investments of cash or other assets or other increases
thereof other than as a result of the accrual or accretion of interest or
original issue discount or the issuance of pay-in-kind securities, in each
case, pursuant to the terms of such Investment as in effect on the Issue Date
(or as subsequently amended or otherwise modified in a manner not
disadvantageous to the Holders in any material respect);
	 
	 	(6)	 	any Investment acquired by the Issuer or any of its Restricted
Subsidiaries:






     (a) in exchange for any other Investment or accounts receivable held by the Issuer or
any such Restricted Subsidiary in connection with or as a result of a bankruptcy, workout,
reorganization or recapitalization of the issuer of such other Investment or accounts
receivable; or




     (b) as a result of a foreclosure by the Issuer or any of its Restricted Subsidiaries
with respect to any secured Investment or other transfer of title with respect to any
secured Investment in default;




	 	(7)	 	Hedging Obligations permitted under Section 3.2(b)(10);
	 
	 	(8)	 	any Investment in a Similar Business having an aggregate fair
market value, taken together with all other Investments made pursuant to this
clause (8) that are at that time outstanding, not to exceed the greater of (x)
$50.0 million and (y) 1.0% of Total Assets at the time of such Investment (with
the fair market value of each Investment being measured at the time made and
without giving effect to subsequent changes in value);
	 
	 	(9)	 	Investments the payment for which consists of Equity Interests
(exclusive of Disqualified Stock) of the Issuer, or any of its direct or
indirect parent




23









 








	 	 	 	companies; provided, however, that such Equity Interests shall not increase
the amount available for Restricted Payments under Section
3.3(a)(C);
	 
	 	(10)	 	guarantees of Indebtedness permitted under Section 3.2;
	 
	 	(11)	 	any transaction to the extent it constitutes an Investment
that is permitted and made in accordance with Section 3.8(b) (except
transactions permitted by clauses (2), (5), (9),
(11) and (15) of Section 3.8(b));
	 
	 	(12)	 	Investments consisting of purchases and acquisitions of
inventory, supplies, material or equipment;
	 
	 	(13)	 	additional Investments having an aggregate fair market value,
taken together with all other Investments made pursuant to this clause (13)
that are at that time outstanding (without giving effect to the sale of an
Unrestricted Subsidiary to the extent the proceeds of such sale do not consist
of cash or marketable securities), not to exceed the greater of (x) $75.0
million and (y) 1.5% of Total Assets at the time of such Investment (with the
fair market value of each Investment being measured at the time made and
without giving effect to subsequent changes in value);
	 
	 	(14)	 	Investments relating to a Securitization Subsidiary that, in
the good faith determination of the Issuer are necessary or advisable to effect
any Qualified Securitization Financing;
	 
	 	(15)	 	advances to, or guarantees of Indebtedness of, officers,
directors and employees not in excess of $20.0 million outstanding at any one
time, in the aggregate;
	 
	 	(16)	 	loans and advances to officers, directors and employees for
business-related travel expenses, moving expenses and other similar expenses,
in each case incurred in the ordinary course of business or consistent with
past practices or to fund such Person’s purchase of Equity Interests of the
Issuer or any direct or indirect parent company thereof;
	 
	 	(17)	 	Investments consisting of licensing of intellectual property
pursuant to joint marketing arrangements with other Persons;
	 
	 	(18)	 	Investments consisting of (i) Guarantees of or the assumption
of Indebtedness (to the extent permitted by Section 3.2(b)(21)) of, or
(ii) loans made to, or the acquisition of loans made to or Equity Interests in,
Franchisees, suppliers, distributors or licensees of the Issuer and its
Restricted Subsidiaries in an aggregate amount not exceeding $300.0 million (in
each case determined at the time made and not reduced by any subsequent
write-downs or write-offs and net of returns of capital or principal in respect
of such Investments); and




24









 












	 	(19)	 	contributions to a “rabbi” trust for the benefit of employees
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 Issuer.




          “Permitted Liens” means, with respect to any Person:




     (1) pledges or deposits by such Person under workmen’s compensation laws, unemployment
insurance laws or similar legislation, or good faith deposits in connection with bids,
tenders, contracts (other than for the payment of Indebtedness) or leases to which such
Person is a party, or deposits to secure public or statutory obligations of such Person or
deposits of cash or U.S. government bonds to secure surety or appeal bonds to which such
Person is a party, or deposits as security for contested taxes or import duties or for the
payment of rent, in each case incurred in the ordinary course of business;




     (2) Liens imposed by law, such as carriers’, warehousemen’s, materialmen’s, repairmen’s
and mechanics’ Liens, in each case for sums not yet overdue for a period of more than 30
days or being contested in good faith by appropriate proceedings or other Liens arising out
of judgments or awards against such Person with respect to which such Person shall then be
proceeding with an appeal or other proceedings for review if adequate reserves with respect
thereto are maintained on the books of such Person in accordance with GAAP;




     (3) Liens for taxes, assessments or other governmental charges not yet overdue for a
period of more than 30 days or which are being contested in good faith by appropriate
proceedings diligently conducted, if adequate reserves with respect thereto are maintained
on the books of such Person in accordance with GAAP, or for property taxes on property that
the Issuer or one of its Subsidiaries has determined to abandon if the sole recourse for
such tax, assessment, charge, levy or claims is to such property;




     (4) Liens in favor of issuers of performance, surety, bid, indemnity, warranty,
release, appeal or similar bonds or with respect to other regulatory requirements or letters
of credit or bankers’ acceptances issued, and completion guarantees provided for, in each
case pursuant to the request of and for the account of such Person in the ordinary course of
its business;




     (5) minor survey exceptions, minor encumbrances, ground leases, easements or
reservations of, or rights of others for, licenses, rights-of-way, servitudes, sewers,
electric lines, drains, telegraph and telephone and cable television lines, gas and oil
pipelines and other similar purposes, or zoning, building codes or other restrictions
(including, without limitation, minor defects or irregularities in title and similar
encumbrances) as to the use of real properties or Liens incidental, to the conduct of the
business of such Person or to the ownership of its properties which were not incurred in
connection with Indebtedness and which do not in the aggregate materially impair their use
in the operation of the business of such Person;



25









 






     (6) Liens securing Indebtedness permitted to be incurred pursuant to Section
3.2(b)(4) or Section 3.2(b)(18); provided that Liens securing Indebtedness
permitted to be incurred pursuant to Section 3.2(b)(18) extend only to the assets of
Foreign Subsidiaries;




     (7) Liens existing on the Issue Date (with the exception of Liens securing the New
Credit Facilities, on the Issue Date, which shall be deemed incurred pursuant to clause (33)
of this definition;




     (8) Liens on property or shares of stock of a Person at the time such Person becomes a
Subsidiary; provided, however, such Liens are not created or incurred in connection with, or
in contemplation of, such other Person becoming such a Subsidiary; provided, further,
however, that such Liens may not extend to any other property owned by the Issuer or any of
its Restricted Subsidiaries;




     (9) Liens on property at the time the Issuer or a Restricted Subsidiary acquired the
property, including any acquisition by means of a merger or consolidation with or into the
Issuer or any of its Restricted Subsidiaries; provided, however, that such Liens are not
created or incurred in connection with, or in contemplation of, such acquisition, merger or
consolidation; provided, further, however, that the Liens may not extend to any other
property owned by the Issuer or any of its Restricted Subsidiaries;




     (10) Liens securing Indebtedness or other obligations of a Restricted Subsidiary owing
to the Issuer or another Restricted Subsidiary permitted to be incurred in accordance with
Section 3.2;




     (11) Liens securing Hedging Obligations and Cash Management Services so long as related
Indebtedness is, and is permitted to be under the Indenture, secured by a Lien on the same
property securing such Hedging Obligations;




     (12) Liens on specific items of inventory or other goods and proceeds of any Person
securing such Person’s obligations in respect of bankers’ acceptances issued or created for
the account of such Person to facilitate the purchase, shipment or storage of such inventory
or other goods;




     (13) leases, subleases, licenses or sublicenses granted to others in the ordinary
course of business which do not materially interfere with the ordinary conduct of the
business of the Issuer or any of its Restricted Subsidiaries and do not secure any
Indebtedness;




     (14) Liens arising from Uniform Commercial Code financing statement filings regarding
operating leases or consignments entered into by the Issuer and its Restricted Subsidiaries
in the ordinary course of business;




     (15) Liens in favor of the Issuer or any Subsidiary Guarantor;




     (16) Liens on equipment of the Issuer or any of its Restricted Subsidiaries granted in
the ordinary course of business to the Issuer’s clients;



26









 






     (17) Liens on Securitization Assets and related assets incurred in connection with a
Qualified Securitization Financing;




     (18) Liens to secure any refinancing, refunding, extension, renewal, modification or
replacement (or successive refinancing, refunding, extensions, renewals, modifications or
replacements) as a whole, or in part, of any Indebtedness secured by any Lien referred to in
clauses (7), (8) and (9); provided, however, that (a) such new Lien shall be limited to all
or part of the same property that secured the original Lien (plus improvements on such
property), and (b) the Indebtedness secured by such Lien at such time is not increased to
any amount greater than the sum of (i) the outstanding principal amount or, if greater,
committed amount of the Indebtedness described under clauses (7), (8) and (9) at the time
the original Lien became a Permitted Lien under the Indenture, and (ii) an amount necessary
to pay any fees and expenses, including premiums, related to such refinancing, refunding,
extension, renewal or replacement;




     (19) deposits made or other security provided to secure liabilities to insurance
carriers under insurance or self-insurance arrangements in the ordinary course of business;




     (20) other Liens securing obligations incurred in the ordinary course of business which
obligations do not exceed $50.0 million at any one time outstanding;




     (21) Liens securing judgments for the payment of money not constituting an Event of
Default under Section 6.1(a)(5) so long as such Liens are adequately bonded and any
appropriate legal proceedings that may have been duly initiated for the review of such
judgment have not been finally terminated or the period within which such proceedings may be
initiated has not expired;




     (22) 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 in the ordinary
course of business;




     (23) Liens (i) of a collection bank arising under Section 4-210 of the Uniform
Commercial Code on items in the course of collection, (ii) attaching to commodity trading
accounts or other commodity brokerage accounts incurred in the ordinary course of business,
and (iii) in favor of banking institutions arising as a matter of law encumbering deposits
(including the right of set-off) and which are within the general parameters customary in
the banking industry;




     (24) Liens deemed to exist in connection with Investments in repurchase agreements
permitted under Section 3.2; provided that such Liens do not extend to any assets
other than those that are the subject of such repurchase agreement;




     (25) Liens encumbering reasonable customary initial deposits and margin deposits and
similar Liens attaching to commodity trading accounts or other brokerage accounts incurred
in the ordinary course of business and not for speculative purposes;




     (26) Liens that are contractual rights of set-off (i) relating to the establishment of
depository relations with banks not given in connection with the issuance of Indebtedness,



27









 






(ii) relating to pooled deposit or sweep accounts of the Issuer or any of its
Restricted Subsidiaries to permit satisfaction of overdraft or similar obligations incurred
in the ordinary course of business of the Issuer and its Restricted Subsidiaries or (iii)
relating to purchase orders and other agreements entered into with customers of the Issuer
or any of its Restricted Subsidiaries in the ordinary course of business;




     (27) Liens solely on any cash earnest money deposits made by the Issuer or any of its
Restricted Subsidiaries in connection with any letter of intent or purchase agreement
permitted under the Indenture;




     (28) the rights reserved or vested in any Person by the terms of any lease, license,
franchise, grant or permit held by the Issuer or any of its Restricted Subsidiaries or by a
statutory provision, to terminate any such lease, license, franchise, grant or permit, or to
require annual or periodic payments as a condition to the continuance thereof;




     (29) restrictive covenants affecting the use to which real property may be put;
provided, however, that the covenants are complied with;




     (30) security given to a public utility or any municipality or governmental authority
when required by such utility or authority in connection with the operations of that Person
in the ordinary course of business;




     (31) zoning by-laws and other land use restrictions, including, without limitation,
site plan agreements, development agreements and contract zoning agreements;




     (32) Liens arising out of conditional sale, title retention, consignment or similar
arrangements for sale of goods entered into by the Issuer or any Restricted Subsidiary in
the ordinary course of business;




     (33) Liens securing Indebtedness permitted to be incurred under Credit Facilities,
including any letter of credit facility relating thereto, that was permitted by the terms of
the Indenture to be incurred pursuant to Section 3.2(b)(1); and




     (34) Liens incurred to secure Obligations in respect of any Indebtedness permitted to
be incurred pursuant to Section 3.2; provided that, with respect to Liens securing
Obligations permitted under this clause (34), at the time of incurrence and after giving pro
forma thereto, the Consolidated Secured Debt Ratio would be no greater than 3.5 to 1.0.



For purposes of this definition, the term “Indebtedness” shall be deemed to include interest on
such Indebtedness.



          “Person” means any individual, corporation, limited liability company, partnership,
joint venture, association, joint stock company, trust, unincorporated organization, government or
any agency or political subdivision thereof or any other entity.


          “Predecessor Note” of any particular Note means every previous Note evidencing all or
a portion of the same debt as that evidenced by such particular Note; and, for the purposes of



28









 








this definition, any Note authenticated and delivered under Section 2.10 in exchange
for or in lieu of a mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Note.



          “Preferred Stock” means any Equity Interest with preferential rights of payment of
dividends or upon liquidation, dissolution, or winding up.


          “Qualified Proceeds” means assets that are used or useful in, or Capital Stock of any
Person engaged in, a Similar Business; provided that the fair market value of any such assets or
Capital Stock shall be determined in Good Faith by the Issuer


          “Qualified Securitization Financing” means any Securitization Facility of a
Securitization Subsidiary that meets the following conditions: (i) the board of managers or
directors of the Issuer shall have determined in good faith that such Qualified Securitization
Financing (including financing terms, covenants, termination events and other provisions) is in the
aggregate economically fair and reasonable to the Issuer and its Restricted Subsidiaries, (ii) all
sales of Securitization Assets and related assets by the Issuer or any Restricted Subsidiary to the
Securitization Subsidiary or any other Person are made at fair market value (as determined in Good
Faith by the Issuer), (iii) the financing terms, covenants, termination events and other provisions
thereof shall be market terms (as determined in good faith by the Issuer) and may include Standard
Securitization Undertakings and (iv) the Obligations under such Securitization Facility are
non-recourse (except for customary representations, warranties, covenants and indemnities made in
connection with such facilities) to the Issuer or any of its Restricted Subsidiaries (other than a
Securitization Subsidiary). The grant of a security interest in any Securitization Assets of the
Issuer or any of its Restricted Subsidiaries (other than a Securitization Subsidiary) to secure
Indebtedness under the New Credit Facilities shall not be deemed a Qualified Securitization
Financing.


          “QIB” means any “qualified institutional buyer” as such term is defined in Rule 144A.


          “Rating Agencies” means Moody’s and S&P or if Moody’s or S&P or both shall not make a
rating on the Notes publicly available, a nationally recognized statistical rating agency or
agencies, as the case may be, selected by the Issuer which shall be substituted for Moody’s or S&P
or both, as the case may be.


          “Registration Rights Agreement” means (i) the Registration Rights Agreement related to
the Notes dated as of the Issue Date, among the Issuer, the Guarantors and the Initial Purchasers,
as amended or supplemented, and (ii) any other registration rights agreement entered into in
connection with the issuance of Additional Notes in a private offering by the Issuer after the
Issue Date.


          “Regulation S” means Regulation S under the Securities Act.


          “Regulation S-X” means Regulation S-X under the Securities Act.


          “Related Business Assets” means assets (other than cash or Cash Equivalents) used or
useful in a Similar Business, provided that any assets received by the Issuer or a Restricted



29









 








Subsidiary in exchange for assets transferred by the Issuer or a Restricted Subsidiary shall
not be deemed to be Related Business Assets if they consist of securities of a Person, unless upon
receipt of the securities of such Person, such Person would become a Restricted Subsidiary.



          “Restricted Investment” means an Investment other than a Permitted Investment.


          “Restricted Notes” means Initial Notes and Additional Notes bearing one of the
restrictive legends described in Section 2.1(d).


          “Restricted Notes Legend” means the legend set forth in Section 2.1(d)(1) and,
in the case of the Temporary Regulation S Global Note, the legend set forth in
Section 2.1(d)(2).


          “Restricted Subsidiary” means, at any time, any direct or indirect Subsidiary of the
Issuer (including any Foreign Subsidiary) that is not then an Unrestricted Subsidiary; provided,
however, that upon the occurrence of an Unrestricted Subsidiary ceasing to be an Unrestricted
Subsidiary, such Subsidiary shall be included in the definition of “Restricted Subsidiary.”


          “Rule 144A” means Rule 144A under the Securities Act.


          “S&P” means Standard & Poor’s, a division of The McGraw-Hill Companies, Inc., and any
successor to its rating agency business.


          “Sale and Lease-Back Transaction” means any arrangement providing for the leasing by
the Issuer or any of its Restricted Subsidiaries of any real or tangible personal property, which
property has been or is to be sold or transferred by the Issuer or such Restricted Subsidiary to a
third Person in contemplation of such leasing.


          “SEC” means the U.S. Securities and Exchange Commission.


          “Secured Indebtedness” means any Indebtedness of the Issuer or any of its Restricted
Subsidiaries secured by a Lien.


          “Securitization Asset” means any accounts receivable, real estate asset, mortgage
receivables or related assets, in each case subject to a Securitization Facility.


          “Securitization Facility” means any of one or more securitization financing facilities
as amended, supplemented, modified, extended, renewed, restated or refunded from time to time,
pursuant to which the Issuer or any of its Restricted Subsidiaries sells its Securitization Assets
to either (a) a Person that is not a Restricted Subsidiary or (b) a Securitization Subsidiary that
in turn sells Securitization Assets to a Person that is not a Restricted Subsidiary.


          “Securitization Fees” means distributions or payments made directly or by means of
discounts with respect to any Securitization Asset or participation interest therein issued or sold
in connection with, and other fees paid to a Person that is not a Restricted Subsidiary in
connection with, any Qualified Securitization Financing.


          “Securitization Repurchase Obligation” means any obligation of a seller of
Securitization Assets in a Qualified Securitization Financing to repurchase Securitization Assets



30









 








arising as a result of a breach of a representation, warranty or covenant or otherwise,
including, without limitation, as a result of a receivable or portion thereof becoming subject to
any asserted defense, dispute, off set or counterclaim of any kind as a result of any action taken
by, any failure to take action by or any other event relating to the seller.



          “Securitization Subsidiary” means any Subsidiary in each case formed for the purpose
of and that solely engages in one or more Qualified Securitization Financings and other activities
reasonably related thereto.


          “Securities Act” means the Securities Act of 1933, as amended, and the rules and
regulations of the SEC promulgated thereunder.


          “Senior Indebtedness” means:




	 	(1)	 	all Indebtedness of the Issuer or any Subsidiary Guarantor
outstanding under the New Credit Facilities or Notes and related Guarantees
(including interest accruing on or after the filing of any petition in
bankruptcy or similar proceeding or for reorganization of the Issuer or any
Guarantor (at the rate provided for in the documentation with respect thereto,
regardless of whether or not a claim for post-filing interest is allowed in
such proceedings)), and any and all other fees, expense reimbursement
obligations, indemnification amounts, penalties, and other amounts (whether
existing on the Issue Date or thereafter created or incurred) and all
obligations of the Issuer or any Subsidiary Guarantor to reimburse any bank or
other Person in respect of amounts paid under letters of credit, acceptances or
other similar instruments;
	 
	 	(2)	 	all Hedging Obligations (and guarantees thereof) owing to a
Lender (as defined in the New Credit Facilities) or any Affiliate of such
Lender (or any Person that was a Lender or an Affiliate of such Lender at the
time the applicable agreement giving rise to such Hedging Obligation was
entered into), provided that such Hedging Obligations are permitted to be
incurred under the terms of the Indenture;
	 
	 	(3)	 	any other Indebtedness of the Issuer or any Subsidiary
Guarantor permitted to be incurred under the terms of the Indenture, unless the
instrument under which such Indebtedness is incurred expressly provides that it
is subordinated in right of payment to the Notes or any related Guarantee; and
	 
	 	(4)	 	all Obligations with respect to the items listed in the
preceding clause (1), (2) and (3); provided, however, that Senior Indebtedness
shall not include:
	 
	 	(a)	 	any obligation of such Person to the Issuer or any of its
Subsidiaries;
	 
	 	(b)	 	any liability for federal, state, local or other taxes owed or
owing by such Person;




31









 












	 	(c)	 	any accounts payable or other liability to trade creditors
arising in the ordinary course of business;
	 
	 	(d)	 	any Indebtedness or other Obligation of such Person which is
subordinate or junior in any respect to any other Indebtedness or other
Obligation of such person; or
	 
	 	(e)	 	that portion of any Indebtedness which at the time of
incurrence is incurred in violation of the Indenture.




          “Senior Management” means the Chief Executive Officer and the Chief Financial Officer
of the Issuer.


          “Shelf Registration Statement” shall have the meaning set forth in the Registration
Rights Agreement.


          “Significant Subsidiary” means any Restricted Subsidiary that would be a “significant
subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the
Securities Act, as such regulation is in effect on the Issue Date.


          “Similar Business” means any business conducted or proposed to be conducted by the
Issuer and its Restricted Subsidiaries on the Issue Date or any business that is similar,
reasonably related, incidental or ancillary thereto.


          “Sponsor” means 3G Special Situations Fund II, L.P., and each of its Affiliates but
not including, however, any portfolio companies of any of the foregoing.


          “Sponsor Management Agreement” means the management agreement between certain of the
management companies associated with the Sponsor and the Issuer.


          “Standard Securitization Undertakings” means representations, warranties, covenants
and indemnities entered into by the Issuer or any Subsidiary of the Issuer which the Issuer has
determined in good faith to be customary in a Securitization Financing, including, without
limitation, those relating to the servicing of the assets of a Securitization Subsidiary, it being
understood that any Securitization Repurchase Obligation shall be deemed to be a Standard
Securitization Undertaking.


          “Stated Maturity” means, with respect to any Obligation, the date specified in such
Obligation as the fixed date on which the payment of principal of such Obligation is due and
payable, including pursuant to any mandatory redemption provision, but shall not include any date
on which the payment of principal of such security is due and payable as a result of any contingent
obligations to repay, redeem or repurchase any such principal prior to the date originally
scheduled for the payment thereof.


          “Subordinated Indebtedness” means, with respect to the Notes,


          (1) any Indebtedness of the Issuer which is by its terms subordinated in right of payment to
the Notes, and




32












 





          (2) any Indebtedness of any Subsidiary Guarantor which is by its terms subordinated
in right of payment to the Guarantee of such entity of the Notes.



          “Subsidiary” means, with respect to any Person:




     (1) any corporation, association, or other business entity (other than a
partnership, joint venture, limited liability company or similar entity) of which more than
50% of the total voting power of shares of Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers or trustees
thereof is at the time of determination owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person or a combination thereof or
is consolidated under GAAP with such Person at such time; and




     (2) any partnership, joint venture, limited liability company or similar entity of
which




(x) more than 50% of the capital accounts, distribution rights, total equity and
voting interests or general or limited partnership interests, as applicable, are
owned or controlled, directly or indirectly, by such Person or one or more of the
other Subsidiaries of that Person or a combination thereof whether in the form of
membership, general, special or limited partnership or otherwise, and




(y) such Person or any Restricted Subsidiary of such Person is a controlling general
partner or otherwise controls such entity.



          “Subsidiary Guarantee” means the Guarantee of a Subsidiary Guarantor.



          “Subsidiary Guarantor” means each Restricted Subsidiary of the Issuer that provides a
Guarantee of the Notes.



          “Total Assets” means, as of any date, the total consolidated assets of the Issuer and
its Restricted Subsidiaries on a consolidated basis, as shown on the most recent consolidated
balance sheet of the Issuer and its Restricted Subsidiaries, determined on a pro forma basis in a
manner consistent with the pro forma basis contained in the definition of Fixed Charge Coverage
Ratio.



          “Transaction Expenses” means any fees or expenses incurred or paid by the Issuer or
any Restricted Subsidiary in connection with the Transactions, including payments to officers,
employees and members of the board of managers or directors as change of control payments,
severance payments, special or retention bonuses and charges for repurchase or rollover of, or
modifications to, stock options, restricted stock and deferred compensation.



          “Transactions” means the transactions contemplated by the Merger Agreement, the
issuance of the Notes and borrowings under the New Credit Facilities as in effect on the Issue
Date.



          “Treasury Rate” means, as of any Redemption Date, the yield to maturity as of such
Redemption Date of United States Treasury securities with a constant maturity (as compiled and



33









 




published in the most recent Federal Reserve Statistical Release H.15 (519) that has become
publicly available at least two Business Days prior to the Redemption Date (or, if such Statistical
Release is no longer published, any publicly available source of similar market data)) most nearly
equal to the period from the Redemption Date to October 15, 2014; provided, however, that if the
period from the Redemption Date to October 15, 2014 is less than one year, the weekly average yield
on actually traded United States Treasury securities adjusted to a constant maturity of one year
shall be used.




          “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended (15 U.S.C. §§
77aaa-777bbbb).



          “Trustee” means the party named as such in this Indenture until a successor replaces
it in accordance with the terms of this Indenture and, thereafter, means the successor.



          “Trust Officer” shall mean, when used with respect to the Trustee, any vice president,
assistant vice president, any trust officer or any other officer of the Trustee who customarily
performs functions similar to those performed by the Persons who at the time shall be such
officers, respectively, or to whom any corporate trust matter is referred because of such person’s
knowledge of and familiarity with the particular subject and who shall have direct responsibility
for the administration of this Indenture.



          “Unrestricted Subsidiary” means:




     (1) any Subsidiary of the Issuer, which at the time of determination is an
Unrestricted Subsidiary (as designated by the Issuer, as provided below); and




     (2) any Subsidiary of an Unrestricted Subsidiary.



          The Issuer may designate any Subsidiary of the Issuer (including any existing Subsidiary and
any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary unless such
Subsidiary or any of its Subsidiaries owns any Equity Interests or Indebtedness of, or owns or
holds any Lien on, any property of, the Issuer or any Subsidiary of the Issuer (other than solely
any Subsidiary of the Subsidiary to be so designated); provided that


     (1)
any Unrestricted Subsidiary must be an entity of which the
Equity Interests entitled to cast at least a majority of the votes that may be
cast by all Equity Interests having ordinary voting power for the election of
directors or Persons performing a similar function are owned, directly or
indirectly, by the Issuer,




     (2)
such designation complies with Section 3.3, and

     (3)
each of:

     (a)
the Subsidiary to be so designated; and



     (b)
its Subsidiaries

34









 










has not at the time of designation, and does not thereafter, create, incur, issue, assume,
guarantee or otherwise become directly or indirectly liable with respect to any Indebtedness
pursuant to which the lender has recourse to any of the assets of the Issuer or any Restricted
Subsidiary.




          The Issuer may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided
that, immediately after giving effect to such designation no Default or Event of Default shall have
occurred and be continuing and the Issuer or the relevant Restricted Subsidiary would be able to
incur such Indebtedness pursuant to Section 3.2 on a pro forma basis taking into account
such designation.



          Any such designation by the Issuer shall be notified by the Issuer to the Trustee by promptly
filing with the Trustee a copy of the resolution of the board of directors of the Issuer or any
committee thereof giving effect to such designation and an Officer’s Certificate certifying that
such designation complied with the foregoing provisions.



          “Voting Stock” of any Person as of any date means the Capital Stock of such Person
that is at the time entitled to vote in the election of the board of directors of such Person.



          “Weighted Average Life to Maturity” means, when applied to any Indebtedness,
Disqualified Stock or Preferred Stock, as the case may be, at any date, the quotient obtained by
dividing




     (1) the sum of the products of the number of years from the date of determination
to the date of each successive scheduled principal payment of such Indebtedness or
redemption or similar payment with respect to such Disqualified Stock or Preferred Stock
multiplied by the amount of such payment; by




     (2) the sum of all such payments.



          “Wholly-Owned Subsidiary” of any Person means a Subsidiary of such Person, 100% of the
outstanding Equity Interests of which (other than directors’ qualifying shares) shall at the time
be owned by such Person or by one or more Wholly-Owned Subsidiaries of such Person.



          SECTION 1.2. Other Definitions.



	 	 	 
	 	 	Defined in
	Term	 	Section
	“Additional Restricted Notes”
	 	2.1(b)
	 
	 	 
	“Affiliate Transaction”
	 	3.8
	 
	 	 
	“Agent Members”
	 	2.1(e)(iii)
	 
	 	 
	“Asset Sale Offer”
	 	3.5(b)
	 
	 	 
	“Authenticating Agent”
	 	2.2






35









 






	 	 	 
	 	 	Defined in
	Term	 	Section
	“Automatic Exchange”
	 	2.6(e)
	 
	 	 
	“Automatic Exchange Date”
	 	2.6(e)
	 
	 	 
	“Automatic Exchange Notice”
	 	2.6(e)
	 
	 	 
	“Automatic Exchange Notice Date”
	 	2.6(e)
	 
	 	 
	“Change of Control Offer”
	 	3.10
	 
	 	 
	“Change of Control Payment”
	 	3.10
	 
	 	 
	“Change of Control Payment Date”
	 	3.10(a)(2)
	 
	 	 
	“Clearstream”
	 	2.1(b)
	 
	 	 
	“Covenant Defeasance”
	 	8.3
	 
	 	 
	“Defaulted Interest”
	 	2.14
	 
	 	 
	“Euroclear”
	 	2.1(b)
	 
	 	 
	“Event of Default”
	 	6.1
	 
	 	 
	“Excess Proceeds”
	 	3.5(b)
	 
	 	 
	“Exchange Global Note”
	 	2.1(b)
	 
	 	 
	“Global Notes”
	 	2.1(b)
	 
	 	 
	“Guaranteed Obligations”
	 	10.1
	 
	 	 
	“incur”
	 	3.2
	 
	 	 
	“incurrence”
	 	3.2
	 
	 	 
	“Institutional Accredited Investor Global Note”
	 	2.1(b)
	 
	 	 
	“Institutional Accredited Investor Notes”
	 	2.1(b)
	 
	 	 
	“Issuer Order”
	 	2.2
	 
	 	 
	“Legal Defeasance”
	 	8.2
	 
	 	 
	“Legal Holiday”
	 	13.8
	 
	 	 
	“Notes Register”
	 	2.3






36









 






	 	 	 
	 	 	Defined in
	Term	 	Section
	“Paying Agent”
	 	2.3
	 
	 	 
	“Permanent Regulation S Global Note”
	 	2.1(b)
	 
	 	 
	“protected purchaser”
	 	2.10
	 
	 	 
	“Redemption Date”
	 	5.7(a)
	 
	 	 
	“Refinancing Indebtedness”
	 	3.2(b)(13)
	 
	 	 
	“Refunding Capital Stock”
	 	3.3(b)(2)
	 
	 	 
	“Registrar”
	 	2.3
	 
	 	 
	“Regulation S Global Note”
	 	2.1(b)
	 
	 	 
	“Regulation S Notes”
	 	2.1(b)
	 
	 	 
	“Resale Restriction Termination Date”
	 	2.6(b)
	 
	 	 
	“Restricted Global Note”
	 	2.6(e)
	 
	 	 
	“Restricted Payments”
	 	3.3(a)
	 
	 	 
	“Restricted Period”
	 	2.1(b)
	 
	 	 
	“Rule 144A Global Note”
	 	2.1(b)
	 
	 	 
	“Rule 144A Notes”
	 	2.1(b)
	 
	 	 
	“Special Interest Payment Date”
	 	2.14(a)
	 
	 	 
	“Special Record Date”
	 	2.14(a)
	 
	 	 
	“Special Mandatory Redemption”
	 	5.9
	 
	 	 
	“Special Mandatory Redemption Date”
	 	5.9
	 
	 	 
	“Successor Company”
	 	4.1(a)(1)
	 
	 	 
	“Successor Person”
	 	10.2(b)(1)
	 
	 	 
	“Suspended Covenants”
	 	3.20
	 
	 	 
	“Suspension Period”
	 	3.20
	 
	 	 
	“Temporary Regulation S Global Note”
	 	2.1(b)
	 
	 	 
	“Trustee”
	 	8.5
	 
	 	 
	“Unrestricted Global Note”
	 	2.6(e)






37









 






          SECTION 1.3. Incorporation by Reference of Trust Indenture Act. This Indenture
is subject to the mandatory provisions of the TIA which are incorporated by reference in and made a
part of this Indenture. The following TIA terms have the following meanings:



          “Commission” means the SEC.



          “indenture securities” means the Notes.



          “indenture security holder” means a Holder.



          “indenture to be qualified” means this Indenture.



          “indenture trustee” or “institutional trustee” means the Trustee.



          “obligor” on the indenture securities means the Issuer and any other obligor on the indenture
securities.



          All other TIA terms used in this Indenture that are defined by the TIA, defined in the TIA by
reference to another statute or defined by SEC rule have the meanings assigned to them by such
definitions.



          SECTION 1.4. Rules of Construction. Unless the context otherwise requires:




          (1) a term has the meaning assigned to it;




          (2) an accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;




          (3) “or” is not exclusive;




          (4) “including” means including without limitation;




          (5) words in the singular include the plural and words in the plural include the
singular;




          (6) the principal amount of any noninterest bearing or other discount security at
any date shall be the principal amount thereof that would be shown on a balance sheet of the
issuer dated such date prepared in accordance with GAAP;




          (7) the principal amount of any preferred stock shall be (i) the maximum
liquidation value of such preferred stock or (ii) the maximum mandatory



38









 




redemption or mandatory repurchase price with respect to such preferred stock, whichever is greater;





          (8) all amounts expressed in this Indenture or in any of the Notes in terms of
money refer to the lawful currency of the United States of America;




          (9) the words “herein,” “hereof” and “hereunder” and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section or other
subdivision; and




          (10) unless otherwise specifically indicated, the term “consolidated” with respect
to any Person refers to such Person consolidated with its Restricted Subsidiaries, and
excludes from such consolidation any Unrestricted Subsidiary as if such Unrestricted
Subsidiary were not an Affiliate of such Person.



ARTICLE II




THE NOTES




          SECTION 2.1. Form, Dating and Terms.



          (a) The aggregate principal amount of Notes that may be authenticated and delivered under
this Indenture is unlimited. The Initial Notes issued on the date hereof shall be in an aggregate
principal amount of $800,000,000. In addition, the Issuer may issue, from time to time in
accordance with the provisions of this Indenture, Additional Notes (as provided herein) and
Exchange Notes. Furthermore, Notes may be authenticated and delivered upon registration of
transfer, exchange or in lieu of, other Notes pursuant to Sections 2.2, 2.6,
2.10, 2.12, 5.6 or 9.5, in connection with an Asset Sale Offer
pursuant to Section 3.5 or in connection with a Change of Control Offer pursuant to
Section 3.10.



          Notwithstanding anything to the contrary contained herein, the Issuer may not issue any
Additional Notes, unless such issuance is in compliance with Sections 3.2 and 3.6.



          The Initial Notes shall be known and designated as “97/
8
% Senior Notes, Series A, due 2018” of
the Issuer. Additional Notes issued as Restricted Notes shall be known and designated as “97/
8
% Senior Notes, Series A, due 2018” of the Issuer. Additional Notes issued other than as Restricted
Notes shall be known and designated as “97/
8
% Senior Notes, Series B, due 2018” of the Issuer, and
Exchange Notes shall be known and designated as “97/
8
% Senior Notes, Series B, due 2018” of the
Issuer.



          With respect to any Additional Notes, the Issuer shall set forth in (a) a Board Resolution and
(b) (i) an Officer’s Certificate or (ii) one or more indentures supplemental hereto, the following
information:




          (1) the aggregate principal amount of such Additional Notes to be authenticated and
delivered pursuant to this Indenture;



39









 






          (2) the issue price and the issue date of such Additional Notes, including the date
from which interest shall accrue; and




          (3) whether such Additional Notes shall be Restricted Notes issued in the form of
Exhibit A hereto and/or shall be issued in the form of Exhibit B hereto.



          In authenticating and delivering Additional Notes, the Trustee shall be entitled to receive
and shall be fully protected in relying upon, in addition to the Opinion of Counsel and Officer’s
Certificate required by Section 13.4, an Opinion of Counsel as to the due authorization,
execution, delivery, validity and enforceability of such Additional Notes.



          The Initial Notes, the Additional Notes and the Exchange Notes shall be considered
collectively as a single class for all purposes of this Indenture. Holders of the Initial Notes,
the Additional Notes and the Exchange Notes shall vote and consent together on all matters to which
such Holders are entitled to vote or consent as one class, and none of the Holders of the Initial
Notes, the Additional Notes or the Exchange Notes shall have the right to vote or consent as a
separate class on any matter to which such Holders are entitled to vote or consent.



          If any of the terms of any Additional Notes are established by action taken pursuant to Board
Resolutions of the Issuer, a copy of an appropriate record of such action shall be certified by the
Secretary or any Assistant Secretary of the Issuer and delivered to the Trustee at or prior to the
delivery of the Officer’s Certificate or the indenture supplemental hereto setting forth the terms
of the Additional Notes.



          (b) The Initial Notes are being offered and sold by the Issuer pursuant to a Purchase
Agreement, dated October 1, 2010, among Merger Sub, J.P. Morgan Securities LLC and the other
initial purchasers named therein. The Initial Notes and any Additional Notes (if issued as
Restricted Notes) (the “Additional Restricted Notes”) shall be resold initially only to
(A) QIBs in reliance on Rule 144A and (B) Non-U.S. Persons in reliance on Regulation S. Such
Initial Notes and Additional Restricted Notes may thereafter be transferred to, among others, QIBs,
purchasers in reliance on Regulation S and IAIs in accordance with Rule 501 of the Securities Act,
in each case, in accordance with the procedure described herein. Additional Notes offered after
the date hereof may be offered and sold by the Issuer from time to time pursuant to one or more
purchase agreements in accordance with applicable law.



          Initial Notes and Additional Restricted Notes offered and sold to QIBs in the United States of
America in reliance on Rule 144A (the “Rule 144A Notes”) shall be issued in the form of a
permanent global Note substantially in the form of Exhibit A, which is hereby incorporated
by reference and made a part of this Indenture, including appropriate legends as set forth in
Section 2.1(d) (the “Rule 144A Global Note”), deposited with the Trustee, as
custodian for DTC, duly executed by the Issuer and authenticated by the Trustee as hereinafter
provided. The Rule 144A Global Note may be represented by more than one certificate, if so required by DTC’s
rules regarding the maximum principal amount to be represented by a single certificate. The
aggregate principal amount of the Rule 144A Global Note may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as custodian for DTC or its nominee,
as hereinafter provided.



