LIMITED GUARANTY
Exhibit (d)(3)
This Limited Guaranty, dated as of September 2, 2010 (this “Limited Guaranty”), is
delivered by 3G Special Situations Fund II L.P., a Cayman limited partnership (the
“Guarantor”), in favor of Burger King Holdings, Inc., a Delaware corporation (the
“Company”). Reference is hereby made to the Agreement and Plan of Merger, dated as of the
date hereof (the “Merger Agreement”), by and among the Company, Blue Acquisition Holding
Corporation, a Delaware corporation (“Parent”), and Blue Acquisition Sub, Inc., a Delaware
corporation and a wholly owned Subsidiary of Parent (“Sub”). Each of the Guarantor and the
Company are referred to herein as a “party” and together as “parties.” Capitalized
terms used herein but not otherwise defined shall have the meanings ascribed to them in the Merger
Agreement.
1. Limited Guaranty. To induce the Company to enter into the Merger Agreement, the
Guarantor hereby irrevocably and unconditionally guarantees to the Company, the payment, if and
when due pursuant to the terms and conditions of the Merger Agreement, of (i) the Parent
Termination Fee when required to be paid by Parent pursuant to and in accordance with Section
9.03 of the Merger Agreement or (ii) all of the liabilities and obligations of Parent or Sub
under the Merger Agreement (including, without limitation, Section 7.09(b), Section 7.09(c) and
Section 9.03(g), and as otherwise contemplated by Section 9.02) when required to be paid by Parent
or Sub pursuant to and in accordance with the Merger Agreement (clauses (i) and (ii) collectively,
the “Guaranteed Obligations”); provided, however, that, notwithstanding
anything to the contrary set forth in this Limited Guaranty, the Merger Agreement, the Equity
Commitment Letter or any other agreement contemplated hereby or thereby, in no event shall the
liability of Guarantor pursuant to this Limited Guaranty exceed $175,000,000.00 (the “Maximum
Liability Cap”), it being understood that in no event shall this Limited Guaranty be enforced
without giving effect to the Maximum Liability Cap. The Company hereby agrees that (i) the
Guarantor shall in no event be required to pay an amount in excess of the Maximum Liability Cap
under or in respect of this Limited Guaranty, and (ii) neither the Guarantor nor any Guarantor
Affiliate (as hereinafter defined) shall have any obligation or liability to any person relating
to, arising out of or in connection with, this Limited Guaranty, other than as expressly set forth
herein. All payments hereunder shall be made in lawful money of the United States, in immediately
available funds.
2. Terms of Limited Guaranty.
(a) This Limited Guaranty is one of payment, not collection, and a separate action or actions
may be brought and prosecuted against the Guarantor to enforce this Limited Guaranty up to the
Maximum Liability Cap, regardless of whether an action is brought against one or both of Parent or
Sub.
(b) Except as otherwise provided herein and without amending or limiting the other provisions
of this Limited Guaranty (including Section 6 hereof), the liability of the Guarantor under
this Limited Guaranty shall, to the fullest extent permitted under applicable Law, be absolute and
unconditional irrespective of:
(i) any change in the corporate existence, structure or ownership of Parent or Sub or
the Guarantor, or any insolvency, bankruptcy, reorganization, moratorium or other similar
proceeding affecting Parent or Sub or the Guarantor or any of their respective assets;
(ii) the existence of any claim, set-off or other right that (x) the Guarantor may have
at any time against Parent or Sub or the Company or (y) Parent or Sub may have at any time
against the Company, in each case, whether in connection with any Guaranteed Obligation or
otherwise; or
(iii) the addition, substitution or release of any person now or hereafter liable with
respect to the Guaranteed Obligations or otherwise interested in the transactions
contemplated by the Merger Agreement.
(c) The Guarantor hereby waives any and all notice of the creation, renewal, extension or
accrual of any of the Guaranteed Obligations and notice of or proof of reliance by the Company upon
this Limited Guaranty or acceptance of this Limited Guaranty. The Guaranteed Obligations, and any
of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon
this Limited Guaranty, and all dealings between Parent, Sub or the Guarantor, on the one hand, and
the Company, on the other, shall likewise be conclusively presumed to have been had or consummated
in reliance upon this Limited Guaranty.
