Exhibit 10.8
February 3,
2006
Bain Capital
Partners, LLC
Bain Capital Integral Investors, LLC
Bain Capital VII Coinvestment Fund, LLC
BCIP TCV, LLC
111 Huntington Avenue
Boston, MA 02199
Attn.: Stephen G. Pagliuca
Goldman, Sachs
& Co.
Goldman Sachs Capital Partners 2000, L.P.
GS Capital Partners 2000 Offshore, L.P.
GS Capital Partners 2000 GmbH & Co. Beteiligungs KG
GS Capital Partners 2000 Employee Fund, L.P.
Bridge Street Special Opportunities Fund 2000, L.P.
GS Private Equity Partners 2000, L.P.
GS Private Equity Partners 2000 Offshore Holdings, L.P.
GS Private Equity Partners 2000 – Direct Investment Fund,
L.P.
85 Broad Street
New York, NY 10004
Attn.: Sanjeev K. Mehra
TPG GenPar III,
L.P.
TPG BK Holdco LLC
301 Commerce St.
Suite 3300
Fort Worth, TX 76102
Attn.: Richard W. Boyce
Ladies and
Gentlemen:
Reference is
made to that letter agreement dated December 13, 2002 (the “
Fee Agreement ”) between TPG GenPar III, L.P. (“
TPG ”), Bain Capital Partners, LLC (“ Bain
Capital ”), Goldman, Sachs & Co. (“ Goldman
Sachs ”, and together with TPG and Bain Capital, the
“ Sponsor Entities ”) and Burger King
Corporation, as successor by merger to Burger King Acquisition
Corp. (the “ Company ”), a corporation wholly
owned by Burger King Holdings, Inc. (“ Holdings
”), which in turn is substantially owned in the aggregate by
TPG BK Holdco LLC (the “ TPG Fund ”), Bain
Capital Integral Investors, LLC, Bain Capital VII Coinvestment
Fund, LLC, BCIP TCV, LLC (collectively, the “ Bain
Funds ”), GS Capital Partners 2000, L.P., GS Capital
Partners 2000 Offshore, L.P., GS Capital Partners 2000 GmbH &
Co. Beteiligungs KG, GS Capital Partners 2000 Employee Fund, L.P.,
Bridge Street Special Opportunities Fund 2000, L.P., Stone Street
Fund 2000, L.P.,
1
Goldman Sachs
Direct Investment Fund 2000, L.P., GS Private Equity Partners 2000,
L.P., GS Private Equity Partners 2000 Offshore Holdings, L.P., GS
Private Equity Partners 2000 – Direct Investment Fund, L.P.
(collectively, the “ Goldman Funds ”, and
together with the TPG Fund and the Bain Funds, the “
Co-Investors ”). The Fee Agreement sets forth, among
other things, the fees to be paid to the Sponsor Entities or their
respective designees by the Company. All capitalized terms used but
not defined herein shall have the meanings ascribed to them in the
Fee Agreement.
The Sponsor
Entities, the Co-Investors and the Company hereby amend the Fee
Agreement as follows:
1.
Termination of Fee Agreement . Upon the completion of a bona
fide underwritten initial public offering of the common stock of
Holdings in which at least 10% of the common stock of Holdings is
sold to the public (an “ IPO ”), the Company
will pay a fee of $30 million to the Sponsor Entities to terminate
the Fee Agreement (the “Sponsor Management Termination
Fee”). The Sponsor Management Termination Fee will be divided
among the Sponsor Entities in three (3) equal amounts and paid on
the closing date of the IPO (the “ IPO Closing Date
”). From and after the IPO Closing Date, the Fee Agreement
will automatically terminate (provided, however, that the indemnity
provisions in Section 6 of the Fee Agreement will survive such
termination).
2. Final
Payment . Notwithstanding any provision in the Fee Agreement to
the contrary, after payment of the Sponsor Management Termination
Fee, the Sponsor Entities and the Co-Investors hereby agree that
the Company had, has and will have no obligation to accrue and/or
pay, and the Sponsor Entities had, have and will have no right to
receive, any past, present or future fees pursuant to the Fee
Agreement. The Sponsor Entities and the Co-Investors hereby
unconditionally and irrevocably release and discharge the Company
from any obligation to accrue or pay, and any liability for, any
past, present or future fees under the Fee Agreement.
3. Other
Fees and Payments . The Company and Holdings, as applicable,
will reimburse the Spons