40









 





          Initial Notes and any Additional Restricted Notes offered and sold outside the United States
of America (the “Regulation S Notes”) in reliance on Regulation S shall initially be issued
in the form of a temporary global Note (the “Temporary Regulation S Global Note”), without
interest coupons. Beneficial interests in the Temporary Regulation S Global Note shall be
exchanged for beneficial interests in a corresponding permanent global Note, without interest
coupons, substantially in the form of Exhibit A including appropriate legends as set forth
in Section 2.1(d) (the “Permanent Regulation S Global Note” and, together with the
Temporary Regulation S Global Note, each a “Regulation S Global Note”) within a reasonable
period after the expiration of the Restricted Period (as defined below) upon delivery of the
certification contemplated by Section 2.7. Each Regulation S Global Note shall be
deposited upon issuance with, or on behalf of, the Trustee as custodian for DTC in the manner
described in this Article II for credit to the respective accounts of the purchasers (or to
such other accounts as they may direct), including, but not limited to, accounts at Euroclear Bank
S.A./N.V. (“Euroclear”) or Clearstream Banking, société anonyme (“Clearstream”).
Prior to the 40th day after the later of the commencement of the offering of the Initial Notes and
the Issue Date (such period through and including such 40th day, the “Restricted Period”),
interests in the Temporary Regulation S Global Note may only be transferred to non-U.S. persons
pursuant to Regulation S, to QIBs under Rule 144A or IAIs in accordance with the transfer and
certification requirements described herein for exchanges of interests in a Global Note.



          Investors may hold their interests in the Regulation S Global Note through organizations other
than Euroclear or Clearstream that are participants in DTC’s system or directly through Euroclear
or Clearstream, if they are participants in such systems, or indirectly through organizations which
are participants in such systems. If such interests are held through Euroclear or Clearstream,
Euroclear and Clearstream shall hold such interests in the applicable Regulation S Global Note on
behalf of their participants through customers’ securities accounts in their respective names on
the books of their respective depositaries. Such depositaries, in turn, shall hold such interests
in the applicable Regulation S Global Note in customers’ securities accounts in the depositaries’
names on the books of DTC.



          The Regulation S Global Note may be represented by more than one certificate, if so required
by DTC’s rules regarding the maximum principal amount to be represented by a single certificate.
The aggregate principal amount of the Regulation S Global Note may from time to time be increased
or decreased by adjustments made on the records of the Trustee, as custodian for DTC or its
nominee, as hereinafter provided.



          Initial Notes and Additional Restricted Notes resold to IAIs (the “Institutional
Accredited Investor Notes”) in the United States of America shall be issued in the form of a
permanent global Note substantially in the form of Exhibit A including appropriate legends
as set forth in Section 2.1(d) (the “Institutional Accredited Investor Global
Note”) deposited with the Trustee, as custodian for DTC, duly executed by the Issuer and
authenticated by the Trustee as hereinafter provided. The Institutional Accredited Investor Global Note may be represented by
more than one certificate, if so required by DTC’s rules regarding the maximum principal amount to
be represented by a single certificate. The aggregate principal amount of the Institutional
Accredited Investor Global Note may from time to time be increased or decreased by adjustments made
on the records of the Trustee, as custodian for DTC or its nominee, as hereinafter provided.



41









 





          Exchange Notes exchanged for interests in the Rule 144A Notes, the Regulation S Notes and the
Institutional Accredited Investor Notes shall be issued in the form of a permanent global Note,
substantially in the form of Exhibit B, which is hereby incorporated by reference and made
a part of this Indenture, deposited with the Trustee as hereinafter provided, including the
appropriate legend set forth in Section 2.1(d) (the “Exchange Global Note”). The
Exchange Global Note shall be deposited upon issuance with, or on behalf of, the Trustee as
custodian for DTC, duly executed by the Issuer and authenticated by the Trustee as hereinafter
provided. The Exchange Global Note may be represented by more than one certificate, if so required
by DTC’s rules regarding the maximum principal amount to be represented by a single certificate.



          The Rule 144A Global Note, the Regulation S Global Note, the Institutional Accredited Investor
Global Note and the Exchange Global Note are sometimes collectively herein referred to as the
“Global Notes.”



          The principal of (and premium, if any) and interest on the Notes shall be payable at the
office or agency of Paying Agent or Registrar designated by the Issuer maintained for such purpose
in the United States or at such other office or agency of the Issuer as may be maintained for such
purpose pursuant to Section 2.3 of this Indenture; provided, however, that, at the option
of the Issuer, each installment of interest may be paid by (i) check mailed to addresses of the
Persons entitled thereto as such addresses shall appear on the Notes Register or (ii) wire transfer
to an account located in the United States maintained by the payee, subject to the last sentence of
this paragraph. Payments in respect of Notes represented by a Global Note (including principal,
premium, if any, and interest) shall be made by wire transfer of immediately available funds to the
accounts specified by DTC. Payments in respect of Notes represented by Definitive Notes (including
principal, premium, if any, and interest) held by a Holder of at least $1,000,000 aggregate
principal amount of Notes represented by Definitive Notes shall be made by wire transfer to a U.S.
dollar account maintained by the payee with a bank in the United States if such Holder elects
payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such effect
designating such account no later than 15 days immediately preceding the relevant due date for
payment (or such other date as the Trustee may accept in its discretion).



          The Notes may have notations, legends or endorsements required by law, stock exchange rule or
usage, in addition to those set forth on Exhibit A and Exhibit B and in
Section 2.1(d). The Issuer shall approve any notation, endorsement or legend on the Notes.
Each Note shall be dated the date of its authentication. The terms of the Notes set forth in
Exhibit A and Exhibit B are part of the terms of this Indenture and, to the extent
applicable, the Issuer, the Guarantors and the Trustee, by their execution and delivery of this
Indenture, expressly agree to be bound by such terms.



          (c) Denominations. The Notes shall be issuable only in fully registered form,
without coupons, and only in denominations of $2,000 and any integral multiple of $1,000 in excess
thereof.



          (d) Restrictive Legends. Unless and until (i) an Initial Note or an Additional
Note issued as a Restricted Note is sold under an effective registration statement or (ii) an
Initial Note or an Additional Note issued as a Restricted Note is exchanged for an Exchange Note in
connection with an effective registration statement, in each case pursuant to the Registration



42









 




Rights Agreement or a similar agreement or (iii) the Trustee receives an Opinion of Counsel
reasonably satisfactory to the Issuer and the Trustee to the effect that neither such legend nor
the related restrictions on transfer are required in order to maintain compliance with the
provisions of the Securities Act:





          (1) the Rule 144A Global Note, the Regulation S Global Note and the Institutional
Accredited Investor Global Note shall bear the following legend on the face thereof:




THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH
REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN
BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION
TERMINATION DATE”) THAT IS [IN THE CASE OF THE RULE 144A GLOBAL NOTE AND THE INSTITUTIONAL
ACCREDITED INVESTOR GLOBAL NOTE: ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF,
THE ORIGINAL ISSUE DATE OF THE ISSUANCE OF ANY ADDITIONAL NOTES AND THE LAST DATE ON WHICH
THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY
PREDEECESSOR OF SUCH SECURITY),] [IN THE CASE OF THE REGULATION S GLOBAL NOTE: 40 DAYS AFTER
THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE DATE ON WHICH THIS SECURITY (OR ANY
PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS
DEFINED IN RULE 902 OF REGULATION S) IN RELIANCE ON REGULATION S], ONLY (A) TO THE ISSUER OR
ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT
REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO
NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING
OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS NOT A QUALIFIED
INSTITUTIONAL BUYER AND THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER
INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A



43









 






MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE
IN CONNECTION WITH ANY DISTRIBUTIN IN VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/ OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. [IN
THE CASE OF THE REGULATION S GLOBAL NOTE: BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF
REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S.
PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH
REGULATION S UNDER THE SECURITIES ACT.]




BY ITS ACQUISITION OF THIS SECURITY THE HOLDER AND ANY SUBSEQUENT TRANSFEREE HEREOF WILL BE
DEEMED TO HAVE REPRESENTED AND WARRANTED THAT EITHER (I) NO PORTION OF THE ASSETS USED BY
SUCH HOLDER OR ANY TRANSFEREE TO ACQUIRE AND HOLD THIS SECURITY CONSTITUTES THE ASSETS OF AN
EMPLOYEE BENEFIT PLAN THAT IS SUBJECT TO TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OF A PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR
OTHER ARRANGEMENT THAT IS SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986,
AS AMENDED (THE “CODE”), OR PROVISIONS UNDER ANY FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER
LAWS OR REGULATIONS THAT ARE SIMILAR TO SUCH PROVISIONS OF ERISA OR THE CODE (“SIMILAR
LAWS”), OR OF AN ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE “PLAN ASSETS” OF
SUCH PLAN, ACCOUNT OR ARRANGEMENT, OR (II) THE ACQUISITION AND HOLDING OF THIS SECURITY BY
SUCH HOLDER OR TRANSFEREE WILL NOT CONSTITUTE A NON-EXEMPT PROHIBITED TRANSACTION UNDER
SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A SIMILAR VIOLATION UNDER ANY
APPLICATION SIMILAR LAWS.




          (2) the Temporary Regulation S Global Note shall bear the following additional
legend on the face thereof:




THIS SECURITY IS A TEMPORARY GLOBAL NOTE. PRIOR TO THE EXPIRATION OF THE RESTRICTED PERIOD
APPLICABLE HERETO, BENEFICIAL INTERESTS HEREIN MAY NOT BE HELD BY ANY PERSON OTHER THAN (1)
A NON-U.S. PERSON OR (2) A U.S. PERSON THAT PURCHASED SUCH INTEREST IN A TRANSACTION EXEMPT
FROM REGISTRATION UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”).
BENEFICIAL INTERESTS HEREIN ARE NOT EXCHANGEABLE FOR PHYSICAL NOTES OTHER THAN A PERMANENT
GLOBAL NOTE IN ACCORDANCE WITH



44









 






THE TERMS OF THE INDENTURE. TERMS IN THIS LEGEND ARE USED AS
USED IN REGULATION S UNDER THE SECURITIES ACT.




          (3) Each Global Security, whether or not an Initial Security, shall bear the
following legend on the face thereof:




UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.




TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART,
TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND
TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE
HEREOF.




          (4) Each Note issued hereunder that has more than a de minimis amount of original
issue discount for U.S. federal income tax purposes shall bear a legend in substantially the
following form:




THIS SECURITY IS ISSUED WITH “ORIGINAL ISSUE DISCOUNT” WITHIN THE MEANING OF SECTION 1273 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. A HOLDER MAY OBTAIN THE ISSUE PRICE, AMOUNT
OF ORIGINAL ISSUE DISCOUNT, ISSUE DATE AND YIELD TO MATURITY FOR SUCH NOTE BY SUBMITTING A
WRITTEN REQUEST FOR SUCH INFORMATION TO: ATTENTION: CHIEF FINANCIAL OFFICER, THE READER’S
DIGEST ASSOCIATION, INC., READER’S DIGEST ROAD, PLEASANTVILLE, NEW YORK 10570, TELEPHONE
NUMBER (914) 238-1000.



          (e) Book-Entry Provisions. (i) This Section 2.1(e) shall apply only to
Global Notes deposited with the Trustee, as custodian for DTC.




          (ii) Each Global Note initially shall (x) be registered in the name of DTC or the
nominee of DTC, (y) be delivered to the Trustee as custodian for DTC and (z) bear legends as
set forth in Section 2.1(d). Transfers of a Global Note (but not a beneficial
interest therein) shall be limited to transfers thereof in whole, but not in part, to the
DTC, its successors or its respective nominees, except as set forth in Section
2.1(e)(v)



45









 






and 2.1(f). If a beneficial interest in a Global Note is transferred
or exchanged for a beneficial interest in another Global Note, the Trustee shall (x) record
a decrease in the principal amount of the Global Note being transferred or exchanged equal
to the principal amount of such transfer or exchange and (y) record a like increase in the
principal amount of the other Global Note. Any beneficial interest in one Global Note that
is transferred to a Person who takes delivery in the form of an interest in another Global
Note, or exchanged for an interest in another Global Note, shall, upon transfer or exchange,
cease to be an interest in such Global Note and become an interest in the other Global Note
and, accordingly, shall thereafter be subject to all transfer and exchange restrictions, if
any, and other procedures applicable to beneficial interests in such other Global Note for
as long as it remains such an interest.




          (iii) Members of, or participants in, DTC (“Agent Members”) shall have no
rights under this Indenture with respect to any Global Note held on their behalf by DTC or
by the Trustee as the custodian of DTC or under such Global Note, and DTC may be treated by
the Issuer, the Trustee and any agent of the Issuer or the Trustee as the absolute owner of
such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Issuer, the Trustee or any agent of the Issuer or the Trustee from giving
effect to any written certification, proxy or other authorization furnished by DTC or
impair, as between DTC and its Agent Members, the operation of customary practices of DTC
governing the exercise of the rights of a Holder of a beneficial interest in any Global
Note.




          (iv) In connection with any transfer of a portion of the beneficial interest in a
Global Note pursuant to Section 2.1(f) to beneficial owners who are required to hold
Definitive Notes, the Notes Custodian shall reflect on its books and records the date and a
decrease in the principal amount of such Global Note in an amount equal to the principal
amount of the beneficial interest in the Global Note to be transferred, and the Issuer shall
execute, and the Trustee shall authenticate and make available for delivery, one or more
Definitive Notes of like tenor and amount.




          (v) In connection with the transfer of an entire Global Note to beneficial owners
pursuant to Section 2.1(f), such Global Note shall be deemed to be surrendered to
the Trustee for cancellation, and the Issuer shall execute, and the Trustee shall
authenticate and make available for delivery, to each beneficial owner identified by DTC in
exchange for its beneficial interest in such Global Note, an equal aggregate principal
amount of Definitive Notes of authorized denominations.




          (vi) The registered Holder of a Global Note may grant proxies and otherwise
authorize any person, including Agent Members and persons that may hold
interests through Agent Members, to take any action which a Holder is entitled to take
under this Indenture or the Notes.




          (vii) Any Holder of a Global Note shall, by acceptance of such Global Note, agree
that transfers of beneficial interests in such Global Note may be effected only through a
book-entry system maintained by (a) the Holder of such Global Note (or its



46









 






agent) or (b) any Holder of a beneficial interest in such Global Note, and that ownership of a beneficial
interest in such Global Note shall be required to be reflected in a book entry.



          (f) Definitive Notes. (i) Except as provided below, owners of beneficial
interests in Global Notes shall not be entitled to receive Definitive Notes. If required to do so
pursuant to any applicable law or regulation, beneficial owners may obtain Definitive Notes in
exchange for their beneficial interests in a Global Note upon written request in accordance with
DTC’s and the Registrar’s procedures. In addition, Definitive Notes shall be transferred to all
beneficial owners in exchange for their beneficial interests in a Global Note if (A) DTC notifies
the Issuer that it is unwilling or unable to continue as depositary for such Global Note or DTC
ceases to be a clearing agency registered under the Exchange Act, at a time when DTC is required to
be so registered in order to act as depositary, and in each case a successor depositary is not
appointed by the Issuer within 90 days of such notice or, (B) the Issuer in its sole discretion
executes and delivers to the Trustee and Registrar an Officer’s Certificate stating that such
Global Note shall be so exchangeable or (C) an Event of Default has occurred and is continuing and
the Registrar has received a request from DTC. In the event of the occurrence of any of the events
specified in the second preceding sentence or in clause (A), (B) or (C) of the preceding sentence,
the Issuer shall promptly make available to the Trustee a reasonable supply of Definitive Notes.




          (ii) Any Definitive Note delivered in exchange for an interest in a Global Note
pursuant to Section 2.1(e)(iii) or (iv) shall, except as otherwise provided
by Section 2.6(d), bear the applicable legend regarding transfer restrictions
applicable to the Definitive Note set forth in Section 2.1(d).




          (iii) If a Definitive Note is transferred or exchanged for a beneficial interest in
a Global Note, the Trustee shall (x) cancel such Definitive Note, (y) record an increase in
the principal amount of such Global Note equal to the principal amount of such transfer or
exchange and (z) in the event that such transfer or exchange involves less than the entire
principal amount of the canceled Definitive Note, the Issuer shall execute, and the Trustee
shall authenticate and make available for delivery, to the transferring Holder a new
Definitive Note representing the principal amount not so transferred.




          (iv) If a Definitive Note is transferred or exchanged for another Definitive Note,
(x) the Trustee shall cancel the Definitive Note being transferred or exchanged, (y) the
Issuer shall execute, and the Trustee shall authenticate and make available for delivery,
one or more new Definitive Notes in authorized denominations having an aggregate principal
amount equal to the principal amount of such transfer or exchange to the transferee (in the
case of a transfer) or the Holder of the canceled Definitive Note (in the case of an
exchange), registered in the name of such transferee or Holder, as applicable, and (z) if
such transfer or exchange involves less than the entire principal amount of the canceled
Definitive Note, the Issuer shall execute, and the Trustee shall authenticate and
make available for delivery to the Holder thereof, one or more Definitive Notes in
authorized denominations having an aggregate principal amount equal to the untransferred or
unexchanged portion of the canceled Definitive Notes, registered in the name of the Holder
thereof.



47









 






          (v) Notwithstanding anything to the contrary in this Indenture, in no event shall a
Definitive Note be delivered upon exchange or transfer of a beneficial interest in the
Temporary Regulation S Global Note prior to the end of the Restricted Period.



          SECTION 2.2. Execution and Authentication. One Officer shall sign the Notes for the
Issuer by manual or facsimile signature. If the Officer whose signature is on a Note no longer
holds that office at the time the Trustee authenticates the Note, the Note shall be valid
nevertheless.



          A Note shall not be valid until an authorized officer of the Trustee manually authenticates
the Note. The signature of the Trustee on a Security shall be conclusive evidence that such Note
has been duly and validly authenticated and issued under this Indenture. A Note shall be dated the
date of its authentication.



          At any time and from time to time after the execution and delivery of this Indenture, the
Trustee shall authenticate and make available for delivery: (1) Initial Notes for original issue
on the Issue Date in an aggregate principal amount of $800,000,000, (2) subject to the terms of
this Indenture, Additional Notes for original issue in an unlimited principal amount, (3) Exchange
Notes for issue only in an exchange offer pursuant to the Registration Rights Agreement or upon
resale under an effective Shelf Registration Statement, and only in exchange for Initial Notes or
Additional Notes of an equal principal amount and (4) under the circumstances set forth in
Section 2.6(e), Initial Notes in the form of an Unrestricted Global Note, in each case upon
a written order of the Issuer signed by one Officer (the “Issuer Order”). Such Issuer
Order shall specify whether the Notes shall be in the form of Definitive Notes or Global Notes, the
amount of the Notes to be authenticated and the date on which the original issue of Notes is to be
authenticated and whether the Notes are to be Initial Notes, Additional Notes or Exchange Notes.



          The Trustee may appoint an agent (the “Authenticating Agent”) reasonably acceptable to
the Issuer to authenticate the Notes. Any such instrument shall be evidenced by an instrument
signed by a Trust Officer, a copy of which shall be furnished to the Issuer. Unless limited by the
terms of such appointment, any such Authenticating Agent may authenticate Notes whenever the
Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes
authentication by the Authenticating Agent. An Authenticating Agent has the same rights as any
Registrar, Paying Agent or agent for service of notices and demands.



          In case the Issuer or any Subsidiary Guarantor, pursuant to Article IV or
Section 10.2, as applicable, shall be consolidated or merged with or into any other Person or
shall convey, transfer, lease or otherwise dispose of its properties and assets substantially as an
entirety to any Person, and the successor Person resulting from such consolidation, or surviving
such merger, or into which the Issuer or any Subsidiary Guarantor shall have been merged, or the
Person which shall have received a conveyance, transfer, lease or other disposition as aforesaid,
shall have executed an indenture supplemental hereto with the Trustee pursuant to
Article IV or Section 10.2, as applicable, any of the Notes authenticated or
delivered prior to such consolidation, merger, conveyance, transfer, lease or other disposition may
(but shall not be required), from time to time, at the request of the successor Person, be
exchanged for other Notes executed in the name of the successor Person with such changes in
phraseology and form as may be appropriate, but otherwise in substance of like tenor as the Notes
surrendered for such exchange and of like



48









 




principal amount; and the Trustee, upon the Issuer Order of the successor Person, shall authenticate and make available for delivery Notes as specified in
such order for the purpose of such exchange. If Notes shall at any time be authenticated and
delivered in any new name of a successor Person pursuant to this Section 2.2 in exchange or
substitution for or upon registration of transfer of any Notes, such successor Person, at the
option of the Holders but without expense to them, shall provide for the exchange of all Notes at
the time outstanding for Notes authenticated and delivered in such new name.




          SECTION 2.3. Registrar and Paying Agent.



          The Issuer shall maintain an office or agency where Notes may be presented for registration of
transfer or for exchange (the “Registrar”) and an office or agency where Notes may be
presented for payment (the “Paying Agent”). The Registrar shall keep a register of the
Notes and of their transfer and exchange (the “Notes Register”). The Issuer may have one
or more co-registrars and one or more additional paying agents. The term “Paying Agent” includes
any additional paying agent and the term “Registrar” includes any co-registrar.



          The Issuer shall enter into an appropriate agency agreement with any Registrar or Paying Agent
not a party to this Indenture, which shall incorporate the terms of the TIA. The agreement shall
implement the provisions of this Indenture that relate to such agent. The Issuer shall notify the
Trustee of the name and address of each such agent. If the Issuer fails to maintain a Registrar or
Paying Agent, the Trustee shall act as such and shall be entitled to appropriate compensation
therefor pursuant to Section 7.7. The Issuer or any Guarantor may act as Paying Agent,
Registrar or transfer agent.



          The Issuer initially appoints the Trustee as Registrar and Paying Agent for the Notes. The
Issuer may change any Registrar or Paying Agent without prior notice to the Holders, but upon
written notice to such Registrar or Paying Agent and to the Trustee; provided, however, that no
such removal shall become effective until (i) acceptance of any appointment by a successor as
evidenced by an appropriate agreement entered into by the Issuer and such successor Registrar or
Paying Agent, as the case may be, and delivered to the Trustee or (ii) notification to the Trustee
that the Trustee shall serve as Registrar or Paying Agent until the appointment of a successor in
accordance with clause (i) above. The Registrar or Paying Agent may resign at any time upon
written notice to the Issuer and the Trustee



          SECTION 2.4. Paying Agent to Hold Money in Trust.



          By no later than 11:00 a.m. (New York City time) on the date on which any principal of,
premium, if any, or interest on any Note is due and payable, the Issuer shall deposit with the
Paying Agent a sum sufficient in immediately available funds to pay such principal, premium or
interest when due. The Issuer shall require each Paying Agent (other than the Trustee) to agree in
writing that such Paying Agent shall hold in trust for the benefit of Holders or the Trustee all
money held by such Paying Agent for the payment of principal of, premium, if any, or interest on
the Notes (whether such assets have been distributed to it by the Issuer or other obligors on the
Notes), shall notify the Trustee in writing of any default by the Issuer or any Guarantor in making
any such payment and shall during the continuance of any default by the Issuer (or any other
obligor upon the Notes) in the making of any payment in respect of the Notes, upon the



49









 




written request of the Trustee, forthwith deliver to the Trustee all sums held in trust by such Paying
Agent for payment in respect of the Notes together with a full accounting thereof. If the Issuer
or a Subsidiary of the Issuer acts as Paying Agent, it shall segregate the money held by it as
Paying Agent and hold it as a separate trust fund. The Issuer at any time may require a Paying
Agent (other than the Trustee) to pay all money held by it to the Trustee and to account for any
funds or assets disbursed by such Paying Agent. Upon complying with this Section 2.4, the
Paying Agent (if other than the Issuer or a Subsidiary of the Issuer) shall have no further
liability for the money delivered to the Trustee. Upon any bankruptcy, reorganization or similar
proceeding with respect to the Issuer, the Trustee shall serve as Paying Agent for the Notes.




          SECTION 2.5. Holder Lists.



          The Trustee shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of Holders and shall otherwise comply with TIA §
312(a). If the Trustee is not the Registrar, or to the extent otherwise required under the TIA,
the Issuer, on its own behalf and on behalf of each of the Guarantors, shall furnish or cause the
Registrar to furnish to the Trustee, in writing at least five Business Days before each interest
payment date and at such other times as the Trustee may request in writing, a list in such form and
as of such date as the Trustee may reasonably require of the names and addresses of Holders and the
Issuer shall otherwise comply with TIA § 312(a).



          SECTION 2.6. Transfer and Exchange.



          (a) A Holder may transfer a Note (or a beneficial interest therein) to another Person or
exchange a Note (or a beneficial interest therein) for another Note or Notes of any authorized
denomination by presenting to the Trustee a written request therefor stating the name of the
proposed transferee or requesting such an exchange, accompanied by any certification, opinion or
other document required by this Section 2.6. The Trustee shall promptly register any
transfer or exchange that meets the requirements of this Section 2.6 by noting the same in
the register maintained by the Trustee for the purpose, and no transfer or exchange shall be
effective until it is registered in such register. The transfer or exchange of any Note (or a
beneficial interest therein) may only be made in accordance with this Section 2.6 and
Section 2.1(e) and 2.1(f), as applicable, and, in the case of a Global Note (or a
beneficial interest therein), the applicable rules and procedures of DTC, Euroclear and Clearstream. The Trustee shall refuse to register any
requested transfer or exchange that does not comply with this paragraph.



          (b) Transfers of Rule 144A Notes and Institutional Accredited Investor Notes. The
following provisions shall apply with respect to any proposed registration of transfer of a
Rule 144A Note or an Institutional Accredited Investor Note prior to the date which is one year
after the later of the date of its original issue and the last date on which the Issuer or any
Affiliate of the Issuer was the owner of such Notes (or any predecessor thereto) (the “Resale
Restriction Termination Date”):




          (i) a registration of transfer of a Rule 144A Note or an Institutional Accredited
Investor Note or a beneficial interest therein to a QIB shall be made upon the
representation of the transferee in the form as set forth on the reverse of the Note that it
is purchasing for its own account or an account with respect to which it exercises sole



50









 






investment discretion and that it and any such account is a “qualified institutional buyer”
within the meaning of Rule 144A, and is aware that the sale to it is being made in reliance
on Rule 144A and acknowledges that it has received such information regarding the Issuer as
the undersigned has requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon its foregoing
representations in order to claim the exemption from registration provided by Rule 144A;
provided that no such written representation or other written certification shall be
required in connection with the transfer of a beneficial interest in the Rule 144A Global
Note to a transferee in the form of a beneficial interest in that Rule 144A Global Note in
accordance with this Indenture and the applicable procedures of DTC.




          (ii) a registration of transfer of a Rule 144A Note or an Institutional Accredited
Investor Note or a beneficial interest therein to an IAI shall be made upon receipt by the
Trustee or its agent of a certificate substantially in the form set forth in
Section 2.8 from the proposed transferee and, if requested by the Issuer, the
delivery of an opinion of counsel, certification and/or other information satisfactory to
it; and




          (iii) a registration of transfer of a Rule 144A Note or an Institutional Accredited
Investor Note or a beneficial interest therein to a Non-U.S. Person shall be made upon
receipt by the Trustee or its agent of a certificate substantially in the form set forth in
Section 2.9 from the proposed transferee and, if requested by the Issuer, the
delivery of an opinion of counsel, certification and/or other information satisfactory to
it.



          (c) Transfers of Regulations S Notes. The following provisions shall apply with
respect to any proposed transfer of a Regulation S Note prior to the expiration of the Restricted
Period:




          (i) a transfer of a Regulation S Note or a beneficial interest therein to a QIB
shall be made upon the representation of the transferee, in the form of assignment on the
reverse of the certificate, that it is purchasing the Note for its own account or an account
with respect to which it exercises sole investment discretion and that it and any such
account is a “qualified institutional buyer” within the meaning of Rule 144A, is aware that
the sale to it is being made in reliance on Rule 144A and acknowledges that it has received
such information regarding the Issuer as the undersigned has requested pursuant to Rule
144A or has determined not to request such information and that it is aware that the
transferor is relying upon its foregoing representations in order to claim the exemption
from registration provided by Rule 144A;




          (ii) a transfer of a Regulation S Note or a beneficial interest therein to an IAI
shall be made upon receipt by the Trustee or its agent of a certificate substantially in the
form set forth in Section 2.8 from the proposed transferee and, if requested by the
Issuer or the Trustee, the delivery of an opinion of counsel, certification and/or other
information satisfactory to each of them; and




          (iii) a transfer of a Regulation S Note or a beneficial interest therein to a
Non-U.S. Person shall be made upon receipt by the Trustee or its agent of a certificate
substantially in the form set forth in Section 2.9 hereof from the proposed
transferee and, if



51









 






requested by the Issuer, receipt by the Trustee or its agent of an
opinion of counsel, certification and/or other information satisfactory to the Issuer.



          After the expiration of the Restricted Period, interests in the Regulation S Note may be
transferred in accordance with applicable law without requiring the certification set forth in
Section 2.8, Section 2.9 or any additional certification.



          (d) Restricted Notes Legend. Upon the transfer, exchange or replacement of Notes
not bearing a Restricted Notes Legend, the Registrar shall deliver Notes that do not bear a
Restricted Notes Legend. Upon the transfer, exchange or replacement of Notes bearing a Restricted
Notes Legend, the Registrar shall deliver only Notes that bear a Restricted Notes Legend unless
(i) Initial Notes are being exchanged for Exchange Notes in an exchange offer pursuant to the
Registration Rights Agreement, in which case the Exchange Notes shall not bear a Restricted Notes
Legend, (ii) an Initial Note is being transferred pursuant to the Shelf Registration Statement or
other effective registration statement, (iii) Initial Notes are being exchanged for Notes that do
not bear the Restricted Notes Legend in accordance with Section 2.6(e) or (iv) there is
delivered to the Registrar an Opinion of Counsel reasonably satisfactory to the Issuer and the
Trustee to the effect that neither such legend nor the related restrictions on transfer are
required in order to maintain compliance with the provisions of the Securities Act. Any Additional
Notes sold in a registered offering shall not be required to bear the Restricted Notes Legend.



          (e) Automatic Exchange from Global Note Bearing Restricted Notes Legend to Global Note
Not Bearing Restricted Notes Legend. Upon the Issuer’s satisfaction that the Restricted Notes
Legend shall no longer be required in order to maintain compliance with the Securities Act,
beneficial interests in a Global Note bearing the Restricted Notes Legend (a “Restricted Global
Note”) may be automatically exchanged into beneficial interests in a Global Note not bearing
the Restricted Notes Legend (an “Unrestricted Global Note”) without any action required by
or on behalf of the Holder (the “Automatic Exchange”) at any time on or after the date that
is the 366th calendar day after (A) with respect to the Notes issued on the Issue Date or (B) with
respect to Additional Notes, if any, the issue date of such Additional Notes, or, in each case, if
such day is not a Business Day, on the next succeeding Business Day (the “Automatic Exchange
Date”). Upon the Issuer’s satisfaction that the Restricted Notes Legend shall no longer be
required in order to maintain compliance with the Securities Act, the Issuer may pursuant to the
rules and procedures (i) provide written notice to DTC at least fifteen (15) calendar days prior to the
Automatic Exchange Date, instructing DTC to exchange all of the outstanding beneficial interests in
a particular Restricted Global Note to the Unrestricted Global Note, which the Issuer shall have
previously otherwise made eligible for exchange with the DTC, (ii) provide prior written notice
(the “Automatic Exchange Notice”) to each Holder at such Holder’s address appearing in the
register of Holders at least fifteen (15) calendar days prior to the Automatic Exchange Date (the
“Automatic Exchange Notice Date”), which notice must include (w) the Automatic Exchange
Date, (x) the section of the Indenture pursuant to which the Automatic Exchange shall occur, (y)
the “CUSIP” number of the Restricted Global Note from which such Holder’s beneficial interests
shall be transferred and the (z) “CUSIP” number of the Unrestricted Global Note into which such
Holder’s beneficial interests shall be transferred, and (iii) on or prior to the Automatic Exchange
Date, deliver to the Trustee for authentication one or more Unrestricted Global Notes, duly
executed by the Issuer, in an aggregate principal amount equal to the aggregate principal amount of
Restricted Global Notes to be exchanged. At the Issuer’s request on no less than five (5)



52









 




calendar days’ notice prior to the Automatic Exchange Notice Date, the Trustee shall deliver, in the
Issuer’s name and at its expense, the Automatic Exchange Notice to each Holder at such Holder’s
address appearing in the register of Holders. Notwithstanding anything to the contrary in this
Section 2.6(e), during the fifteen (15) day period prior to the Automatic Exchange Date, no
transfers or exchanges other than pursuant to this Section 2.6(e) shall be permitted
without the prior written consent of the Issuer. As a condition to any Automatic Exchange, the
Issuer shall provide, and the Trustee shall be entitled to rely upon, an Officer’s Certificate in
form reasonably acceptable to the Trustee to the effect that the Automatic Exchange shall be
effected in compliance with the Securities Act and that the restrictions on transfer contained
herein and in the Restricted Notes Legend shall no longer be required in order to maintain
compliance with the Securities Act and that the aggregate principal amount of the particular
Restricted Global Note is to be transferred to the particular Unrestricted Global Note by
adjustment made on the records of the Trustee, as custodian for the Depositary to reflect the
Automatic Exchange. Upon such exchange of beneficial interests pursuant to this Section
2.6(e), the aggregate principal amount of the Global Notes shall be increased or decreased by
adjustments made on the records of the Trustee, as custodian for the Depositary, to reflect the
relevant increase or decrease in the principal amount of such Global Note resulting from the
applicable exchange. The Restricted Global Note from which beneficial interests are transferred
pursuant to an Automatic Exchange shall be canceled following the Automatic Exchange.




          (f) Retention of Written Communications. The Registrar shall retain copies of all
letters, notices and other written communications received pursuant to Section 2.1 or this
Section 2.6. The Issuer shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time upon the giving of
reasonable prior written notice to the Registrar.



          (g) Obligations with Respect to Transfers and Exchanges of Notes.




          (i) To permit registrations of transfers and exchanges, the Issuer shall, subject
to the other terms and conditions of this Article II, execute and the Trustee shall
authenticate Definitive Notes and Global Notes at the Registrar’s request.




          (ii) No service charge shall be made to a Holder for any registration of transfer
or exchange, but the Issuer may require the Holder to pay a sum sufficient to cover any
transfer tax assessments or similar governmental charge payable in connection therewith
(other than any such transfer taxes, assessments or similar governmental charges payable
upon exchange or transfer pursuant to Sections 2.2, 2.6, 2.10,
2.12, 3.5,3.10, 5.6 or 9.5).




          (iii) The Issuer (and the Registrar) shall not be required to register the transfer
of or exchange of any Note (A) for a period beginning (1) 15 days before the mailing of a
notice of an offer to repurchase or redeem Notes and ending at the close of business on the
day of such mailing or (2) 15 days before an interest payment date and ending on such
interest payment date or (B) called for redemption, except the unredeemed portion of any
Note being redeemed in part.




53












 






               (iv) Prior to the due presentation for registration of transfer of any Note, the
Issuer, the Trustee, the Paying Agent or the Registrar may deem and treat the person in
whose name a Note is registered as the owner of such Note for the purpose of receiving
payment of principal of, premium, if any, and (subject to paragraph 2 of the forms of Notes
attached hereto as Exhibits A and B) interest on such Note and for all other
purposes whatsoever, including without limitation the transfer or exchange of such Note,
whether or not such Note is overdue, and none of the Issuer, the Trustee, the Paying Agent
or the Registrar shall be affected by notice to the contrary.




               (v) Any Definitive Note delivered in exchange for an interest in a Global Note pursuant
to Section 2.1(f) shall, except as otherwise provided by Section 2.6(d),
bear the applicable legend regarding transfer restrictions applicable to the Definitive Note
set forth in Section 2.1(d).




               (vi) All Notes issued upon any transfer or exchange pursuant to the terms of this
Indenture shall evidence the same debt and shall be entitled to the same benefits under this
Indenture as the Notes surrendered upon such transfer or exchange.



          (h) No Obligation of the Trustee. (i) The Trustee shall have no responsibility or
obligation to any beneficial owner of a Global Note, a member of, or a participant in, DTC or other
Person with respect to the accuracy of the records of DTC or its nominee or of any participant or
member thereof, with respect to any ownership interest in the Notes or with respect to the delivery
to any participant, member, beneficial owner or other Person (other than DTC) of any notice
(including any notice of redemption or purchase) or the payment of any amount or delivery of any
Notes (or other security or property) under or with respect to such Notes. All notices and
communications to be given to the Holders and all payments to be made to Holders in respect of the
Notes shall be given or made only to or upon the order of the registered Holders (which shall be
DTC or its nominee in the case of a Global Note). The rights of beneficial owners in any Global
Note shall be exercised only through DTC subject to the applicable rules and procedures of DTC.
The Trustee may rely and shall be fully protected in relying upon information furnished by DTC with
respect to its members, participants and any beneficial owners.





               (ii) The Trustee shall have no obligation or duty to monitor, determine or inquire as
to compliance with any restrictions on transfer imposed under this Indenture or under
applicable law with respect to any transfer of any interest in any Note (including any
transfers between or among DTC participants, members or beneficial owners in any Global
Note) other than to require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when expressly required by, the
terms of this Indenture, and to examine the same to determine substantial compliance as to
form with the express requirements hereof. Neither the Trustee nor any of its agents shall
have any responsibility for any actions taken or not taken by DTC.



          SECTION 2.7. Form of Certificate to be Delivered upon Termination of Restricted
Period.






54









 








[Date]




Burger King Corporation

c/o Wilmington Trust FSB,

246 Goose Lane, Suite 105

Guilford, CT 06437

Attention: Joseph O’Donnell

Telecopy: 203-453-1183

Email: Jodonnell@wilmingtontrust.com





	Re: 	 Burger King Corporation (the “Issuer”).





9 7⁄8 Senior Notes due 2018 (the “Notes”)



Ladies and Gentlemen:




          This letter relates to Notes represented by a temporary global Note (the “Temporary
Regulation S Global Note”). Pursuant to Section 2.1 of the Indenture dated as of
October 19, 2010 relating to the Notes (as amended or supplemented, the “Indenture”), we
hereby certify that the persons who are the beneficial owners of $[                    ] principal amount of
Notes represented by the Temporary Regulation S Global Note are persons outside the United States
to whom beneficial interests in such Notes could be transferred in accordance with Rule 904 of
Regulation S promulgated under the Securities Act of 1933, as amended. Accordingly, you are hereby
requested to issue a Permanent Regulation S Global Note representing the undersigned’s interest in
the principal amount of Notes represented by the Temporary Regulation S Global Note, all in the
manner provided by the Indenture. We certify that we [are][are not] an Affiliate of the Issuer.




          You and the Issuer are entitled to rely upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered hereby. Terms used in this
letter have the meanings set forth in Regulation S.