(d) The Company shall not be obligated to file any claim relating to any Guaranteed Obligation
in the event that Parent or Sub becomes subject to a bankruptcy, reorganization or similar
proceeding, and the failure of the Company to so file shall not affect the Guarantor’ obligations
hereunder. In the event that any payment to the Company in respect of any Guaranteed Obligation is
rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain
liable hereunder with respect to the Guaranteed Obligation as if such payment had not been made.
(e) Notwithstanding any other provision of this Limited Guaranty, the Company hereby agrees
that the Guarantor may assert any defense that Parent or Sub could assert against the Company under
the terms of the Merger Agreement as a defense with respect to its obligations under this Limited
Guaranty.
3. Waiver of Acceptance, Presentment; Etc. Subject to Section 2(e), the Guarantor
expressly and irrevocably waives defenses on the basis of promptness, diligence, notice of
acceptance hereof, presentment, demand for payment, notice of non-performance, default, dishonor,
protest and any notice of any kind (other than notices to be provided in accordance with Section 13
hereof or Section 11.03 of the Merger Agreement), all defenses which may be available by virtue of
any valuation, stay, moratorium or other similar Law now or hereafter in effect, any right to
require the marshalling of assets of one or both of Parent or Sub, or any other Person liable with
respect to any of the Guaranteed Obligations, and all suretyship defenses generally (other than
breach by the Company of this Limited Guaranty). Subject to Section 2(e), the Guarantor hereby
unconditionally and irrevocably agrees that it shall not, directly or indirectly, institute any
proceeding or make any claim asserting that this Limited Guaranty is illegal, invalid or
unenforceable in accordance with its terms. The Guarantor acknowledges that it will receive
substantial direct and indirect benefits from the transactions contemplated by the Merger Agreement
and that the waivers set forth in this Limited Guaranty are knowingly made in contemplation of such
benefits and after the advice of counsel.
4. Sole Remedy.
(a) The Company acknowledges and agrees that, as of the date hereof, neither Parent nor Sub
has any assets, other than their respective rights under the Merger Agreement and the agreements
contemplated thereby. Except as specifically contemplated by this Limited Guaranty or the Equity
Commitment Letter, the Company acknowledges and agrees that no funds are expected to be contributed
to Parent or Sub unless the Offer Closing or Merger Closing occurs, and that, except for rights
against Parent and Sub to the extent expressly provided in Section 11 of the Equity
Commitment Letter (and the related obligations of Sponsor thereunder to call capital and maintain
funds that are called) and Section 11.10(b) of the Merger Agreement and subject to all of
the terms, conditions and limitations herein and therein, the Company shall not have any right to
cause any assets to be contributed to Parent or Sub by the Guarantor, any Guarantor Affiliate (as
hereinafter below) or any other person.
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(b) Without limiting any obligations of Parent or Sub under the Merger Agreement or Guarantor
under the Equity Commitment Letter, the Company agrees and acknowledges that no person other than
the Guarantor has any obligations under this Limited Guaranty and that, notwithstanding that the
Guarantor is a limited partnership, the Company hereunder has no remedy, recourse or right of
recovery against, or contribution from, in each case, with respect to this Limited Guaranty (i) any
former, current or future general or limited partners, stockholders, holders of any equity,
partnership or limited liability company interest, officer, member, manager, director, employees,
agents, controlling persons, assignee or any Affiliates of the Guarantor (other than Parent or
Sub), (ii) any lender or prospective lender, lead arranger, arranger, agent or representative of or
to Parent or Sub, or (iii) any former, current or future general or limited partners, stockholders,
holders of any equity, partnership or limited liability company interest, officer, member, manager,
director, employees, agents, attorneys, controlling persons, assignee or Affiliates (other than
Guarantor, Parent or Sub) of any of the foregoing (those persons and entities described in the
foregoing clauses (i), (ii) and (iii), together, with any other Non-Recourse Parent Party, being
referred to herein collectively as “Guarantor Affiliates”), through the Guarantor, Parent
or Sub or otherwise, whether by or through attempted piercing of the corporate veil or similar
action, by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of
any statute, regulation or applicable Law, by or through a claim by or on behalf of the Guarantor,
Parent or Sub against the Guarantor or any Guarantor Affiliate, or otherwise, except, in each case,
for (x) its rights against the Guarantor under this Limited Guaranty, (y) its third party
beneficiary rights under the Equity Commitment Letter and (z) its rights against Parent or Sub
under the Merger Agreement; provided, however, that in the event that the Guarantor
(i) consolidates with or merges with any other person and is not the continuing or surviving entity
of such consolidation or merger or (ii) transfers or conveys all or a substantial portion of its
properties and other assets to any person such that the sum of the remaining net assets plus
uncalled capital of the Guarantor is less than the amount of the Maximum Liability Cap and the
transferee thereof does not assume, directly or indirectly, the Guarantor’s obligations hereunder,
then, and in each such case, the Company may seek recourse, whether by the enforcement of any
Judgment or assessment or by any legal or equitable proceeding or by virtue of any statute,
regulation or other applicable Law, against such continuing or surviving entity or such person (in
either case, a “Successor Entity”), as the case may be, but only to the extent of the
unpaid liability hereunder up to the amount of the Guaranteed Obligations for which the Guarantor
is liable, as determined in accordance with this Limited Guaranty. As used herein, unless
otherwise specified, the term Guarantor shall include the Guarantor’s Successor Entity.
