Supplemental Indenture
Exhibit 4.2
SUPPLEMENTAL INDENTURE, (this “Supplemental Indenture”) dated as of December 12, 2014, by and among 1011778 B.C. Unlimited Liability Company, an unlimited liability company organized under the laws of British Columbia (the “Issuer”), New Red Finance, Inc., a Delaware corporation (the “Co-Issuer”, and together with the Issuer, the “Issuers”), the parties that are signatories hereto as Guarantors (each a “Guaranteeing Subsidiary”) and Wilmington Trust, National Association, as Trustee and Collateral Agent under the Indenture referred to below.
W I T N E S S E T H:
WHEREAS, each of the Issuers, the Trustee and the Collateral Agent have heretofore executed and delivered an indenture dated as of October 8, 2014 (as amended, supplemented, waived or otherwise modified, the “Indenture”), providing for the issuance of an aggregate principal amount of $2,250,000,000 of 6.00% Second Lien Senior Secured Notes due 2022 (the “Notes”) of the Issuers;
WHEREAS, the Indenture provides that the Guaranteeing Subsidiaries shall execute and deliver to the Trustee and the Collateral Agent a supplemental indenture pursuant to which the Guaranteeing Subsidiaries shall unconditionally guarantee, on a joint and several basis, all of the Issuers’ Obligations under the Notes and the Indenture on the terms and conditions set forth herein and under the Indenture (the “Note Guarantee”), each on the terms and conditions set forth herein; and
WHEREAS, pursuant to Section 9.1 of the Indenture, the Issuers, any Guarantor and the Trustee are authorized to execute and deliver this Supplemental Indenture to amend or supplement the Indenture, without the consent of any Holder;
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Issuers, the Guaranteeing Subsidiaries and the Trustee mutually covenant and agree for the benefit of the Trustee, the Collateral Agent and the Holders of the Notes 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 recitals 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
AGREEMENT TO BE BOUND; GUARANTEE
SECTION 2.1. Agreement to be Bound. Effective upon the Escrow Release Date, each of the Guaranteeing Subsidiaries hereby agrees to become a party to the Indenture as a Guarantor and as such will have all of the rights and be subject to all of the obligations and agreements of a Guarantor under the Indenture.
SECTION 2.2. Guarantee. Each of the Guaranteeing Subsidiaries agrees, on a joint and several basis, 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 basis.
ARTICLE III
MISCELLANEOUS
SECTION 3.1. Notices. All notices and other communications to the Guarantors shall be given as provided in the Indenture, at the address for the Guarantors set forth in the Indenture.
SECTION 3.2. Merger, Amalgamation and Consolidation. Each Guaranteeing Subsidiary shall not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or merge or amalgamate with or into, another Person (other than the Issuer or any Restricted Subsidiary that is a Guarantor or becomes a Guarantor concurrently with the transaction) except in accordance with Section 4.1(g) of the Indenture.
SECTION 3.3. Release of Guarantee. The Note Guarantees hereunder may be released in accordance with Section 10.2 of the Indenture.
SECTION 3.4. 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 3.5. Governing Law. This Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York.
SECTION 3.6. Severability. 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 3.7. Benefits Acknowledged. Each Guaranteeing Subsidiary’s Note Guarantee is subject to the terms and conditions set forth in the Indenture. Each Guaranteeing Subsidiary acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by the Indenture and this Supplemental Indenture and that the guarantee and waivers made by it pursuant to its Note Guarantee are knowingly made in contemplation of such benefits.
SECTION 3.8. 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.
SECTION 3.9. The Trustee and the Collateral Agent. Neither the Trustee nor the Collateral Agent make any 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 3.10. Counterparts. The parties hereto may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile or pdf transmission shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or pdf shall be deemed to be their original signatures for all purposes.
SECTION 3.11. Execution and Delivery. Each Guaranteeing Subsidiary agrees that its Note Guarantee shall remain in full force and effect notwithstanding any failure to endorse on each Note a notation of any such Note Guarantee.