	 	 	 	 	 	 	 

	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 
	 	 	[Name of Transferor]	 	 
	 
	 	 	 	 	 	 
	 

	 	By: 	 	 	 	 
	 

	 	 	 	 
	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 	 	Authorized Signature	 	 






          SECTION 2.8. Form of Certificate to be Delivered in Connection with Transfers to
Institutional Accredited Investors.




[Date]






55









 








Burger King Corporation

c/o Wilmington Trust FSB,

246 Goose Lane, Suite 105

Guilford, CT 06437

Attention: Joseph O’Donnell

Telecopy: 203-453-1183

Email: Jodonnell@wilmingtontrust.com




Ladies and Gentlemen:




          This certificate is delivered to request a transfer of $[_________] principal amount of the
97⁄8% Senior Notes due 2018 (the “Notes”) of Burger King Corporation (the “Issuer”).




          Upon transfer, the Notes would be registered in the name of the new beneficial owner as
follows:




	 	 	 	 	 	 	 	 

	 

	Name: 

	 	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	 

	Address: 

	 	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	 	Taxpayer ID Number: 

	 	 
	 

	 	 	 	 	 

	 	 






          The undersigned represents and warrants to you that:




          1. We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act of 1933, as amended (the “Securities Act”)) purchasing for our
own account or for the account of such an institutional “accredited investor” at least $250,000
principal amount of the Notes, and we are acquiring the Notes not with a view to, or for offer or
sale in connection with, any distribution in violation of the Securities Act. We have such
knowledge and experience in financial and business matters as to be capable of evaluating the
merits and risk of our investment in the Notes and we invest in or purchase securities similar to
the Notes in the normal course of our business. We and any accounts for which we are acting are
each able to bear the economic risk of our or its investment.




          2. We understand that the Notes have not been registered under the Securities Act and, unless
so registered, may not be sold except as permitted in the following sentence. We agree on our own
behalf and on behalf of any investor account for which we are purchasing Notes to offer, sell or
otherwise transfer such Notes prior to the date that is one year after the later of the date of
original issue and the last date on which the Issuer or any affiliate of the Issuer was the owner
of such Notes (or any predecessor thereto) (the “Resale Restriction Termination Date”) only
(a) to the Issuer or any Subsidiary thereof, (b) pursuant to an effective registration statement
under the Securities Act, (c) in a transaction complying with the requirements of Rule 144A under
the Securities Act, to a person we reasonably believe is a “qualified institutional buyer” under
Rule 144A of the Securities Act (a “QIB”) that is purchasing for its own account or for the
account of a QIB and to whom notice is given that the transfer is being made in reliance on Rule
144A, (d) pursuant to offers and sales to non-U.S. persons that occur outside the United States
within the meaning of Regulation S under the Securities Act, (e) to an institutional “accredited
investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act that is
purchasing for





56









 







its own account or for the account of such an institutional “accredited investor,” in each
case in a minimum principal amount of Notes of $250,000 for investment purposes and not with a view
to or for offer or sale in connection with any distribution in violation of the Securities Act or
(f) pursuant to any other available exemption from the registration requirements of the Securities
Act, subject in each of the foregoing cases to any requirement of law that the disposition of our
property or the property of such investor account or accounts be at all times within our or their
control and in compliance with any applicable state securities laws. The foregoing restrictions on
resale shall not apply subsequent to the Resale Restriction Termination Date. If any resale or
other transfer of the Notes is proposed to be made pursuant to clause (e) above prior to the Resale
Restriction Termination Date, the transferor shall deliver a letter from the transferee
substantially in the form of this letter to the Issuer and the Trustee, which shall provide, among
other things, that the transferee is an institutional “accredited investor” (within the meaning of
Rule 501(a)(1), (2), (3) or (7) under the Securities Act) and that it is acquiring such Notes for
investment purposes and not for distribution in violation of the Securities Act. Each purchaser
acknowledges that the Issuer and the Trustee reserve the right prior to any offer, sale or other
transfer prior to the Resale Termination Date of the Notes pursuant to clauses (d), (e) or (f)
above to require the delivery of an opinion of counsel, certifications and/or other information
satisfactory to the Issuer and the Trustee.




          3. We [are][are not] an Affiliate of the Issuer.




	 	 	 	 	 

	 

	 	TRANSFEREE:	 	 
	 

	 	 	 	 





	 	 	 	 

	 

	BY:	 	 
	 

	 	 	 





          SECTION 2.9. Form of Certificate to be Delivered in Connection with Transfers Pursuant
to Regulation S.




[Date]




Burger King Corporation

c/o Wilmington Trust FSB,

246 Goose Lane, Suite 105

Guilford, CT 06437

Attention: Joseph O’Donnell

Telecopy: 203-453-1183

Email: Jodonnell@wilmingtontrust.com





	 	 	 	Re: Burger King Corporation (the “Issuer”)





97⁄8 Senior Notes due 2018 (the “Notes”)



Ladies and Gentlemen:




          In connection with our proposed sale of $[                    ] aggregate principal amount of the Notes,
we confirm that such sale has been effected pursuant to and in accordance with





57









 







Regulation S under the United States Securities Act of 1933, as amended (the “Securities
Act”), and, accordingly, we represent that:





     (a) the offer of the Notes was not made to a person in the United States;




     (b) either (i) at the time the buy order was originated, the transferee was outside the
United States or we and any person acting on our behalf reasonably believed that the
transferee was outside the United States or (ii) the transaction was executed in, on or
through the facilities of a designated off-shore securities market and neither we nor any
person acting on our behalf knows that the transaction has been pre-arranged with a buyer in
the United States;




     (c) no directed selling efforts have been made in the United States in contravention of
the requirements of Rule 903(a)(2) or Rule 904(a)(2) of Regulation S, as applicable; and




     (d) the transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act.



          In addition, if the sale is made during a restricted period and the provisions of Rule
903(b)(2), Rule 903(b)(3) or Rule 904(b)(1) of Regulation S are applicable thereto, we confirm that
such sale has been made in accordance with the applicable provisions of Rule 903(b)(2), Rule
903(b)(3) or Rule 904(b)(1), as the case may be.




          We also hereby certify that we [are][are not] an Affiliate of the Issuer and, to our
knowledge, the transferee of the Notes [is][is not] an Affiliate of the Issuer.




          You and the Issuer are entitled to rely upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered hereby. Terms used in this
certificate have the meanings set forth in Regulation S.




	 	 	 	 	 	 	 

	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 
	 	 	[Name of Transferor]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 	 	Authorized Signature	 	 






          SECTION 2.10. Mutilated, Destroyed, Lost or Stolen Notes.




          If a mutilated Note is surrendered to the Registrar or if the Holder of a Note claims that the
Note has been lost, destroyed or wrongfully taken, the Issuer shall issue and the Trustee shall
authenticate a replacement Note if the requirements of Section 8-405 of the Uniform Commercial Code
are met, such that the Holder (a) satisfies the Issuer or the Trustee that such





58









 







Note has been lost, destroyed or wrongfully taken within a reasonable time after such Holder
has notice of such loss, destruction or wrongful taking and the Registrar has not registered a
transfer prior to receiving such notification, (b) makes such request to the Issuer or Trustee
prior to the Note being acquired by a protected purchaser as defined in Section 8-303 of the
Uniform Commercial Code (a “protected purchaser”) and (c) satisfies any other reasonable
requirements of the Trustee; provided, however, if after the delivery of such replacement Note, a
protected purchaser of the Note for which such replacement Note was issued presents for payment or
registration such replaced Note, the Trustee or the Issuer shall be entitled to recover such
replacement Note from the Person to whom it was issued and delivered or any Person taking
therefrom, except a protected purchaser, and shall be entitled to recover upon the security or
indemnity provided therefor to the extent of any loss, damage, cost or expense incurred by the
Issuer or the Trustee in connection therewith. If required by the Trustee or the Issuer, such
Holder shall furnish an indemnity bond sufficient in the judgment of the Issuer and the Trustee to
protect the Issuer, the Trustee, the Paying Agent and the Registrar from any loss which any of them
may suffer if a Note is replaced, and, in the absence of notice to the Issuer, any Guarantor or the
Trustee that such Note has been acquired by a protected purchaser, the Issuer shall execute, and
upon receipt of an Issuer Order, the Trustee shall authenticate and make available for delivery, in
exchange for any such mutilated Note or in lieu of any such destroyed, lost or stolen Note, a new
Note of like tenor and principal amount, bearing a number not contemporaneously outstanding.




          In case any such mutilated, destroyed, lost or stolen Note has become or is about to become
due and payable, the Issuer in its discretion may, instead of issuing a new Note, pay such Note.




          Upon the issuance of any new Note under this Section 2.10, the Issuer may require that
such Holder pay a sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of counsel and of the
Trustee) in connection therewith.




          Subject to the proviso in the initial paragraph of this Section 2.10, every new Note
issued pursuant to this Section in lieu of any mutilated, destroyed, lost or stolen Note shall
constitute an original additional contractual obligation of the Issuer, any Guarantor (if
applicable) and any other obligor upon the Notes, whether or not the mutilated, destroyed, lost or
stolen Note shall be at any time enforceable by anyone, and shall be entitled to all benefits of
this Indenture equally and proportionately with any and all other Notes duly issued hereunder.




          The provisions of this Section 2.10 are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Notes.




          SECTION 2.11. Outstanding Notes.




          Notes outstanding at any time are all Notes authenticated by the Trustee except for those
cancelled by it, those delivered to it for cancellation and those described in this Section as not
outstanding. A Note does not cease to be outstanding in the event the Issuer or an Affiliate of
the Issuer holds the Note; provided, however, that (i) for purposes of determining which are
outstanding for consent or voting purposes hereunder, the provisions of Section 13.6 shall
apply





59









 







and (ii) in determining whether the Trustee shall be protected in making a determination
whether the Holders of the requisite principal amount of outstanding Notes are present at a meeting
of Holders of Notes for quorum purposes or have consented to or voted in favor of any request,
demand, authorization, direction, notice, consent, waiver, amendment or modification hereunder, or
relying upon any such quorum, consent or vote, only Notes which a Trust Officer of the Trustee
actually knows to be held by the Issuer or an Affiliate of the Issuer shall not be considered
outstanding.




          If a Note is replaced pursuant to Section 2.10 (other than a mutilated Note
surrendered for replacement), it ceases to be outstanding unless the Trustee and the Issuer receive
proof satisfactory to them that the replaced Note is held by a protected purchaser. A mutilated
Note ceases to be outstanding upon surrender of such Note and replacement pursuant to Section
2.10.




          If the Paying Agent segregates and holds in trust, in accordance with this Indenture, on a
Redemption Date or maturity date money sufficient to pay all principal, premium, if any, and
accrued interest payable on that date with respect to the Notes (or portions thereof) to be
redeemed or maturing, as the case may be, and the Paying Agent is not prohibited from paying such
money to the Holders on that date pursuant to the terms of this Indenture, then on and after that
date such Notes (or portions thereof) cease to be outstanding and interest on them ceases to
accrue.




          SECTION 2.12. Temporary Notes.




          In the event that Definitive Notes are to be issued under the terms of this Indenture, until
such Definitive Notes are ready for delivery, the Issuer may prepare and the Trustee shall
authenticate temporary Notes. Temporary Notes shall be substantially in the form, and shall carry
all rights, of Definitive Notes but may have variations that the Issuer considers appropriate for
temporary Notes. Without unreasonable delay, the Issuer shall prepare and the Trustee shall
authenticate Definitive Notes. After the preparation of Definitive Notes, the temporary Notes
shall be exchangeable for Definitive Notes upon surrender of the temporary Notes at any office or
agency maintained by the Issuer for that purpose and such exchange shall be without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Notes, the Issuer shall
execute, and the Trustee shall authenticate and make available for delivery in exchange therefor,
one or more Definitive Notes representing an equal principal amount of Notes. Until so exchanged,
the Holder of temporary Notes shall in all respects be entitled to the same benefits under this
Indenture as a Holder of Definitive Notes.




          SECTION 2.13. Cancellation.




          The Issuer at any time may deliver Notes to the Trustee for cancellation. The Registrar and
the Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of
transfer, exchange or payment. The Trustee and no one else shall cancel all Notes surrendered for
registration of transfer, exchange, payment or cancellation and dispose of such Notes in accordance
with its internal policies and customary procedures including delivery of a certificate describing
such Notes disposed (subject to the record retention requirements of the Exchange Act) or deliver
copies of canceled Notes to the Issuer pursuant to written direction by one Officer. If the Issuer
or any Guarantor acquires any of the Notes, such acquisition shall not





60









 







operate as a redemption or satisfaction of the Indebtedness represented by such Notes unless
and until the same are surrendered to the Trustee for cancellation pursuant to this Section
2.13. The Issuer may not issue new Notes to replace Notes it has paid or delivered to the
Trustee for cancellation for any reason other than in connection with a transfer or exchange.




          At such time as all beneficial interests in a Global Note have either been exchanged for
Definitive Notes, transferred, redeemed, repurchased or canceled, such Global Note shall be
returned by DTC to the Trustee for cancellation or retained and canceled by the Trustee. At any
time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for
Definitive Notes, transferred in exchange for an interest in another Global Note, redeemed,
repurchased or canceled, the principal amount of Notes represented by such Global Note shall be
reduced and an adjustment shall be made on the books and records of the Trustee (if it is then the
Notes Custodian for such Global Note) with respect to such Global Note, by the Trustee or the Notes
Custodian, to reflect such reduction.




          SECTION 2.14. Payment of Interest; Defaulted Interest.




          Interest on any Note which is payable, and is punctually paid or duly provided for, on any
interest payment date shall be paid to the Person in whose name such Note (or one or more
Predecessor Notes) is registered at the close of business on the regular record date for such
payment at the office or agency of the Issuer maintained for such purpose pursuant to Section
2.3.




          Any interest on any Note which is payable, but is not paid when the same becomes due and
payable and such nonpayment continues for a period of 30 days shall forthwith cease to be payable
to the Holder on the regular record date, and such defaulted interest and (to the extent lawful)
interest on such defaulted interest at the rate borne by the Notes (such defaulted interest and
interest thereon herein collectively called “Defaulted Interest”) shall be paid by the
Issuer, at its election in each case, as provided in clause (a) or (b) below:




          (a) The Issuer may elect to make payment of any Defaulted Interest to the Persons in whose
names the Notes (or their respective predecessor Notes) are registered at the close of business on
a Special Record Date (as defined below) for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Issuer shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Note and the date (not less than 30 days after such
notice) of the proposed payment (the “Special Interest Payment Date”), and at the same time
the Issuer shall deposit with the Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this
Section 2.14(a). Thereupon the Issuer shall fix a record date (the “Special Record
Date”) for the payment of such Defaulted Interest, which date shall be not more than 15 days
and not less than 10 days prior to the Special Interest Payment Date and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment. The Issuer shall promptly
notify the Trustee of such Special Record Date, and in the name and at the expense of the Issuer,
the Trustee shall cause notice of the proposed payment of such Defaulted Interest and the Special
Record Date and Special Interest Payment Date therefor to be given in the manner provided for in
Section 13.2, not less than 10 days prior to such Special Record Date. Notice of the





61









 








proposed payment of such Defaulted Interest and the Special Record Date and Special Interest
Payment Date therefor having been so given, such Defaulted Interest shall be paid on the Special
Interest Payment Date to the Persons in whose names the Notes (or their respective predecessor
Notes) are registered at the close of business on such Special Record Date and shall no longer be
payable pursuant to the provisions in Section 2.14(b).




          (b) The Issuer may make payment of any Defaulted Interest in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the Notes may be listed, and
upon such notice as may be required by such exchange, if, after notice given by the Issuer to the
Trustee of the proposed payment pursuant to this Section 2.14(b), such manner of payment
shall be deemed practicable by the Trustee.




          Subject to the foregoing provisions of this Section 2.14, each Note delivered under
this Indenture upon registration of, transfer of or in exchange for or in lieu of any other Note
shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such
other Note.




          SECTION 2.15. CUSIP, Common Code and ISIN Numbers.




          The Issuer in issuing the Notes may use “CUSIP”, “Common Code” and “ISIN” numbers and, if so,
the Trustee shall use “CUSIP”, “Common Code” and “ISIN” numbers in notices of redemption or
purchase as a convenience to Holders; provided, however, that any such notice may state that no
representation is made as to the correctness of such numbers either as printed on the Notes or as
contained in any notice of a redemption or purchase and that reliance may be placed only on the
other identification numbers printed on the Notes, and any such redemption or purchase shall not be
affected by any defect in or omission of such CUSIP, Common Code and ISIN numbers. The Issuer
shall promptly notify the Trustee in writing of any change in the CUSIP, Common Code and ISIN
numbers.




ARTICLE III




COVENANTS




          SECTION 3.1. Payment of Notes.




          The Issuer shall pay the principal of, premium, if any, and interest (including Additional
Interest) on the Notes on the dates and in the manner provided in the Notes and in this Indenture.
Principal, premium, if any, and interest (including Additional Interest) shall be considered paid
on the date due if on such date the Trustee or the Paying Agent holds in accordance with this
Indenture money sufficient to pay all principal, premium, if any, and interest (including
Additional Interest) then due.




          The Issuer shall pay interest on overdue principal at the rate specified therefor in the
Notes, and it shall pay interest on overdue installments of interest (including Additional
Interest) at the same rate to the extent lawful.






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          Notwithstanding anything to the contrary contained in this Indenture, the Issuer may, to the
extent it is required to do so by law, deduct or withhold income or other similar taxes imposed by
the United States of America from principal or interest payments hereunder.




          SECTION 3.2. Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock
and Preferred Stock.




          (a) The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, directly
or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly
liable, contingently or otherwise, (collectively, “incur” and collectively, an
“incurrence”) with respect to any Indebtedness (including Acquired Indebtedness) and the
Issuer shall not issue any shares of Disqualified Stock and shall not permit any Restricted
Subsidiary to issue any shares of Disqualified Stock or Preferred Stock; provided, however, that
the Issuer may incur Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified
Stock, and any of its Restricted Subsidiaries may incur Indebtedness (including Acquired
Indebtedness), issue shares of Disqualified Stock and issue shares of Preferred Stock, if the Fixed
Charge Coverage Ratio on a consolidated basis for the Issuer and its Restricted Subsidiaries’ most
recently ended four fiscal quarters for which internal financial statements are available
immediately preceding the date on which such additional Indebtedness is incurred or such
Disqualified Stock or Preferred Stock is issued would have been at least 2.00 to 1.00, determined
on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the
additional Indebtedness had been incurred, or the Disqualified Stock or Preferred Stock had been
issued, as the case may be, and the application of proceeds therefrom had occurred at the beginning
of such four-quarter period; provided, further, that Non-Guarantor Subsidiaries may not incur
Indebtedness or Disqualified Stock or Preferred Stock if, after giving pro forma effect to such
incurrence or issuance (including a pro forma application of the net proceeds therefrom), more than
an aggregate of $100.0 million of Indebtedness or Disqualified Stock or Preferred Stock of
Non-Guarantor Subsidiaries would be outstanding pursuant to Section 3.2(a) at such time.




          (b) The limitations of Section 3.2(a) shall not apply to:





               (1) the incurrence of Indebtedness under Credit Facilities by the Issuer or any of the
Subsidiary Guarantors and the issuance and creation of letters of credit and bankers’
acceptances thereunder (with letters of credit and bankers’ acceptances being deemed to have
a principal amount equal to the face amount thereof), up to an aggregate principal amount of
$2,000.0 million outstanding at any one time; provided that the Issuer or any of the
Subsidiary Guarantors may incur Indebtedness under Credit Facilities up to an aggregate
principal amount of $2,450.0 million if the Consolidated Secured Debt Ratio would be no
greater than 4.00 to 1.00 at the time of incurrence;




               (2) the incurrence by the Issuer and any Subsidiary Guarantor of Indebtedness
represented by the Notes (including any Guarantee) (other than any Additional Notes) and
exchange notes issued in respect of such Notes and any Guarantee thereof;



63









 






               (3) Indebtedness of the Issuer and its Restricted Subsidiaries in existence on the
Issue Date (other than Indebtedness described in Sections 3.2(b)(1) and
3.2(b)(2));




               (4) Indebtedness (including Capitalized Lease Obligations) incurred or, Disqualified
Stock and Preferred Stock issued by the Issuer or any of its Restricted Subsidiaries to
finance the purchase, lease or improvement of property (real or personal) or equipment that
is used or useful in a Similar Business, whether through the direct purchase of assets or
the Capital Stock of any Person owning such assets; provided that the aggregate amount of
Indebtedness, Disqualified Stock and Preferred Stock incurred pursuant to this Section
3.2(b)(4), when aggregated with the outstanding amount of Indebtedness, Disqualified
Stock and Preferred Stock incurred pursuant to Section 3.2(b)(13) to refinance Indebtedness,
Disqualified Stock and Preferred Stock initially incurred in reliance on this Section
3.2(b)(4), does not exceed the greater of (x) $150.0 million and (y) 3.0% of the
Issuer’s Total Assets at any one time outstanding;




               (5) Indebtedness incurred by the Issuer or any of its Restricted Subsidiaries
constituting reimbursement obligations with respect to letters of credit issued in the
ordinary course of business, including, without limitation, letters of credit in respect of
workers’ compensation claims, health, disability or other employee benefits or property,
casualty or liability insurance or self insurance, or other Indebtedness with respect to
reimbursement type obligations regarding workers’ compensation claims; provided, however,
that upon the drawing of such letters of credit or the incurrence of such Indebtedness, such
obligations are reimbursed within 30 days following such drawing or incurrence;




               (6) Indebtedness arising from agreements of the Issuer or its Restricted Subsidiaries
providing for indemnification, adjustment of purchase price or similar obligations, in each
case, incurred or assumed in connection with the acquisition or disposition of any business,
assets or a Subsidiary, other than guarantees of Indebtedness incurred by any Person
acquiring all or any portion of such business, assets or a Subsidiary for the purpose of
financing such acquisition; provided, however, that




	 	(A)	 	such Indebtedness is not reflected on the
balance sheet of the Issuer, or any of its Restricted Subsidiaries
prepared in accordance with GAAP (contingent obligations referred to in
a footnote to financial statements and not otherwise reflected on the
balance sheet shall not be deemed to be reflected on such balance sheet
for purposes of this Section 3.2(b)(6)(A)); and
	 
	 	(B)	 	with respect to a disposition, the maximum
assumable liability in respect of all such Indebtedness shall at no
time exceed the gross proceeds including non-cash proceeds (the fair
market value of such non-cash proceeds being measured at the time
received and without giving effect to any subsequent changes in value)
actually received by the Issuer and its Restricted Subsidiaries in
connection with such disposition;




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               (7) Indebtedness of the Issuer to a Restricted Subsidiary; provided that any such
Indebtedness owing to a Non-Guarantor Subsidiary is expressly subordinated in right of
payment to the Notes; provided, further, that any subsequent issuance or transfer of any
Capital Stock or any other event which results in any Restricted Subsidiary ceasing to be a
Restricted Subsidiary or any other subsequent transfer of any such Indebtedness (except to
the Issuer or another Restricted Subsidiary) shall be deemed, in each case, to be an
incurrence of such Indebtedness not permitted by this Section 3.2(b)(7);




               (8) Indebtedness of a Restricted Subsidiary owing to the Issuer or another Restricted
Subsidiary; provided that if a Subsidiary Guarantor incurs such Indebtedness owing to a
Restricted Subsidiary that is not a Subsidiary Guarantor, such Indebtedness is expressly
subordinated in right of payment to the Guarantee of the Notes of such Subsidiary Guarantor;
provided further that any subsequent issuance or transfer of any Capital Stock or any other
event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary
or any subsequent transfer of any such Indebtedness (except to the Issuer or another
Restricted Subsidiary) shall be deemed, in each case, to be an incurrence of such
Indebtedness not permitted by this Section 3.2(b)(8);




               (9) shares of Preferred Stock of a Restricted Subsidiary issued to the Issuer or
another Restricted Subsidiary; provided that any subsequent issuance or transfer of any
Capital Stock or any other event which results in any such Restricted Subsidiary ceasing to
be a Restricted Subsidiary or any other subsequent transfer of any such shares of Preferred
Stock (except to the Issuer or another of its Restricted Subsidiaries) shall be deemed in
each case to be an issuance of such shares of Preferred Stock not permitted by this clause
Section 3.2(b)(9);




               (10) Hedging Obligations (excluding Hedging Obligations entered into for speculative
purposes) for the purpose of limiting interest rate risk, exchange rate risk or commodity
pricing risk;




               (11) obligations in respect of performance, bid, appeal and surety bonds and
performance and completion guarantees or obligations in respect of letters of credit related
thereto provided by the Issuer or any of its Restricted Subsidiaries in the ordinary course
of business;




               (12) (A) Indebtedness or Disqualified Stock of the Issuer and Indebtedness,
Disqualified Stock or Preferred Stock of the Issuer or any Restricted Subsidiary equal to
100.0% of the net cash proceeds received by the Issuer since immediately after the Issue
Date from the issue or sale of Equity Interests of the Issuer or cash contributed to the
capital of the Issuer (in each case, other than Excluded Contributions or proceeds of
Disqualified Stock or Designated Preferred Stock or sales of Equity Interests to the Issuer
or any of its Subsidiaries or amounts applied to make a Restricted Payment in accordance
with Section 3.3(b)(2)) as determined in accordance with Sections
3.3(a)(C)(ii) and 3.3(a)(C)(iii) to the extent such net cash proceeds or cash
have not been applied pursuant to such clauses to make Restricted Payments or to make other
Investments, payments or exchanges pursuant to Section 3.3(b) or to make Permitted
Investments (other than Permitted Investments specified in clauses (1) and (3) of the



65









 






definition thereof) (together with amounts applied under Section 3.2(b)(13) to
refinance Indebtedness or Disqualified Stock initially incurred in reliance on this clause
12(A)) and (B) Indebtedness or Disqualified Stock of the Issuer and Indebtedness,
Disqualified Stock or Preferred Stock of any Restricted Subsidiary not otherwise permitted
hereunder in an aggregate principal amount or liquidation preference, which when aggregated
with the principal amount and liquidation preference of all other Indebtedness, Disqualified
Stock and Preferred Stock then outstanding and incurred pursuant to this clause (12)(B),
does not at any one time outstanding exceed $150.0 million;




               (13) the incurrence or issuance by the Issuer of Indebtedness or Disqualified Stock or
the incurrence or issuance by a Restricted Subsidiary of Indebtedness, Disqualified Stock or
Preferred Stock which serves to refund or refinance any Indebtedness incurred or
Disqualified Stock or Preferred Stock issued as permitted under Section 3.2(a) and
Sections 3.2(b)(2), 3.2(b)(3), 3.2(b)(4), 3.2(b)(12)(A),
this Section 3.2(b)(13) and Section 3.2(b)(14) or any Indebtedness incurred
or Disqualified Stock or Preferred Stock issued to so refund or refinance such Indebtedness,
Disqualified Stock or Preferred Stock including additional Indebtedness incurred or
Disqualified Stock or Preferred Stock issued to pay premiums (including tender premiums),
defeasance costs and fees in connection therewith (the “Refinancing Indebtedness”)
prior to its respective maturity; provided, however, that such Refinancing Indebtedness:




	 	(A)	 	has a Weighted Average Life to Maturity at the
time such Refinancing Indebtedness is incurred which is not less than
the remaining Weighted Average Life to Maturity of the Indebtedness,
Disqualified Stock or Preferred Stock being refunded or refinanced;
	 
	 	(B)	 	to the extent such Refinancing Indebtedness
refinances (i) Indebtedness subordinated or pari passu to the Notes or
any Guarantee thereof, such Refinancing Indebtedness is subordinated or
pari passu to the Notes or the Guarantee at least to the same extent as
the Indebtedness being refinanced or refunded or (ii) Disqualified
Stock or Preferred Stock, such Refinancing Indebtedness must be
Disqualified Stock or Preferred Stock, respectively;
	 
	 	(C)	 	shall not include:






(x) Indebtedness, Disqualified Stock or Preferred Stock of a
Non-Guarantor Subsidiary that refinances Indebtedness,
Disqualified Stock or Preferred Stock of the Issuer;




(y) Indebtedness,
Disqualified Stock or Preferred Stock of a
Non-Guarantor Subsidiary that refinances Indebtedness,
Disqualified Stock or Preferred Stock of a Subsidiary
Guarantor; or




(z) Indebtedness,
Disqualified Stock or Preferred Stock of the Issuer or
a Restricted Subsidiary that refinances



66









 








Indebtedness, Disqualified Stock or Preferred Stock of an
Unrestricted Subsidiary;




	 	(D)	 	shall not be in a principal amount in excess of
the principal amount of, premium, if any, accrued interest on and
related fees and expenses (including tender premiums) of, the
Indebtedness being refunded or refinanced; or
	 
	 	(E)	 	shall not have a Stated Maturity date prior to
the earlier of the Stated Maturity of the Indebtedness being so
refunded or refinanced or the Stated Maturity of the Notes;




and provided further that subclauses (A) and (E) of this clause (13) shall not apply to any
refunding or refinancing of any Indebtedness outstanding under the New Credit Facilities;





               (14) Indebtedness, Disqualified Stock or Preferred Stock of (x) the Issuer or a
Restricted Subsidiary incurred or issued to finance an acquisition or (y) Persons that are
acquired by the Issuer or any Restricted Subsidiary or merged into or consolidated with the
Issuer or a Restricted Subsidiary in accordance with the terms of the Indenture; provided
that after giving effect to such acquisition, merger or consolidation, either




	 	(A)	 	the Issuer would be permitted to incur at least
$1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage
Ratio test set forth in Section 3.2(a), or
	 
	 	(B)	 	the Fixed Charge Coverage Ratio of the Issuer
and the Restricted Subsidiaries is greater than immediately prior to
such acquisition, merger or consolidation;






               (15) Indebtedness arising from the honoring by a bank or other financial institution of
a check, draft or similar instrument drawn against insufficient funds in the ordinary course
of business; provided that such Indebtedness is extinguished within five Business Days of
its incurrence;




               (16) Indebtedness of the Issuer or any of its Restricted Subsidiaries supported by a
letter of credit issued pursuant to the New Credit Facilities, in a principal amount not in
excess of the stated amount of such letter of credit;




               (17) (A) any guarantee by the Issuer or a Subsidiary Guarantor of Indebtedness or other
obligations of any Restricted Subsidiary so long as the incurrence of such Indebtedness is
permitted under the terms of the Indenture; provided that if such Indebtedness is by its
express terms subordinated in right of payment to the Guarantee of such Restricted
Subsidiary, any such guarantee of the Issuer or such Subsidiary Guarantor with respect to
such Indebtedness shall be subordinated in right of payment to the Notes or such Subsidiary
Guarantors’ Guarantee with respect to the Notes substantially to the same extent as such
Indebtedness is subordinated to the Guarantee of such Restricted Subsidiary, as applicable;



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	 	(B)	 	any guarantee by a Subsidiary Guarantor of
Indebtedness of the Issuer provided that such guarantee is incurred in
accordance with Section 3.7; provided that if such Indebtedness
is by its express terms subordinated in right of payment to the Notes,
any such guarantee of such Subsidiary Guarantor with respect to such
Indebtedness shall be subordinated in right of payment to the Notes or
such Subsidiary Guarantors’ Guarantee with respect to the Notes
substantially to the same extent as such Indebtedness is subordinated
to the Notes, as applicable or
	 
	 	(C)	 	any guarantee by a Non-Guarantor Subsidiary of
Indebtedness of another Non-Guarantor Subsidiary incurred in accordance
with the terms of the Indenture;






               (18) Indebtedness of Foreign Subsidiaries of the Issuer incurred not to exceed $75.0
million at any one time outstanding;




               (19) Indebtedness of the Issuer or any of its Restricted Subsidiaries consisting of (i)
the financing of insurance premiums or (ii) take-or-pay obligations contained in supply
arrangements, in each case incurred in the ordinary course of business;




               (20) Indebtedness consisting of Indebtedness issued by the Issuer or any of its
Restricted Subsidiaries to current or former officers, members of the board of directors and
employees and consultants thereof, their respective estates, spouses or former spouses, in
each case to finance, either directly or through promissory notes issued to such persons,
the purchase or redemption of Equity Interests of the Issuer or any direct or indirect
parent company of the Issuer to the extent described in Section 3.3(b)(4); and




               (21) Guarantees of or the assumption of up to $300.0 million at any time outstanding of
Indebtedness of Franchisees, suppliers, distributors or licensees of the Issuer and its
Restricted Subsidiaries, in each case to the extent such guarantee or assumption constitutes
a Permitted Investment.



          (c) For purposes of determining compliance with this covenant:





               (1) in the event that an item of Indebtedness, Disqualified Stock or Preferred Stock
(or any portion thereof) meets the criteria of more than one of the categories of permitted
Indebtedness, Disqualified Stock or Preferred Stock described in Section 3.2(b)(1)
through Section 3.2(b)(20) or is entitled to be incurred pursuant to Section
3.2(a), the Issuer, in its sole discretion, shall classify or reclassify such item of
Indebtedness, Disqualified Stock or Preferred Stock (or any portion thereof) and shall only
be required to include the amount and type of such Indebtedness, Disqualified Stock or
Preferred Stock in one of the clauses set forth in Section 3.2(a) or Section
3.2(b). Additionally, all or any portion of any item of Indebtedness may later be
classified as having been incurred pursuant to any category of permitted Indebtedness
described in Section 3.2(b)(1) through Section 3.2(b)(20) or pursuant to
Section 3.2(a) so long as such Indebtedness is permitted to be incurred pursuant to
such provision at the time of



68









 






reclassification. Notwithstanding the foregoing, all Indebtedness outstanding under the
New Credit Facilities on the Issue Date shall be treated as incurred on the Issue Date under
Section 3.2(b)(1) and may not later be reclassified; and




               (2) at the time of incurrence, the Issuer shall be entitled to divide and classify an
item of Indebtedness in more than one of the types of Indebtedness described in Sections
3.2(a) and 3.2(b).



     Accrual of interest or dividends, the accretion of accreted value, the accretion or
amortization of original issue discount and the payment of interest or dividends in the form of
additional Indebtedness, Disqualified Stock or Preferred Stock shall not be deemed to be an
incurrence of Indebtedness, Disqualified Stock or Preferred Stock for purposes of this Section
3.2.



     For purposes of determining compliance with any U.S. dollar-denominated restriction on the
incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated
in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on
the date such Indebtedness was incurred, in the case of term debt, or first committed, in the case
of revolving credit debt; provided that if such Indebtedness is incurred to refinance other
Indebtedness denominated in a foreign currency, 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, such U.S. dollar-denominated restriction shall 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.



     The principal amount of any Indebtedness incurred to refinance other Indebtedness, if incurred
in a different currency from the Indebtedness being refinanced, shall be calculated based on the
currency exchange rate applicable to the currencies in which such respective Indebtedness is
denominated that is in effect on the date of such refinancing.



     The Issuer shall not, and shall not permit any Subsidiary Guarantor to, directly or
indirectly, incur any Indebtedness (including Acquired Indebtedness) that is subordinated or junior
in right of payment to any Indebtedness of the Issuer or such Subsidiary Guarantor, as the case may
be, unless such Indebtedness is expressly subordinated in right of payment to the Notes or such
Subsidiary Guarantor’s Guarantee to the extent and in the same manner as such Indebtedness is
subordinated to other Indebtedness of the Issuer or such Subsidiary Guarantor, as the case may be.



     For purposes of this Indenture, (1) unsecured Indebtedness shall not be treated as
subordinated or junior to Secured Indebtedness merely because it is unsecured or (2) Senior
Indebtedness shall not be treated as subordinated or junior to any other Senior Indebtedness merely
because it has a junior priority with respect to the same collateral or is secured by different
collateral.



          SECTION 3.3. Limitation on Restricted Payments.