(c) The Company hereby covenants and agrees that it shall not institute, and shall cause each
of its Affiliates and representatives not to institute, directly or indirectly, any Litigation
arising under, or in connection with, this Limited Guaranty, the Merger Agreement, the Equity
Commitment Letter, the Debt Commitment Letter or the transactions contemplated thereby, against the
Guarantor or any Guarantor Affiliate except for (i) claims by the Company against the Guarantor
under and in accordance with this Limited Guaranty (the “Retained Guaranty Claims”), (ii)
claims by the Company against Parent or Sub under and in accordance with the Merger Agreement (the
“Retained Merger Agreement Claims”), (iii) with respect to the Confidentiality Agreement,
claims by the Company against 3G Capital Partners Ltd. under and in accordance with the
Confidentiality Agreement (the “Retained Confidentiality Agreement Claims”), or (iv) claims
by the Company against Parent seeking to cause Parent to enforce the Equity Commitment Letter in
accordance with its terms and subject to the limitations in the Merger Agreement (the “Retained
Equity Commitment Claims” and together with the Retained Guaranty Claims, the Retained Merger
Agreement Claims and the Retained Confidentiality Agreement Claims, the “Retained Claims”).
(d) Recourse against the Guarantor solely with respect to the Retained Guaranty Claims,
against Parent or Sub solely with respect to the Retained Merger Agreement Claims (and, in the case
of Parent, the Retained Equity Commitment Claims) and against 3G Capital Partners Ltd. solely with
respect
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to the Retained Confidentiality Agreement Claims shall be the sole and exclusive remedy of the
Company and all of its Affiliates against the Guarantor or any Guarantor Affiliate in respect of
any liabilities or obligations arising under, or in connection with, the Merger Agreement or any of
the other agreements contemplated thereby, or the transactions contemplated thereby, and such
recourse shall be subject to the limitations described herein and therein.
(e) For all purposes of this Limited Guaranty, a person shall be deemed to have pursued a
claim against another person if such first person brings a legal action against such person, adds
such other person to an existing legal proceeding, or otherwise asserts a legal claim of any nature
relating to the Merger Agreement and the other agreements contemplated hereby against such person
other than such actions as are expressly contemplated and permitted in the Merger Agreement and the
other agreements contemplated hereby.
5. Subrogation. The Guarantor will not exercise any rights of subrogation or
contribution against Parent or Sub, whether arising by contract or operation of law (including,
without limitation, any such right arising under bankruptcy or insolvency Laws) or otherwise, by
reason of any payment by any of them pursuant to the provisions of Section 1 hereof unless
and until the Guaranteed Obligations have been indefeasibly paid in full.
