AMENDMENT NO. 1 TO MONITORING AND MANAGEMENT SERVICES AGREEMENT
AMENDMENT
NO. 1
TO
This
AMENDMENT NO. 1 (this “Amendment”) to the
Monitoring and Management Services Agreement, dated as of November 18, 2005,
by
and between Chicken Acquisition Corp., a Delaware corporation (the "Company") and
Trimaran Fund Management, L.L.C., a Delaware limited liability company (“Trimaran") (the
“Monitoring
Agreement”) is entered into as of this 26th day of December, 2007 by and
among the Company, Trimaran and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co. V, L.P. (“FS”), a
Delaware limited partnership. Capitalized terms used herein and not otherwise
defined in this Amendment shall have the meanings ascribed to such term in
the
Monitoring Agreement.
RECITALS
WHEREAS,
Section 13 of the Monitoring
Agreement provides that the Agreement may be amended or modified with the
approval of Trimaran and the Company, respectively; and
WHEREAS,
in connection with the closing under the Unit Purchase Agreement (the "Unit Purchase
Agreement") entered into on the date hereof by and among the Company, FS
Equity Partners V, L.P., FS Affiliates V, L.P. and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Trimaran
Pollo Partners L.L.C. and the other signatories thereto, FS and the Company
desire to amend the Monitoring Agreement as set forth in this
Amendment.
NOW
THEREFORE, in consideration of the foregoing recitals, mutual agreements
contained herein and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the other
signatories hereto, intending to be legally bound hereby, agree as
follows:
1.
Amendments.
1.1. Preamble
and
Recitals.
1.1.1. The
Preamble shall be
amended to read in its entirety as follows:
This
Monitoring and Management Services Agreement (this “Agreement”) is made
as of December 26, 2007, by and between Chicken Acquisition Corp., a Delaware
corporation (the “Company”), Trimaran
Fund Management, L.L.C., a Delaware limited liability company (“Trimaran”
or the
(“Original
Advisor” ) and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co. V, L.P., a Delaware limited
partnership (“FS” and FS, together with Trimaran, each an “Advisor”
and together
the “Advisors”).
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1.1.2. The
Recitals to the
Agreement shall be amended as follows:
Each
instance of the term “Advisor”
in the
recitals to the Agreement shall be amended to read “Original
Advisor.”
Each
instance of the term “Advisor”
in the
body
of the Agreement shall be amended to read “Advisors,”
with such
corresponding and confirming changes as may be necessary.
1.2. Term.
1.2.1. Section 1 of
the Monitoring Agreement shall be amended to read in its entirety as
follows:
Term. This
Agreement shall commence on the Closing Date, with respect to Trimaran, and
on
the date hereof, with respect to FS, and shall terminate as to each Advisor
on
the date which such Advisor elects, in its sole and absolute discretion,
to
terminate this Agreement by providing written notice of such election to
the
Company (such period, the “Term”, and the
date
upon which the Term ends with respect to each advisor, a “Termination
Date”).
1.3. Monitoring
and Management
Services Fee.
1.3.1. Section 3(a) of
the Monitoring Agreement shall be amended to read in its entirety as
follows:
In
consideration of the Advisors’ undertaking to provide monitoring and management
services hereunder, the Company shall pay (i) Trimaran (or its designees)
an
annual Monitoring Fee (the "Trimaran Monitoring
Fee") in an aggregate amount for each fiscal year equal to $357,000,
and
(ii) FS (or its designees) an annual Monitoring Fee (the "FS Monitoring
Fee"
and together with the Trimaran Monitoring Fee, the “Monitoring Fee”) in
an aggregate amount for each fiscal year equal to $143,000. The
Monitoring Fee shall be payable quarterly in advance (as more fully described
in
Section 3(c) below) commencing on December 31, 2007 and ending on the
Termination Date. The Monitoring Fees shall be payable by the Company
whether or not the Company actually requests that the Advisor provide the
services described in Section 2 above. The Monitoring Fees shall be
fully earned when due and payable.
1.3.2. Section 3(b) of
the Monitoring Agreement shall be amended to read in its entirety as
follows:
[Reserved.]
1.3.3. Section 3(c) of
the Monitoring Agreement shall be amended to read in its entirety as
follows:
Except
as otherwise provided in this Section 3(c) hereof, all subsequent payments
of
the Monitoring Fee shall be in quarterly installments, payable on the first
business day of each applicable fiscal quarter, in an amount equal to $89,250
per quarter, in the case
2
of
the Trimaran Monitoring Fee, and $35,750 per quarter, in the case of the
FS
Monitoring Fee; provided, if this Agreement terminates on a date other than
the
last day of a fiscal quarter, the final payment of the Monitoring Fee will
be
prorated based on the actual number of days from and including the date of
termination and the Advisors shall promptly return any excess amount to the
Company.