          (a) The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, directly
or indirectly:






69









 









               (i) declare or pay any dividend or make any payment or distribution on account of the
Issuer’s or any of its Restricted Subsidiaries’ Equity Interests, including any dividend or
distribution payable in connection with any merger or consolidation other than:




	 	(A)	 	dividends or distributions by the Issuer
payable solely in Equity Interests (other than Disqualified Stock) of
the Issuer; or
	 
	 	(B)	 	dividends or distributions by a Restricted
Subsidiary to the Issuer or any other Restricted Subsidiary (and if
such Restricted Subsidiary is not a Wholly-Owned Subsidiary, to its
other holders of common stock on a pro rata basis) so long as, in the
case of any dividend or distribution payable on or in respect of any
class or series of securities issued by a Restricted Subsidiary other
than a Wholly-Owned Subsidiary, the Issuer or a Restricted Subsidiary
receives at least its pro rata share of such dividend or distribution
in accordance with its Equity Interests in such class or series of
securities;






               (ii) purchase, redeem, defease or otherwise acquire or retire for value any Equity
Interests of the Issuer or any direct or indirect parent of the Issuer, including in
connection with any merger or consolidation involving the Issuer;




               (iii) make any principal payment on, or redeem, repurchase, defease or otherwise
acquire or retire for value, in each case, prior to any scheduled repayment, sinking fund
payment or maturity, any Subordinated Indebtedness, other than:




	 	(A)	 	Indebtedness permitted under Sections
3.2(b)(7) and 3.2(b)(8); or
	 
	 	(B)	 	the purchase, repurchase or other acquisition
of Subordinated Indebtedness purchased in anticipation of satisfying a
sinking fund obligation, principal installment or final maturity, in
each case due within one year of the date of purchase, repurchase or
acquisition; or
	 
	 	(iv)	 	make any Restricted Investment;




(all such payments and other actions set forth in clauses (i) through (iv) above being collectively
referred to as “Restricted Payments”), unless, at the time of such Restricted Payment:





	 	(A)	 	no Default shall have occurred and be
continuing or would occur as a consequence thereof;
	 
	 	(B)	 	immediately after giving effect to such
transaction on a pro forma basis, the Issuer could incur $1.00 of
additional Indebtedness under Section 3.2(a); and
	 
	 	(C)	 	such Restricted Payment, together with the
aggregate amount of all other Restricted Payments made by the Issuer
and its Restricted




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	 	 	 	Subsidiaries after the Issue Date (including Restricted Payments
permitted by Sections 3.3(b)(1), (9) and
(14), but excluding all other Restricted Payments permitted
by Section 3.3(b)), is less than the sum of (without
duplication):






	 	i 	 	 50% of the Consolidated Net
Income of the Issuer for the period (taken as one accounting
period) commencing October 1, 2010, to the end of the Issuer’s
most recently ended fiscal quarter for which internal financial
statements are available at the time of such Restricted Payment,
or, in the case such Consolidated Net Income for such period is
a deficit, minus 100% of such deficit; plus
	 
	 	ii 	 	 100% of the aggregate net cash
proceeds and the fair market value, as determined in Good Faith
by the Issuer, of marketable securities or other property
received by the Issuer since immediately after the Issue Date
(other than net cash proceeds to the extent such net cash
proceeds have been used to incur Indebtedness, Disqualified
Stock or Preferred Stock pursuant to Section
3.2(b)(12)(A)) from the issue or sale of:






	 	a 	 	
(x) Equity Interests of the Issuer, including
Treasury Capital Stock (as defined below), but
excluding cash proceeds and the fair market
value, as determined in Good Faith by the
Issuer, of marketable securities or other
property received from the sale of:







	 
	 	1 	 	
Equity Interests to members of management,
members of the board of managers or
directors or consultants of the Issuer, any
direct or indirect parent company of the
Issuer and the Issuer’s Subsidiaries after
the Issue Date to the extent such amounts
have been applied to Restricted Payments
made in accordance with Section
3.3(b)(4); and
	 
	 	2 	 	
Designated Preferred Stock; and






	 	 	 	(y)to the extent such net cash proceeds are actually
contributed to the Issuer, Equity Interests of the
Issuer’s direct or indirect parent companies
(excluding contributions of the proceeds from the
sale of Designated Preferred Stock of such companies
or contributions to the extent such






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	 	 	 	amounts have been applied to Restricted Payments
made in accordance with Section 3.3(b)(4); or






	 	b	 	debt securities of the Issuer that have been
converted into or exchanged for such Equity
Interests of the Issuer or any direct or
indirect parent of the Issuer;






	 	 	 	provided, however, that in addition to clauses a. and b.
referred to above, this clause (ii) shall not include the
proceeds from (V) Refunding Capital Stock (as defined below),
(X) Equity Interests or convertible debt securities of the
Issuer sold to a Restricted Subsidiary, as the case may be,
(Y) Disqualified Stock or debt securities that have been
converted into Disqualified Stock, (Z) Excluded
Contributions; plus






	 	iii	 	100% of the aggregate amount of
cash and the fair market value, as determined in Good Faith by
the Issuer, of marketable securities or other property
contributed to the capital of the Issuer following the Issue
Date (other than net cash proceeds to the extent such net cash
proceeds (i) have been used to incur Indebtedness or issue
Disqualified Stock or Preferred Stock pursuant to Section
3.2(b)(12)(A), (ii) are contributed by a Restricted
Subsidiary or (iii) constitute Excluded Contributions); plus






	 	iv	 	100% of the aggregate amount
received in cash and the fair market value, as determined in
Good Faith by the Issuer, of marketable securities or other
property received by means of:






	 	a	 	the sale or other disposition (other than to the
Issuer or a Restricted Subsidiary) of Restricted
Investments made by the Issuer or its Restricted
Subsidiaries and repurchases and redemptions of
such Restricted Investments from the Issuer or
its Restricted Subsidiaries and repayments of
loans or advances, and releases of guarantees,
which constitute Restricted Investments by the
Issuer or its Restricted Subsidiaries, in each
case after the Issue Date; or






	 	b	 	the sale (other than to the Issuer or a
Restricted Subsidiary) of the stock of an
Unrestricted Subsidiary or a distribution




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	 	 	 	from
an Unrestricted Subsidiary (other than in each
case to the extent of the amount of the
Investment in such Unrestricted Subsidiary made
by the Issuer or a Restricted Subsidiary
pursuant to Sections 3.3(b)(7) or
3.3(b)(11) hereof or to the extent of
the amount of the Investment that constituted a
Permitted Investment) or a dividend from an
Unrestricted Subsidiary after the Issue Date;
plus






	 	v	 	in the case of the redesignation
of an Unrestricted Subsidiary as a Restricted Subsidiary or the
merger or consolidation of an Unrestricted Subsidiary into the
Issuer or a Restricted Subsidiary or the transfer of all or
substantially all of the assets of an Unrestricted Subsidiary to
the Issuer or a Restricted Subsidiary after the Issue Date, the
fair market value of the Investment in such Unrestricted
Subsidiary (or the assets transferred), as determined in Good
Faith by the Issuer or, if such fair market value exceeds
$50.0 million, in writing by an Independent Financial Advisor,
at the time of the redesignation of such Unrestricted Subsidiary
as a Restricted Subsidiary or at the time of such merger or
consolidation or transfer of assets (after taking into
consideration any Indebtedness associated with the Unrestricted
Subsidiary so designated or merged or consolidated or
Indebtedness associated with the assets so transferred), other
than to the extent of the amount of the Investment in such
Unrestricted Subsidiary made by the Issuer or a Restricted
Subsidiary pursuant to Sections 3.3(b)(7) or
3.3(b)(11) hereof or to the extent of the amount of the
Investment that constituted a Permitted Investment.






	 	(b)	 	The foregoing provisions of Section 3.3(a) hereof shall not prohibit:






               (1) the payment of any dividend or distribution within 60 days after the date of
declaration thereof, if at the date of declaration such payment would have complied with the
provisions of the Indenture or the redemption, repurchase or retirement of Indebtedness if,
at the date of any irrevocable redemption notice such payment would have complied with the
provisions of the Indenture;




               (2) (a) the redemption, repurchase, retirement or other acquisition of any Equity
Interests (“Treasury Capital Stock”) or Subordinated Indebtedness of the Issuer, or
any Equity Interests of any direct or indirect parent company of the Issuer, in exchange
for, or out of the proceeds of, the substantially concurrent sale or issuance (other than to
a Restricted Subsidiary) of, Equity Interests of the Issuer or any direct or indirect parent
company of the Issuer to the extent contributed to the Issuer (in each case, other than



73









 






any
Disqualified Stock) (“Refunding Capital Stock”), (b) the declaration and payment of
dividends on Treasury Capital Stock out of the proceeds of the substantially concurrent sale
or issuance (other than to a Subsidiary of the Issuer or to an employee stock ownership plan
or any trust established by the Issuer or any of its Subsidiaries) of Refunding Capital
Stock, and (c) if immediately prior to the retirement of Treasury Capital Stock, the
declaration and payment of dividends thereon was permitted under Section 3.3(b)(6),
the declaration and payment of dividends on the Refunding Capital Stock (other than
Refunding Capital Stock the proceeds of which were used to redeem, repurchase, retire or
otherwise acquire any Equity Interests of any direct or indirect parent company of the
Issuer) in an aggregate amount per year no greater than the aggregate amount of dividends
per annum that were declarable and payable on such Treasury Capital Stock immediately prior
to such retirement;




               (3) the redemption, repurchase, defeasance or other acquisition or retirement for
value of Subordinated Indebtedness of the Issuer or a Subsidiary Guarantor made by exchange
for, or out of the proceeds of the substantially concurrent sale of, new Indebtedness of the
Issuer or such Subsidiary Guarantor, as the case may be, which is incurred in compliance
with the provisions of Section 3.2 so long as:




	 	(A)	 	the principal amount (or accreted value, if
applicable) of such new Indebtedness does not exceed the principal
amount of (or accreted value, if applicable), plus any accrued and
unpaid interest on, the Subordinated Indebtedness being so redeemed,
repurchased, defeased, exchanged, acquired or retired for value, plus
the amount of any premium (including any tender premiums), defeasance
costs and any fees and expenses incurred in connection with such
redemption, repurchase, defeasance, exchange, acquisition or retirement
and the issuance of such new Indebtedness;






	 	(B)	 	such new Indebtedness is subordinated to
the Notes or the applicable Guarantee at least to the same extent as
such Subordinated Indebtedness so repurchased, defeased, exchanged,
redeemed, acquired or retired for value;






	 	(C)	 	such new Indebtedness has a final scheduled
maturity date equal to or later than the earlier of the final scheduled
maturity date of the Subordinated Indebtedness being so redeemed,
repurchased, defeased, exchanged, acquired or retired, or the maturity
date of the Notes; and






	 	(D)	 	such new Indebtedness has a Weighted
Average Life to Maturity equal to or greater than the remaining
Weighted Average Life to Maturity of the Subordinated Indebtedness
being so redeemed, repurchased, defeased, exchanged, acquired or
retired;






               (4) a Restricted Payment to pay for the repurchase, retirement or other acquisition
or retirement for value of Equity Interests (other than Disqualified Stock) of the



74









 






Issuer or
any of its direct or indirect parent companies held by any future, present or former
employee, member of the board of directors or consultant of the Issuer, any of its
Subsidiaries or any of its direct or indirect parent companies (permitted transferees,
assigns, estates or heirs of such employee, director or consultant), pursuant to any
management equity plan or stock option plan or any other management or employee benefit plan
or agreement, including any Equity Interests rolled over by management of the Issuer in the
Transactions; provided, however, that the aggregate Restricted Payments made under this
clause (4) do not exceed in any calendar year $25.0 million (with unused amounts in any
calendar year being carried over to succeeding calendar years subject to a maximum (without
giving effect to the following proviso) of $50.0 million in any calendar year); provided
further that such amount in any calendar year may be increased by an amount not to exceed:




	 	(A)	 	the cash proceeds from the sale of Equity
Interests (other than Disqualified Stock) of the Issuer and, to the
extent contributed to the Issuer, Equity Interests of any of the
Issuer’s direct or indirect parent companies, in each case to any
employee, member of the board of directors or consultant of the Issuer,
any of its Subsidiaries or any of its direct or indirect parent
companies that occurs after the Issue Date, to the extent the cash
proceeds from the sale of such Equity Interests have not otherwise been
applied to the payment of Restricted Payments by virtue of Section
3.3(a)(C); plus






	 	(B)	 	the cash proceeds of key man life insurance
policies received by the Issuer or its Restricted Subsidiaries after
the Issue Date; less






	 	(C)	 	the amount of any Restricted Payments
previously made with the cash proceeds described in clauses (A) and
(B) of this clause (4);






and provided further that cancellation of Indebtedness owing to the Issuer or any Restricted
Subsidiary from any employee, member of the board of directors or consultant of the Issuer,
any of the Issuer’s direct or indirect parent companies or any of the Issuer’s Restricted
Subsidiaries in connection with a repurchase of Equity Interests of the Issuer or any of its
direct or indirect parent companies shall not be deemed to constitute a Restricted Payment
for purposes of this covenant or any other provision of the Indenture;




               (5) the declaration and payment of dividends to holders of any class or series of
Disqualified Stock of the Issuer or any of its Restricted Subsidiaries issued in accordance
with the covenant described under Section 3.2 to the extent such dividends are
included in the definition of “Fixed Charges”;




               (6) (A) the declaration and payment of dividends and distributions to holders of
any class or series of Designated Preferred Stock (other than Disqualified Stock) issued by
the Issuer after the Issue Date; provided that the amount of dividends paid pursuant to this
clause (A) shall not exceed the aggregate amount of cash actually received by the Issuer
from the sale of such Designated Preferred Stock;



75









 






	 	(B)	 	the declaration and payment of dividends
and distributions to a direct or indirect parent company of the Issuer,
the proceeds of which shall be used to fund the payment of dividends to
holders of any class or series of Designated Preferred Stock (other
than Disqualified Stock) of such parent company issued after the Issue
Date; provided that the amount of dividends paid pursuant to this
clause (B) shall not exceed the aggregate amount of cash actually
contributed to the Issuer from the sale of such Designated Preferred
Stock;






	 	(C)	 	the declaration and payment of dividends
and distributions on Refunding Capital Stock that is Preferred Stock in
excess of the dividends declarable and payable thereon pursuant to
clause (2) of this paragraph;




provided, however, in the case of each of (a), (b) and (c) of this clause (6), that for the
most recently ended four full fiscal quarters for which internal financial statements are
available immediately preceding the date of issuance of such Designated Preferred Stock,
after giving effect to such issuance or declaration on a pro forma basis, the Issuer and its
Restricted Subsidiaries on a consolidated basis would have had a Fixed Charge Coverage Ratio
of at least 2.00 to 1.00;




               (7) Investments in Unrestricted Subsidiaries taken together with all other
Investments made pursuant to this clause (7) that are at the time outstanding, without
giving effect to the sale of an Unrestricted Subsidiary to the extent the proceeds of such
sale do not consist of cash or marketable securities, not to exceed the greater of (x) $50.0
million and (y) 1.0% of Total Assets;



               (8) repurchases of Equity Interests deemed to occur upon exercise of stock options
or warrants if such Equity Interests represent a portion of the exercise price of such
options or warrants;



               (9) the declaration and payment of dividends and distributions on the Issuer’s
common stock (or the payment of dividends to any direct or indirect parent entity of the
Issuer to fund a payment of dividends on such entity’s common stock), following the
consummation of the first public offering of the Issuer’s common stock or the common stock
of any of its direct or indirect parent companies after the Issue Date, of up to 6% per
annum of the net cash proceeds received by or contributed to the Issuer in or from any such
public offering, other than public offerings with respect to the Issuer’s common stock
registered on Form S-4 or Form S-8 and other than any public sale constituting an Excluded
Contribution;



               (10) Restricted Payments that are made with Excluded Contributions;



               (11) other Restricted Payments in an aggregate amount taken together with all other
Restricted Payments made pursuant to this clause (11), that are at the time outstanding
(without giving effect to the sale of an Investment to the extent the proceeds of



76









 





such sale
do not consist of, or have not been subsequently sold or transferred for, cash or marketable
securities) not to exceed $75.0 million at the time made;




               (12) distributions or payments of Securitization Fees, sales contributions and
other transfers of Securitization Assets and purchases of Securitization Assets pursuant to
a Securitization Repurchase Obligation, in each case in connection with a Qualified
Securitization Financing;



               (13) any Restricted Payment used to fund the Transactions and the fees and expenses
related thereto or used to fund amounts owed to Affiliates (including as a result of the
cancellation or vesting of outstanding options and other equity-based awards, in connection
therewith), in each case as described in the Offering Memorandum to the extent permitted
under Section 3.8; provided that payments to Affiliates due to the termination of
agreements with the Sponsor as described in the Offering Memorandum shall be permitted by
this clause (13) only to the extent such termination is attributable to an underwritten
registered public offering of common stock of the Issuer or any direct or indirect parent of
the Issuer or to a Change of Control;



               (14) the repurchase, redemption or other acquisition or retirement for value of any
Preferred Stock or Subordinated Indebtedness pursuant to Section 3.5 and Section
3.10; provided that all Notes tendered by Holders in connection with a Change of Control
Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for
value;



               (15) the declaration and payment of dividends by the Issuer to, or the making of
loans to, any direct or indirect parent company in amounts required for any direct or
indirect parent companies to pay, in each case without duplication,




	 	(A)	 	franchise taxes and other fees, taxes and
expenses required to maintain their corporate existence;






	 	(B)	 	foreign, federal, state and local income
taxes, to the extent such income taxes are attributable to the income
of the Issuer and its Restricted Subsidiaries and, to the extent of the
amount actually received from its Unrestricted Subsidiaries, in amounts
required to pay such taxes to the extent attributable to the income of
such Unrestricted Subsidiaries; provided that in each case the amount
of such payments in any fiscal year does not exceed the amount that the
Issuer and its Restricted Subsidiaries would be required to pay in
respect of foreign, federal, state and local taxes for such fiscal year
were the Issuer, its Restricted Subsidiaries and its Unrestricted
Subsidiaries (to the extent described above) to pay such taxes
separately from any such parent entity;






	 	(C)	 	customary salary, bonus and other benefits
payable to officers and employees of any direct or indirect parent
company of the Issuer to the extent such salaries, bonuses and other
benefits are attributable




77









 






	 	 	 	to the ownership or operation of the Issuer
and its Restricted Subsidiaries;






	 	(D)	 	general corporate operating and overhead
costs and expenses of any direct or indirect parent company of the
Issuer to the extent such costs and expenses are attributable to the
ownership or operation of the Issuer and its Restricted Subsidiaries;






	 	(E)	 	amounts required for any direct or indirect
parent company of the Issuer to pay fees and expenses incurred by any
direct or indirect parent company of the Issuer related to (i) the
maintenance of such parent entity of its corporate or other entity
existence and performance of its obligations under the Indenture and
the Registration Rights Agreement and similar obligations under the New
Credit Facilities to the extent such obligations are permitted by
Section 3.9 and (ii) any unsuccessful equity or debt offering
of such parent company; and






	 	(F)	 	taxes with respect to income of any direct
or indirect parent company of the Issuer derived from funding made
available to the Issuer and its Restricted Subsidiaries by such direct
or indirect parent company;






          (16) the distribution, by dividend or otherwise, of shares of Capital Stock of, or
Indebtedness owed to the Issuer or a Restricted Subsidiary by, Unrestricted Subsidiaries
(other than Unrestricted Subsidiaries, the primary assets of which are cash and/or Cash
Equivalents); and




          (17) cash payments in lieu of the issuance of fractional shares or interests in
connection with the exercise of warrants, options or other rights or securities convertible
into or exchangeable for Capital Stock of the Issuer or any direct or indirect parent
company of the Issuer; provided that any such cash payment shall not be for the purpose of
evading the limitation of this covenant;


provided however, that at the time of, and after giving effect to, any Restricted Payment permitted
under Sections 3.3(b)(7), 3.3(b)(9), 3.3(b)(11) and 3.3(b)(16)
hereof, no Default shall have occurred and be continuing or would occur as a consequence thereof.




          The amount of all Restricted Payments (other than cash) shall be the fair market value (as
determined in Good Faith by the Issuer) on the date of such Restricted Payment of the assets or
securities proposed to be paid, transferred or issued by the Issuer or such Restricted Subsidiary,
as the case may be, pursuant to such Restricted Payment.



          As of the Issue Date, all of the Issuer’s Subsidiaries shall be Restricted Subsidiaries. The
Issuer shall not permit any Unrestricted Subsidiary to become a Restricted Subsidiary except
pursuant to the last sentence of the definition of “Unrestricted Subsidiary.” For purposes of
designating any Restricted Subsidiary as an Unrestricted Subsidiary, all outstanding Investments by
the Issuer and its Restricted Subsidiaries (except to the extent repaid) in the



78









 




Subsidiary so
designated shall be deemed to be Investments in an amount determined as set forth in the last
sentence of the definition of “Investment.” Such designation shall be permitted only if a
Restricted Payment in such amount would be permitted at such time, whether pursuant to Section
3.3 or pursuant to the definition of “Permitted Investments,” and if such Subsidiary otherwise
meets the definition of an Unrestricted Subsidiary. Unrestricted Subsidiaries shall not be subject
to any of the restrictive covenants set forth in the Indenture.




          SECTION 3.4. Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries.



          (a) The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to,
directly or indirectly, create or otherwise cause or suffer to exist or become effective any
consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary
to:




          (1) (i) pay dividends or make any other distributions to the Issuer or any of its
Restricted Subsidiaries on its Capital Stock or with respect to any other interest or
participation in, or measured by, its profits, or (ii) pay any Indebtedness owed to the
Issuer or any of its Restricted Subsidiaries;




          (2) make loans or advances to the Issuer or any of its Restricted Subsidiaries; or




          (3) sell, lease or transfer any of its properties or assets to the Issuer or any of
its Restricted Subsidiaries.



          (b) The restrictions in Section 3.4(a) shall not apply (in each case) to
encumbrances or restrictions existing under or by reason of:





	 	(i)	 	contractual encumbrances or restrictions in effect on the Issue
Date, including pursuant to the New Credit Facilities and the related
documentation and related Hedging Obligations and Cash Management Obligations;






	 	(ii)	 	the Indenture, the Notes and the Guarantees (including any
exchange notes and related guarantees);






	 	(iii)	 	purchase money obligations for property acquired in the ordinary course of
business that impose restrictions of the nature discussed in Section
3.4(a)(3) on the property so acquired;






	 	(iv)	 	applicable law or any applicable rule, regulation or order;






	 	(v)	 	any agreement or other instrument of a Person acquired by the
Issuer or any Restricted Subsidiary in existence at the time of such
acquisition (or at the time it merges with or into the Issuer or any Restricted
Subsidiary or assumed in connection with the acquisition of assets from such
Person), but, in each case, not created in contemplation thereof, which
encumbrance or




79









 






	 	 	 	restriction is not applicable to any Person, or the properties
or assets of any Person, other than the Person and its Subsidiaries, or the
property or assets of the Person and its Subsidiaries, so acquired;






	 	(vi)	 	contracts for the sale of assets, including customary
restrictions with respect to a Subsidiary of the Issuer pursuant to an
agreement that has been entered into for the sale or disposition of all or
substantially all of the Capital Stock or assets of such Subsidiary;






	 	(vii)	 	Secured Indebtedness otherwise permitted to be incurred pursuant to the
covenants described in Sections 3.2 and 3.6 that limit the
right of the debtor to dispose of the assets securing such Indebtedness;






	 	(viii)	 	restrictions on cash or other deposits or net worth imposed by customers
under contracts entered into in the ordinary course of business;






	 	(ix)	 	other Indebtedness, Disqualified Stock or Preferred Stock of
Foreign Subsidiaries permitted to be incurred or issued subsequent to the Issue
Date pursuant to the provisions of the covenant described in Section
3.2 that impose restrictions solely on the Foreign Subsidiaries party
thereto or their Subsidiaries;






	 	(x)	 	customary provisions in joint venture agreements or
arrangements and other similar agreements relating solely to such joint venture
provided that with respect to any joint venture agreement relating to a
Restricted Subsidiary, such provisions shall not materially affect the Issuer’s
ability to make anticipated principal or interest payments on the Notes (as
determined in Good Faith by the Issuer);






	 	(xi)	 	customary provisions contained in leases, subleases, licenses,
sublicenses or other agreements, in each case, entered into in the ordinary
course of business;






	 	(xii)	 	any agreement or instrument (A) relating to any Indebtedness or preferred
stock of a Restricted Subsidiary permitted to be incurred subsequent to the
Issue Date pursuant to Section 3.2 if the encumbrances and restrictions
are not materially more disadvantageous to the Holders than is customary in
comparable financings (as determined in good faith by the Issuer) and (B)
either (x) the Issuer determines that such encumbrance or restriction shall not
adversely affect the Issuer’s ability to make principal and interest payments
on the Notes as and when they come due or (y) such encumbrances and
restrictions apply only during the continuance of a default in respect of a
payment or financial maintenance covenant relating to such Indebtedness;






	 	(xiii)	 	any encumbrances or restrictions of the type referred to in clauses (1), (2)
and (3) of Section 3.4(a) above imposed by any amendments,
modifications, restatements, renewals, increases, supplements, refundings,




80









 






	 	 	 	replacements or refinancings of the contracts, instruments or obligations
referred to in clauses (i) through (xii) above; provided that such amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings are, in the good faith judgment of the Issuer, no
more restrictive in any material respect with respect to such encumbrance and
other restrictions taken as a whole than those prior to such amendment,
modification, restatement, renewal, increase, supplement, refunding,
replacement or refinancing; and






	 	(xiv)	 	restrictions created in connection with any Qualified Securitization
Financing that, in the good faith determination of the Issuer, are necessary or
advisable to effect such Securitization Facility.





          SECTION 3.5. Limitation on Asset Sales. (a) The Issuer shall not, and shall not
permit any of its Restricted Subsidiaries to, consummate any Asset Sale, unless:




          (1) the Issuer or such Restricted Subsidiary, as the case may be, receives
consideration at the time of such Asset Sale at least equal to the fair market value (as
determined in Good Faith by the Issuer) of the assets sold or otherwise disposed of; and




          (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration
therefor received by the Issuer or such Restricted Subsidiary, as the case may be, is in the
form of cash or Cash Equivalents; provided that the amount of:




	 	(A)	 	any liabilities (as shown on the Issuer’s
or such Restricted Subsidiary’s most recent balance sheet or in the
footnotes thereto, or if incurred or accrued subsequent to the date of
such balance sheet, such liabilities that would have been shown on the
Issuer or such Restricted Subsidiary’s balance sheet or in the
footnotes thereto if such incurrence or accrual had taken place on or
prior to the date of such balance sheet, as determined in Good Faith by
the Issuer) of the Issuer or such Restricted Subsidiary, other than
liabilities that are by their terms subordinated to the Notes, that are
assumed by the transferee of any such assets and for which the Issuer
and all of its Restricted Subsidiaries have been validly released by
all creditors in writing,






	 	(B)	 	any securities or other obligations
received by the Issuer or such Restricted Subsidiary from such
transferee that are converted by the Issuer or such Restricted
Subsidiary into cash or Cash Equivalents (to the extent of the cash or
Cash Equivalents received) within 180 days following the closing of
such Asset Sale, and,






	 	(C)	 	any Designated Non-cash Consideration
received by the Issuer or such Restricted Subsidiary in such Asset Sale
having an aggregate fair market value, taken together with all other
Designated Non-cash Consideration received pursuant to this clause (c)
that is at that time




81









 












	 	 	 	outstanding, not to exceed 1.0% of Total Assets at
the time of the receipt of such Designated Non-cash Consideration, 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 be deemed to be Cash Equivalents for purposes of this provision and for no other
purpose.




          (b) Within 450 days after the receipt of any Net Proceeds of any Asset Sale, the Issuer or
such Restricted Subsidiary, at its option, may apply the Net Proceeds from such Asset Sale,




	 	(1)	 	to reduce or repay:






	 	a.	 	Obligations under the
New Credit Facilities and to correspondingly reduce
commitments with respect thereto;
	 
	 	b.	 	Obligations under
Indebtedness (other than Subordinated Indebtedness) that is
secured by a Lien, which Lien is permitted by the Indenture,
and to correspondingly reduce commitments with respect
thereto;
	 
	 	c.	 	Obligations under
other Indebtedness (other than Subordinated Indebtedness)
(and to correspondingly reduce commitments with respect
thereto); provided that, to the extent the Issuer reduces
Obligations under such Indebtedness, the Issuer shall
equally and ratably reduce Obligations under the Notes as
provided under Section 5.7, through open-market
purchases (to the extent such purchases are at or above 100%
of the principal amount thereof) or by making an offer (in
accordance with the procedures set forth below for an Asset
Sale Offer) to all Holders to purchase their Notes at 100%
of the principal amount thereof, plus the amount of accrued
but unpaid interest, if any, and Additional Interest, if
any, on the amount of Notes that would otherwise be prepaid;
or
	 
	 	d.	 	Indebtedness of a
Non-Guarantor Subsidiary, other than Indebtedness owed to
the Issuer or another Restricted Subsidiary (and
correspondingly reduce commitments with respect thereto);






          (2) to make (a) an Investment in any one or more businesses; provided that such
Investment in any business is in the form of the acquisition of Capital Stock and results in
the Issuer or another of its Restricted Subsidiaries, as the case may be, owning an amount
of the Capital Stock of such business such that it constitutes a Restricted



82









 






Subsidiary, (b)
capital expenditures or (c) acquisitions of other assets (other than working capital
assets), in the case of each of (a), (b) and (c), used or useful in a Similar Business; or




          (3) to make an Investment in (a) any one or more businesses, provided that such
Investment in any business is in the form of the acquisition of Capital Stock and results in
the Issuer or another of its Restricted Subsidiaries, as the case may be, owning an amount
of the Capital Stock of such business such that it constitutes a Restricted Subsidiary, (b)
properties (other than working capital assets) or (c) acquisitions of other assets (other
than working capital assets) that, in the case of each of (a), (b) and (c), replace the
businesses, properties and/or assets that are the subject of such Asset Sale;



          provided that, in the case of clauses (2) and (3) above, a binding commitment shall be treated
as a permitted application of the Net Proceeds from the date of such commitment so long as the
Issuer or such other Restricted Subsidiary enters into such commitment with the good faith
expectation that such Net Proceeds shall be applied to satisfy such commitment within 180 days of
such commitment (an “Acceptable Commitment”) and, in the event any Acceptable Commitment is
later cancelled or terminated for any reason before the Net Proceeds are applied in connection
therewith, the Issuer or such Restricted Subsidiary enters into another Acceptable Commitment (a
“Second Commitment”) within 180 days of such cancellation or termination; provided further
that if any Second Commitment is later cancelled or terminated for any reason before such Net
Proceeds are applied, then such Net Proceeds shall constitute “Excess Proceeds”.



          Any Net Proceeds from the Asset Sale that are not invested or applied as provided and within
the time period set forth in the first sentence of the preceding paragraph shall be deemed to
constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $40.0
million, the Issuer shall make an offer to all Holders, and, if required by the terms of any
Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness”), to the holders
of such Pari Passu Indebtedness (an “Asset Sale Offer”), to purchase the maximum aggregate
principal amount of the Notes and such Pari Passu Indebtedness that is equal to $2,000 or an
integral multiple of $1,000 in excess thereof that may be purchased out of the Excess Proceeds at
an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and
unpaid interest and Additional Interest, if any, to the date fixed for the closing of such offer,
in accordance with the procedures set forth in the Indenture. The Issuer shall commence an Asset
Sale Offer with respect to Excess Proceeds within ten Business Days after the date that Excess
Proceeds exceed $40.0 million by mailing the notice required pursuant to the terms of the
Indenture, with a copy to the Trustee or otherwise in accordance with the procedures of DTC. The
Issuer may satisfy the foregoing obligations with respect to such Net Proceeds from an Asset Sale
by making an Asset Sale Offer with respect to such Net Proceeds prior to the expiration of the
Application Period.



          To the extent that the aggregate amount of Notes and such Pari Passu Indebtedness tendered
pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Issuer may use any remaining
Excess Proceeds for general corporate purposes, subject to compliance with other covenants
contained in the Indenture. If the aggregate principal amount of Notes or the Pari Passu
Indebtedness surrendered by such holders thereof exceeds the amount of Excess Proceeds, the Trustee
shall select the Notes and the Issuer or agent for such Pari Passu Indebtedness shall select such
Pari Passu Indebtedness to be purchased on a pro rata basis based on the accreted value or
principal amount of the Notes or such Pari Passu Indebtedness tendered. Upon completion of any



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such
Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. Pending the final
application of any Net Proceeds pursuant to this Section 3.5, the holder of such Net
Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under a
revolving credit facility or otherwise use such Net Proceeds in any manner not prohibited by the
Indenture.




          The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent such laws or regulations are
applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer. To the
extent that the provisions of any securities laws or regulations conflict with the provisions of
the Indenture, the Issuer shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations described in the Indenture by virtue thereof.



          SECTION 3.6. Limitation on Liens. The Issuer shall not, and shall not permit any
Subsidiary Guarantor to, directly or indirectly, create, incur, assume or suffer to exist any Lien
(except Permitted Liens) (each, an “Initial Lien”) that secures obligations under any
Indebtedness or any related guarantee, on any asset or property of the Issuer or any Subsidiary
Guarantor, or any income or profits therefrom, unless:



          (a) in the case of Liens securing Subordinated Indebtedness, the Notes and related
Guarantees are secured by a Lien on such property, assets or proceeds that is senior in priority to
such Liens; or



          (b) in all other cases, the Notes or the Guarantees are equally and ratably secured,
except that the foregoing shall not apply to Liens securing the Notes and the related Guarantees.


Any Lien created for the benefit of the Holders of the Notes pursuant to this Section 3.6
shall provide by its terms that such Lien shall be automatically and unconditionally released and
discharged upon the release and discharge of the Initial Lien that gave rise to the obligation to
so secure the Notes and the Guarantees.




          SECTION 3.7. Limitation on Guarantees of Indebtedness by Restricted Subsidiaries.



          (a) The Issuer shall not permit any of its Wholly-Owned Subsidiaries that are Restricted
Subsidiaries (and non-Wholly-Owned Subsidiaries if such non-Wholly-Owned Subsidiaries guarantee
other capital markets debt securities of the Issuer or any Restricted Subsidiary or guarantee all
or a portion of the New Credit Facilities), other than a Subsidiary Guarantor, to guarantee the
payment of any Indebtedness of the Issuer or any other Subsidiary Guarantor unless:




     (A) such Restricted Subsidiary within 30 days executes and delivers a supplemental
indenture to this Indenture and joinder or supplement to the Registration Rights Agreement
providing for a senior Guarantee by such Restricted Subsidiary, except that with respect to
a guarantee of Indebtedness of the Issuer or any Subsidiary Guarantor, if such Indebtedness
is by its express terms subordinated in right of payment to the Notes or such Subsidiary
Guarantor’s Guarantee, any such guarantee by such Restricted Subsidiary with respect to such
Indebtedness shall be subordinated in right of payment to such



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Guarantee substantially to
the same extent as such Indebtedness is subordinated to the Notes or such Subsidiary
Guarantor’s Guarantee; provided that




	 	(1)	 	if such Indebtedness is by its express terms subordinated
in right of payment to the Notes or such Subsidiary Guarantor’s Guarantee, any
such guarantee by such Restricted Subsidiary with respect to such Indebtedness
shall be subordinated in right of payment to such Guarantee with respect to the
Notes substantially to the same extent as such Indebtedness is subordinated to
the Notes or such Subsidiary Guarantor’s Guarantee of the Notes; and






	 	(2)	 	if the Notes or such Subsidiary Guarantor’s Guarantee are
subordinated in right of payment to such Indebtedness, the Guarantee under the
supplemental indenture shall be subordinated to such Restricted Subsidiary’s
guarantee with respect to such Indebtedness substantially to the same extent as
the Notes or the Subsidiary Guarantor’s Guarantee are subordinated to such
Indebtedness; and






          (B) such Restricted Subsidiary waives and shall not in any manner whatsoever claim
or take the benefit or advantage of, any rights of reimbursement, indemnity or subrogation
or any other rights against the Issuer or any other Restricted Subsidiary as a result of any
payment by such Restricted Subsidiary under its Guarantee until payment in full of
Obligations under this Indenture; and




          (C) such Restricted Subsidiary shall deliver to the Trustee an Opinion of Counsel
to the effect that:




	 	(1)	 	such Guarantee has been duly executed and authorized; and






	 	(2)	 	such Guarantee constitutes a valid, binding and enforceable
obligation of such Restricted Subsidiary, except insofar as enforcement thereof
may be limited by bankruptcy, insolvency or similar laws (including, without
limitation, all laws relating to fraudulent transfers) and except insofar as
enforcement thereof is subject to general principles of equity;




provided that this Section 3.7 shall not be applicable to any guarantee of any Restricted
Subsidiary that existed at the time such Person became a Restricted Subsidiary and was not incurred
in connection with, or in contemplation of, such Person becoming a Restricted Subsidiary.



The Issuer may elect, in its sole discretion, to cause any Subsidiary that is not otherwise
required to be a Subsidiary Guarantor to become a Guarantor, in which case, such Subsidiary shall
only be required to comply with the 30-day period described above.




          SECTION 3.8. Transactions with Affiliates. (a) The Issuer shall not, and shall not
permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or
otherwise dispose of any of its properties or assets to, or purchase any property or assets from,
or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance
or



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guarantee with, or for the benefit of, any Affiliate of the Issuer (each of the foregoing, an
“Affiliate Transaction”) involving aggregate payments or consideration in excess of $7.5
million, unless:





          (1) such Affiliate Transaction is on terms that are not materially less favorable
to the Issuer or its relevant Restricted Subsidiaries than those that would have been
obtained in a comparable transaction by the Issuer or such Restricted Subsidiary with an
unrelated Person on an arm’s-length basis; and




          (2) the Issuer delivers to the Trustee with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving aggregate payments or consideration in
excess of $25.0 million, a resolution adopted by the majority of the board of directors of
the Issuer approving such Affiliate Transaction and set forth in an Officer’s Certificate
certifying that such Affiliate Transaction complies with clause (1) above.




	 	(b)	 	The foregoing provisions shall not apply to the following:






          (1) transactions between or among the Issuer or any of its Restricted Subsidiaries;




          (2) Restricted Payments permitted by the provisions of this Indenture described
above under Section 3.3 and the definition of “Permitted Investments”;




          (3) the payment of management, consulting, monitoring, transaction and advisory
fees and related expenses to the Sponsor pursuant to the Sponsor Management Agreement and
the termination fees pursuant to the Sponsor Management Agreement, in each case as in effect
on the Issue Date or any amendment thereto (so long as any such amendment is not materially
disadvantageous, in the good faith judgment of the board of directors of the Issuer, to the
Holders when taken as a whole as compared to the Sponsor Management Agreement in effect on
the Issue Date;




          (4) the payment of reasonable and customary fees and compensation paid to, and
indemnities and reimbursements provided for the benefit of, former, current or future
officers, directors, employees or consultants of the Issuer, any of its direct or indirect
parent companies or any of its Restricted Subsidiaries, as determined in Good Faith by the
Issuer;




          (5) transactions in which the Issuer or any of its Restricted Subsidiaries, as the
case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating
that such transaction is fair to the Issuer or such Restricted Subsidiary from a financial
point of view or stating that the terms are not materially less favorable to the Issuer or
its relevant Restricted Subsidiary than those that would have been obtained in a comparable
transaction by the Issuer or such Restricted Subsidiary with an unrelated Person on an
arm’s-length basis;




          (6) any agreement or arrangement as in effect as of the Issue Date (other than the
Sponsor Management Agreement, but including, without limitation, each of the other
agreements entered into in connection with the Transactions), or any amendment thereto (so
long as any such amendment is not materially disadvantageous to the Holders



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when taken as a
whole as compared to the applicable agreement as in effect on the Issue Date);




          (7) the existence of, or the performance by the Issuer or any of its Restricted
Subsidiaries of its obligations under the terms of, any stockholders’ agreement (including
any registration rights agreement or purchase agreement related thereto) to which it is a
party as of the Issue Date and any similar agreements which it may enter into thereafter;
provided, however, that the existence of, or the performance by the Issuer or any of its
Restricted Subsidiaries of obligations under any future amendment to any such existing
agreement or under any similar agreement entered into after the Issue Date shall only be
permitted by this clause (7) to the extent that the terms of any such existing agreement,
together with all amendments thereto, taken as a whole, are not otherwise disadvantageous in
any material respect to the Holders when taken as a whole as compared to the original
agreement in effect on the Issue Date;




          (8) the Transactions and the payment of all fees and expenses related to the
Transactions, in each case as contemplated in this offering memorandum;




          (9) transactions with customers, clients, suppliers, or purchasers or sellers of
goods or services, in each case in the ordinary course of business and otherwise in
compliance with the terms of the Indenture which are fair to the Issuer and its Restricted
Subsidiaries, in the reasonable determination of the board of directors of the Issuer or the
senior management thereof, or are on terms at least as favorable as might reasonably have
been obtained at such time from an unaffiliated party;




          (10) if otherwise permitted under this Indenture, the issuance or transfer of
Equity Interests (other than Disqualified Stock) to Affiliates of the Issuer and the
granting of registration and other customary rights in connection therewith or any
contribution to the capital of direct or indirect parent companies, the Issuer or any
Restricted Subsidiary;




          (11) any customary transaction with a Securitization Subsidiary effected as part of
a Qualified Securitization Financing;




          (12) payments by the Issuer or any of its Restricted Subsidiaries to the Sponsor
made for any financial advisory, financing, underwriting or placement services or in respect
of other investment banking activities, including, without limitation, in connection with
acquisitions or divestitures which payments are approved by a majority of the board of
directors of the Issuer or a majority of the disinterested members of the board of directors
of the Issuer in good faith;




          (13) payments or loans (or cancellation of loans) to employees or consultants of
the Issuer, any of its direct or indirect parent companies or any of its Restricted
Subsidiaries and employment agreements, stock option plans, restricted stock plans, bonus
programs and other similar arrangements with such employees or consultants which, in each
case, are approved in Good Faith by the Issuer and in accordance with applicable law;



87









 






          (14) investments in securities of the Issuer or any of its Restricted Subsidiaries
so long as (i) the investment is being offered generally to other investors on the same or
more favorable terms and (ii) the investment constitutes less than 5% of the proposed or
outstanding issue amount of such class of securities; and




          (15) transactions with a Person (other than an Unrestricted Subsidiary of the
Issuer) that is an Affiliate of the Issuer solely because the Issuer or a Restricted
Subsidiary of the Issuer owns an equity interest in or otherwise controls such Person;



          SECTION 3.9. Limitation on Activities of Holdings. Holdings shall not conduct,
transact or otherwise engage, or commit to conduct, transact or otherwise engage, in any business
or operations other than (a) its direct ownership of all of the Equity Interests in, and its
management of, the Issuer, (b) the Transactions and the other transactions contemplated by the
Merger Agreement and the other agreements contemplated thereby, (c) performance of its obligations
under the New Credit Facilities, this Indenture, the Registration Rights Agreement and the other
agreements contemplated thereby (collectively, the “Transaction Documents”) and other
activities to the extent permitted by and in compliance with the Transaction Documents, (d) the
provision of administrative, legal, accounting, tax and management services to, or on behalf of,
any of its Subsidiaries, (e) the entry into, and exercise of rights and performance of obligations
in respect of (A) any other agreement to which it is a party on the Issue Date and described in the
offering memorandum; in each case as amended, supplemented, waived or otherwise modified from time
to time, and any refinancings, refundings, renewals or extensions thereof in accordance with such
Transaction Documents, (B) contracts and agreements with officers, directors and employees of
Holdings or any of its Subsidiaries relating to their employment or directorships, (C) insurance
policies and related contracts and agreements, and (D) equity subscription agreements, registration
rights agreements, voting and other stockholder agreements, engagement letters, underwriting
agreements and other agreements in respect of its equity securities or any offering, issuance or
sale thereof, (f) the offering, issuance, sale and repurchase or redemption of, and dividends or
distributions on its equity securities, (g) the filing of registration statements, and compliance
with applicable reporting and other obligations, under federal, state or other securities laws, (h)
the listing of its equity securities and compliance with applicable reporting and other obligations
in connection therewith, (i) the retention of (and the entry into, and exercise of rights and
performance of obligations in respect of, contracts and agreements with) transfer agents, private
placement agents and underwriters with respect to equity securities and, counsel, accountants and
other advisors and consultants, (j) the performance of obligations under and compliance with its
certificate of incorporation and by-laws, or any applicable law, ordinance, regulation, rule,
order, judgment, decree or permit, including, without limitation, as a result of or in connection
with the activities of its Subsidiaries, (k) the incurrence and payment of its operating and
business expenses and any taxes for which it may be liable, (l) the incurrence, repayment and
redemption of Indebtedness and (m) other activities incidental or related to the foregoing.