6. Termination.
(a) The Guarantor shall have no further liability or obligation under this Limited Guaranty
from and after the earliest of (i) the Effective Time, (ii) the termination of the Merger Agreement
by Parent and the Company pursuant to Section 9.01(a) of the Merger Agreement, (iii) the
termination of the Merger Agreement by the Company pursuant to Section 9.01(f) of the
Merger Agreement, (iv) the payment by the Guarantor, Parent or Sub of the entire Parent Termination
Fee or an amount of the Guaranteed Obligations equal to the Maximum Liability Cap, (v) an event of
termination referred to in Section 6(b) or (vi) the six-month anniversary following
termination of the Merger Agreement in accordance with its terms (other than any termination for
which clause (ii) or (iii) applies), unless prior to such six-month anniversary (x) the Company
shall have delivered a written notice with respect to any of the Guaranteed Obligations and (y) the
Company shall have commenced a suit, action or other proceeding against Guarantor, Parent or Sub
alleging the Parent Termination Fee is due and owing, or that Parent or Sub are liable for any
breaches or any other payment obligations under the Merger Agreement or against the Guarantor that
amounts are due and owing from the Guarantor pursuant to Section 1; provided,
that with respect to clause (vi), if the Merger Agreement has been terminated, such notice
has been provided and such suit, action or other proceeding has been commenced, the Guarantor shall
have no further liability or obligation under this Limited Guaranty from and after the earliest of
(x) a final, non-appealable order of a court of competent jurisdiction in accordance with
Section 14 hereof determining that the Guarantor does not owe any amount under this Limited
Guaranty, and (y) a written agreement among the Guarantor and the Company that specifically
references this Section 6(a)(vi) in which the Company acknowledges that the obligations and
liabilities of the Guarantor pursuant to this Limited Guaranty are terminated.
(b) In the event that the Company, directly or indirectly, institutes any proceeding or makes
any claim asserting that the provisions of this Section 6 or Section 1 hereof are
illegal, invalid or unenforceable in whole or in part or that the Guarantor is liable in excess of
or to a greater extent than the Maximum Liability Cap (excluding in each case the exercise of the
Company’s rights to specific performance under the Equity Commitment Letter and Section 11.10(b) of
the Merger Agreement), then (x) the obligations and liabilities of the Guarantor under this Limited
Guaranty shall terminate ab initio and be null and void, and (y) none of the Guarantor, Parent, Sub
nor any Guarantor Affiliate shall have any liability to the Company or any of its Affiliates under
this Limited Guaranty.
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7. Continuing Guaranty; Change in Guaranteed Obligations; Certain Waivers.
(a) Except to the extent that the obligations and liabilities of the Guarantor are terminated
pursuant to the provisions of Section 6 hereof, this Limited Guaranty is a continuing one
and shall remain in full force and effect until the indefeasible payment and satisfaction in full
of the Guaranteed Obligations, shall be binding upon each Guarantor, its successors and assigns,
and shall inure to the benefit of, and be enforceable by, the Company and its respective successors
and permitted transferees and assigns. All obligations to which this Limited Guaranty applies or
may apply under the terms hereof shall be conclusively presumed to have been created in reliance
hereon.
(b) The Guarantor agrees that the Company may at any time and from time to time, without
notice to or further consent of the Guarantor, extend the time of payment of any of the Guaranteed
Obligations, and also may make any agreement with one or both of Parent and Sub for the extension,
renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any
modification of the terms thereof or of any agreement between the Company, on the one hand, and one
or both of Parent or Sub, on the other hand, without in any way impairing or affecting the
obligations of the Guarantor under this Limited Guarantee. The Guarantor agrees that the
obligations of the Guarantor hereunder shall not be released or discharged, in whole or in part, or
otherwise affected by: (a) the failure of the Company to assert any claim or demand or to enforce
any right or remedy against one or both of Parent or Sub; (b) any change in the time, place or
manner of payment of any of the Guaranteed Obligations or any rescission, waiver, compromise,
consolidation or other amendment or modification of any of the terms or provisions of the Merger
Agreement or any other agreement evidencing, securing or otherwise executed in connection with any
of the Guaranteed Obligations (provided that any such change, rescission, waiver, compromise,
consolidation or other amendment or modification shall be subject to the prior written consent of
Parent and Sub to the extent expressly required by the Merger Agreement); (c) the addition,
substitution or release of any Person interested in the transactions contemplated by the Merger
Agreement (provided, that any such addition, substitution or release shall be subject to the prior
written consent of Parent and Sub to the extent expressly required under the Merger Agreement); (d)
any change in the corporate existence, structure or ownership of one or both of Parent or Sub or
any other Person liable with respect to any of the Guaranteed Obligations; (e) any insolvency,
bankruptcy, reorganization or other similar proceeding affecting one or both of Parent or Sub or
any other Person liable with respect to any of the Guaranteed Obligations; (f) subject to the last
sentence of Section 2(a) hereof, any lack of validity or enforceability of the Guaranteed
Obligations, the Merger Agreement or any agreement or instrument relating thereto; (g) the
existence of any claim, set-off or other rights which the Guarantors may have at any time against
one or both of Parent or Sub or the Company (other than defenses under the Merger Agreement),
whether in connection with the Guaranteed Obligations or otherwise; or (h) the adequacy of any
other means the Company may have of obtaining repayment of any of the Guaranteed Obligations.