SECTION 3.12. 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.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.
| Acknowledged by: | ||
| 1011778 B.C. UNLIMITED LIABILITY COMPANY | ||
| By: | /s/ Xxxx X. Xxxxxx | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Secretary | |
| NEW RED FINANCE, INC. | ||
| By: | /s/ Xxxx X. Xxxxxx | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Secretary | |
| BLUE HOLDCO 1, LLC | ||
| BLUE HOLDCO 2, LLC | ||
| BLUE HOLDCO 3, LLC | ||
| BURGER KING WORLDWIDE, INC. | ||
| BURGER KING HOLDCO LLC | ||
| BURGER KING CAPITAL HOLDINGS, LLC | ||
| BURGER KING CAPITAL FINANCE, INC. | ||
| BURGER KING HOLDINGS, INC. | ||
| BURGER KING CORPORATION | ||
| BK ACQUISITION, INC. | ||
| BK CDE, INC. | ||
| BK WHOPPER BAR, LLC | ||
| BURGER KING INTERAMERICA, LLC | ||
| BURGER KING SWEDEN INC. | ||
| DISTRON TRANSPORTATION SYSTEMS, INC. | ||
| MOXIE’S, INC. | ||
| THE XXXXXXX CORPORATION | ||
| TPC NUMBER FOUR, INC. | ||
| TQW COMPANY | ||
| By: | /s/ Xxxx X. Xxxxxx | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Secretary | |
Signature Page to Supplemental Indenture
| THD NEVADA LLC | ||
| THD DELAWARE LLC | ||
| XXX DONUT U.S. LIMITED, INC. | ||
| SBFD HOLDING CO. | ||
| XXX HORTONS USA INC. | ||
| XXX HORTONS (NEW ENGLAND), INC. | ||
| THD COFFEE CO. | ||
| XXX HORTONS DELAWARE LIMITED PARTNERSHIP | ||
| XXXXXX INVESTMENT PARTNERSHIP | ||
| By: | /s/ Xxxx X. Xxxxxx | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Senior Executive Vice President, General Counsel, Secretary | |
| 1014364 B.C. UNLIMITED LIABILITY COMPANY | ||
| By: | /s/ Xxxx X. Xxxxxx | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Secretary | |
| 1014369 B.C. UNLIMITED LIABILITY COMPANY | ||
| By: | /s/ Xxxx X. Xxxxxx | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Secretary | |
| 1019334 B.C. UNLIMITED LIABILITY COMPANY | ||
| By: | /s/ Xxxx X. Xxxxxx | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Secretary | |
Signature Page to Supplemental Indenture
| 1016869 B.C. UNLIMITED LIABILITY COMPANY | ||
| By: | /s/ Xxxx X. Xxxxxx | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Secretary | |
| 1016893 B.C. UNLIMITED LIABILITY COMPANY | ||
| By: | /s/ Xxxx X. Xxxxxx | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Secretary | |
| 1016864 B.C. UNLIMITED LIABILITY COMPANY | ||
| By: | /s/ Xxxx X. Xxxxxx | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Secretary | |
| 1016872 B.C. UNLIMITED LIABILITY COMPANY | ||
| By: | /s/ Xxxx X. Xxxxxx | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Secretary | |
| 1016878 B.C. UNLIMITED LIABILITY COMPANY | ||
| By: | /s/ Xxxx X. Xxxxxx | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Secretary | |
| 1016883 B.C. UNLIMITED LIABILITY COMPANY | ||
| By: | /s/ Xxxx X. Xxxxxx | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Secretary | |
Signature Page to Supplemental Indenture
| 1017358 B.C. UNLIMITED LIABILITY COMPANY | ||
| By: | /s/ Xxxx X. Xxxxxx | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Secretary | |
| P11 LIMITED PARTNERSHIP | ||
| By: | 1014364 B.C. Unlimited Liability Company | |
| Its: | General Partner | |
| By: | /s/ Xxxx X. Xxxxxx | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Secretary | |
| P22 LIMITED PARTNERSHIP | ||
| By: | 1014364 B.C. Unlimited Liability Company | |
| Its: | General Partner | |
| By: | /s/ Xxxx X. Xxxxxx | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Secretary | |
| P33 LIMITED PARTNERSHIP | ||
| By: | 1014364 B.C. Unlimited Liability Company | |
| Its: | General Partner | |
| By: | /s/ Xxxx X. Xxxxxx | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Secretary | |
Signature Page to Supplemental Indenture
| P44 LIMITED PARTNERSHIP | ||
| By: | 1014364 B.C. Unlimited Liability Company | |