          SECTION 3.10. Change of Control. (a) If a Change of Control occurs, unless the
Issuer has previously or concurrently mailed a redemption notice with respect to all the
outstanding Notes as described in Section 5.7, the Issuer shall make an offer to purchase
all of the Notes pursuant to the offer described below (the “Change of Control Offer”) at a
price in cash (the “Change of Control Payment”) equal to 101% of the aggregate principal
amount thereof plus accrued and unpaid interest and Additional Interest, if any, to the date of
purchase, subject to the




88











 




right of Holders of record of the Notes on the relevant record date to receive interest due on
the relevant interest payment date. Within 30 days following any Change of Control, the Issuer
shall send notice of such Change of Control Offer by first-class mail, with a copy to the Trustee,
to each Holder of Notes to the address of such Holder appearing in the security register or
otherwise in accordance with the procedures of DTC, with the following information:





          (1) that a Change of Control Offer is being made pursuant to this Section 3.10,
and that all Notes properly tendered pursuant to such Change of Control Offer shall be
accepted for payment by the Issuer;




          (2) the purchase price and the purchase date, which shall be no earlier than 30 days
nor later than 60 days from the date such notice is mailed (the “Change of Control
Payment Date”);




          (3) that any Note not properly tendered shall remain outstanding and continue to accrue
interest;




          (4) that unless the Issuer defaults in the payment of the Change of Control Payment,
all Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrue
interest on the Change of Control Payment Date;




          (5) that Holders electing to have any Notes purchased pursuant to a Change of Control
Offer shall be required to surrender such Notes, with the form entitled “Option of Holder to
Elect Purchase” on the reverse of such Notes completed, to the paying agent specified in the
notice at the address specified in the notice prior to the close of business on the third
Business Day preceding the Change of Control Payment Date;




          (6) that Holders shall be entitled to withdraw their tendered Notes and their election
to require the Issuer to purchase such Notes; provided that the paying agent receives, not
later than the expiration time of the Change of Control Offer, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder of the Notes, the principal
amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its
tendered Notes and its election to have such Notes purchased;




          (7) that if the Issuer is redeeming less than all of the Notes, the Holders of the
remaining Notes shall be issued new Notes and such new Notes shall be equal in principal
amount to the unpurchased portion of the Notes surrendered. The unpurchased portion of the
Notes must be equal to $2,000 or an integral multiple of $1,000 in excess thereof.




          (8) if such notice is delivered prior to the occurrence of a Change of Control, stating
that the Change of Control Offer is conditional on the occurrence of such Change of Control;
and




          (9) the other instructions, as determined by us, consistent with the covenant described
hereunder, that a Holder must follow.



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          (b) On the Change of Control Payment Date, the Issuer shall, to the extent permitted by law,





          (1) accept for payment all Notes issued by it or portions thereof properly tendered
pursuant to the Change of Control Offer;




          (2) deposit with the paying agent an amount equal to the aggregate Change of Control
Payment in respect of all Notes or portions thereof so tendered; and




          (3) deliver, or cause to be delivered, to the Trustee for cancellation the Notes so
accepted together with an Officer’s Certificate to the Trustee stating that such Notes or
portions thereof have been tendered to and purchased by the Issuer.



          (c) The Issuer shall not be required to make a Change of Control Offer following a Change of
Control if a third party makes the Change of Control Offer in the manner, at the times and
otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of
Control Offer made by the Issuer and purchases all Notes validly tendered and not withdrawn under
such Change of Control Offer.




          (d) Notwithstanding anything to the contrary in this Section 3.10, a Change of Control
Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a
definitive agreement is in place for the Change of Control at the time of making of the Change of
Control Offer.




          (e) The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent such laws or regulations are
applicable in connection with the repurchase by the Issuer of Notes pursuant to a Change of Control
Offer. To the extent that the provisions of any securities laws or regulations conflict with
provisions of this Indenture, the Issuer shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations described in this Indenture by
virtue thereof.




          SECTION 3.11. Reports and other information.




          (a) Notwithstanding that the Issuer may not be subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on
forms provided for such annual and quarterly reporting pursuant to rules and regulations
promulgated by the SEC, the Issuer shall file with the SEC within 15 days after the dates set forth
below:





          (1) within 90 days after the end of each fiscal year (120 days for the fiscal year
ending December 31, 2010 but only in the event that BKC changes its fiscal year end to
December 31 for such fiscal year), all financial information that would be required to be
contained in an annual report on Form 10-K, or any successor or comparable form, filed with
the SEC, including a “Management’s discussion and analysis of financial condition and
results of operations” and a report on the annual financial statements by the Issuer’s
independent registered public accounting firm;



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          (2) within 45 days after the end of each of the first three fiscal quarters of each
fiscal year (75 days for the fiscal quarters ending September 30, 2010 and December 31,
2010), all financial information that would be required to be contained in a quarterly
report on Form 10-Q, or any successor or comparable form, filed with the SEC;




          (3) all current reports that would be required to be filed with the SEC on Form 8-K if
the Issuer were required to file such reports; and




          (4) any other information, documents and other reports which the Issuer would be
required to file with the SEC if it were subject to Section 13 or 15(d) of the Exchange Act;


in each case, in a manner that complies in all material respects with the requirements specified in
such form. Notwithstanding the foregoing, the Issuer shall not be so obligated to file such reports
with the SEC (i) if the SEC does not permit such filing or (ii) prior to the consummation of an
exchange offer or the effectiveness of a shelf registration statement as required by the
Registration Rights Agreement, so long as if clause (i) or (ii) is applicable the Issuer makes
available such information to prospective purchasers of the Notes, in addition to providing such
information to the Trustee and the Holders, in each case, at the Issuer’s expense and by the
applicable date the Issuer would be required to file such information pursuant to the immediately
preceding sentence. To the extent any such information is not so filed or furnished, as applicable,
within the time periods specified above and such information is subsequently filed or furnished, as
applicable, the Issuer shall be deemed to have satisfied its obligations with respect thereto at
such time and any Default with respect thereto shall be deemed to have been cured; provided that
such cure shall not otherwise affect the rights of the Holders under Article VI if Holders
of at least 25% in principal amount of the then total outstanding Notes have declared the
principal, premium, if any, interest and any other monetary obligations on all the then outstanding
Notes to be due and payable immediately and such declaration shall not have been rescinded or
cancelled prior to such cure. In addition, to the extent not satisfied by the foregoing, the Issuer
shall, for so long as any Notes are outstanding, furnish to Holders and to securities analysts and
prospective investors, upon their request, the information required to be delivered pursuant to
Rule 144A(d)(4) under the Securities Act. The Issuer shall deliver the financial statements and
information of the type required to be delivered pursuant to Section 3.11(a)(2) with
respect to the fiscal quarter ended September 30, 2010, which, notwithstanding the foregoing, shall
not be required to give pro forma effect to the Transactions, shall not be required to contain
financial statement footnote disclosure and shall not be required to contain consolidating
financial data with respect to the Subsidiary Guarantor and Non-Guarantor Subsidiaries of the type
contemplated by Rule 3-10 of Regulation S-X promulgated under the Securities Act or otherwise.




          (b) Substantially concurrently with the furnishing or making such information available to the
Trustee pursuant to the immediately preceding paragraph, the Issuer shall also post copies of such
information required by the immediately preceding paragraph on a website (which may be nonpublic
and may be maintained by the Issuer or a third party) to which access shall be given to Holders,
prospective investors in the Notes (which prospective investors shall be limited to “qualified
institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as
defined in Regulation S under the Securities Act) that certify their status as such to the
reasonable satisfaction of the Issuer), and securities analysts and market making





91









 







financial institutions that are reasonably satisfactory to the Issuer. The Issuer shall hold
quarterly conference calls that are publicly accessible after the Issuer’s financial statements for
the prior fiscal period have been made available, provided that such conference calls shall be held
no later than 5 Business Days after the date that such financial statements are required to be made
available. No fewer than three Business Days prior to the date of the conference call required to
be held in accordance with the preceding sentence the Issuer shall issue a press release to the
appropriate U.S. wire services announcing the time and the date of such conference call and
directing the beneficial owners of, and prospective investors in, the Notes and securities analysts
to contact an individual at the Issuer (for whom contact information shall be provided in such
press release) to obtain information on how to access such conference call.




          (c) The Issuer shall be deemed to have satisfied the requirements of this section if Holdings
files and provides reports, documents and information of the types otherwise so required, in each
case within the applicable time periods, and the Issuer is not required to file such reports,
documents and information separately under the applicable rules and regulations of the SEC (after
giving effect to any exemptive relief) because of the filings by Holdings; provided that such
financial statements are accompanied by consolidating financial information for Holdings, the
Issuer, the Subsidiary Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by
the SEC to the extent such financial information would be required by the SEC.




          (d) In the event that any direct or indirect parent company of the Issuer becomes a guarantor
of the Notes, the Indenture shall permit the Issuer to satisfy its obligations in this covenant
with respect to financial information relating to the Issuer by furnishing financial information
relating to such parent; provided that the same is accompanied by consolidating information that
explains in reasonable detail the differences between the information relating to such parent, on
the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a
standalone basis, on the other hand.




          (e) Notwithstanding the foregoing, such requirements shall be deemed satisfied prior to the
commencement of the offering of the Exchange Securities or the effectiveness of the Shelf
Registration Statement by the filing with the SEC of any registration statement relating to the
exchange offer pursuant to the Registration Rights Agreement or other filing, and any amendments
thereto, with such financial information that satisfies Regulation S-X of the Securities Act.




          SECTION 3.12. Maintenance of Office or Agency.




          The Issuer shall maintain an office or agency where the Notes may be presented or surrendered
for payment, where, if applicable, the Notes may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Issuer in respect of the Notes and this
Indenture may be served. The corporate trust office of the Trustee, which initially shall be
located at 246 Goose Lane, Suite 105, Guilford, CT 06437, Attn: Joseph O’Donnell, shall be such
office or agency of the Issuer, unless the Issuer shall designate and maintain some other office or
agency for one or more of such purposes. The Issuer shall give prompt written notice to the
Trustee of any change in the location of any such office or agency. If at any time the Issuer
shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and demands may be made or served at
the





92









 







corporate trust office of the Trustee, and the Issuer hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.




          The Issuer may also from time to time designate one or more other offices or agencies where
the Notes may be presented or surrendered for any or all such purposes and may from time to time
rescind any such designation. The Issuer shall give prompt written notice to the Trustee of any
such designation or rescission and any change in the location of any such other office or agency.




          SECTION 3.13. Corporate Existence. Except as otherwise provided in this Article
III, Article IV and Section 10.2(b), the Issuer and Holdings shall do or cause
to be done all things necessary to preserve and keep in full force and effect its respective
corporate existence and the corporate, partnership, limited liability company or other existence of
each Restricted Subsidiary and the rights (charter and statutory), licenses and franchises of the
Issuer, Holdings and each Restricted Subsidiary; provided, however, that the Issuer and Holdings
shall not be required to preserve any such right, license or franchise or the corporate,
partnership, limited liability company or other existence of any Restricted Subsidiary if the
respective board of directors or, with respect to a Restricted Subsidiary that is not a Significant
Subsidiary (or group of Restricted Subsidiaries that taken together would not be a Significant
Subsidiary), senior management of the Issuer and Holdings determines that the preservation thereof
is no longer desirable in the conduct of the business of the Issuer, Holdings and each of its
Restricted Subsidiaries, taken as a whole, and that the loss thereof is not, and shall not be,
disadvantageous in any material respect to the Holders.




          SECTION 3.14. Payment of Taxes. The Issuer and Holdings shall pay or discharge or
cause to be paid or discharged, before the same shall become delinquent, all material taxes,
assessments and governmental charges levied or imposed upon the Issuer, Holdings or any Subsidiary;
provided, however, that the Issuer and Holdings shall not be required to pay or discharge or cause
to be paid or discharged any such tax, assessment, charge or claim the amount, applicability or
validity of which is being contested in good faith by appropriate proceedings and for which
appropriate reserves, if necessary (in the good faith judgment of management of the Issuer and
Holdings), are being maintained in accordance with GAAP or where the failure to effect such payment
shall not be disadvantageous to the Holders.




          SECTION 3.15. Payments for Consent. Neither the Issuer nor any of its Restricted
Subsidiaries shall, directly or indirectly, pay or cause to be paid any consideration to or for the
benefit of any Holder for or as an inducement to any consent, waiver or amendment of any of the
terms or provisions of the Indenture or the Notes unless such consideration is offered to be paid
and is paid to all Holders that are “qualified institutional buyers” within the meaning of Rule
144A of the Securities Act, who, upon request, confirm that they are “qualified institutional
buyers,” consent, waive or agree to amend in the time frame set forth in the solicitation documents
relating to such consent, waiver or amendment.




          SECTION 3.16. Compliance Certificate. The Issuer shall deliver to the Trustee
within 120 days after the end of each Fiscal Year of the Issuer an Officer’s Certificate stating
that in the course of the performance by the signers of their duties as Officers of the Issuer they
would normally have knowledge of any Default or Event of Default and whether or not the signers
know





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of any Default or Event of Default that occurred during the previous Fiscal Year; provided
that no such Officer’s Certificate shall be required for any Fiscal Year ended prior to the Issue
Date. If they do, the certificate shall describe the Default or Event of Default, its status and
the action the Issuer is taking or proposes to take with respect thereto. The Issuer shall also
deliver such a certificate describing the Default within 10 Business Days of becoming aware of any
Default. The Issuer also shall comply with TIA § 314(a)(4).




          SECTION 3.17. Further Instruments and Acts. Upon request of the Trustee, the Issuer
shall execute and deliver such further instruments and do such further acts as may be reasonably
necessary or proper to carry out more effectively the purpose of this Indenture.




          SECTION 3.18. Limitation on Lines of Business. The Issuer shall not, and shall not
permit any Restricted Subsidiary to, engage in any business other than a Similar Business.




          SECTION 3.19. Statement by Officers as to Default. The Issuer shall deliver to the
Trustee, as soon as possible and in any event within 10 Business Days after the Issuer becomes
aware of the occurrence of any Event of Default or an event which, with notice or the lapse of time
or both, would constitute an Event of Default, an Officer’s Certificate setting forth the details
of such Event of Default or Default, its status and the actions which the Issuer is taking or
proposes to take with respect thereto.




          SECTION 3.20. Suspension of Certain Covenants. Following the first day (a) the
Notes have an Investment Grade Rating from both of the Ratings Agencies and (b) no Default has
occurred and is continuing under this Indenture, the Issuer and its Restricted Subsidiaries shall
not be subject to Sections 3.2, 3.3, 3.4, 3.5, 3.8 and
4.1(a)(4) (collectively, the “Suspended Covenants”).




          If at any time the Notes’ credit rating is downgraded from an Investment Grade Rating by any
Rating Agency or if a Default or Event of Default occurs and is continuing, then the Suspended
Covenants shall thereafter be reinstated as if such covenants had never been suspended (the
“Reinstatement Date”) and be applicable pursuant to the terms of the Indenture (including
in connection with performing any calculation or assessment to determine compliance with the terms
of the Indenture), unless and until the Notes subsequently attain an Investment Grade Rating and no
Default or Event of Default is in existence (in which event the Suspended Covenants shall no longer
be in effect for such time that the Notes maintain an Investment Grade Rating and no Default or
Event of Default is in existence); provided, however, that no Default, Event of Default or breach
of any kind shall be deemed to exist under this Indenture, the Registration Rights Agreement, the
Notes or the Guarantees with respect to the Suspended Covenants based on, and none of Holdings, the
Issuer or any of its Subsidiaries shall bear any liability for, any actions taken or events
occurring during the Suspension Period (as defined below), or any actions taken at any time
pursuant to any contractual obligation arising prior to the Reinstatement Date, regardless of
whether such actions or events would have been permitted if the applicable Suspended Covenants
remained in effect during such period. The period of time between the date of suspension of the
covenants and the Reinstatement Date is referred to as the “Suspension Period.”




          On the Reinstatement Date, all Indebtedness Incurred during the Suspension Period shall be
classified to have been Incurred pursuant to Section 3.2(a) or one of the clauses of
Section





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3.2(b) (to the extent such Indebtedness would be permitted to be incurred thereunder
as of the Reinstatement Date and after giving effect to Indebtedness Incurred prior to the
Suspension Period and outstanding on the Reinstatement Date). To the extent such Indebtedness would
not be so permitted to be Incurred pursuant Sections 3.2(a) or (b), such
Indebtedness shall be deemed to have been outstanding on the Issue Date, so that it is classified
as permitted under Section 3.2(b)(3). Calculations made after the Reinstatement Date of the
amount available to be made as Restricted Payments under Section 3.3 shall be made as
though the covenants described under Section 3.3 had been in effect since the Issue Date
and throughout the Suspension Period. Accordingly, Restricted Payments made during the Suspension
Period shall reduce the amount available to be made as Restricted Payments under Section
3.3(a).




          During any period when the Suspended Covenants are suspended, the board of directors of the
Issuer may not designate any of the Issuer’s Subsidiaries as Unrestricted Subsidiaries pursuant to
this Indenture.




          The Issuer shall provide an Officer’s Certificate to the Trustee indicating the occurrence of
any Suspended Covenants or Reinstatement Date. The Trustee shall have no obligation to (i)
independently determine or verify if such events have occurred, (ii) make any determination
regarding the impact of any actions taken during the Suspension Period on the Issuer and its
Restricted Subsidiaries’ future compliance with their covenants or (iii) notify the Holders of any
Suspended Covenants or Reversion Date.




ARTICLE IV




SUCCESSOR COMPANY



          SECTION 4.1. Merger, Consolidation or Sale of All or Substantially All Assets.




          (a) The Issuer shall not consolidate or merge with or into or wind up into (whether or not the
Issuer is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose
of all or substantially all of its properties or assets, in one or more related transactions, to
any Person unless:





          (1) the Issuer is the surviving Person or the Person formed by or surviving any such
consolidation or merger (if other than the Issuer) or to which such sale, assignment,
transfer, lease, conveyance or other disposition shall have been made is a Person organized
or existing under the laws of the jurisdiction of organization of the Issuer or the laws of
the United States, any state thereof, the District of Columbia or any territory thereof
(such Person, as the case may be, being herein called the “Successor Company”);
provided that in the case where the surviving Person is not a corporation, a co-obligor of
the Notes is a corporation;




          (2) the Successor Company, if other than the Issuer, expressly assumes all the
obligations of the Issuer under this Indenture and the Notes pursuant to supplemental
indentures or other documents or instruments in form reasonably satisfactory to the Trustee;



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          (3) immediately after such transaction, no Default exists;




          (4) immediately after giving pro forma effect to such transaction and any related
financing transactions, as if such transactions had occurred at the beginning of the
applicable four-quarter period,




	 	(A)	 	the Successor Company or the Issuer would be
permitted to incur at least $1.00 of additional Indebtedness pursuant
to the Fixed Charge Coverage Ratio test set forth in Section
3.2(a) or
	 
	 	(B)	 	the Fixed Charge Coverage Ratio for the
Successor Company and its Restricted Subsidiaries would be greater than
the Fixed Charge Coverage Ratio for the Issuer and its Restricted
Subsidiaries immediately prior to such transaction;






          (5) each Guarantor, unless it is the other party to the transactions described above,
in which case clause (1)(b) of Section 10.2(b) shall apply, shall have by
supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations
under this Indenture, the Notes and the Registration Rights Agreement;




          (6) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel, each stating that such consolidation, merger or transfer and such
supplemental indentures, if any, comply with this Indenture;



          (b) The Successor Company shall succeed to, and be substituted for the Issuer, as the case may
be, under the Indenture, the Registration Rights Agreement, the Guarantees and the Notes, as
applicable. Sections 4.1(a)(3) through (a)(6) shall not apply to the merger
contemplated by the Merger Agreement.




          (c) Notwithstanding Sections 4.1(a)(3) and (a)(4),





	 	(a)	 	any Non-Guarantor Subsidiary may
consolidate with or merge into or transfer all or part of its
properties and assets to the Issuer or another Restricted
Subsidiary;
	 
	 	(b)	 	the Issuer or any Subsidiary
Guarantor may consolidate with, merge into or transfer all or
part of its properties and assets to the Issuer or a Subsidiary
Guarantor, as applicable; and
	 
	 	(c)	 	the Issuer may consolidate or
merge with an Affiliate of the Issuer, as the case may be,
solely for the purpose of reincorporating the Issuer in any
state of the United States, the District of Columbia or any
territory thereof.





          (d) For purposes of this Section 4.1, the sale, lease, conveyance, assignment,
transfer or other disposition of all or substantially all of the properties and assets of one or
more Subsidiaries of the Issuer, which properties and assets, if held by the Issuer instead of such





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Subsidiaries, would constitute all or substantially all of the properties and assets of the
Issuer on a consolidated basis, shall be deemed to be the transfer of all or substantially all of
the properties and assets of the Issuer. The predecessor company shall be released from its
obligations under the Indenture and the Successor Company shall succeed to, and be substituted for,
and may exercise every right and power of, the Issuer under this Indenture, but, in the case of a
lease of all or substantially all its assets, the predecessor shall not be released from the
obligation to pay the principal of and interest on the Notes.




ARTICLE V




REDEMPTION OF SECURITIES



          SECTION 5.1. Notices to Trustee.




          If the Issuer elects to redeem Notes pursuant to the optional redemption provisions of
Section 5.7 hereof, it must furnish to the Trustee, at least 30 days but not more than 60
days before a redemption date, an Officer’s Certificate setting forth:





          (1) the clause of this Indenture pursuant to which the redemption shall occur;




          (2) the redemption date;




          (3) the principal amount of Notes to be redeemed; and




          (4) the redemption price.



          Any redemption referenced in such Officer’s Certificate may be cancelled by the Issuer at any
time prior to notice of redemption being mailed to any Holder and thereafter shall be null and
void.




          SECTION 5.2. Selection of Notes to Be Redeemed or Purchased.




          If the Issuer is redeeming or purchasing less than all of the Notes issued by it at any time,
pursuant to Section 5.7 or purchased in an Asset Sale Offer or a Change of Control Offer
pursuant to Section 3.10, the Trustee shall select the Notes to be redeemed (a) if the
Notes are listed on any national securities exchange, in compliance with the requirements of the
principal national securities exchange on which the Notes are listed, (b) on a pro rata basis (to
the extent practicable) or (c) by lot or such other similar method in accordance with the
procedures of DTC.




          No Notes of $2,000 or less can be redeemed in part. In the event of partial redemption, the
particular Notes to be redeemed or purchased shall be selected, unless otherwise provided herein,
not less than 30 nor more than 60 days prior to the redemption or purchase date by the Trustee from
the outstanding Notes not previously called for redemption or purchase.




          The Trustee shall promptly notify the Issuer in writing of the Notes selected for redemption
or purchase and, in the case of any Note selected for partial redemption or purchase,





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the principal amount thereof to be redeemed or purchased. Notes and portions of Notes
selected shall be in amounts of $2,000 or an integral multiple of $1,000 in excess thereof; except
that if all of the Notes of a Holder are to be redeemed or purchased, the entire outstanding amount
of Notes held by such Holder, even if not a multiple of $1,000, shall be redeemed or purchased.
Except as provided in the preceding sentence, provisions of this Indenture that apply to Notes
called for redemption or purchase also apply to portions of Notes called for redemption or
purchase.




          SECTION 5.3. Notice of Redemption. At least 30 days but not more than 60 days
before a redemption date, the Issuer shall mail or cause to be mailed, by first class mail postage
prepaid, a notice of redemption to each Holder whose Notes are to be redeemed at its registered
address or otherwise in accordance with the procedures of DTC, except that redemption notices may
be mailed more than 60 days prior to a redemption date if the notice is issued in connection with a
defeasance of the Notes or a satisfaction and discharge of this Indenture pursuant to Articles
VIII or XII hereof.




          The notice shall identify the Notes (including the CUSIP number) to be redeemed and shall
state:





          (1) the redemption date;




          (2) the redemption price;




          (3) if any Note is being redeemed in part, the portion of the principal amount of such
Note to be redeemed and that, after the redemption date upon surrender of such Note, a new
Note or Notes in principal amount equal to the unredeemed portion shall be issued upon
cancellation of the original Note;




          (4) the name and address of the Paying Agent;




          (5) that Notes called for redemption must be surrendered to the Paying Agent to collect
the redemption price;




          (6) that, unless the Issuer defaults in making such redemption payment, interest on
Notes called for redemption ceases to accrue on and after the redemption date;




          (7) the paragraph of the Notes and/or Section of this Indenture pursuant to which the
Notes called for redemption are being redeemed; and




          (8) that no representation is made as to the correctness or accuracy of the CUSIP
number, if any, listed in such notice or printed on the Notes.



          At the Issuer’s request, the Trustee shall give the notice of redemption in the Issuer’s name
and at its expense; provided, however, that the Issuer has delivered to the Trustee, at least 45
days prior to the redemption date (or such shorter period as the Trustee shall agree), an Officer’s
Certificate requesting that the Trustee give such notice and setting forth the information to be
stated in such notice as provided in the preceding paragraph.






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          SECTION 5.4. Effect of Notice of Redemption. Once notice of redemption is mailed in
accordance with Section 5.3 hereof, Notes called for redemption become irrevocably due and
payable on the redemption date at the redemption price. Any redemption or notice of redemption
may, at the Issuer’s discretion, be subject to one or more conditions precedent, including, but not
limited to, completion of an Equity Offering, other offering or other corporate transaction or
event. Notice of any redemption in respect of an Equity Offering may be given prior to the
completion thereof.




          SECTION 5.5. Deposit of Redemption or Purchase Price. Prior to 11:00 a.m. (New York
City time) on the redemption or purchase date, the Issuer shall deposit with the Trustee or with
the Paying Agent money sufficient to pay the redemption or purchase price of and accrued interest
and Additional Interest, if any, on, all Notes to be redeemed or purchased on that date. The
Trustee or the Paying Agent shall promptly return to the Issuer any money deposited with the
Trustee or the Paying Agent by the Issuer in excess of the amounts necessary to pay the redemption
or purchase price of, and accrued interest and Additional Interest, if any, on, all Notes to be
redeemed or purchased.




          If the Issuer complies with the provisions of the preceding paragraph, on and after the
redemption or purchase date, interest shall cease to accrue on the Notes or the portions of Notes
called for redemption or purchase. If a Note is redeemed or purchased on or after an interest
record date but on or prior to the related interest payment date, then any accrued and unpaid
interest shall be paid to the Person in whose name such Note was registered at the close of
business on such record date. If any Note called for redemption or purchase is not so paid upon
surrender for redemption or purchase because of the failure of the Issuer to comply with the
preceding paragraph, interest shall be paid on the unpaid principal, from the redemption or
purchase date until such principal is paid, and to the extent lawful on any interest not paid on
such unpaid principal, in each case at the rate provided in the Notes and in Section 3.1
hereof.




          SECTION 5.6. Notes Redeemed or Purchased in Part. Upon surrender of a Note that is
redeemed or purchased in part, the Issuer shall issue and, upon receipt of an Issuer Order, the
Trustee shall authenticate for the Holder at the expense of the Issuer a new Note equal in
principal amount to the unredeemed or unpurchased portion of the Note surrendered; provided, that
each such new Note shall be in a principal amount of $2,000 or integral multiple of $1,000 in
excess thereof.




          SECTION 5.7. Optional Redemption.




          (a) At any time prior to October 15, 2014, the Issuer may redeem all or a part of the Notes,
upon notice as provided in Section 5.3, at a redemption price equal to 100% of the
principal amount of Notes redeemed, plus the Applicable Premium as of, and accrued and unpaid
interest and Additional Interest, if any, to but excluding the date of redemption (the
“Redemption Date”), subject to the rights of Holders of record on the relevant record date
to receive interest due on the relevant interest payment date.




          (b) Prior to October 15, 2013, the Issuer may, at its option, upon notice as provided in
Section 5.3, redeem up to 35% of the aggregate principal amount of the Notes at a
redemption price equal to 109.875% of the aggregate principal amount of the Notes, plus accrued





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and unpaid interest and Additional Interest, thereon, if any, to, but excluding the applicable
Redemption Date, subject to the right of Holders of record on the relevant record date to receive
interest due on the relevant interest payment date, with the net cash proceeds of one or more
Equity Offerings; provided that (a) at least 50% of the sum of the aggregate principal amount of
Notes originally issued under this Indenture on the Issue Date and any Additional Notes that are
issued under the Indenture after the Issue Date remains outstanding immediately after the
occurrence of each such redemption and (b) each such redemption occurs within 90 days of the date
of closing of each such Equity Offering. The Trustee shall select the Notes to be purchased in the
manner described under Sections 5.1 through 5.6.




          (c) Except pursuant to clause (a) or (b) of this Section 5.7, the Notes shall not be
redeemable at the Company’s option prior to October 15, 2014.




          (d) On and after October 15, 2014 the Issuer may redeem the Notes, in whole or in part, upon
notice as provided in Section 5.3, at the redemption prices (expressed as percentages of
principal amount of the Notes to be redeemed) set forth in the table below, plus accrued and unpaid
interest thereon and Additional Interest, if any, to but excluding the applicable Redemption Date,
subject to the right of Holders of record on the relevant record date to receive interest due on
the relevant interest payment date, if redeemed during the twelve-month period beginning on October
15, of each of the years indicated in the table below:




	 	 	 	 	 
	Period	 	Percentage	 
	2014
	 	 	104.938	%
	2015
	 	 	102.469	%
	2016 and thereafter
	 	 	100.000	%






          (e) Unless the Issuer defaults in the payment of the redemption price, interest shall
cease to accrue on the Notes or portions thereof called for redemption on the applicable Redemption
Date.




          (f) Any redemption pursuant to this Section 5.7 shall be made pursuant to the
provisions of Sections 5.1 through 5.6.




          SECTION 5.8. Mandatory Redemption. Except as set forth in Section 5.9
hereof, the Issuer is not required to make mandatory redemption or sinking fund payments with
respect to the Notes.




ARTICLE VI




DEFAULTS AND REMEDIES



          SECTION 6.1. Events of Default. (a) Each of the following is an “Event of
Default”:





          (1) default in payment when due and payable, upon redemption, acceleration or
otherwise, of principal of, or premium, if any, on the Notes;



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          (2) default for 30 days or more in the payment when due of interest or Additional
Interest, if any, on or with respect to the Notes;




          (3) failure by the Issuer or any Guarantor for 60 days after receipt of written notice
given by the Trustee or the Holders of not less than 25% in principal amount of the
outstanding Notes to comply with any of its obligations, covenants or agreements (other than
a default referred to in clauses (1) and (2) above) contained in this Indenture or the
Notes;




          (4) default under any mortgage, indenture or instrument under which there is issued or
by which there is secured or evidenced any Indebtedness for money borrowed by the Issuer or
any of its Restricted Subsidiaries or the payment of which is guaranteed by the Issuer or
any of its Restricted Subsidiaries, other than Indebtedness owed to the Issuer or a
Restricted Subsidiary, whether such Indebtedness or guarantee now exists or is created after
the issuance of the Notes, if both:




	 	(A)	 	such default either results from the failure to
pay any principal of such Indebtedness at its stated final maturity
(after giving effect to any applicable grace periods) or relates to an
obligation other than the obligation to pay principal of any such
Indebtedness at its stated final maturity and results in the holder or
holders of such Indebtedness causing such Indebtedness to become due
prior to its stated maturity; and
	 
	 	(B)	 	the principal amount of such Indebtedness,
together with the principal amount of any other such Indebtedness in
default for failure to pay principal at stated final maturity (after
giving effect to any applicable grace periods), or the maturity of
which has been so accelerated, aggregate $50.0 million or more at any
one time outstanding;





          (5) failure by the Issuer or any Significant Subsidiary (or any group of Restricted
Subsidiaries that together (determined as of the most recent consolidated financial
statements of the Issuer for a fiscal period end provided as required under Section
3.11) would constitute a Significant Subsidiary) to pay final judgments aggregating in
excess of $50.0 million other than any judgments covered by indemnities provided by, or
insurance policies issued by, reputable and creditworthy companies, which final judgments
remain unpaid, undischarged and unstayed for a period of more than 60 days after such
judgment becomes final, and in the event such judgment is covered by insurance, an
enforcement proceeding has been commenced by any creditor upon such judgment or decree which
is not promptly stayed;




          (6) the Issuer or any Significant Subsidiary (or any group of Restricted Subsidiaries
that together (determined as of the most recent consolidated financial statements of the
Issuer for a fiscal period end provided as required under Section 3.11), would
constitute a Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:






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     (1) commences a voluntary case or proceeding;




          (ii) consents to the entry of an order for relief against it in an involuntary case or
proceeding;




          (iii) consents to the appointment of a Custodian of it or for substantially all of its
property; or




          (iv) makes a general assignment for the benefit of its creditors; or




          (v) consents to or acquiesces in the institution of a bankruptcy or an insolvency
proceeding against it; or




          (vi) takes any comparable action under any foreign laws relating to insolvency;




          (7) a court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that:




	 	(1)	 	is for relief against the Issuer or any Significant Subsidiary (or any
group of Restricted Subsidiaries that together (determined as of the most recent
consolidated financial statements of the Issuer for a fiscal period end provided as
required under Section 3.11), would constitute a Significant Subsidiary, in
an involuntary case;






          (vii) appoints a Custodian of the Issuer or any Significant Subsidiary (or any group of
Restricted Subsidiaries that together (determined as of the most recent consolidated
financial statements of the Issuer for a fiscal period end provided as required under
Section 3.11), would constitute a Significant Subsidiary, for substantially all of
its property; or




          (viii) orders the winding up or liquidation of the Issuer or any Significant Subsidiary
(or any group of Restricted Subsidiaries that together (determined as of the most recent
consolidated financial statements of the Issuer for a fiscal period end provided as required
under Section 3.11), would constitute a Significant Subsidiary; or




          (ix) or any similar relief is granted under any foreign laws and the order, decree or
relief remains unstayed and in effect for 60 consecutive days; and




          (8) the Guarantee of Holdings or the Guarantee of any Significant Subsidiary (or group
of Subsidiaries that together (determined as of the most recent consolidated financial
statements of the Issuer for a fiscal period end provided as required under Section
3.11) would constitute a Significant Subsidiary) shall for any reason cease to be in
full force and effect or be declared null and void or any responsible officer of Holdings or
of any Subsidiary Guarantor that is a Significant Subsidiary (or the responsible officers of
any group of Restricted Subsidiaries that, taken together (determined as of the most recent
consolidated financial statements of the Issuer for a fiscal period end provided as required
under Section 3.11) would constitute a Significant Subsidiary), as the case may be,
denies that it has any further liability under its or their Guarantee(s) or gives notice to



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such effect, other than by reason of the termination of this Indenture or the release
of any such Guarantee in accordance with this Indenture.



          SECTION 6.2. Acceleration. If an Event of Default (other than an Event of Default
described in clause (6) or (7) of Section 6.1) occurs and is continuing, the Trustee by
notice to the Issuer, or the Holders of at least 25% in principal amount of the total outstanding
Notes by notice to the Issuer and the Trustee, may, and the Trustee at the request of such Holders
shall, declare the principal of, premium, if any, and accrued and unpaid interest (including
Additional Interest), if any, and any other monetary obligations on all the Notes to be due and
payable. Upon such a declaration, such principal, premium and accrued and unpaid interest
(including Additional Interest) and any other monetary obligations shall be due and payable
immediately.




          In the event of any Event of Default specified in clause (4) of Section 6.1, such
Event of Default and all consequences thereof (excluding any resulting payment default, other than
as a result of acceleration of the Notes) shall be annulled, waived and rescinded, automatically
and without any action by the Trustee or the Holders, if within 30 days after such Event of Default
arose:





     (x) the Indebtedness or guarantee that is the basis for such Event of Default has been
discharged; or




     (y) the holders thereof have rescinded or waived the acceleration, notice or action (as
the case may be) giving rise to such Event of Default; or




     (z) if the default that is the basis for such Event of Default has been cured.