8. Release. By its acceptance of this Limited Guaranty, the Company hereby agrees that
neither the Company nor any of its Affiliates has or shall have, and the Company agrees to the
extent permitted by Law, that none of its Representatives has or shall have, any right of recovery
against the Guarantor or any Guarantor Affiliate under or in connection with or related to the
Merger Agreement, the Equity Commitment Letter, the Debt Commitment Letter or the transactions
contemplated thereby or otherwise relating thereto and hereby releases the Guarantor and each
Guarantor Affiliate from and with respect to any claim, known or unknown, now existing or hereafter
arising, in connection with the Merger Agreement, the Equity Commitment Letter, the Debt Commitment
Letter or any transaction contemplated thereby or otherwise relating thereto, whether by or through
attempted piercing of the corporate (or limited liability company or partnership) veil, by or
through a claim by or on behalf of the Guarantor, Parent or Sub or any other person against the
Guarantor or any Guarantor Affiliate, or otherwise under
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any theory of law or equity; provided that the foregoing shall not constitute a
release of or otherwise affect or limit any of the Retained Claims of the Company.
9. Entire Agreement. This Limited Guaranty, together with the Merger Agreement, the
Confidentiality Agreement and the Equity Commitment Letter constitutes the entire agreement with
respect to the subject matter hereof and supersedes any and all prior agreements and
understandings, whether written or oral, among Parent, Sub and the Guarantor or any Guarantor
Affiliate on the one hand, and the Company or any of its Affiliates on the other hand.
10. Amendments and Waivers. No amendment or waiver of any provision of this Limited
Guaranty will be valid and binding unless it is in writing and signed, in the case of an amendment,
by the Guarantor and the Company, or in the case of waiver, by the party against whom the waiver is
to be effective. No waiver by any party of any breach or violation of, or default under, this
Limited Guaranty, whether intentional or not, will be deemed to extend to any prior or subsequent
breach, violation or default hereunder or affect in any way any rights arising by virtue of any
prior or subsequent such occurrence. No delay or omission on the part of any party in exercising
any right, power or remedy under this Limited Guaranty will operate as a waiver thereof.
11. No Third Party Beneficiaries. Except for the provisions of this Limited Guaranty
which reference Guarantor Affiliates (each of which shall be for the benefit of and enforceable by
each Guarantor Affiliate), the parties hereby agree that their respective representations,
warranties and covenants set forth herein are solely for the benefit of the other parties hereto,
in accordance with and subject to the terms of this Limited Guaranty, and this Limited Guaranty is
not intended to, and does not, confer upon any person other than the parties hereto and any
Guarantor Affiliate any rights or remedies hereunder, including the right to rely upon the
representations and warranties set forth herein.
12. Counterparts; Facsimile and Electronic Signatures. This Limited Guaranty may be
executed in one or more counterparts, all of which shall be considered one and the same agreement
and shall become effective when one or more counterparts have been signed by each of the parties
and delivered to the other parties. This Limited Guaranty or any counterpart may be executed and
delivered by facsimile copies or delivered by electronic communications by portable document format
(.pdf), each of which shall be deemed an original.
13. Notices. Except for notices that are specifically required by the terms of this
Limited Guaranty to be delivered orally, all notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed given when received if delivered
personally; when transmitted if transmitted by facsimile (with written confirmation of
transmission); the business day after it is sent, if sent for next day delivery to a domestic
address by overnight courier (providing proof of delivery) to the parties at the following
addresses (or at such other address for a party as shall be specified by like notice):
If to the Guarantor, to:
3G Special Situations Fund II L.P.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax No.: (000) 000-0000
Attention: Xxxxxxxxx Xxxxxxx
Xxxxxx Xxxxxxxx
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax No.: (000) 000-0000
Attention: Xxxxxxxxx Xxxxxxx
Xxxxxx Xxxxxxxx
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with a copy (which shall not constitute notice) to:
Xxxxxxxx & Xxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx, Esq.