| Its: | General Partner | |
| By: | /s/ Xxxx X. Xxxxxx | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Secretary | |
| P55 LIMITED PARTNERSHIP | ||
| By: | 1014364 B.C. Unlimited Liability Company | |
| Its: | General Partner | |
| By: | /s/ Xxxx X. Xxxxxx | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Secretary | |
| XXX HORTONS INC. | ||
| By: | /s/ Xxxx X. Xxxxxx | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Senior Executive Vice President, General Counsel, Secretary | |
| 1021678 ALBERTA ULC | ||
| By: | /s/ Xxxx X. Xxxxxx | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Senior Executive Vice President, General Counsel, Secretary | |
| BARHAV DEVELOPMENTS LIMITED | ||
| By: | /s/ Xxxx X. Xxxxxx | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Senior Executive Vice President, General Counsel, Secretary | |
Signature Page to Supplemental Indenture
| GRANGE CASTLE HOLDINGS LIMITED | ||
| By: | /s/ Xxxx X. Xxxxxx | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Senior Executive Vice President, General Counsel, Secretary | |
| 1485525 ALBERTA LTD. | ||
| By: | /s/ Xxxx X. Xxxxxx | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Senior Executive Vice President, General Counsel, Secretary | |
| FRUITION MANUFACTURING LIMITED | ||
| By: | /s/ Xxxx X. Xxxxxx | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Senior Executive Vice President, General Counsel, Secretary | |
| GPAIR LIMITED | ||
| By: | /s/ Xxxx X. Xxxxxx | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Senior Executive Vice President, General Counsel, Secretary | |
| THE TDL GROUP CO. / GROUPE TDL CIE | ||
| By: | /s/ Xxxx X. Xxxxxx | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Senior Executive Vice President, General Counsel, Secretary | |
Signature Page to Supplemental Indenture
| THE TDL GROUP CO., IN ITS CAPACITY AS A PARTNER OF THE TDL GROUP | ||
| By: | /s/ Xxxx X. Xxxxxx | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Senior Executive Vice President, General Counsel, Secretary | |
| THE TDL GROUP CORP., IN ITS | ||
| CAPACITY AS A PARTNER OF THE TDL GROUP | ||
| By: | /s/ Xxxx X. Xxxxxx | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Senior Executive Vice President, General Counsel, Secretary | |
| THE TDL GROUP CORP. / GROUPE TDL CORPORATION | ||
| By: | /s/ Xxxx X. Xxxxxx | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Senior Executive Vice President, General Counsel, Secretary | |
| THE TDL MARKS CORPORATION / LES MARQUES DE TDL CORPORATION | ||
| By: | /s/ Xxxx X. Xxxxxx | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Senior Executive Vice President, General Counsel, Secretary | |
| THE TDL GROUP CO., IT ITS CAPACITY AS A PARTNER OF TIM’S REALTY PARTNERSHIP | ||
| By: | /s/ Xxxx X. Xxxxxx | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Senior Executive Vice President, General Counsel, Secretary | |
Signature Page to Supplemental Indenture
| 1021678 ALBERTA ULC, IN ITS CAPACITY AS A PARTNER OF TIM’S REALTY PARTNERSHIP | ||
| By: | /s/ Xxxx X. Xxxxxx | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Senior Executive Vice President, General Counsel, Secretary | |
Signature Page to Supplemental Indenture
| BURGER KING CANADA HOLDINGS INC./PLACEMENTS BURGER KING CANADA INC. | ||
| By: | /s/ Xxxxxxx Xxxxxxxx | |
| Name: | Xxxxxxx Xxxxxxxx | |
| Title: | President and Treasurer | |
| BURGER KING SASKATCHEWAN HOLDINGS INC. | ||
| By: | /s/ Xxxxxxx Xxxxxxxx | |
| Name: | Xxxxxxx Xxxxxxxx | |
| Title: | President and Treasurer | |
Signature Page to Supplemental Indenture
| WILMINGTON TRUST, NATIONAL ASSOCIATION, | ||||
| as Trustee and Collateral Agent | ||||
| By: | /s/ Xxxxxx X. X’Xxxxxxx | |||
| Name: | Xxxxxx X. X’Xxxxxxx | |||
| Title: | Vice President | |||
Signature Page to Supplemental Indenture