          If an Event of Default described in clause (6) or (7) of Section 6.1 occurs and is
continuing, the principal of, premium, if any, and accrued and unpaid interest (including
Additional Interest) and any other monetary obligations on all the Notes shall become and be
immediately due and payable without any declaration or other act on the part of the Trustee or any
Holders.




          SECTION 6.3. Other Remedies. If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy by proceeding at law or in equity to collect the payment of
principal of (or premium, if any) or interest (including Additional Interest) on the Notes or to
enforce the performance of any provision of the Notes, this Indenture or the Guarantees.




          The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not
produce any of them in the proceeding. A delay or omission by the Trustee or any Holder in
exercising any right or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default. No remedy is exclusive
of any other remedy. All available remedies are cumulative.




          SECTION 6.4. Waiver of Past Defaults. The Holders of a majority in principal amount
of the then outstanding Notes by notice to the Trustee (with a copy to the Issuer, but the
applicable waiver or rescission shall be effective when the notice is given to the Trustee) may, on





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behalf of the Holders of all the Notes, (a) waive, by their consent (including, without
limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer
for, Notes), an existing Default and its consequences under this Indenture except (i) a continuing
Default in the payment of the principal of, or premium, if any, or interest (including Additional
Interest) on a Note held by a non-consenting Holder or (ii) a Default in respect of a provision
that under Section 9.2 cannot be amended without the consent of each Holder affected and
(b) rescind any acceleration and its consequences with respect to the Notes provided such
rescission would not conflict with any judgment of a court of competent jurisdiction. When a
Default or Event of Default is waived, it is deemed cured, but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any consequent right.




          SECTION 6.5. Control by Majority. The Holders of a majority in principal amount of
the outstanding Notes may direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or of exercising any trust or power conferred on the Trustee.
However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture,
the Notes or the Guarantees or, subject to Sections 7.1 and 7.2, that the Trustee
determines is unduly prejudicial to the rights of other Holders or would involve the Trustee in
personal liability; provided, however, that the Trustee may take any other action deemed proper by
the Trustee that is not inconsistent with such direction. Prior to taking any such action
hereunder, the Trustee shall be entitled to indemnification reasonably satisfactory to it in its
sole discretion against all losses and expenses caused by taking or not taking such action.




          SECTION 6.6. Limitation on Suits. Subject to Section 6.7, a Holder may not
pursue any remedy with respect to this Indenture or the Notes unless:





          (1) such Holder has previously given to the Trustee written notice stating that an
Event of Default is continuing;




          (2) Holders of at least 25% in principal amount of the total outstanding Notes have
requested that the Trustee pursue the remedy;




          (3) Holders of the Notes have offered and, if requested, provide to the Trustee
indemnity or security reasonably satisfactory to the Trustee against any loss, liability or
expense;




          (4) the Trustee has not complied with such request within 60 days after receipt of the
request and the offer of security or indemnity; and




          (5) the Holders of a majority in principal amount of the total outstanding Notes have
not given the Trustee a direction inconsistent with such request during such 60-day period.



          A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a
preference or priority over another Holder.




          SECTION 6.7. Rights of Holders to Receive Payment. Notwithstanding any other
provision of this Indenture (including, without limitation, Section 6.6), the right of any
Holder to receive payment of principal of, premium (if any), or interest (including Additional






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Interest) on the Notes held by such Holder, on or after the respective due dates expressed or provided for in
the Notes, or to bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.




          SECTION 6.8. Collection Suit by Trustee. If an Event of Default specified in
clauses (1) or (2) of Section 6.1 occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Issuer for the whole amount
then due and owing (together with interest on any unpaid interest to the extent lawful) and the
amounts provided for in Section 7.7.




          SECTION 6.9. Trustee May File Proofs of Claim. The Trustee may file such proofs of
claim and other papers or documents as may be necessary or advisable in order to have the claims of
the Trustee (including any claim for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel) and the Holders allowed in any judicial
proceedings relative to the Issuer, its Subsidiaries or its or their respective creditors or
properties and, unless prohibited by law or applicable regulations, may be entitled and empowered
to participate as a member of any official committee of creditors appointed in such matter and may
vote on behalf of the Holders in any election of a trustee in bankruptcy or other Person performing
similar functions, and any Custodian in any such judicial proceeding is hereby authorized by each
Holder to make payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and its
counsel, and any other amounts due the Trustee under Section 7.7.




          No provision of this Indenture shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder thereof or to authorize
the Trustee to vote in respect of the claim of any Holder in any such proceeding.




          SECTION 6.10. Priorities. (a) If the Trustee collects any money or property
pursuant to this Article VI, it shall pay out the money or property in the following order:




          FIRST: to the Trustee for amounts due to it under Section 7.7;





     SECOND: to Holders for amounts due and unpaid on the Notes for principal, premium, if
any, and interest, ratably, without preference or priority of any kind, according to the
amounts due and payable on the Notes for principal, premium, if any, and interest (including
Additional Interest), respectively; and




     THIRD: to the Issuer, or to the extent the Trustee collects any amount for any
Guarantor, to such Guarantor.



          (b) The Trustee may fix a record date and payment date for any payment to Holders pursuant to
this Section 6.10. At least 15 days before such record date, the Issuer shall mail to each
Holder and the Trustee a notice that states the record date, the payment date and amount to be
paid.






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          SECTION 6.11. Undertaking for Costs. In any suit for the enforcement of any right
or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted
by it as Trustee, a court in its discretion may require the filing by any party litigant in the
suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess
reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in
the suit, having due regard to the merits and good faith of the claims or defenses made by the
party litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by the
Issuer, a suit by a Holder pursuant to Section 6.7 or a suit by Holders of more than 10% in
outstanding principal amount of the Notes.




ARTICLE VII




TRUSTEE



          SECTION 7.1. Duties of Trustee. i) If an Event of Default has occurred and is
continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture and use
the same degree of care and skill in their exercise as a prudent Person would exercise or use under
the circumstances in the conduct of such person’s own affairs; provided that the Trustee shall be
under no obligation to exercise any of the rights or powers under this Indenture, the Notes or the
Guarantees at the request or direction of any of the Holders unless the Holders have offered the
Trustee indemnity or security satisfactory to the Trustee against any loss, liability or expense.




          (a) Except during the continuance of an Event of Default:





          (1) the Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and




          (2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein, upon
certificates, opinions or orders furnished to the Trustee and conforming to the requirements
of this Indenture, the Notes or the Guarantees, as applicable. However, in the case of any
such certificates or opinions which by any provisions hereof are specifically required to be
furnished to the Trustee, the Trustee shall examine such certificates and opinions to
determine whether or not they conform to the requirements of this Indenture, the Notes or
the Guarantees, as the case may be (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein).



          (b) The Trustee may not be relieved from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct, except that:





          (1) this paragraph does not limit the effect of paragraph (b) of this Section
7.1;




          (2) the Trustee shall not be liable for any error of judgment made in good faith by a
Trust Officer unless it is proved that the Trustee was negligent in ascertaining the
pertinent facts;



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          (3) the Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to Section
6.5; and




          (4) No provision of this Indenture, the Notes or the Guarantees shall require the
Trustee to expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or thereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably assured to it.



          (c) Every provision of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b) and (c) of this Section 7.1.




          (d) The Trustee shall not be liable for interest on any money received by it except as the
Trustee may agree in writing with the Issuer.




          (e) Money held in trust by the Trustee need not be segregated from other funds except to the
extent required by law.




          (f) Every provision of this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this Section 7.1
and to the provisions of the TIA.




          (g) Unless otherwise specifically provided in this Indenture, any demand, request, direction
or notice from the Issuer shall be sufficient if signed by one Officer of the Issuer.




          SECTION 7.2. Rights of Trustee. Subject to Section 7.1:




          (a) The Trustee may conclusively rely on and shall be fully protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order or other paper or document (whether in its original or facsimile
form) reasonably believed by it to be genuine and to have been signed or presented by the proper
person. The Trustee need not investigate any fact or matter stated in the document. The Trustee
shall receive and retain financial reports and statements of the Issuer as provided herein, but
shall have no duty to review or analyze such reports or statements to determine compliance with
covenants or other obligations of the Issuer.




          (b) Before the Trustee acts or refrains from acting, it may require an Officer’s Certificate
and/or an Opinion of Counsel. The Trustee shall not be liable for any action it takes or omits to
take in good faith in reliance on an Officer’s Certificate or Opinion of Counsel.




          (c) The Trustee may execute any of the trusts and powers hereunder or perform any duties
hereunder either directly by or through its attorneys and agents and shall not be responsible for
the misconduct or negligence of any agent or attorney appointed with due care by it hereunder.






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          (d) In the absence of willful misconduct or negligence, the Trustee shall not be liable for
any action it takes or omits to take in good faith which it believes to be authorized or within its
rights or powers, conferred upon it by this Indenture.




          (e) The Trustee may consult with counsel of its selection, and the advice or opinion of
counsel with respect to legal matters relating to this Indenture, the Notes or the Guarantees shall
be full and complete authorization and protection from liability in respect of any action taken,
omitted or suffered by it hereunder or under the Notes or the Guarantees in good faith and in
accordance with the advice or opinion of such counsel.




          (f) The Trustee shall not be deemed to have notice of any Default or Event of Default or
whether any entity or group of entities constitutes a Significant Subsidiary unless a Trust Officer
of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact
such a Default or of any such Significant Subsidiary is received by the Trustee at the corporate
trust office of the Trustee specified in Section 13.2, and such notice references the Notes
and this Indenture.




          (g) The rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and to each agent, custodian and
other Person employed to act hereunder.




          (h) The Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture, the Notes or the Guarantees at the request, order or direction of any of the
Holders pursuant to the provisions of this Indenture, unless the Holders shall have offered to the
Trustee security or indemnity reasonably satisfactory to it against the costs, expenses and
liabilities which may be incurred therein or thereby.




          (i) The Trustee shall not be deemed to have knowledge of any fact or matter unless such fact
or matter is known to a Trust Officer of the Trustee.




          (j) Whenever in the administration of this Indenture, the Notes or the Guarantees the Trustee
shall deem it desirable that a matter be proved or established prior to taking, suffering or
omitting any action hereunder or thereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith or willful misconduct on its part, rely
upon an Officer’s Certificate.




          (k) In no event shall the Trustee be responsible or liable for any special, indirect, punitive
or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of
profit), irrespective of whether the Trustee has been advised of the likelihood of such loss or
damage and regardless of the form of action.




          (l) The Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, report, notice, request, direction, consent,
order, bond, debenture, coupon or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may see fit, and, if
the Trustee shall determine to make such further inquiry or investigation, it shall be





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entitled to examine, during business hours and upon reasonable notice, the books, records and
premises of the Issuer and the Restricted Subsidiaries, personally or by agent or attorney.




          (m) The Trustee shall not be required to give any bond or surety in respect of the performance
of its powers and duties hereunder.




          (n) The Trustee may request that the Issuer deliver a certificate setting forth the names of
individuals and/or titles of officers authorized at such time to take specified actions pursuant to
this Indenture or the Notes.




          SECTION 7.3. Individual Rights of Trustee. The Trustee in its individual or any
other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuer,
Guarantors or their Affiliates with the same rights it would have if it were not Trustee. Any
Paying Agent, Registrar, co-registrar or co-paying agent may do the same with like rights.
However, the Trustee must comply with Sections 7.10 and 7.11. In addition, the
Trustee shall be permitted to engage in transactions with the Issuer; provided, however, that if
the Trustee acquires any conflicting interest under the TIA, the Trustee must (i) eliminate such
conflict within 90 days of acquiring such conflicting interest, (ii) apply to the SEC for
permission to continue acting as Trustee or (iii) resign.




          SECTION 7.4. Trustee’s Disclaimer. The Trustee shall not be responsible for and
makes no representation as to the validity or adequacy of this Indenture, the Guarantees or the
Notes, shall not be accountable for the Issuer’s or BKC’s use of the proceeds from the sale of the
Notes, shall not be responsible for the use or application of any money received by any Paying
Agent other than the Trustee or any money paid to the Issuer pursuant to the terms of this
Indenture and shall not be responsible for any statement of the Issuer in this Indenture or in any
document issued in connection with the sale of the Notes or in the Notes other than the Trustee’s
certificate of authentication.




          SECTION 7.5. Notice of Defaults. If a Default or Event of Default occurs and is
continuing and if a Trust Officer has actual knowledge thereof, the Trustee shall mail by first
class mail to each Holder at the address set forth in the Notes Register notice of the Default or
Event of Default within 90 days after it is actually known to a Trust Officer. Except in the case
of a Default relating to the payment of principal of, premium (if any), or interest on any Note
(including payments pursuant to the optional redemption or required repurchase provisions of such
Note), the Trustee may withhold the notice if and so long as a committee of its Trust Officers in
good faith determines that withholding the notice is in the interests of Holders. In addition, the
Trustee shall have no obligation to accelerate the Notes if in the best judgment of the Trustee
acceleration is not in the best interest of the Holders of the Notes.




          SECTION 7.6. Reports by Trustee to Holders. Within 60 days after each October 15
beginning October 15, 2011, the Trustee shall mail to each Holder a brief report dated as of such
October 15 that complies with TIA § 313(a) if and to the extent required thereby. The Trustee also
shall comply with TIA § 313(b) and TIA § 313(c).




          A copy of each report at the time of its mailing to Holders shall be filed with the SEC and
each stock exchange (if any) on which the Notes are listed. The Issuer agrees to notify





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promptly the Trustee in writing whenever the Notes become listed on any stock exchange and of
any delisting thereof and the Trustee shall comply with TIA § 313(d).




          SECTION 7.7. Compensation and Indemnity. The Issuer shall pay to each of the
Trustee from time to time reasonable compensation for its services hereunder and under the Notes
and the Guarantees as the Issuer and the Trustee or the Issuer shall from time to time agree in
writing. The Trustee’s compensation shall not be limited by any law on compensation of a trustee
of an express trust. The Issuer shall reimburse each of the Trustee upon request for all
reasonable out-of-pocket expenses incurred or made by it, including, but not limited to, costs of
collection, costs of preparing reports, certificates and other documents, costs of preparation and
mailing of notices to Holders. Such expenses shall include the reasonable compensation and
expenses, disbursements and advances of the respective agents, counsel, accountants and experts of
the Trustee. The Issuer shall indemnify each of the Trustee against any and all loss, liability,
damages, claims or expense (including reasonable attorneys’ fees and expenses) incurred by it
without willful misconduct, negligence or bad faith on its part in connection with the
administration of this trust and the performance of its duties hereunder and under the Notes and
the Guarantees, including the costs and expenses of enforcing this Indenture (including this
Section 7.7), the Notes and the Guarantees and of defending itself against any claims
(whether asserted by any Holder, the Issuer or otherwise). Each of the Trustee shall notify the
Issuer promptly of any claim for which it may seek indemnity of which it has received written
notice. Failure by the Trustee to so notify the Issuer shall not relieve the Issuer of its
obligations hereunder. The Issuer shall defend the claim and each of the Trustee shall provide
reasonable cooperation at the Issuer’s expense in the defense. The Trustee may each have separate
counsel and the Issuer shall pay the fees and expenses of such counsel; provided that the Issuer
shall not be required to pay the fees and expenses of such separate counsel if it assumes the
Trustee’s defense, and, in the reasonable judgment of outside counsel to the Trustee, there is no
conflict of interest between the Issuer and the Trustee in connection with such defense.




          To secure the Issuer’s payment obligations in this Section 7.7, the Trustee shall have
a lien prior to the Notes on all money or property held or collected by the Trustee other than
money or property held in trust to pay principal of and interest on particular Notes. Such lien
shall survive the satisfaction and discharge of this Indenture. The Trustee’s right to receive
payment of any amounts due under this Section 7.7 shall not be subordinate to any other
liability or Indebtedness of the Issuer.




          The Issuer’s payment obligations pursuant to this Section 7.7 shall survive the
discharge of this Indenture. Without prejudice to any other rights available to the Trustee under
applicable law, when the Trustee incurs expenses or renders services after the occurrence of a
Default specified in clause (6) or clause (7) of Section 6.1, the expenses (including the
reasonable fees and expenses of its counsel) are intended to constitute expenses of administration
under any Bankruptcy Law.




          SECTION 7.8. Replacement of Trustee. The Trustee may resign at any time by so
notifying the Issuer in writing not less than 30 days prior to the effective date of such
resignation. The Holders of a majority in principal amount of the Notes may remove the Trustee by
so notifying the removed Trustee in writing not less than 30 days prior to the effective date of






110









 







such removal and may appoint a successor Trustee with the Issuer’s written consent, which consent
shall not be unreasonably withheld. The Issuer shall remove the Trustee if:





          (1) the Trustee fails to comply with Section 7.10 hereof;




          (2) the Trustee is adjudged bankrupt or insolvent;




          (3) a receiver or other public officer takes charge of the Trustee or its property; or




          (4) the Trustee otherwise becomes incapable of acting.



          If the Trustee resigns or is removed by the Issuer or by the Holders of a majority in
principal amount of the Notes and such Holders do not reasonably promptly appoint a successor
Trustee as described in the preceding paragraph, or if a vacancy exists in the office of the
Trustee for any reason (the Trustee in such event being referred to herein as the retiring
Trustee), the Issuer shall promptly appoint a successor Trustee.




          A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Issuer. Thereupon the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to
Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided for in Section 7.7.




          If a successor Trustee does not take office within 60 days after the retiring Trustee resigns
or is removed, the retiring Trustee or the Holders of at least 10% in principal amount of the Notes
may petition, at the Issuer’s expense, any court of competent jurisdiction for the appointment of a
successor Trustee.




          If the Trustee fails to comply with Section 7.10, unless the Trustee’s duty to resign
is stayed as provided in TIA § 310(b), any Holder, who has been a bona fide holder of a Note for at
least six months, may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.




          Notwithstanding the replacement of the Trustee pursuant to this Section 7.8, the
Issuer’s obligations under Section 7.7 shall continue for the benefit of the retiring
Trustee.




          SECTION 7.9. Successor Trustee by Merger. If the Trustee consolidates with, merges
or converts into, or transfers all or substantially all its corporate trust business or assets to,
another corporation or banking association, the resulting, surviving or transferee corporation
without any further act shall be the successor Trustee.




          In case at the time such successor or successors by merger, conversion or consolidation to the
Trustee shall succeed to the trusts created by this Indenture, any of the Notes shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Notes so authenticated; and in case at
that time any of the Notes shall not have been authenticated, any successor to the





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Trustee may authenticate such Notes either in the name of any predecessor hereunder or in the
name of the successor to the Trustee; provided that the right to adopt the certificate of
authentication of any predecessor Trustee or authenticate Notes in the name of any predecessor
Trustee shall only apply to its successor or successors by merger, consolidation or conversion.




          SECTION 7.10. Eligibility; Disqualification. This Indenture shall always have a
Trustee that satisfies the requirements of TIA § 310(a)(1), (2) and (5) in every respect. The
Trustee shall have a combined capital and surplus of at least $100 million as set forth in its most
recent published annual report of condition. The Trustee shall comply with TIA § 310(b); provided,
however, that there shall be excluded from the operation of TIA § 310(b)(1) any indenture or
indentures under which other securities or certificates of interest or participation in other
securities of the Issuer are outstanding if the requirements for such exclusion set forth in TIA §
310(b)(1) are met.




          SECTION 7.11. Preferential Collection of Claims Against the Issuer. The Trustee
shall comply with TIA § 311(a), excluding any creditor relationship listed in TIA § 311(b). A
Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent indicated.




          SECTION 7.12. Trustee’s Application for Instruction from the Issuer. Any
application by the Trustee for written instructions from the Issuer may, at the option of the
Trustee, set forth in writing any action proposed to be taken or omitted by the Trustee under this
Indenture and the date on and/or after which such action shall be taken or such omission shall be
effective. The Trustee shall not be liable for any action taken by, or omission of, the Trustee in
accordance with a proposal included in such application on or after the date specified in such
application (which date shall not be less than three Business Days after the date any Officer of
the Issuer actually receives such application, unless any such Officer shall have consented in
writing to any earlier date) unless prior to taking any such action (or the effective date in the
case of an omission), the Trustee shall have received written instructions in response to such
application specifying the action to be taken or omitted.




ARTICLE VIII




LEGAL DEFEASANCE AND COVENANT DEFEASANCE



          SECTION 8.1. Option to Effect Legal Defeasance or Covenant Defeasance; Defeasance.
The Issuer may, at its option and at any time, elect to have either Section 8.2 or
8.3 hereof be applied to all outstanding Notes upon compliance with the conditions set
forth below in this Article VIII.




          SECTION 8.2. Legal Defeasance and Discharge. Upon the Issuer’s exercise under
Section 8.1 hereof of the option applicable to this Section 8.2, the Issuer and
each of the Guarantors shall, subject to the satisfaction of the conditions set forth in
Section 8.4 hereof, be deemed to have been discharged from their obligation with respect to
all outstanding Notes (including the Guarantees) on the date the conditions set forth below are
satisfied (hereinafter,





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“Legal Defeasance”). For this purpose, Legal Defeasance means that
the Issuer and the
Guarantors shall be deemed to have paid and discharged the entire Indebtedness represented by
the outstanding Notes (including the Guarantees), which shall thereafter be deemed to be
“outstanding” only for the purposes of Section 8.5 hereof and the other Sections of this
Indenture referred to in clauses (1) and (2) below, and to have satisfied all of their other
obligations under such Notes, the Guarantees and this Indenture (and the Trustee, on demand of and
at the expense of the Issuer, shall execute proper instruments acknowledging the same) and to have
cured all then existing Events of Default, except for the following provisions which shall survive
until otherwise terminated or discharged hereunder:





          (1) the rights of Holders of Notes to receive payments in respect of the principal of,
premium, if any, and interest on the Notes when such payments are due solely out of the
trust referred to in Section 8.4 hereof;




          (2) the Issuer’s obligations with respect to Notes under Article II concerning
issuing temporary Notes, registration of such Notes, mutilated, destroyed, lost or stolen
Notes and Section 3.12 hereof concerning the maintenance of an office or agency for
payment and money for security payments held in trust;




          (3) the rights, powers, trusts, duties and immunities of the Trustee and the Issuer’s
obligations in connection therewith; and;




          (4) this Article VIII with respect to provisions relating to Legal Defeasance.



          SECTION 8.3. Covenant Defeasance. Upon the Issuer’s exercise under Section
8.1 hereof of the option applicable to this Section 8.3, the Issuer and each of the
Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.4
hereof, be released from each of their obligations under the covenants contained in Section
3.2, 3.3, 3.4, 3.5, 3.6, 3.7, 3.8, 3.9,
3.10, 3.11, 3.12, 3.15, 3.18 and Section 4.1(a)(4)
hereof with respect to the outstanding Notes on and after the date the conditions set forth in
Section 8.4 hereof are satisfied (hereinafter, “Covenant Defeasance”), and the
Notes shall thereafter be deemed not “outstanding” for the purposes of any direction, waiver,
consent or declaration or act of Holders (and the consequences of any thereof) in connection with
such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder.
For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes and
Guarantees, the Issuer and the Guarantors may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any
reference in any such covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a Default or an Event of Default under Section 6.1
hereof, but, except as specified above, the remainder of this Indenture and such Notes and
Guarantees shall be unaffected thereby. In addition, upon the Issuer’s exercise under Section
8.1 hereof of the option applicable to this Section 8.3, subject to the satisfaction of
the conditions set forth in Section 8.4 hereof, Sections 6.1(3), 6.1(4),
6.1(5), 6.1(6) (with respect only to a Restricted Subsidiary that is a Significant
Subsidiary or any group of Restricted Subsidiaries that taken together would constitute a
Significant Subsidiary), 6.1(7) (with respect only to a Restricted Subsidiary that is a
Significant Subsidiaries or any group of Restricted Subsidiaries that taken





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together would constitute a Significant Subsidiary), and 6.1(8) hereof shall not
constitute Events of Default.




          SECTION 8.4. Conditions to Legal or Covenant Defeasance. In order to exercise
either Legal Defeasance or Covenant Defeasance under either Section 8.2 or 8.3
hereof:





          (1) the Issuer must irrevocably deposit with the Trustee, in trust, for the benefit of
the Holders of the Notes, cash in U.S. dollars, Government Securities, or a combination
thereof, in such amounts as shall be sufficient, in the opinion of a nationally recognized
firm of independent public accountants, to pay the principal of, premium, if any, and
interest due on the Notes on the Stated Maturity date or on the redemption date, as the case
may be, of such principal, premium, if any, or interest on such Notes, and the Issuer must
specify whether such Notes are being defeased to maturity or to a particular redemption
date;




          (2) in the case of Legal Defeasance, the Issuer shall have delivered to the Trustee an
Opinion of Counsel reasonably acceptable to the Trustee confirming that, subject to
customary assumptions and exclusions;




	 	(A)	 	the Issuer has received from, or there has been
published by, the United States Internal Revenue Service a ruling, or
	 
	 	(B)	 	since the issuance of the Notes, there has been
a change in the applicable U.S. federal income tax law,






in either case to the effect that, and based thereon such Opinion of Counsel shall confirm
that, subject to customary assumptions and exclusions, the Holders of the Notes shall not
recognize income, gain or loss for U.S. federal income tax purposes, as applicable, as a
result of such Legal Defeasance and shall be subject to such U.S. federal income tax on the
same amounts, in the same manner and at the same times as would have been the case if such
Legal Defeasance had not occurred;




          (3) in the case of Covenant Defeasance, the Issuer shall have delivered to the Trustee
an Opinion of Counsel reasonably acceptable to the Trustee confirming that, subject to
customary assumptions and exclusions, the Holders of the Notes shall not recognize income,
gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance
and shall be subject to U.S. federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such Covenant Defeasance had not occurred;




          (4) no Default (other than that resulting from borrowing funds to be applied to make
such deposit and any similar and simultaneous deposit relating to other Indebtedness, and,
in each case the granting of Liens in connection therewith) shall have occurred and be
continuing on the date of such deposit;




          (5) such Legal Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under the New Credit Facilities or any other material
agreement or instrument (other than this Indenture) to which the Issuer or any



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Guarantor is a party or by which the Issuer or any Guarantor is bound (other than that
resulting from borrowing funds to be applied to make such deposit and any similar and
simultaneous deposit relating to other Indebtedness and, in each case, the granting of Liens
in connection therewith);




          (6) the Issuer shall have delivered to the Trustee an Opinion of Counsel to the effect
that, as of the date of such opinion and subject to customary assumptions and exclusions
following the deposit, the trust funds shall not be subject to the effect of Section 547 of
Title 11 of the United States Code;




          (7) the Issuer shall have delivered to the Trustee an Officer’s Certificate stating
that the deposit was not made by the Issuer with the intent of defeating, hindering,
delaying or defrauding any creditors of the Issuer or any Guarantor or others; and




          (8) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel (which Opinion of Counsel may be subject to customary assumptions and
exclusions) each stating that all conditions precedent provided for or relating to the Legal
Defeasance or the Covenant Defeasance, as the case may be, have been complied with.



          SECTION 8.5. Deposited Money and Government Securities to be Held in Trust; Other
Miscellaneous Provisions. Subject to Section 8.6 hereof, all money and non-callable
Government Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.5, the “Trustee”)
pursuant to Section 8.4 hereof in respect of the outstanding Notes shall be held in trust
and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to
the payment, either directly or through any Paying Agent (including the Issuer acting as Paying
Agent) as the Trustee may determine, to the Holders of such Notes of all sums due and to become due
thereon in respect of principal, premium and Additional Interest, if any, and interest, but such
money need not be segregated from other funds except to the extent required by law.




          The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge imposed on
or assessed against the cash or non-callable Government Securities deposited pursuant to
Section 8.4 hereof or the principal and interest received in respect thereof other than any
such tax, fee or other charge which by law is for the account of the Holders of the outstanding
Notes.




          Notwithstanding anything in this Article VIII to the contrary, the Trustee shall
deliver or pay to the Issuer from time to time upon the request of the Issuer any money or
non-callable Government Securities held by it as provided in Section 8.4 hereof which, in
the opinion of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee (which may be the opinion delivered under
Section 8.4(1) hereof), are in excess of the amount thereof that would then be required to
be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.




          SECTION 8.6. Repayment to the Issuer. Any money deposited with the Trustee or any
Paying Agent, or then held by the Issuer, in trust for the payment of the principal of, premium or
Additional Interest, if any, or interest on, any Note and remaining unclaimed for two





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years after such principal, premium or Additional Interest, if any, or interest has become due
and payable shall be paid to the Issuer on its request unless an abandoned property law designates
another Person or (if then held by the Issuer) shall be discharged from such trust; and the Holder
of such Note shall thereafter be permitted to look only to the Issuer for payment thereof unless an
abandoned property law designates another Person, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Issuer as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to
make any such repayment, may at the expense of the Issuer cause to be published once, in the New
York Times and The Wall Street Journal (national edition), notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days from the date of
such notification or publication, any unclaimed balance of such money then remaining shall be
repaid to the Issuer.




          SECTION 8.7. Reinstatement. If the Trustee or Paying Agent is unable to apply any
money or U.S. dollars or non-callable Government Securities in accordance with Section 8.2
or 8.3 hereof, as the case may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such application, then the
Issuer’s and the Guarantors’ obligations under this Indenture and the Notes and the Guarantees
shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.2
or 8.3 hereof until such time as the Trustee or Paying Agent is permitted to apply all such
money in accordance with Section 8.2 or 8.3 hereof, as the case may be; provided,
however, that, if the Issuer makes any payment of principal of, premium or Additional Interest, if
any, or interest on, any Note following the reinstatement of its obligations, the Issuer shall be
subrogated to the rights of the Holders of such Notes to receive such payment from the money or
non-callable Government Securities held by the Trustee or Paying Agent.




ARTICLE IX




AMENDMENTS



          SECTION 9.1. Without Consent of Holders. Notwithstanding Section 9.2 of
this Indenture, the Issuer, any Guarantor (with respect to a Guarantee or this Indenture to which
it is a party) and the Trustee may amend or supplement this Indenture and any Guarantee and the
Notes without the consent of any Holder:





          (1) to cure any ambiguity, omission, mistake, defect or inconsistency;




          (2) to provide for uncertificated Notes of such series in addition to or in place of
certificated Notes;




          (3) to comply with Article IV or Section 10.2(b);




          (4) to provide for the assumption of the Issuer’s or any Guarantor’s obligations to the
Holders in a transaction that complies with this Indenture;



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          (5) to make any change that would provide any additional rights or benefits to the
Holders or that does not adversely affect the legal rights under this Indenture, the Notes
or the Guarantees of any such Holder;




          (6) to add covenants for the benefit of the Holders or to surrender any right or power
conferred upon the Issuer or any Guarantor;




          (7) to comply with requirements of the SEC in order to effect or maintain the
qualification of the Indenture under the Trust Indenture Act;




          (8) to evidence and provide for the acceptance and appointment under this Indenture of
a successor Trustee hereunder pursuant to the requirements hereof;




          (9) to provide for the issuance of exchange notes or private exchange notes, which are
identical to exchange notes except that they are not freely transferable;




          (10) to add a Guarantor under this Indenture;




          (11) to conform the text of this Indenture, Guarantee or Notes to any provision under
the heading “Description of notes” in the Offering Memorandum to the extent that such
provision in the Offering Memorandum was intended to be a verbatim recitation of a provision
of this Indenture, Guarantee or Notes; or




          (12) to make any amendment to the provisions of this Indenture relating to the transfer
and legending of Notes as permitted by this Indenture, including, without limitation to
facilitate the issuance and administration of the Notes; provided, however, that (i)
compliance with this Indenture as so amended would not result in Notes being transferred in
violation of the Securities Act or any applicable securities law and (ii) such amendment
does not materially and adversely affect the rights of Holders to transfer Notes.



          Subject to Section 9.2, upon the request of the Issuer, and upon receipt by the
Trustee of the documents described in Section 13.4 hereof, the Trustee shall join with the
Issuer and the Guarantors in the execution of such amended or supplemental indenture unless such
amended or supplemental indenture directly affects the Trustee’s own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not
be obligated to, enter into such amended or supplemental Indenture.




          After an amendment or supplement under this Section 9.1 becomes effective, the Issuer
shall mail to Holders a notice briefly describing such amendment or supplement. The failure to
give such notice to all Holders, or any defect therein, shall not impair or affect the validity of
an amendment or supplement under this Section 9.1.




          SECTION 9.2. With Consent of Holders.




          Except as provided below in this Section 9.2, the Issuer, the Guarantors and the
Trustee may amend or supplement this Indenture, any related Guarantee and the Notes issued
hereunder with the consent of the Holders of at least a majority in aggregate principal amount of
the Notes then outstanding, including consents obtained in connection with a purchase of, or





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tender offer or exchange offer for, Notes, and, subject to Sections 6.4 and
6.7 hereof, any existing Default or Event of Default (other than a Default or Event of
Default in the payment of the principal of, premium, if any, and Additional Interest, if any, or
interest on the Notes, except a payment default resulting from an acceleration that has been
rescinded) or compliance with any provision of this Indenture, the Notes and the Garantees may be
waived with the consent of the Holders of a majority in principal amount of the then outstanding
Notes, other than Notes beneficially owned by the Issuer or its Affiliates (including consents
obtained in connection with a purchase of or tender offer or exchange offer for the Notes).
Section 2.11 hereof and Section 13.6 hereof shall determine which Notes are
considered to be “outstanding” for the purposes of this Section 9.2.




          Upon the request of the Issuer, and upon the filing with the Trustee of evidence satisfactory
to the Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee
of the documents described in Section 13.4 hereof, the Trustee shall join with the Issuer
and the Guarantors in the execution of such amended or supplemental indenture unless such amended
or supplemental indenture directly affects the Trustee’s own rights, duties or immunities under
this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such amended or supplemental Indenture.




          Without the consent of each affected Holder of Notes, an amendment or waiver may not, with
respect to any Notes held by a non-consenting Holder:





          (1) reduce the principal amount of such Notes whose Holders must consent to an
amendment, supplement or waiver;




          (2) reduce the principal of or change the fixed final maturity of any such Note or
alter or waive the provisions with respect to the redemption of such Notes (other than
provisions relating to Sections 3.5 and 3.10);




          (3) reduce the rate of or change the time for payment of interest on any Note;




          (4) waive a Default or Event of Default in the payment of principal of or premium, if
any, or interest on the Notes, except a rescission of acceleration of the Notes by the
Holders of at least a majority in aggregate principal amount of the Notes and a waiver of
the payment default that resulted from such acceleration, or in respect of a covenant or
provision contained in the Indenture or any Guarantee which cannot be amended or modified
without the consent of all Holders;




          (5) make any Note payable in money other than that stated therein;




          (6) make any change in the provisions of this Indenture relating to waivers of past
Defaults or the rights of Holders to receive payments of principal of or premium, if any, or
interest on the Notes;




          (7) make any change in these amendment and waiver provisions that require each Holder’s
consent;



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          (8) impair the right of any Holder to receive payment of principal of, or interest on
such Holder’s Notes on or after the due dates therefor or to institute suit for the
enforcement of any payment on or with respect to such Holder’s Notes;




          (9) make any change to or modify the ranking of the Notes that would adversely affect
the Holders; or




          (10) except as expressly permitted by this Indenture, modify the Guarantees of any
Significant Subsidiary (or group of Restricted Subsidiaries that together (determined as of
the most recent consolidated financial statements of the Issuer for a fiscal period end
provided as required under Section 3.11) would constitute a Significant Subsidiary), in any
manner adverse to the Holders of the Notes.



          It shall not be necessary for the consent of the Holders under this Indenture to approve the
particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if such
consent approves the substance thereof. A consent to any amendment, supplement or waiver under
this Indenture by any Holder of the Notes given in connection with a tender or exchange of such
Holder’s Notes shall not be rendered invalid by such tender or exchange.




          After an amendment or supplement under this Section 9.2 becomes effective, the Issuer
shall mail to Holders a notice briefly describing such amendment or supplement. The failure to
give such notice to all Holders, or any defect therein, shall not impair or affect the validity of
an amendment or supplement.




          SECTION 9.3. Compliance with Trust Indenture Act.




          Every amendment or supplement to this Indenture, any Guarantee and the Notes shall be set
forth in an amended or supplemental indenture that complies with the TIA as then in effect.




          SECTION 9.4. Revocation and Effect of Consents and Waivers.




          Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a
Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or
portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of
the consent or waiver is not made on any Note. However, any such Holder of a Note or subsequent
Holder of a Note may revoke the consent or waiver as to such Holder’s Note or portion of its Note
if the Trustee receives written notice of revocation before the date the amendment, supplement or
waiver becomes effective. An amendment, supplement or waiver becomes effective in accordance with
its terms and thereafter binds every Holder.




          The Issuer may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders entitled to give their consent or take any other action described above or
required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were Holders at such record
date (or their duly designated proxies), and only those Persons, shall be entitled to give such
consent or to revoke any consent previously given or to take any such action, whether or not such





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Persons continue to be Holders after such record date. No such consent shall be valid or
effective for more than 120 days after such record date.




          SECTION 9.5. Notation on or Exchange of Notes.




          The Trustee may place an appropriate notation about an amendment, supplement or waiver on any
Note thereafter authenticated. The Issuer in exchange for all Notes may issue and the Trustee
shall, upon receipt of an Issuer Order, authenticate new Notes that reflect the amendment,
supplement or waiver.




          Failure to make the appropriate notation or issue a new Note shall not affect the validity and
effect of such amendment, supplement or waiver.




          SECTION 9.6. Trustee to Sign Amendments.




          The Trustee shall sign any amended or supplemental indenture authorized pursuant to this
Article IX if the amendment or supplement does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. In executing any amended or supplemental indenture, the
Trustee shall be entitled to receive and (subject to Sections 7.1 and 7.2 hereof)
shall be fully protected in relying upon, in addition to the documents required by Section
13.4 hereof, an Officer’s Certificate and an Opinion of Counsel stating that the execution of
such amended or supplemental indenture is authorized or permitted by this Indenture.




ARTICLE X




GUARANTEE



          SECTION 10.1. Guarantee. Subject to the provisions of this Article X, from
and after the Release each Guarantor hereby fully, unconditionally and irrevocably guarantees, as
primary obligor and not merely as surety, jointly and severally with each other Guarantor, to each
Holder of the Notes, and the Trustee the full and punctual payment when due, whether at maturity,
by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest
(including Additional Interest) (accruing after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any
Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such
proceeding and the obligations under Section 7.7) on the Notes and all other obligations
and liabilities of the Issuer under this Indenture (including without limitation interest
(including Additional Interest) and the Registration Rights Agreement (all the foregoing being
hereinafter collectively called the “Guaranteed Obligations”). Each Guarantee shall be on
an unsecured senior basis. Each Guarantor agrees that the Guaranteed Obligations shall (i) rank
equally in right of payment with other existing and future Senior Indebtedness of each such
Subsidiary Guarantor, (ii) be effectively subordinated to all Secured Indebtedness of each such
Subsidiary Guarantor to the extent of the value of the assets securing such Indebtedness and (iii)
shall be senior in right of payment to all existing and future Subordinated Indebtedness of each
such Subsidiary Guarantor.