Xxxxxxx X. Xxxxxxxxx, Esq.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx, Esq.
Xxxxxxx X. Xxxxxxxxx, Esq.
If to the Company, to:
Burger King Holdings, Inc.
0000 Xxxx Xxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Fax No.: (000) 000-0000
Attention: Xxxx Xxxxx
0000 Xxxx Xxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Fax No.: (000) 000-0000
Attention: Xxxx Xxxxx
with a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
Xxxxxxx X. Xxxxxxxx, Esq.
Xxxxxx X. Xxxxxxxxx, Esq.
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
Xxxxxxx X. Xxxxxxxx, Esq.
Xxxxxx X. Xxxxxxxxx, Esq.
and
Holland & Knight LLP
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Fax No.: (000) 000-0000
Attention: Xxxx XxxXxxxxxxx, Esq.
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Fax No.: (000) 000-0000
Attention: Xxxx XxxXxxxxxxx, Esq.
14. Governing Law; Jurisdiction; Venue; Service of Process. This Limited Guaranty, and
all claims and causes of action arising out of, based upon, or related to this Limited Guaranty or
the negotiation, execution or performance hereof, shall be governed by, and construed, interpreted
and enforced in accordance with, the Laws of the State of Delaware, without regard to choice or
conflict of law principles that would result in the application of any Laws other than the Laws of
the State of Delaware. Any legal action, suit or proceeding arising out of, based upon or relating
to this Limited Guaranty or the transactions contemplated hereby shall be brought solely in the
Court of Chancery of the State of Delaware (or, if the Court of Chancery of the State of Delaware
declines to accept jurisdiction over a particular matter, any state or federal court within the
County of New Castle County in the State of Delaware) and any direct appellate court therefrom.
Each of the parties hereto hereby irrevocably submits to the exclusive jurisdiction of such courts
in respect of any legal action, suit or proceeding arising out of, based upon or relating to this
Limited Guaranty and the rights and obligations arising hereunder and agrees that it will not bring
any action arising out of, based upon or related to this Limited Guaranty in any other court. Each
of the parties hereto hereby irrevocably waives, and agrees not to assert as a defense,
counterclaim or otherwise, in any legal action, suit or proceeding arising out of, based upon or
relating to this Limited Guaranty, (a) any claim that it is not personally subject to the
jurisdiction of the
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above named courts for any reason other than the failure to serve process as set forth below,
(b) any claim that it or its property is exempt or immune from jurisdiction of any such court or
from any legal process commenced in such courts (whether through service of notice, attachment
prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise),
and (c) to the fullest extent permitted by applicable Law, any claim that (i) the suit, action or
proceeding in such court is brought in an inconvenient forum, (ii) the venue of such suit, action
or proceeding is improper or (iii) this Limited Guaranty, or the subject mater hereof, may not be
enforced in or by such courts. Each of the parties hereto agrees that service of process upon such
party in any such action shall be effective if notice is given in accordance with Section
13 of this Limited Guaranty.
15. Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH
MAY ARISE UNDER THIS LIMITED GUARANTY IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND
THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS LIMITED GUARANTY, OR THE TRANSACTIONS CONTEMPLATED BY THIS LIMITED GUARANTY. EACH
PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH PARTY UNDERSTANDS AND HAS
CONSIDERED THE IMPLICATION OF THIS WAIVER, (iii) EACH PARTY MAKES THIS WAIVER VOLUNTARILY
AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTY BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 15.