1.4. Transaction
Fees.
1.4.1. Section
4 of the Monitoring
Agreement shall be amended to read in its entirety as follows:
(a) [Reserved.]
(b) During
the Term, the
Company shall provide Trimaran a right of first offer to serve as financial
advisor in connection with any initial public offering, merger, sale of the
stock or substantially all the assets, recapitalization, reorganization or
similar transaction of the Company or its any of its subsidiaries. If
Trimaran agrees to serve as financial advisor with respect to any such
transaction, Trimaran (or its designees) and FS (or its designees) shall
be
entitled to receive (i) an aggregate fee in connection with each such
transaction (or series of concurrent transactions) equal to 2% of the gross
transaction value of such transaction (or series of concurrent transactions),
which fee shall be shared between Trimaran and FS so that FS will receive
a fee
equal to 28.57% of the total fee and (ii) an amount equal to the reasonable
out-of-pocket expenses of Trimaran and FS in connection with such transaction
(or series of concurrent transactions).
(c) If
this Agreement is
terminated in connection with the consummation of an initial public offering
of
the Company or any of its subsidiaries, Trimaran shall be entitled to an
additional, one-time fee equal to $1,786,000 and FS shall be entitled to
an
additional, one-time fee equal to $714,000.
1.5. Notices.
1.5.1. Section
8 of the Monitoring
Agreement shall be amended to insert the following address for ▇▇▇▇▇▇▇
▇▇▇▇▇▇:
If
to FS, to:
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co. V, L.P.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇
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With
copies to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
1.5.2. Section
8 with respect to
notices sent to the Company shall be amended to read in its entirety as
follows:
Chicken Acquisition Corp.
c/o Trimaran Fund Management, L.L.C.
1325 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
1.6. Entire
Agreement;
Amendments; Modification; Governing Law.
1.6.1. Section
13 of the
Monitoring Agreement shall be amended to read in its entirety as
follows:
The
terms and conditions hereof constitute the entire agreement between the parties
hereto with respect to the subject matter of this Agreement and supersede
all
previous communications, either oral or written, representations or warranties
of any kind whatsoever, except as expressly set forth herein. No
amendments or modifications of this Agreement nor waiver of the terms or
conditions thereof shall be binding upon any party hereto unless approved
in
writing by an authorized representative of such party. This Agreement
shall be governed by and construed in accordance with the Laws of the State
of
Delaware.
2.
Reference
to and Effect upon the Agreement. Except as
specifically set forth above, the Agreement shall remain in full force and
effect and is hereby ratified and confirmed. The execution, delivery
and effectiveness of this Amendment shall not constitute an amendment of
any
provision of the Agreement, except as specifically set forth
herein.
3.
Headings. The
section
headings contained in this Amendment are solely for the purpose of reference,
are not part of the agreement of the parties hereto, and shall not in any
way
affect the meaning or interpretation of this Amendment.
4.
Counterparts;
Effectiveness. This Amendment
may be signed in any number of counterparts, each of which shall be deemed
an
original, with the same effect as if the signatures
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thereto
and hereto were upon the same instrument. This Amendment shall become
effective when each party hereto shall have received counterparts hereof
signed
by all of the other parties hereto.
[
Execution Page Follows ]
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IN
WITNESS WHEREOF, the parties hereto have duly executed and delivered this
Amendment as of the date first written above.
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CHICKEN
ACQUISITION CORP.
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By:
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/s/
▇▇▇▇▇▇ ▇.
▇▇▇▇▇
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Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title:
Vice President
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TRIMARAN
FUND MANAGEMENT, L.L.C.
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By:
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/s/
▇▇▇▇▇▇ ▇.
▇▇▇▇▇
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Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title:
Managing Member
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[
Amendment No. 1 to Managing
and Monitoring Agreement ]
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▇▇▇▇▇▇▇
▇▇▇▇▇▇ & CO. V, L.P.
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By:
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▇▇▇▇▇▇▇
▇▇▇▇▇▇ & Co. V, LLC,
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its
General
Partner
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By:
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/s/
▇▇▇▇ ▇.
▇▇▇▇
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Name:
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▇▇▇▇
▇. ▇▇▇▇
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Title:
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Managing
Member
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[
Amendment No. 1 to Managing and Monitoring Agreement ]
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