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          To evidence its Guarantee set forth in this Section 10.1, each Guarantor hereby agrees
that this Indenture (or a supplemental indenture to the Indenture) shall be executed on behalf of
such Guarantor by an Officer of such Guarantor.




          Each Guarantor hereby agrees that its Guarantee set forth in Section 10.1 hereof shall
remain in full force and effect notwithstanding the absence of the endorsement of any notation of
such Guarantee on the Notes.




          If an Officer whose signature is on this Indenture no longer holds that office at the time the
Trustee authenticates the Note, the Guarantee shall be valid nevertheless.




          Upon execution of a supplemental indenture to this Indenture by the Guarantors, the Guarantees
set forth in this Indenture shall be deemed duly delivered, without any further action by any
Person, on behalf of the Guarantors. Following the Issue Date, the delivery of any Note by the
Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Guarantee
set forth in this Indenture on behalf of the Guarantors.




          Each Guarantor further agrees (to the extent permitted by law) that the Guaranteed Obligations
may be extended or renewed, in whole or in part, without notice or further assent from it, and that
it shall remain bound under this Article X notwithstanding any extension or renewal of any
Guaranteed Obligation.




          Each Guarantor waives presentation to, demand of payment from and protest to the Issuer of any
of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor
waives notice of any default under the Notes or the Guaranteed Obligations.




          Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment
when due (and not a Guarantee of collection) and waives any right to require that any resort be had
by any Holder to any security held for payment of the Guaranteed Obligations.




          Except as set forth in Section 10.2, the obligations of each Guarantor hereunder shall
not be subject to any reduction, limitation, impairment or termination for any reason (other than
payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender,
alteration or compromise, and shall not be subject to any defense of setoff, counterclaim,
recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability
of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the
Guaranteed Obligations of each Guarantor herein shall not be discharged or impaired or otherwise
affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or
remedy against the Issuer or any other person under this Indenture, the Notes or any other
agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver,
amendment or modification of any of the terms or provisions of this Indenture, the Notes or any
other agreement; (d) the failure of any Holder to exercise any right or remedy against any other
Guarantor; (e) any change in the ownership of the Issuer; (f) any default, failure or delay,
willful or otherwise, in the performance of the Guaranteed Obligations, or (g) any other act or
thing or omission or delay to do any other act or thing which may or might in any manner or to any
extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor
as a matter of law or equity.






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          Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until
payment in full of all the Guaranteed Obligations or such Guarantor is released from its Guarantee
in compliance with Section 10.2, Article VIII or Article XII. Each
Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated,
as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any,
or interest on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any
Holder upon the bankruptcy or reorganization of the Issuer or otherwise.




          In furtherance of the foregoing and not in limitation of any other right which any Holder has
at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay
any of the Guaranteed Obligations when and as the same shall become due, whether at maturity, by
acceleration, by redemption or otherwise, each Guarantor hereby promises to and shall, upon receipt
of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or
the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such
Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest (including
Additional Interest) on such Guaranteed Obligations then due and owing (but only to the extent not
prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or
the commencement of any insolvency, reorganization or like proceeding relating to the Issuer or any
Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such
proceeding).




          Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the
Holders, on the other hand, (x) the maturity of the Guaranteed Obligations guaranteed hereby may be
accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding
any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed
Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such
Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) shall
forthwith become due and payable by the Guarantor for the purposes of this Guarantee.




          Each Guarantor also agrees to pay any and all costs and expenses (including reasonable
attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under
this Section.




          SECTION 10.2. Limitation on Liability; Termination, Release and Discharge.




          (a) Any term or provision of this Indenture to the contrary notwithstanding, the obligations
of each Guarantor hereunder shall be limited to the maximum amount as shall, after giving effect to
all other contingent and fixed liabilities of such Guarantor (including, without limitation, any
guarantees under the New Credit Facilities) and after giving effect to any collections from or
payments made by or on behalf of any other Guarantor in respect of the obligations of such other
Guarantor under its Guarantee or pursuant to its contribution obligations under this Indenture,
result in the obligations of such Guarantor under its Guarantee not constituting a fraudulent
conveyance or fraudulent transfer under federal or state law and not otherwise being void or
voidable under any similar laws affecting the rights of creditors generally.






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          (b) Subject to Section 10.2(c), Holdings shall not, and the Issuer shall not permit
any Subsidiary Guarantor to, consolidate or merge with or into or wind up into (whether or not
Holdings, the Issuer or such Subsidiary Guarantor is the surviving corporation), or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its properties or
assets, in one or more related transaction, to, any Person unless:





          (i) such Guarantor is the surviving corporation or the Person formed by or surviving
any such consolidation or merger (if other than such Guarantor) or to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have been made is a
Person organized or existing under the laws of the jurisdiction of organization of such
Guarantor, or the laws of the United States, any state thereof, the District of Columbia, or
any territory thereof (such Guarantor or such Person, as the case may be, being herein
called the “Successor Person”);




          (ii) the Successor Person, if other than such Guarantor, expressly assumes all the
obligations of such Guarantor under this Indenture and such Guarantor’s related Guarantee
pursuant to supplemental indentures or other documents or instruments in form reasonably
satisfactory to the Trustee;




          (iii) immediately after such transaction, no Default exists;




          (iv) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel, each stating that such consolidation, merger or transfer and such
supplemental indentures, if any, comply with this Indenture; or




          (v) the transaction is made in compliance with Section 3.5.



          (c) Subject to the limitations described in this Indenture, the Successor Person shall succeed
to, and be substituted for, such Guarantor under this Indenture, such Guarantor’s Guarantee and the
Registration Rights Agreement. Notwithstanding the foregoing, any Subsidiary Guarantor may (i)
merge into or with or wind up into or transfer all or part of its properties and assets to a
Subsidiary Guarantor or the Issuer or (ii) merge with an Affiliate of the Issuer solely for the
purpose of reincorporating or reorganizing the Guarantor in the United States, any state thereof,
the District of Columbia or any territory thereof. Holdings may merge with an Affiliate of the
Issuer solely for the purpose of reincorporating or reorganizing Holdings in the United States, any
state thereof, the District of Columbia or any territory thereof. Notwithstanding the foregoing,
any Restricted Subsidiary may liquidate or dissolve if the Issuer determines in good faith that
such liquidation or dissolution is in the best interests of the Issuer and is not materially
disadvantageous to the Holders.




          (d) Any Guarantee by a Restricted Subsidiary of the Notes shall be automatically and
unconditionally released and discharged upon:





          (1) (A) any sale, exchange, disposition or transfer (by merger or otherwise) of (x) the
Capital Stock of such Subsidiary Guarantor, after which the applicable Subsidiary Guarantor
is no longer a Restricted Subsidiary, or (y) all or substantially all the assets of such
Subsidiary Guarantor, which sale, exchange, disposition



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or transfer in each case is made in compliance with the applicable provisions of this
Indenture;




     (B) the release or discharge of the guarantee by such Guarantor of the
New Credit Facilities or the guarantee which resulted in the creation of
such Guarantee, except a discharge or release by or as a result of payment
under such guarantee;




     (C) the proper designation of any Restricted Subsidiary that is a
Guarantor as an Unrestricted Subsidiary in compliance with the applicable
provisions of this Indenture; and




     (D) the Issuer exercising its legal defeasance option or covenant
defeasance option as described in Article VIII or if its obligations
under this Indenture are discharged in accordance with Article XII.




          (2) Such Guarantor delivering to the Trustee an Officer’s Certificate and an Opinion of
Counsel, each stating that all conditions precedent provided for in the Indenture relating
to such transaction have been complied with.



          SECTION 10.3. Right of Contribution. Each Guarantor hereby agrees that any
Guarantor that makes a payment on the obligations under the Guarantees shall be entitled, upon
payment in full of all obligations under the Guarantees, to a contribution from each other
Guarantor in an amount equal to such other Guarantor’s pro rata portion of such payment based on
the respective net assets of all the Guarantors at the time of such payment determined in
accordance with GAAP. The provisions of this Section 10.3 shall in no respect limit the
obligations and liabilities of each Guarantor to the Trustee and the Holders and each Guarantor
shall remain liable to the Trustee and the Holders for the full amount guaranteed by such Guarantor
hereunder.




          SECTION 10.4. No Subrogation. Notwithstanding any payment or payments made by each
Guarantor hereunder, no Guarantor shall be entitled to be subrogated to any of the rights of the
Trustee or any Holder against the Issuer or any other Guarantor or any guarantee or right of offset
held by the Trustee or any Holder for the payment of the Guaranteed Obligations, nor shall any
Guarantor seek or be entitled to seek any contribution or reimbursement from the Issuer or any
other Guarantor in respect of payments made by such Guarantor hereunder, until all amounts owing to
the Trustee and the Holders by the Issuer on account of the Guaranteed Obligations are paid in
full. If any amount shall be paid to any Guarantor on account of such subrogation rights at any
time when all of the Guaranteed Obligations shall not have been paid in full, such amount shall be
held by such Guarantor in trust for the Trustee and the Holders, segregated from other funds of
such Guarantor, and shall, forthwith upon receipt by such Guarantor, be turned over to the Trustee
in the exact form received by such Guarantor (duly indorsed by such Guarantor to the Trustee, if
required), to be applied against the Guaranteed Obligations.






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ARTICLE XI



RESERVED



ARTICLE XII



SATISFACTION AND DISCHARGE



          SECTION 12.1. Satisfaction and Discharge.




          This Indenture shall be discharged and shall cease to be of further effect as to all Notes,
when:




          (a) either:





          (i) all Notes theretofore authenticated and delivered, except lost, stolen or
destroyed Notes that have been replaced or paid and Notes for whose payment money has
theretofore been deposited in trust, have been delivered to the Trustee for
cancellation; or




          (ii) all Notes not theretofore delivered to the Trustee for cancellation have
become due and payable by reason of the making of a notice of redemption or otherwise,
shall become due and payable within one year or are to be called for redemption within
one year under arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Issuer, and the
Issuer or any Guarantor has irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust solely for the benefit of the Holders of the Notes,
cash in U.S. dollars, Government Securities, or a combination thereof, in such amounts
as shall be sufficient without consideration of any reinvestment of interest to pay and
discharge the entire Indebtedness on the Notes not theretofore delivered to the Trustee
for cancellation for principal, premium, if any, and accrued interest to the date of
maturity or redemption;



          (b) no Default (other than that resulting from borrowing funds to be applied to make such
deposit and any similar and simultaneous deposit relating to other Indebtedness and, in each case,
the granting of Liens in connection therewith) with respect to the Indenture or the Notes shall
have occurred and be continuing on the date of such deposit or shall occur as a result of such
deposit and such deposit shall not result in a breach or violation of, or constitute a default
under, the New Credit Facilities or any other material agreement or instrument (other than the
Indenture) to which the Issuer or any Guarantor is a party or by which the Issuer or any Guarantor
is bound (other than that resulting from borrowing funds to be applied to make such deposit and any
similar and simultaneous deposit relating to other Indebtedness and, in each case, the granting of
Liens in connection therewith);




          (c) the Issuer has paid or caused to be paid all sums payable by it under the Indenture; and






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          (d) the Issuer has delivered irrevocable instructions to the Trustee to apply the deposited
money toward the payment of the Notes at maturity or the redemption date, as the case may be.




          (e) In addition, the Issuer shall deliver an Officer’s Certificate and an Opinion of Counsel
to the Trustee stating that all conditions precedent to satisfaction and discharge have been
satisfied.




          Notwithstanding the satisfaction and discharge of this Indenture, if money has been deposited
with the Trustee pursuant to clause (a)(ii) of this Section 12.1, the provisions of
Sections 12.2 and 8.6 hereof shall survive.




          SECTION 12.2. Application of Trust Money.




          Subject to the provisions of Section 8.6 hereof, all money deposited with the Trustee
pursuant to Section 12.1 hereof shall be held in trust and applied by it, in accordance
with the provisions of the Notes and this Indenture, to the payment, either directly or through any
Paying Agent (including the Issuer acting as its own Paying Agent) as the Trustee may determine, to
the Persons entitled thereto, of the principal (and premium and Additional Interest, if any) and
interest for whose payment such money has been deposited with the Trustee; but such money need not
be segregated from other funds except to the extent required by law.




          If the Trustee or Paying Agent is unable to apply any money or Government Securities in
accordance with Section 12.1 hereof by reason of any legal proceeding or by reason of any
order or judgment of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the Issuer’s and any Guarantor’s obligations under this Indenture and
the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section
12.1 hereof; provided that if the Issuer has made any payment of principal of, premium or
Additional Interest, if any, or interest on, any Notes because of the reinstatement of its
obligations, the Issuer shall be subrogated to the rights of the Holders of such Notes to receive
such payment from the money or Government Securities held by the Trustee or Paying Agent.




ARTICLE XIII




MISCELLANEOUS



          SECTION 13.1. Trust Indenture Act Controls. If and to the extent that any provision
of this Indenture limits, qualifies or conflicts with another provision which is required to be
included in this Indenture by the TIA, the provision required by the TIA shall control. Each
Guarantor in addition to performing its obligations under its Guarantee shall perform such other
obligations as may be imposed upon it with respect to this Indenture under the TIA.




          SECTION 13.2. Notices. Any notice or communication shall be in writing and
delivered in person, sent by facsimile, sent by electronic mail, delivered by commercial courier
service or mailed by first-class mail, postage prepaid, addressed as follows:












126









 







if to Merger Sub, BKC or to any Guarantor:



Burger King Corporation

5505 Blue Lagoon Drive

Miami, Florida 33126

Attention: General Counsel

Telecopy: (305) 378-7112



with a copy to:



Kirkland & Ellis LLP

601 Lexington Ave

New York, New York 10022

Attention: Joshua N. Korff

Telecopy: (212) 446-4900

E-mail: joshua.korff@kirkland.com





if to the Trustee, at its corporate trust office, which corporate trust
office for purposes of this Indenture is at the date hereof located at:


Wilmington Trust FSB

Corporate Client Services

246 Goose Lane, Suite 105

Guilford, CT 06437

Attention: Joseph O’Donnell

Telecopy: (203) 453-1183

E-mail: jodonnell@wilmingtontrust.com




          The Issuer or the Trustee by written notice to the other may designate additional or different
addresses for subsequent notices or communications.




          Any notice or communication to the Issuer or the Guarantors shall be deemed to have been given
or made as of the date so delivered if personally delivered; when answered back, if telexed; when
receipt is acknowledged, if telecopied; on the first date on which publication is made, when given
by publication; and five calendar days after mailing if sent by registered or certified mail,
postage prepaid (except that a notice of change of address shall not be deemed to have been given
until actually received by the addressee). Any notice or communication to the Trustee shall be
deemed delivered upon receipt.




          Any notice or communication mailed to a Holder shall be mailed to the Holder at the Holder’s
address as it appears in the Notes Register and shall be sufficiently given if so mailed within the
time prescribed.




          Failure to mail a notice or communication to a Holder or any defect in it shall not affect its
sufficiency with respect to other Holders. If a notice or communication is mailed in the





127









 







manner provided above, it is duly given, whether or not the addressee receives it, except that
notices to the Trustee shall be effective only upon receipt.




          In case by reason of the suspension of regular mail service or by reason of any other cause it
shall be impracticable to give such notice by mail, then such notification as shall be made with
the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.




          SECTION 13.3. Communication by Holders with other Holders. Holders may communicate
pursuant to TIA § 312(b) with other Holders with respect to their rights under this Indenture or
the Notes. The Issuer, the Trustee, the Registrar and anyone else shall have the protection of TIA
§ 312(c).




          Notwithstanding any other provision of this Indenture or any Note, where this Indenture or any
Note provides for notice of any event (including any notice of redemption) to a Holder of a Global
Note (whether by mail or otherwise), such notice shall be sufficiently given if given to DTC for
such Note (or its designee), pursuant to the customary procedures of DTC.




          SECTION 13.4. Certificate and Opinion as to Conditions Precedent. Upon any request
or application by the Issuer to the Trustee to take or refrain from taking any action under this
Indenture, the Issuer shall furnish to the Trustee:





          (1) an Officer’s Certificate in form reasonably satisfactory to the Trustee stating
that, in the opinion of the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and




          (2) an Opinion of Counsel in form reasonably satisfactory to the Trustee stating that,
in the opinion of such counsel, all such conditions precedent have been complied with.



          SECTION 13.5. Statements Required in Certificate or Opinion. Each certificate or
opinion with respect to compliance with a covenant or condition provided for in this Indenture
shall include:





          (1) a statement that the individual making such certificate or opinion has read such
covenant or condition;




          (2) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;




          (3) a statement that, in the opinion of such individual, he has made such examination
or investigation as is necessary to enable him to express an informed opinion as to whether
or not such covenant or condition has been complied with; and




          (4) a statement as to whether or not, in the opinion of such individual, such covenant
or condition has been complied with.




128











 





          In giving such Opinion of Counsel, counsel may rely as to factual matters on an Officer’s
Certificate or on certificates of public officials.




          SECTION 13.6. When Notes Disregarded. In determining whether the Holders of the
required aggregate principal amount of Notes have concurred in any direction, waiver or consent,
Notes owned by the Issuer, any Guarantor or any Affiliate of them shall be disregarded and deemed
not to be outstanding, except that, for the purpose of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent, only Notes which the Trustee
actually knows are so owned shall be so disregarded. Also, subject to the foregoing, only Notes
outstanding at the time shall be considered in any such determination.




          SECTION 13.7. Rules by Trustee, Paying Agent and Registrar. The Trustee may make
reasonable rules for action by, or at meetings of, Holders. The Registrar and the Paying Agent may
make reasonable rules for their functions.




          SECTION 13.8. Legal Holidays. A “Legal Holiday” is a Saturday, a Sunday or
other day on which commercial banking institutions are authorized or required to be closed in New
York, New York. If a payment date is a Legal Holiday, payment shall be made on the next succeeding
day that is not a Legal Holiday, and no interest shall accrue for the intervening period. If a
regular record date is a Legal Holiday, the record date shall not be affected.




          SECTION 13.9. GOVERNING LAW. THIS INDENTURE, THE NOTES AND THE GUARANTEES SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE OR INSTRUMENTS ENTERED INTO AND, IN EACH CASE, PERFORMED IN SAID STATE. EACH OF
THE PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE STATE COURTS OF, AND THE FEDERAL
COURTS LOCATED IN, THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS INDENTURE (INCLUDING THE GUARANTEES SET FORTH HEREIN) OR THE NOTES.




          SECTION 13.10. USA Patriot Act. The parties hereto acknowledge that in accordance
with Section 326 of the USA Patriot Act, the Trustee, like all financial institutions and in order
to help fight the funding of terrorism and money laundering, is required to obtain, verify, and
record information that identifies each person or legal entity that establishes a relationship or
opens an account. The parties to this Indenture agree that they shall provide the Trustee with
such information as they may request in order to satisfy the requirements of the USA Patriot Act.




          SECTION 13.11. No Recourse Against Others. An incorporator, director, officer,
employee or stockholder of the Issuer or any Guarantor or any of their parent companies, solely by
reason of this status, shall not have any liability for any obligations of the Issuer or any
Guarantor under the Notes or this Indenture or for any claim based on, in respect of or by reason
of such obligations or their creation. By accepting a Note, each Holder waives and releases all
such liability. The waiver and release are a part of the consideration for the issuance of the
Notes.







129









 








          SECTION 13.12. Successors. All agreements of the Issuer and each Guarantor in this
Indenture and the Notes shall bind their respective successors. All agreements of the Trustee in
this Indenture shall bind its successors.




          SECTION 13.13. Multiple Originals. The parties may sign any number of copies of
this Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement. One signed copy is enough to prove this Indenture.




          SECTION 13.14. Qualification of Indenture. The Issuer has agreed to qualify this
Indenture under the TIA in accordance with the terms and conditions of the Registration Rights
Agreement and to pay all reasonable costs and expenses (including attorneys’ fees and expenses for
the Issuer, the Trustee and the Holders) incurred in connection therewith, including, but not
limited to, costs and expenses of qualification of this Indenture and the Notes and printing this
Indenture and the Notes. The Trustee shall be entitled to receive from the Issuer any such
Officer’s Certificates, Opinions of Counsel or other documentation as it may reasonably request in
connection with any such qualification of this Indenture under the TIA.




          SECTION 13.15. Table of Contents; Headings. The table of contents, cross-reference
sheet and headings of the Articles and Sections of this Indenture have been inserted for
convenience of reference only, are not intended to be considered a part hereof and shall not modify
or restrict any of the terms or provisions hereof.




          SECTION 13.16. WAIVERS OF JURY TRIAL. THE ISSUER, THE GUARANTORS AND THE TRUSTEE
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS INDENTURE, THE NOTES OR THE GUARANTEES AND FOR ANY COUNTERCLAIM THEREIN.




          SECTION 13.17. Force Majeure. In no event shall the Trustee be responsible or
liable for any failure or delay in the performance of its obligations hereunder arising out of or
caused by, directly or indirectly, forces beyond its control, including, without limitation,
strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances,
nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of
utilities, communications or computer (software and hardware) services, it being understood that
the Trustee shall use reasonable best efforts which are consistent with accepted practices in the
banking industry to resume performance as soon as practicable under the circumstances.




          SECTION 13.18. Effectiveness of Provisions for BKC and the Guarantors. The
provisions of this Indenture shall not be effective for BKC and the Guarantors, with the exception
of Sections 3.9, 3.13, 3.14 and 3.18, until the entry by BKC and
the Guarantors into a supplemental indenture in the form of Exhibit A hereto. On the Issue Date,
Merger Sub shall merge with and into Holdings with Holdings as the surviving entity and BKC shall
assume all the obligations of Merger Sub hereunder, which merger shall be permitted notwithstanding
anything to the contrary in this Indenture.









130









 








          IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed all as of the
date and year first written above.




	 	 	 	 	 
	 	BLUE ACQUISITION SUB, INC.

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



[Signature Page to the Indenture]





 









 








	 	 	 	 	 
	 	WILMINGTON TRUST FSB,

as Trustee

 	 
	 	By:  	/s/ Joseph P O’Donnell
 	 
	 	 	Name:  	Joseph P O’Donnell 	 
	 	 	Title:  	Vice President 	 



[Signature Page to the Indenture]






 









 








EXHIBIT 1



Guarantors




BK Acquisition, Inc.

BK CDE, Inc.

Burger King Holdings, Inc.

Burger King Interamerica, LLC

Burger King Sweden, Inc.

Distron Transportation Systems, Inc.

Moxie’s, Inc.

The Melodie Corporation

TPC Number Four, Inc.

TQW Company




 









 





EXHIBIT
A: Form of Series A Note




[FORM OF FACE OF SERIES A NOTE]




[Applicable Restricted Notes Legend]

[Depository Legend, if applicable]

[OID Legend, if applicable]

[Temporary Regulation S Legend, if applicable]



	 	 	 	 	 

	No. [___]

	 	 	 	Principal Amount $[___________] [as revised by the Schedule of Increases and Decreases
in Global Note attached hereto]1

CUSIP NO. _________________________2






BLUE ACQUISITION SUB, INC.




97⁄8% Senior Notes due 2018



          Blue Acquisition Sub, Inc., a Delaware corporation (the “Issuer”), promises to pay to
[Cede & Co.]1, or its registered assigns, the principal sum of _______________ Dollars,
[as revised by the Schedule of Increases and Decreases in Global Note attached hereto]
1, on October 15, 2018.




          Interest Payment Dates: April 15 and October 15, commencing on April 15, 2011




          Record Dates: April 1 and October 1




          Additional provisions of this Note are set forth on the other side of this Note.






 




			
	1	 	Insert in Global Notes only
	 
	2	 	144A – 095231AA4

Reg S – U0929BAA8

IAI – 095231AB1




A-1









 









IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed.




	 	 	 	 	 
	 	BLUE ACQUISITION SUB, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



A-2









 






	 	 	 	 	 



	 	 	 	 	 
	TRUSTEE’S CERTIFICATE OF

AUTHENTICATION

WILMINGTON TRUST FSB,

as Trustee, certifies

that this is one of

the Notes referred

to in the Indenture.

 	 
	By:  	 	 
	 	Authorized Officer        	                       Date: __________ 
	 	 	 



A-3









 






	 	 	 	 	 



[FORM OF REVERSE SIDE OF NOTE]

BLUE ACQUISITION SUB, INC.




97⁄8% Senior Notes due 2018



          Capitalized terms used herein and not defined herein have the meanings ascribed thereto in the
Indenture.



1. Interest




          Blue Acquisition Sub, Inc., a Delaware corporation (such corporation, and its successors and
assigns under the Indenture hereinafter referred to, being herein called the “Issuer”), promises to
pay interest on the principal amount of this Note at the rate of 97⁄8% per annum, which shall accrue
from the most recent date to which interest has been paid or, if no interest has been paid, from
October 19, 2010. The Issuer shall pay interest on overdue principal at the rate specified herein,
and it shall pay interest on overdue installments of interest (including Additional Interest) at
the same rate to the extent lawful. Interest on the Notes shall be computed on the basis of a
360-day year comprised of twelve 30-day months.




          The Issuer shall make each interest payment in cash semi-annually in arrears on April 15 and
October 15 of each year, commencing on April 15, 2011, or if any such day is not a Business Day, on
the next succeeding Business Day (each, an “Interest Payment Date”) to Holders of record of
Notes on the immediately preceding April 1 and October 1.




          In addition to the rights provided to Holders under the Indenture, Holders of Registrable
Securities shall have all rights set forth in the Registration Rights Agreement, dated as of
October 19, 2010, among Blue Acquisition Sub, Inc., the Guarantors named therein and the other
parties named on the signature pages thereto (the “Registration Rights Agreement”),
including the right to receive Additional Interest in certain circumstances. If applicable,
Additional Interest shall be paid to the same Persons, in the same manner and at the same times as
regular interest.



2. Method of Payment




          By no later than 11:00 a.m. (New York City time) on the date on which any principal of,
premium, if any, or interest on any Note is due and payable, the Issuer shall deposit with the
Paying Agent a sum sufficient in immediately available funds to pay such principal, premium or
interest when due. Interest on any Note which is payable, and is timely paid or duly provided for,
on any interest payment date shall be paid to the Person in whose name such Note (or one or more
Predecessor Notes) is registered at the close of business on the preceding April 1 and October 1 at
the office or agency of the Issuer maintained for such purpose pursuant to Section 2.3 of
the Indenture. The principal of (and premium, if any) and interest on the Notes shall be payable
at the office or agency of Paying Agent or Registrar designated by the Issuer maintained for such
purpose in the United States or at such other office or agency of the Issuer as may be maintained
for such purpose pursuant to Section 2.3 of the Indenture; provided, however, that, at the
option of the Issuer, the principal of (and premium, if any) and interest may be paid by (i) check
mailed to addresses of the Persons entitled thereto as such addresses shall appear on the Notes
Register or (ii)






A-4









 







wire transfer to an account located in the United States maintained by the payee, subject to
the last sentence of this paragraph. Payments in respect of Notes represented by a Global Note
(including principal, premium, if any, and interest) shall be made by wire transfer of immediately
available funds to the accounts specified by The Depository Trust Company or any successor
depository.



3. Paying Agent and Registrar




          The Issuer initially appoints Wilmington Trust FSB (the “Trustee”) as Registrar and
Paying Agent for the Notes. The Issuer may change any Registrar or Paying Agent without prior
notice to the Holders. The Issuer or any Guarantor may act as Paying Agent, Registrar or transfer
agent.



4. Indenture




          The Issuer issued the Notes under an Indenture dated as of October 19, 2010 (as it may be
amended or supplemented from time to time in accordance with the terms thereof, the
“Indenture”), among Blue Acquisition Sub, Inc. and the Trustee. The terms of the Notes
include those stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) as in effect on the date of the
Indenture (the “Act”). The Notes are subject to all terms and provisions of the Indenture,
and Holders are referred to the Indenture and the Act for a statement of those terms. To the
extent any provision of this Note conflicts with the express provisions of the Indenture, the
provisions of the Indenture shall govern and be controlling.




          The Notes are senior unsecured obligations of the Issuer. The aggregate principal amount of
Notes that may be authenticated and delivered under the Indenture is unlimited. This Note is one
of the 97⁄8% Senior Notes, Series A, due 2018 referred to in the Indenture. The Notes include (i)
$800,000,000 principal amount of the Issuer’s 97⁄8% Senior Notes, Series A, due 2018 issued under
the Indenture on October 19, 2010 (the “Initial Notes”), (ii) if and when issued,
additional 97⁄8% Senior Notes, Series A, due 2018 or 97⁄8% Senior Notes, Series B, due 2018 of the
Issuer that may be issued from time to time under the Indenture subsequent to October 19, 2010 (the
“Additional Notes”) as provided in Section 2.1(a) of the Indenture and (iii) if and
when issued, the Issuer’s 97⁄8% Senior Notes, Series B, due 2018 that may be issued from time to time
under the Indenture in exchange for Initial Notes or Additional Notes in an offer registered under
the Securities Act as provided in the Registration Rights Agreement (herein called “Exchange
Notes”). The Initial Notes, the Additional Notes and the Exchange Notes shall be considered
collectively as a single class for all purposes of the Indenture and the Security Documents. The
Indenture imposes certain limitations on the incurrence of indebtedness and issuance of
disqualified stock and preferred stock, the making of restricted payments, the sale of assets and
subsidiary stock, the incurrence of certain liens, the making of payments for consents, the
entering into of agreements that restrict distribution from restricted subsidiaries and the
consummation of mergers and consolidations. The Indenture also imposes requirements with respect
to the provision of financial information and the provision of guarantees of the Notes by certain
subsidiaries.








A-5









 







5. Guarantees




          To guarantee the due and punctual payment of the principal, premium, if any, and interest
(including post-filing or post-petition interest) on the Notes and all other amounts payable by the
Issuer under the Indenture and the Notes when and as the same shall be due and payable, whether at
maturity, by acceleration or otherwise, according to the terms of the Notes and the Indenture, the
Guarantors shall unconditionally guarantee (and future guarantors, together with the Guarantors,
shall unconditionally Guarantee), jointly and severally, such obligations on a senior unsecured
basis pursuant to the terms of the Indenture.



6. Redemption




          At any time prior to October 15, 2014, the Issuer may redeem all or a part of the Notes, upon
notice as described in Section 5.3 of the Indenture, at a redemption price equal to 100% of the
principal amount of Notes redeemed, plus the Applicable Premium (as defined below) as of, and
accrued and unpaid interest and Additional Interest, if any, to but excluding the date of
redemption (the “Redemption Date”), subject to the rights of Holders of record on the
relevant record date to receive interest due on the relevant interest payment date.




          Prior to October 15, 2013, the Issuer may, at its option, upon notice as described under
Section 5.3 of the Indenture, on one or more occasions redeem up to 35% of the aggregate principal
amount of the Notes issued under the Indenture at a redemption price equal to 109.875% of the
aggregate principal amount of the Notes, plus accrued and unpaid interest and Additional Interest,
thereon, if any, to but excluding the applicable Redemption Date, subject to the right of Holders
of record on the relevant record date to receive interest due on the relevant interest payment
date, with the net cash proceeds of one or more Equity Offerings; provided that (a) at least 50% of
the sum of the aggregate principal amount of Notes originally issued under the Indenture on the
Issue Date and any Additional Notes that are issued under the Indenture after the Issue Date
remains outstanding immediately after the occurrence of each such redemption and (b) each such
redemption occurs within 90 days of the date of closing of each such Equity Offering. The Trustee
shall select the Notes to be purchased in the manner described under Sections 5.1 through
5.6 of the Indenture.




          Except as set forth above, the Notes shall not be redeemable at the Issuer’s option prior to
October 15, 2014.




          On and after October 15, 2014, the Issuer may redeem the Notes, in whole or in part, upon
notice as described under Section 5.3 of the Indenture, at the redemption prices (expressed as
percentages of principal amount of the Notes to be redeemed) set forth in the table below, plus
accrued and unpaid interest thereon and Additional Interest, if any, to but excluding the
applicable Redemption Date, subject to the right of Holders of record on the relevant record date
to receive interest due on the relevant interest payment date, if redeemed during the twelve-month
period beginning on October 15, of each of the years indicated in the table below:




	 	 	 	 	 
	Period	 	Percentage	 
	2014
	 	 	104.938	%
	2015
	 	 	102.469	%
	2016 and thereafter
	 	 	100.000	%






A-6









 






          Any redemption pursuant to this paragraph 7 shall be made pursuant to the provisions of
Sections 5.1 through 5.6 of the Indenture.




          “Applicable Premium” means, with respect to any Note on any Redemption Date, the
greater of:




          (1) 1.0% of the principal amount of such Note; and




          (2) the excess, if any, of: (a) the present value at such Redemption Date of (i) the
redemption price of such Note at October 15, 2014 (such redemption price being set forth in the
table appearing above), plus (ii) all required interest payments due on such Note through October
15, 2014 (excluding accrued but unpaid interest to the Redemption Date), computed using a discount
rate equal to the Treasury Rate as of such Redemption Date plus 50 basis points; over (b) the
principal amount of such Note.




          “Treasury Rate” means, as of any Redemption Date, the yield to maturity as of such
Redemption Date of United States Treasury securities with a constant maturity (as compiled and
published in the most recent Federal Reserve Statistical Release H.15 (519) that has become
publicly available at least two Business Days prior to the Redemption Date (or, if such Statistical
Release is no longer published, any publicly available source of similar market data)) most nearly
equal to the period from the Redemption Date to October 15, 2014; provided, however, that if the
period from the redemption date to October 15, 2014 is less than one year, the weekly average yield
on actually traded United States Treasury securities adjusted to a constant maturity of one year
shall be used.




          Except as set forth in paragraph 5 above, the Issuer is not required to make mandatory
redemption or sinking fund payments with respect to the Notes.



7. Repurchase Provisions




          If a Change of Control occurs, unless the Issuer has previously or concurrently mailed a
redemption notice with respect to all the outstanding Notes as described in Section 5.7 of
the Indenture, each Holder shall have the right to require the Issuer to repurchase from each
Holder all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of
such Holder’s Notes at a purchase price in cash equal to 101% of the aggregate principal amount
thereof plus accrued and unpaid interest, if any, to but excluding the date of purchase, subject to
the right of Holders of record on the relevant record date to receive interest due on the relevant
interest payment date as provided in, and subject to the terms of, the Indenture.



8. Denominations; Transfer; Exchange




          The Notes shall be issuable only in fully registered form, without coupons, and only in
denominations of principal amount of $2,000 and any integral multiple of $1,000 in excess thereof.
A Holder may transfer or exchange Notes in accordance with the Indenture. The Registrar may
require a Holder, among other things, to furnish appropriate endorsements or






A-7









 







transfer documents and to pay a sum sufficient to cover any tax and fees required by law or
permitted by the Indenture. The Registrar need not register the transfer of or exchange of any
Note (A) for a period beginning (1) 15 days before the mailing of a notice of an offer to
repurchase or redeem Notes and ending at the close of business on the day of such mailing or (2) 15
days before an interest payment date and ending on such interest payment date or (B) called for
redemption, except the unredeemed portion of any Note being redeemed in part.



9. Persons Deemed Owners




          The registered Holder of this Note may be treated as the owner of it for all purposes.



10. Unclaimed Money




          If money for the payment of principal, premium, if any, or interest remains unclaimed for two
years, the Trustee or Paying Agent shall pay the money back to the Issuer at its request unless an
abandoned property law designates another Person. After any such payment, Holders entitled to the
money must look only to the Issuer for payment as general creditors unless an abandoned property
law designates another person and not to the Trustee for payment.



11. Defeasance




          Subject to certain exceptions and conditions set forth in the Indenture, the Issuer at any
time may terminate some or all of its obligations under the Notes and the Indenture if the Issuer
deposits with the Trustee money or U.S. Government Securities for the payment of principal,
premium, if any, and interest on the Notes to redemption or maturity, as the case may be.



12. Amendment, Supplement, Waiver




          Subject to certain exceptions contained in the Indenture, the Indenture and the Notes may be
amended, or default may be waived, with the consent of the Holders of a majority in principal
amount of the outstanding Notes. Without notice to or the consent of any Holder, the Issuer, the
Guarantors and the Trustee may amend or supplement the Indenture, the Security Documents and the
Notes as provided in the Indenture.



13. Defaults and Remedies




          If an Event of Default (other than an Event of Default relating to certain events of
bankruptcy, insolvency or reorganization of the Issuer or certain Restricted Subsidiaries) occurs
and is continuing, the Trustee by notice to the Issuer, or the Holders of at least 25% in principal
amount of the total outstanding Notes by notice to the Issuer and the Trustee, may, and the Trustee
at the request of such Holders shall, declare the principal of, premium, if any, and accrued and
unpaid interest (including Additional Interest), if any, and any other monetary obligations on all
the Notes to be due and payable. Upon such a declaration, such principal, premium and accrued and
unpaid interest (including Additional Interest) and any other monetary obligations shall be due and
payable immediately. If a bankruptcy, insolvency or reorganization of the Issuer or certain
Restricted Subsidiaries occurs and is continuing, the principal of, premium, if any, and accrued
and unpaid interest (including Additional Interest) and any other monetary obligations on all the






A-8









 







Notes shall become and be immediately due and payable without any declaration or other act on
the part of the Trustee or any Holders. Under certain circumstances, the Holders of a majority in
principal amount of the outstanding Notes may rescind any such acceleration with respect to the
Notes and its consequences.



14. Trustee Dealings with the Issuer




          Subject to certain limitations set forth in the Indenture, The Trustee in its individual or
any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuer,
Guarantors or their Affiliates with the same rights it would have if it were not Trustee.



15. No Recourse Against Others




          An incorporator, director, officer, employee or stockholder of the Issuer or any Guarantor or
any of their parent companies, solely by reason of this status, shall not have any liability for
any obligations of the Issuer or any Guarantor under the Notes or the Indenture or for any claim
based on, in respect of or by reason of such obligations or their creation. By accepting a Note,
each Holder waives and releases all such liability. The waiver and release are a part of the
consideration for the issuance of the Notes.



16. Authentication




          This Note shall not be valid until an authorized officer of the Trustee (or an authenticating
agent acting on its behalf) manually signs the certificate of authentication on the other side of
this Note.



17. Abbreviations




          Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM (=
tenants in common), TEN ENT (= tenants by the entirety), JT TEN (= joint tenants with rights of
survivorship and not as tenants in common), CUST (= custodian) and U/G/M/A (= Uniform Gift to
Minors Act).