16. Representations and Warranties. The Guarantor hereby represents and warrants with
respect to itself to the Company that: (a) it is duly organized and validly existing under the laws
of its jurisdiction of organization, (b) it has all limited partnership power and authority to
execute, deliver and perform this Limited Guaranty, (c) the execution, delivery and performance of
this Limited Guaranty by the undersigned has been duly and validly authorized and approved by all
necessary limited partnership action, and no other proceedings or actions on the part of the
undersigned are necessary therefor, (c) this Limited Guaranty has been duly and validly executed
and delivered by it and constitutes a valid and legally binding obligation of it, enforceable
against the undersigned in accordance with its terms, (d) the Guarantor has uncalled capital
commitments (other than those to be called pursuant to the Equity Commitment Letter) equal to or in
excess of the Maximum Liability Cap, (e) the Guarantor has the right to call capital, and its
limited partners or other investors have the obligation to fund such capital within ten (10)
business days of the issuance of a capital call, in an aggregate amount equal to or in excess of
the Maximum Liability Cap (including a capital call solely in connection with the payment of any of
the Guaranteed Obligations), (f) the execution, delivery and performance by the undersigned of this
Limited Guaranty do not and will not (i) violate the organizational documents of the undersigned,
(ii) violate any applicable Law or Judgment, or (iii) result in any violation of, or default (with
or without notice or lapse of time, or both) under, or give rise to a right of termination,
cancelation or acceleration of any obligation, any contract to which the undersigned is a party, in
any case, for which the violation, default or right would be reasonably likely to prevent or
materially impede, interfere with, hinder or delay the consummation by the Guarantor of the
transactions contemplated by this Limited Guaranty on a timely basis and (g) it has the financial
capacity to pay and perform all of its obligations under this Limited Guaranty, and all funds
necessary to fulfill the Guaranteed Obligations under this Limited Guaranty shall be available to
the Guarantor for as long as this Limited Guaranty shall remain in effect. The Guarantor
acknowledges that the Company has specifically relied on the accuracy of the representations and
warranties contained in this paragraph 16 and in the event of any breach hereof, the Company shall
have a
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right to seek appropriate damages and any such damages shall be a “Guaranteed Obligation” for
purposes of this Agreement.
17. No Assignment. Neither the Guarantor nor the Company may assign their respective
rights, interests or obligations hereunder to any other person (except by operation of law) without
the prior written consent of the Company (in the case of an assignment by the Guarantor) or the
Guarantor (in the case of an assignment by the Company); provided that no such assignment by the
Guarantor shall relieve the Guarantor of any of its obligations hereunder.
18. Severability. If any term or other provision of this Limited Guaranty is invalid,
illegal or incapable of being enforced by any rule of law or public policy, all other conditions
and provisions of this Limited Guaranty shall nevertheless remain in full force and effect so long
as the economic or legal substance of the transactions contemplated hereby is not affected in any
manner materially adverse to any party hereto; provided, however, that this Limited
Guaranty may not be enforced without giving effect to the limitation of the amount payable
hereunder to the Maximum Liability Cap provided in Section 1 hereof and to the provisions
of Sections 2(e), 4, 5 and 8 hereof. Upon such determination that
any term or other provision is invalid, illegal or incapable of being enforced, the parties shall
negotiate in good faith to modify this Limited Guaranty so as to effect the original intent of the
parties as closely as possible to the fullest extent permitted by applicable Law in an acceptable
manner to the end that the transactions contemplated hereby are fulfilled to the extent possible.
19. Confidentiality. Other than as required by Law or the rules of any national
securities exchange, each of the parties agrees that it will not, nor will it permit its advisors
or Affiliates to, disclose to any person or entity the contents of this Limited Guaranty, other
than to Parent and Sub and their advisors who are instructed to maintain the confidentiality of
this Limited Guaranty in accordance herewith.
20. Headings. The headings contained in this Limited Guaranty are for convenience
purposes only and will not in any way affect the meaning or interpretation hereof.
21. Relationship of the Parties. Each party acknowledges and agrees that (a) this Limited
Guaranty is not intended to, and does not, create any agency, partnership, fiduciary or joint
venture relationship between or among any of the parties hereto and neither this Limited Guaranty
nor any other document or agreement entered into by any party hereto relating to the subject matter
hereof shall be construed to suggest otherwise and (b) the obligations of the Guarantor under this
Limited Guaranty are solely contractual in nature.
22. Capital Call Obligations. Guarantor shall comply with the provisions of Section
15 of the Equity Commitment Letter, irrespective of any termination thereof.
*****
9
IN WITNESS WHEREOF, the undersigned have executed and delivered this Limited Guaranty as of
the date first written above.
| GUARANTOR: |
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| 3G Special Situations Fund II L.P. |
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| By: | /s/ Xxxxxx Xxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxx | |||
| Title: | Director | |||
| Acknowledged by |
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| COMPANY: |
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| Burger King Holdings, Inc. |
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| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Chief Executive Officer | |||
Signature Page to Limited Guaranty