18. CUSIP, Common Code and ISIN Numbers




          The Issuer has caused CUSIP, Common Code and ISIN numbers, if applicable, to be printed on the
Notes and has directed the Trustee to use CUSIP, Common Code and ISIN numbers, if applicable, in
notices of redemption or purchase as a convenience to Holders. No representation is made as to the
accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption
or purchase and reliance may be placed only on the other identification numbers placed thereon.



19. Governing Law




          This Note shall be governed by, and construed in accordance with, the laws of the State of New
York.







A-9









 








          The Issuer shall furnish to any Holder upon written request and without charge to the Holder a
copy of the Indenture. Requests may be made to:



Blue Acquisition Sub, Inc.

c/o Burger King Corporation

5505 Blue Lagoon Drive

Miami, Florida 33126

Attention: General Counsel



with a copy to:



Kirkland & Ellis LLP

601 Lexington Ave

New York, New York 10022

Attention: Joshua N. Korff

Telecopy: (212) 446-4900

E-mail: joshua.korff@kirkland.com





A-10











 





ASSIGNMENT FORM




          To assign this Note, fill in the form below:




          I or we assign and transfer this Note to:




 





(Print or type assignee’s name, address and zip code)




 




(Insert assignee’s social security or tax I.D. No.)


and irrevocably appoint ___________
 agent to transfer this Note on the books of the Issuer. The
agent may substitute another to act for him.




	 	 	 

	 

	 	 





	 	 	 

	Date:               
                    

	 	Your Signature:             
                      






	 	 	 

	Signature Guarantee:
	 	 
	 

	 	 
	 

	 	              
              (Signature must be guaranteed)





 

Sign exactly as your name appears on the other side of this Note.



The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers,
savings and loan associations and credit unions with membership in an approved signature guarantee
medallion program), pursuant to S.E.C. Rule 17Ad-15.



The undersigned hereby certifies that it o is / o is not an Affiliate of the Issuer and that, to
its knowledge, the proposed transferee o is / o is not an Affiliate of the Issuer.




     In connection with any transfer or exchange of any of the Notes evidenced by this certificate
occurring prior to the date that is one year after the later of the date of original issuance of
such Notes and the last date, if any, on which such Notes were owned by the Issuer or any Affiliate
of the Issuer, the undersigned confirms that such Notes are being:


CHECK ONE BOX BELOW:




	 	 	 	 	 	 	 	 	 

	 

	 	 	(1	)	 	o
	 	acquired for the undersigned’s own account, without transfer; or
	 
	 	 	 	 	 	 	 	 
	 

	 	 	(2	)	 	o
	 	transferred to the Issuer; or
	 
	 	 	 	 	 	 	 	 
	 

	 	 	(3	)	 	o
	 	transferred pursuant to and in compliance with Rule 144A under the
Securities Act of 1933, as amended (the “Securities Act”); or
	 
	 	 	 	 	 	 	 	 
	 

	 	 	(4	)	 	o
	 	transferred pursuant to an effective registration statement under the
Securities Act; or






A-11









 






	 	 	 	 	 	 	 	 	 

	 

	 	 	(5	)	 	o
	 	transferred pursuant to and in compliance with Regulation S under the
Securities Act; or
	 
	 	 	 	 	 	 	 	 
	 

	 	 	(6	)	 	o
	 	transferred to an institutional “accredited investor” (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act), that has furnished to the
Trustee a signed letter containing certain representations and agreements
(the form of which letter appears as Section 2.8 of the Indenture); or
	 
	 	 	 	 	 	 	 	 
	 

	 	 	(7	)	 	o
	 	transferred pursuant to another available exemption from the
registration
requirements of the Securities Act of 1933, as amended.





Unless one of the boxes is checked, the Trustee shall refuse to register any of the Notes evidenced
by this certificate in the name of any person other than the registered Holder thereof; provided,
however, that if box (5), (6) or (7) is checked, the Issuer may require, prior to registering any
such transfer of the Notes, in its sole discretion, such legal opinions, certifications and other
information as the Issuer may reasonably request to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the registration requirements of
the Securities Act of 1933, as amended, such as the exemption provided by Rule 144 under such Act.




	 	 	 	 	 

	 
	 	 	 	 
	 

	 	 
Signature	 	 
	Signature Guarantee:
	 	 	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	 
(Signature must be guaranteed)
	 	 
Signature	 	 





 




The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers,
savings and loan associations and credit unions with membership in an approved signature guarantee
medallion program), pursuant to S.E.C. Rule 17Ad-15.



TO BE COMPLETED BY PURCHASER IF BOX (1) OR (3) ABOVE IS CHECKED.




     The undersigned represents and warrants that it is purchasing this Note for its own account or
an account with respect to which it exercises sole investment discretion and that it and any such
account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities
Act of 1933, as amended, and is aware that the sale to it is being made in reliance on Rule 144A
and acknowledges that it has received such information regarding the Issuer as the undersigned has
requested pursuant to Rule 144A or has determined not to request such information and that it is
aware that the transferor is relying upon the undersigned’s foregoing representations in order to
claim the exemption from registration provided by Rule 144A.



	 	 	 	 	 
	 	 	 
	 	  	
 	 
	 	 	Dated: 	 
	 	 	 	 



A-12









 






	 	 	 	 	 



[TO BE ATTACHED TO GLOBAL NOTES]




SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTES




          The following increases or decreases in this Global Note have been made:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Principal Amount of	 	 	Signature of	 
	 	 	 	 	 	 	 	 	 	 	 	 	this Global Note	 	 	authorized	 
	 	 	 	 	Amount of decrease	 	 	Amount of increase	 	 	following such	 	 	signatory of	 
	 	 	 	 	in Principal Amount	 	 	in Principal Amount	 	 	decrease or	 	 	Trustee or Notes	 
	Date of Exchange	 	 	of this Global Note	 	 	of this Global Note	 	 	increase	 	 	Custodian	 





A-13









 






OPTION OF HOLDER TO ELECT PURCHASE




          If you elect to have this Note purchased by the Issuer pursuant to Section 3.5 or 3.10 of the
Indenture, check either box:




o           o

3.5            3.10




          If you want to elect to have only part of this Note purchased by the Issuer pursuant to
Section 3.5 or 3.10 of the Indenture, state the amount in principal amount (must be in
denominations of $2,000 or an integral multiple of $1,000 in excess thereof):
$____________________________________________ and specify the denomination or denominations (which
shall not be less than the minimum authorized denomination) of the Notes to be issued to the Holder
for the portion of the within Note not being repurchased (in the absence of any such specification,
one such Note shall be issued for the portion not being repurchased):
_________________.




	 	 	 	 	 	 	 

	Date:

	 	 	 	Your Signature	 	 
	 

	 	 
	 	 	 	 
	 

	 	 	 	 	 	
(Sign exactly as your name appears on the other side of the Note)






	 	 	 

	Signature Guarantee:
	 	 
	 

	 	 
	 

	 	                        (Signature must be guaranteed)





The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers,
savings and loan associations and credit unions with membership in an approved signature guarantee
medallion program), pursuant to S.E.C. Rule 17Ad-15.










A-14









 








EXHIBIT B: Form of Series B Note




[FORM OF FACE OF SERIES B NOTE]




[Depository Legend, if applicable]

[OID Legend, if applicable]

[Temporary Regulation S Legend, if applicable]




	 	 	 

	No. [___]

	 	Principal Amount $[___________]
[as revised by the Schedule of Increases and Decreases
in Global Note attached
hereto]3

CUSIP NO. _________________________






BURGER KING CORPORATION




97⁄8% Senior Notes due 2018



          Burger King Corporation, a Florida corporation (the “Issuer”), promises to pay to
[Cede & Co.]3, or its registered assigns, the principal sum of                      Dollars,
[as revised by the Schedule of Increases and Decreases in Global Note attached hereto]3,
on October 15, 2018.




          Interest Payment Dates: April 15 and October 15, commencing on April 15, 2011




          Record Dates: April 1 and October 1




          Additional provisions of this Note are set forth on the other side of this Note.






 




			
	3	 	Insert in Global Notes only




B-1









 









IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed.




	 	 	 	 	 
	 	BURGER KING CORPORATION

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



B-1









 






	 	 	 	 	 



TRUSTEE’S CERTIFICATE OF

AUTHENTICATION

WILMINGTON TRUST FSB,

as Trustee, certifies

that this is one of

the Notes referred

to in the Indenture.




	 	 	 	 	 

	By:
	 	 	 	 
	 

	 	 
       Authorized Officer
	 	Date:                     






B-2









 






[FORM OF REVERSE SIDE OF NOTE]

BURGER KING CORPORATION




97⁄8% Senior Notes due 2018



     Capitalized terms used herein and not defined herein have the meanings ascribed thereto in the
Indenture.


1. Interest




          Burger King Corporation, a Florida corporation (such corporation, and its successors and
assigns under the Indenture hereinafter referred to, being herein called the “Issuer”), promises to
pay interest on the principal amount of this Note at the rate of 97⁄8% per annum, which shall accrue
from the most recent date to which interest has been paid or, if no interest has been paid, from
October 19, 2010. The Issuer shall pay interest on overdue principal at the rate specified herein,
and it shall pay interest on overdue installments of interest (including Additional Interest) at
the same rate to the extent lawful. Interest on the Notes shall be computed on the basis of a
360-day year comprised of twelve 30-day months.




          The Issuer shall make each interest payment in cash semi-annually in arrears on April 15 and
October 15 of each year, commencing on April 15, 2011, or if any such day is not a Business Day, on
the next succeeding Business Day (each, an “Interest Payment Date”) to Holders of record of
Notes on the immediately preceding April 1 and October 1.



2. Method of Payment




          By no later than 11:00 a.m. (New York City time) on the date on which any principal of,
premium, if any, or interest on any Note is due and payable, the Issuer shall deposit with the
Paying Agent a sum sufficient in immediately available funds to pay such principal, premium or
interest when due. Interest on any Note which is payable, and is timely paid or duly provided for,
on any interest payment date shall be paid to the Person in whose name such Note (or one or more
Predecessor Notes) is registered at the close of business on the preceding April 1 and October 1 at
the office or agency of the Issuer maintained for such purpose pursuant to Section 2.3 of
the Indenture. The principal of (and premium, if any) and interest on the Notes shall be payable
at the office or agency of Paying Agent or Registrar designated by the Issuer maintained for such
purpose in the United States or at such other office or agency of the Issuer as may be maintained
for such purpose pursuant to Section 2.3 of the Indenture; provided, however, that, at the
option of the Issuer, the principal of (and premium, if any) and interest may be paid by (i) check
mailed to addresses of the Persons entitled thereto as such addresses shall appear on the Notes
Register or (ii) wire transfer to an account located in the United States maintained by the payee,
subject to the last sentence of this paragraph. Payments in respect of Notes represented by a
Global Note (including principal, premium, if any, and interest) shall be made by wire transfer of
immediately available funds to the accounts specified by The Depository Trust Company or any
successor depository.







B-3









 







3. Paying Agent and Registrar




          The Issuer initially appoints Wilmington Trust FSB (the “Trustee”) as Registrar and
Paying Agent for the Notes. The Issuer may change any Registrar or Paying Agent without prior
notice to the Holders. The Issuer or any Guarantor may act as Paying Agent, Registrar or transfer
agent.



4. Indenture




          The Issuer issued the Notes under an Indenture dated as of October 19, 2010 (as it may be
amended or supplemented from time to time in accordance with the terms thereof, the
“Indenture”), among Blue Acquisition Sub, Inc. and the Trustee. The terms of the Notes
include those stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) as in effect on the date of the
Indenture (the “Act”). The Notes are subject to all terms and provisions of the Indenture,
and Holders are referred to the Indenture and the Act for a statement of those terms. To the
extent any provision of this Note conflicts with the express provisions of the Indenture, the
provisions of the Indenture shall govern and be controlling.




          The Notes are senior unsecured obligations of the Issuer. The aggregate principal amount of
Notes that may be authenticated and delivered under the Indenture is unlimited. This Note is one
of the 97⁄8% Senior Notes, Series B, due 2018 referred to in the Indenture. The Notes include (i)
$800,000,000 principal amount of the Issuer’s 97⁄8% Senior Notes, Series A, due 2018 issued under
the Indenture on October 19, 2010 (the “Initial Notes”), (ii) if and when issued,
additional 97⁄8% Senior Notes, Series A, due 2018 or 97⁄8% Senior Notes, Series B, due 2018 of the
Issuer that may be issued from time to time under the Indenture subsequent to October 19, 2010 (the
“Additional Notes”) as provided in Section 2.1(a) of the Indenture and (iii) if and
when issued, the Issuer’s 97⁄8% Senior Notes, Series B, due 2018 that may be issued from time to time
under the Indenture in exchange for Initial Notes or Additional Notes in an offer registered under
the Securities Act as provided in the Registration Rights Agreement (herein called “Exchange
Notes”). The Initial Notes, the Additional Notes and the Exchange Notes shall be considered
collectively as a single class for all purposes of the Indenture and the Security Documents. The
Indenture imposes certain limitations on the incurrence of indebtedness and issuance of
disqualified stock and preferred stock, the making of restricted payments, the sale of assets and
subsidiary stock, the incurrence of certain liens, the making of payments for consents, the
entering into of agreements that restrict distribution from restricted subsidiaries and the
consummation of mergers and consolidations. The Indenture also imposes requirements with respect
to the provision of financial information and the provision of guarantees of the Notes by certain
subsidiaries.



5. Guarantees




          To guarantee the due and punctual payment of the principal, premium, if any, and interest
(including post-filing or post-petition interest) on the Notes and all other amounts payable by the
Issuer under the Indenture and the Notes when and as the same shall be due and payable, whether at
maturity, by acceleration or otherwise, according to the terms of the Notes and the Indenture, the
Guarantors have unconditionally guaranteed (and future guarantors, together with






B-4









 







the Guarantors, shall unconditionally Guarantee), jointly and severally, such obligations on a
senior unsecured basis pursuant to the terms of the Indenture.



6. Redemption




          At any time prior to October 15, 2014, the Issuer may redeem all or a part of the Notes, upon
notice as described under Section 5.3 of the Indenture, at a redemption price equal to 100% of the
principal amount of Notes redeemed, plus the Applicable Premium (as defined below) as of, and
accrued and unpaid interest and Additional Interest, if any, to but excluding the date of
redemption (the “Redemption Date”), subject to the rights of Holders of record on the
relevant record date to receive interest due on the relevant interest payment date.




          Prior to October 15, 2013, the Issuer may, at its option, upon notice as described under
Section 5.3 of the Indenture, on one or more occasions redeem up to 35% of the aggregate principal
amount of the Notes issued under this Indenture at a redemption price equal to 109.875% of the
aggregate principal amount of the Notes, plus accrued and unpaid interest and Additional Interest,
thereon, if any, to but excluding the applicable Redemption Date, subject to the right of Holders
of record on the relevant record date to receive interest due on the relevant interest payment
date, with the net cash proceeds of one or more Equity Offerings; provided that (a) at least 50% of
the sum of the aggregate principal amount of Notes originally issued under the Indenture on the
Issue Date and any Additional Notes that are issued under the Indenture after the Issue Date
remains outstanding immediately after the occurrence of each such redemption and (b) each such
redemption occurs within 90 days of the date of closing of each such Equity Offering. The Trustee
shall select the Notes to be purchased in the manner described under Sections 5.1 through
5.6 of the Indenture.




          Except as set forth above, the Notes shall not be redeemable at the Issuer’s option prior to
October 15, 2014.




          On and after October 15, 2014, the Issuer may redeem the Notes, in whole or in part, upon
notice as described under Section 5.3 of the Indenture, at the redemption prices (expressed as
percentages of principal amount of the Notes to be redeemed) set forth in the table below, plus
accrued and unpaid interest thereon and Additional Interest, if any, to but excluding the
applicable Redemption Date, subject to the right of Holders of record on the relevant record date
to receive interest due on the relevant interest payment date, if redeemed during the twelve-month
period beginning on October 15 of each of the years indicated in the table below:




	 	 	 	 	 
	Period	 	Percentage	 
	2014
	 	 	104.938	%
	2015
	 	 	102.469	%
	2016 and thereafter
	 	 	100.000	%






          Any redemption pursuant to this paragraph 7 shall be made pursuant to the provisions of
Sections 5.1 through 5.6 of the Indenture.







B-5









 








          “Applicable Premium” means, with respect to any Note on any Redemption Date, the
greater of:




          (1) 1.0% of the principal amount of such Note; and




          (2) the excess, if any, of: (a) the present value at such Redemption Date of (i) the
redemption price of such Note at October 15, 2014 (such redemption price being set forth in the
table above), plus (ii) all required interest payments due on such Note through October 15, 2014
(excluding accrued but unpaid interest to the Redemption Date), computed using a discount rate
equal to the Treasury Rate as of such Redemption Date plus 50 basis points; over (b) the principal
amount of such Note.




          “Treasury Rate” means, as of any Redemption Date, the yield to maturity as of such
Redemption Date of United States Treasury securities with a constant maturity (as compiled and
published in the most recent Federal Reserve Statistical Release H.15 (519) that has become
publicly available at least two Business Days prior to the Redemption Date (or, if such Statistical
Release is no longer published, any publicly available source of similar market data)) most nearly
equal to the period from the Redemption Date to October 15, 2014; provided, however, that if the
period from the redemption date to October 15, 2014 is less than one year, the weekly average yield
on actually traded United States Treasury securities adjusted to a constant maturity of one year
shall be used.




          Except as set forth in paragraph 5 above, the Issuer is not required to make mandatory
redemption or sinking fund payments with respect to the Notes.



7. Repurchase Provisions




          If a Change of Control occurs, unless the Issuer has previously or concurrently mailed a
redemption notice with respect to all the outstanding Notes as described in Section 5.7 of
the Indenture, each Holder shall have the right to require the Issuer to repurchase from each
Holder all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of
such Holder’s Notes at a purchase price in cash equal to 101% of the aggregate principal amount
thereof plus accrued and unpaid interest, if any, to but excluding the date of purchase, subject to
the right of Holders of record on the relevant record date to receive interest due on the relevant
interest payment date as provided in, and subject to the terms of, the Indenture.



8. Denominations; Transfer; Exchange




          The Notes shall be issuable only in fully registered form, without coupons, and only in
denominations of principal amount of $2,000 and any integral multiple of $1,000 in excess thereof.
A Holder may transfer or exchange Notes in accordance with the Indenture. The Registrar may
require a Holder, among other things, to furnish appropriate endorsements or transfer documents and
to pay a sum sufficient to cover any tax and fees required by law or permitted by the Indenture.
The Registrar need not register the transfer of or exchange of any Note (A) for a period beginning
(1) 15 days before the mailing of a notice of an offer to repurchase or redeem Notes and ending at
the close of business on the day of such mailing or (2) 15 days before an interest payment date and
ending on such interest payment date or (B) called for redemption, except the unredeemed portion of
any Note being redeemed in part.







B-6









 







9. Persons Deemed Owners




          The registered Holder of this Note may be treated as the owner of it for all purposes.



10. Unclaimed Money




          If money for the payment of principal, premium, if any, or interest remains unclaimed for two
years, the Trustee or Paying Agent shall pay the money back to the Issuer at its request unless an
abandoned property law designates another Person. After any such payment, Holders entitled to the
money must look only to the Issuer for payment as general creditors unless an abandoned property
law designates another person and not to the Trustee for payment.



11. Defeasance




          Subject to certain exceptions and conditions set forth in the Indenture, the Issuer at any
time may terminate some or all of its obligations under the Notes and the Indenture if the Issuer
deposits with the Trustee money or U.S. Government Securities for the payment of principal,
premium, if any, and interest on the Notes to redemption or maturity, as the case may be.



12. Amendment, Supplement, Waiver




          Subject to certain exceptions contained in the Indenture, the Indenture and the Notes may be
amended, or default may be waived, with the consent of the Holders of a majority in principal
amount of the outstanding Notes. Without notice to or the consent of any Holder, the Issuer, the
Guarantors and the Trustee may amend or supplement the Indenture, the Security Documents and the
Notes as provided in the Indenture.



13. Defaults and Remedies




          If an Event of Default (other than an Event of Default relating to certain events of
bankruptcy, insolvency or reorganization of the Issuer or certain Restricted Subsidiaries) occurs
and is continuing, the Trustee by notice to the Issuer, or the Holders of at least 25% in principal
amount of the total outstanding Notes by notice to the Issuer and the Trustee, may, and the Trustee
at the request of such Holders shall, declare the principal of, premium, if any, and accrued and
unpaid interest (including Additional Interest), if any, and any other monetary obligations on all
the Notes to be due and payable. Upon such a declaration, such principal, premium and accrued and
unpaid interest (including Additional Interest) and any other monetary obligations shall be due and
payable immediately. If a bankruptcy, insolvency or reorganization of the Issuer or certain
Restricted Subsidiaries occurs and is continuing, the principal of, premium, if any, and accrued
and unpaid interest (including Additional Interest) and any other monetary obligations on all the
Notes shall become and be immediately due and payable without any declaration or other act on the
part of the Trustee or any Holders. Under certain circumstances, the Holders of a majority in
principal amount of the outstanding Notes may rescind any such acceleration with respect to the
Notes and its consequences.





B-7











 




14. Trustee Dealings with the Issuer




          Subject to certain limitations set forth in the Indenture, The Trustee in its individual or
any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuer,
Guarantors or their Affiliates with the same rights it would have if it were not Trustee.



15. No Recourse Against Others




          An incorporator, director, officer, employee or stockholder of the Issuer or any Guarantor or
any of their parent companies, solely by reason of this status, shall not have any liability for
any obligations of the Issuer or any Guarantor under the Notes or the Indenture or for any claim
based on, in respect of or by reason of such obligations or their creation. By accepting a Note,
each Holder waives and releases all such liability. The waiver and release are a part of the
consideration for the issuance of the Notes.



16. Authentication




          This Note shall not be valid until an authorized officer of the Trustee (or an authenticating
agent acting on its behalf) manually signs the certificate of authentication on the other side of
this Note.



17. Abbreviations




          Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM (=
tenants in common), TEN ENT (= tenants by the entirety), JT TEN (= joint tenants with rights of
survivorship and not as tenants in common), CUST (= custodian) and U/G/M/A (= Uniform Gift to
Minors Act).



18. CUSIP, Common Code and ISIN Numbers




          The Issuer has caused CUSIP, Common Code and ISIN numbers, if applicable, to be printed on the
Notes and has directed the Trustee to use CUSIP, Common Code and ISIN numbers, if applicable, in
notices of redemption or purchase as a convenience to Holders. No representation is made as to the
accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption
or purchase and reliance may be placed only on the other identification numbers placed thereon.



19. Governing Law




          This Note shall be governed by, and construed in accordance with, the laws of the State of New
York.




          The Issuer shall furnish to any Holder upon written request and without charge to the Holder a
copy of the Indenture. Requests may be made to:



Blue Acquisition Sub, Inc.

c/o Burger King Corporation

5505 Blue Lagoon Drive




B-8









 







Miami, Florida 33126

Attention: General Counsel



with a copy to:



Kirkland & Ellis LLP

601 Lexington Ave

New York, New York 10022

Attention: Joshua N. Korff

Telecopy: (212) 446-4900

E-mail: joshua.korff@kirkland.com







B-9









 








ASSIGNMENT FORM




          To assign this Note, fill in the form below:




          I or we assign and transfer this Note to:




 

(Print or type assignee’s name, address and zip code)




 

(Insert assignee’s social security or tax I.D. No.)


and irrevocably appoint ___________ agent to transfer this Note on the books of the Issuer. The
agent may substitute another to act for him.



 





	 	 	 	 	 

	Date:_________________________

	 	 
	 	Your Signature:_____________________________





Signature Guarantee:                                                                                                                                                                                    

                                                                                
             (Signature must be guaranteed)



 

Sign exactly as your name appears on the other side of this Note.



The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers,
savings and loan associations and credit unions with membership in an approved signature guarantee
medallion program), pursuant to S.E.C. Rule 17Ad-15.







B-10









 








[TO BE ATTACHED TO GLOBAL NOTES]

SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTES




     The following increases or decreases in this Global Note have been made:





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Principal Amount of	 	 	Signature of	 
	 	 	 	 	 	 	 	 	 	 	 	 	this Global Note	 	 	authorized	 
	 	 	 	 	Amount of decrease	 	 	Amount of increase	 	 	following such	 	 	signatory of	 
	 	 	 	 	in Principal Amount	 	 	in Principal Amount	 	 	decrease or	 	 	Trustee or Notes	 
	Date of Exchange	 	 	of this Global Note	 	 	of this Global Note	 	 	increase	 	 	Custodian	 








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OPTION OF HOLDER TO ELECT PURCHASE




          If you elect to have this Note purchased by the Issuer pursuant to Section 3.5 or 3.10 of the
Indenture, check either box:




	 	 	 	 	 

	 ̈

	 	 ̈	 	 
	3.5

	 	3.10	 	 






     If you want to elect to have only part of this Note purchased by the Issuer pursuant to
Section 3.5 or 3.10 of the Indenture, state the amount in principal amount (must be in
denominations of $2,000 or an integral multiple of $1,000 in excess thereof):
$__________________________________________ and specify the denomination or denominations (which shall not be less
than the minimum authorized denomination) of the Notes to be issued to the Holder for the portion
of the within Note not being repurchased (in the absence of any such specification, one such Note
shall be issued for the portion not being repurchased): ________________.


Date: __________ Your Signature ______________________________________________________________________________

                                                          (Sign exactly as your name appears on the other side of the Note)



Signature Guarantee: ____________________________________________________________________________________

                                                                      (Signature must be guaranteed)




The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers,
savings and loan associations and credit unions with membership in an approved signature guarantee
medallion program), pursuant to S.E.C. Rule 17Ad-15.






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EXHIBIT C: Form of Indenture Supplement for Joinder of BKC and Guarantors




          This Supplemental Indenture (this “Supplemental Indenture”) is entered into as of [
], 2010 by and among Blue Acquisition Sub, Inc., a Delaware corporation (“Merger Sub”),
Burger King Corporation, a Florida corporation (“Successor”), and a wholly-owned subsidiary of
Burger King Holdings, Inc., a Delaware corporation (“Holdings”), the Subsidiary Guarantors listed
on Schedule I hereto (together with Holdings, the “Guarantors”) and Wilmington Trust FSB (the
“Trustee”), as Trustee under the Indenture referred to below.




W I T N E S S E T H:




          WHEREAS, Merger Sub and the Trustee entered into that certain Indenture dated as of October
19, 2010 (the “Indenture”) and Merger Sub issued pursuant to the Indenture an aggregate principal
amount of $800.0 million of 97⁄8% Senior Notes due 2018 (the “Notes”);




          WHEREAS, Merger Sub, Holdings and Blue Acquisition Holding Corporation, a Delaware
corporation, have entered into a Merger Agreement, dated as of September 2, 2010 (the “Merger
Agreement”), which provides for the merger of Merger Sub with and into Holdings (the “Merger”),
with Holdings continuing its existence under Delaware law;




          WHEREAS, Section 4.1 of the Indenture provides, among other things, that merger Sub
shall not be prevented from merging with or into Holdings, provided that, among other
things, the Successor shall expressly assume upon any such merger, all of the obligations of Merger
Sub under the Notes;




          WHEREAS, the Indenture provides that the Issuer is required to cause each Wholly-Owned
Subsidiary that is a Restricted Subsidiary that guarantees Indebtedness to unconditionally
Guarantee, on a joint and several basis with the other Guarantors, the full and prompt payment of
the principal of, premium, if any, and interest in respect of the Notes on a senior unsecured basis
and all other obligations under the Indenture;




          WHEREAS, Section 9.1 of the Indenture provides that the Issuer, the Guarantors and the
Trustee may, without the consent of the Holders of Notes, enter into a supplemental indenture for
the purposes of evidencing the succession of another Person to the Issuer;




          WHEREAS, the Indenture provides that under certain circumstances the New Guarantor shall
execute and deliver to the Trustee a supplemental indenture pursuant to which the New Guarantor
shall unconditionally guarantee all of the Issuer’s Obligations under the Notes and the Indenture
on the terms and conditions set forth herein and under the Indenture (the “Guarantee”); and





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          WHEREAS, each of the Issuer and the Guarantors have been authorized by or pursuant to a
Board Resolution (or equivalent authorization) to enter into this Supplemental Indenture; and



          WHEREAS, all acts, conditions, proceedings and requirements necessary to make this
Supplemental Indenture a valid, binding and legal agreement enforceable in accordance with its
terms for the purposes expressed herein, in accordance with its terms, have been duly done and
performed.



          NOW, THEREFORE, in consideration of the premises and the covenants and agreements contained
herein, and for other good and valuable consideration the receipt of which is hereby acknowledged,
Merger Sub, Successor, the Guarantors and the Trustee hereby agree as follows:



ARTICLE I



DEFINITIONS



          SECTION 1.1 Capitalized terms used in this Supplemental Indenture and not otherwise defined
herein shall have the meanings assigned to such terms in the Indenture.



ARTICLE II



REPRESENTATIONS OF ISSUER AND SUCCESSOR



          SECTION 2.1 Each of Merger Sub, the Guarantors and Successor represents and warrants to the
Trustee as follows:




     (i) It is duly organized, validly existing and in good standing under the laws of
its jurisdiction of organization.




     (ii) The execution, delivery and performance by it of this Supplemental Indenture
have been authorized and approved by all necessary corporate or limited liability company
action on its part.



          SECTION 2.2 Each of Merger Sub and Holdings represents and warrants to the Trustee that upon
the filing and acceptance for record of the Certificate of Merger by the Secretary of State of the
State of Delaware or at such other time thereafter as is provided therein (the “Merger Effective
Time”), the Merger shall be effective in accordance with the terms of the Merger Agreement and
applicable law.



ARTICLE III



ASSUMPTION OF ISSUER AND AGREEMENTS TO BE BOUND



          SECTION 3.1 In accordance with Sections 4.1 and 9.1 of the Indenture,
Successor hereby expressly assumes all of the obligations of Merger Sub under the Notes and the
Indenture.



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          SECTION 3.2 Successor shall succeed to, and be substituted for, and may exercise every right
and power of, Merger Sub under the Indenture and the Notes with the same effect as if Successor had
been named as “Issuer” in the Indenture and the Notes; and thereafter Merger Sub shall be fully
released from its obligations under the Indenture and the Notes.



          SECTION 3.3 The Guarantors hereby become parties to the Indenture as a Guarantor and as such
shall have all of the rights and be subject to all of the obligations and agreements of a Guarantor
under the Indenture. The Guarantors agree to be bound by all of the provisions of the Indenture
applicable to a Guarantor and to perform all of the obligations and agreements of a Guarantor under
the Indenture.



          SECTION 3.4 Each Guarantor agrees, on a joint and several basis with all the other
Guarantors, to fully, unconditionally and irrevocably Guarantee to each Holder of the Notes and the
Trustee the Guaranteed Obligations pursuant to Article X of the Indenture on a senior
unsecured basis.



          SECTION 3.5 In accordance with Section 4.1 of the Indenture, each Guarantor hereby
confirms that its Guarantee shall apply to Successor’s obligation under the Indenture and the
Notes.



ARTICLE IV



MISCELLANEOUS



          SECTION 4.1 Notices. All notices and other communications to the Guarantors shall
be given as provided in the Indenture to the Guarantors, at the addresses set forth in the
Indenture, with a copy to the Issuer as provided in the Indenture for notices to the Issuer.



          SECTION 4.1 Parties. Nothing expressed or mentioned herein is intended or shall be
construed to give any Person, firm or corporation, other than the Holders and the Trustee, any
legal or equitable right, remedy or claim under or in respect of this Supplemental Indenture or the
Indenture or any provision herein or therein contained.



          SECTION 4.3 Effectiveness. This Supplemental Indenture shall become effective as of
the Merger Effective Time.



          SECTION 4.4 Governing Law. This Supplemental Indenture shall be governed by, and
construed in accordance with, the laws of the State of New York.



          SECTION 4.5 Severability Clause. In case any provision in this Supplemental
Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby and such provision
shall be ineffective only to the extent of such invalidity, illegality or unenforceability.



          SECTION 4.6 Ratification of Indenture; Supplemental Indentures Part of Indenture.
Except as expressly amended hereby, the Indenture and the Notes are in all respects ratified and
confirmed and all the terms, conditions and provisions thereof shall remain in full force and
effect. This Supplemental Indenture shall form a part of the Indenture for all purposes,



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and every
Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby. The
Trustee makes no representation or warranty as to the validity or sufficiency of this Supplemental
Indenture or with respect to the recitals contained herein, all of which recitals are made solely
by the other parties hereto.




          SECTION 4.7 Counterparts. The parties hereto may sign one or more copies of this
Supplemental Indenture in counterparts, all of which together shall constitute one and the same
agreement.



          SECTION 4.8 Headings. The headings of the Articles and the sections in this
Supplemental Indenture are for convenience of reference only and shall not be deemed to alter or
affect the meaning or interpretation of any provisions hereof.



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          IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed as of the date first above written.





     BLUE ACQUISITION SUB, INC.



	 	 	 	 	 
	 	 	 
	 	By  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	WILMINGTON TRUST FSB, as Trustee

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	BURGER KING CORPORATION

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	BURGER KING HOLDINGS, INC.

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	EACH OF THE SUBSIDIARY GUARANTORS LISTED ON EXHIBIT 1 HERETO

 	 
	 	 	 
	 	 	 
	 	 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	 	 
	 	By  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	Authorized Signatory 	 



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EXHIBIT 1




Subsidiary Guarantors




BK Acquisition, Inc.

BK CDE, Inc.

Burger King Interamerica, LLC

Burger King Sweden, Inc.

Distron Transportation Systems, Inc.

Moxie’s, Inc.

The Melodie Corporation

TPC Number Four, Inc.

TQW Company




 









 





EXHIBIT D: Form of Indenture Supplement to Add Future Subsidiary Guarantors




FORM OF SUPPLEMENTAL INDENTURE TO ADD FUTURE SUBSIDIARY GUARANTORS





          This Supplemental Indenture is entered into as of [     ], 20[     ] (this
“Supplemental Indenture”), by and among [NAME OF FUTURE GUARANTOR] (the “New Guarantor”), a
subsidiary of Burger King Corporation, a Florida corporation (the “Issuer”), and Wilmington Trust
FSB, as Trustee under the Indenture referred to below.



W I T N E S S E T H:



          WHEREAS, Blue Acquisition Sub, Inc. (“Merger Sub”) and the Trustee have heretofore executed
and delivered an Indenture dated as of October 19, 2010, as supplemented by a supplemental
indenture dated as of [     ], 20[     ], among Merger Sub, the Issuer, Holdings, the other
Guarantors party thereto and the Trustee (as supplemented, waived or otherwise modified, the
“Indenture”), providing for the issuance of an aggregate principal amount of $800.0 million of 97⁄8%
Senior Notes due 2018 of the Issuer (the “Notes”);



          WHEREAS, the Indenture provides that under certain circumstances the New Guarantor shall
execute and deliver to the Trustee a supplemental indenture pursuant to which the New Guarantor
shall unconditionally guarantee all of the Issuer’s Obligations under the Notes and the Indenture
on the terms and conditions set forth herein and under the Indenture (the “Guarantee”); and



          WHEREAS, pursuant to Section 9.1 of the Indenture, the Trustee is authorized to execute and
deliver this Supplemental Indenture.



          NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties mutually covenant and agree
for the equal and ratable benefit of the Holders as follows:



ARTICLE I



DEFINITIONS



          SECTION 1.1 Defined Terms. As used in this Supplemental Indenture, terms defined in
the Indenture or in the preamble or recital hereto are used herein as therein defined. The words
“herein,” “hereof” and “hereby” and other words of similar import used in this Supplemental
Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof.



ARTICLE II



REPRESENTATIONS; AGREEMENT TO BE BOUND; GUARANTEE



D-1









 





          SECTION 2.1 Representations. The New Guarantor represents and warrants to the
Trustee as follows:




     (i) It is duly organized, validly existing and in good standing under the laws of
its jurisdiction of organization.




     (ii) The execution, delivery and performance by it of this Supplemental Indenture
have been authorized and approved by all necessary corporate or limited liability company
action on its part.



          SECTION 2.2 Agreement to be Bound. The New Guarantor hereby becomes a party to the
Indenture as a Subsidiary Guarantor and as such shall have all of the rights and be subject to all
of the obligations and agreements of a Subsidiary Guarantor under the Indenture. The New Guarantor
agrees to be bound by all of the provisions of the Indenture applicable to a Subsidiary Guarantor
and to perform all of the obligations and agreements of a Subsidiary Guarantor under the Indenture.



          SECTION 2.3 Guarantee. The New Guarantor agrees, on a joint and several basis with
all the existing Guarantors, to fully, unconditionally and irrevocably Guarantee to each Holder of
the Notes and the Trustee the Guaranteed Obligations pursuant to Article X of the Indenture on a
senior unsecured basis.



ARTICLE III



MISCELLANEOUS



          SECTION 3.1 Notices. All notices and other communications to the New Guarantor
shall be given as provided in the Indenture to the New Guarantor, at its address set forth below,
with a copy to the Issuer as provided in the Indenture for notices to the Issuer.



          SECTION 3.2 Parties. Nothing expressed or mentioned herein is intended or shall be
construed to give any Person, firm or corporation, other than the Holders and the Trustee, any
legal or equitable right, remedy or claim under or in respect of this Supplemental Indenture or the
Indenture or any provision herein or therein contained.



          SECTION 3.3 Governing Law. This Supplemental Indenture shall be governed by, and
construed in accordance with, the laws of the State of New York.



          SECTION 3.4 Severability Clause. In case any provision in this Supplemental
Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby and such provision
shall be ineffective only to the extent of such invalidity, illegality or unenforceability.



          SECTION 3.5 Ratification of Indenture; Supplemental Indentures Part of Indenture.
Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all
the terms, conditions and provisions thereof shall remain in full force and effect. This
Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of
Notes heretofore or hereafter authenticated and delivered shall be bound hereby. The Trustee



D-2









 




makes no representation or warranty as to the validity or sufficiency of this Supplemental
Indenture or with respect to the recitals contained herein, all of which recitals are made solely
by the other parties hereto.




          SECTION 3.6 Counterparts. The parties hereto may sign one or more copies of this
Supplemental Indenture in counterparts, all of which together shall constitute one and the same
agreement.



          SECTION 3.7 Headings. The headings of the Articles and the sections in this
Supplemental Indenture are for convenience of reference only and shall not be deemed to alter or
affect the meaning or interpretation of any provisions hereof.



D-3









 





          IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed as of the date first above written.



	 	 	 	 	 
	 	[NEW GUARANTOR],


as a Subsidiary Guarantor

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	[Address]  	 	 
	 
	 	WILMINGTON TRUST FSB, as
 Trustee

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




D-4