AMENDMENT NO. 2 TO SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY OPERATING AGREEMENT OF TRIMARAN POLLO PARTNERS, L.L.C.
AMENDMENT
NO. 2
TO
SECOND
AMENDED AND RESTATED
OF
TRIMARAN
POLLO PARTNERS, L.L.C.
This
AMENDMENT NO. 2 (this “Amendment”) to the
Second Amended and Restated Limited Liability Company Operating Agreement
(the
“Agreement”) of
Trimaran Pollo Partners, L.L.C. (the “Company”) is entered
into as of this 30th day of January, 2008 by and among the Company, Trimaran,
and the parties whose names are set forth on Schedule C hereto. Capitalized
terms used herein and not otherwise defined in this Amendment shall have
the
meanings ascribed to such term in the Agreement (as defined below).
RECITALS
WHEREAS,
on March 8, 2006, the Company entered into the Second Amended and Restated
Limited Liability Company Operating Agreement with the members listed in
Schedule A thereto;
WHEREAS,
Section 13.04 of the Agreement
provides that the Agreement may be amended or modified with the approval
of
Trimaran and each Investor Member, respectively; and
WHEREAS,
in connection with the closing under the Unit Purchase Agreement (the “Unit Purchase
Agreement”) consummated on the date hereof by and among the Company,
Chicken Acquisition Corp., a Delaware corporation, EPL Intermediate, Inc.,
a
Delaware corporation, El Pollo Loco, Inc., a Delaware corporation, certain
members of the Company signatories thereto, FS Equity Partners V, L.P. (“FSEP V”), FS
Affiliates V, L.P. (“FSA V”) and Xxxxx
Xxxxxxxx, (“Xxxxxxxx”
and
collectively with FSEP V and FSA V, “FS”), Trimaran
and
each Investor Member desire to amend the 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. Officers
1.1.1. Section
3.03(e) of the Agreement shall be amended to read in its entirety as
follows:
(e)
The following persons are hereby appointed officers of the Company:
1
Xxxxxx
X. Xxxxx – President
Xxxx
X. Xxxxxx -- Vice President
Xxx
X. Xxxxx -- Vice President and Secretary
Xxxxxxx
Xxxxxxx -- Assistant Secretary
1.2. CAC
Board
1.2.1. Section
3.04(a) of the Agreement shall be amended to read in its entirety as
follows:
(a) The
board of directors of CAC (the “CAC Board”) shall
consist of a total of 9 directors. Except as provided by Section
3.04(c) below, the Managing Member may cause the Company to change the total
number of directors comprising the CAC Board, to designate or change the
class
and voting power of such directors, to appoint any additional directors to
the
CAC Board and to fill any vacancies on the CAC Board. The Company shall take
all
Necessary Action to cause any decision of the Managing Member pursuant to
the
preceding sentence to be effectuated as the Managing Member deems
appropriate.
1.2.2. Section
3.04(b) of the Agreement shall be amended to read in its entirety as
follows:
(b) All
directors on the CAC Board shall be designated by the Trimaran Vehicles,
except
as provided in Section 3.04(c) below. All Persons designated to the CAC Board
by
the Trimaran Vehicles shall be “Trimaran Directors” and all others (including
those designated pursuant to Sections 3.04(c) and 3.04(e) below) shall be
“Non-Trimaran Directors.” All Persons to be elected as Trimaran
Directors shall be designated by the Trimaran Vehicles, in a manner specified
by
the Managing Member. The Company and the Managing Member shall take
all Necessary Action to cause the election of any Persons properly designated
as
Trimaran Directors or Non-Trimaran Directors.
1.2.3. Section
3.04(c) of the Agreement shall be amended to read in its entirety as
follows:
(c) For
so long as an Investor Member (together with its Affiliates) holds at least
15%
of the aggregate number of Membership Units outstanding, such Investor Member
shall have the right, but not the obligation, to designate one (1) Person
to be
elected as a Non-Trimaran Director, and the Company shall take all Necessary
Action to cause the election of such Person as a Non-Trimaran Director;
provided, however: (i) that FS shall have the right, but not the obligation,
to
elect (or have elected by the Members) one Person (the “FS Director”) to the
CAC Board (which Person shall initially be Xxxx X. Xxxx) until such time
as FS
collectively holds less than 5% of the aggregate number of Membership Units
outstanding, and (ii) until such time as FS holds less than 5% of the aggregate
number of Membership Units, the Managing Member shall not change the class
or
voting power of the members of the CAC Board in a manner that materially
adversely affects the FS Director without the consent of FSA V and FSEP
V.
2
1.2.4. Section
3.04(d) of the Agreement shall be amended to read in its entirety as
follows:
(d) Notwithstanding
anything to the contrary herein, any Non-Trimaran Director shall be reasonably
acceptable to the Managing Member (it being understood that Xxxx X. Xxxx,
Xxx X.
Xxxxx and Xxxxxxxx X. Xxxxxx are reasonably acceptable to the Managing Member).
The Company and the Managing Member shall take all Necessary Action to cause
the
election of any Non-Trimaran Director pursuant to the foregoing.
1.3.
Distributions
1.3.1. Section
5.01(d) of the Agreement shall be amended to read in its entirety as
follows: [reserved].
1.3.2. Section
5.01(e) of the Agreement shall be amended to read in its entirety as
follows: [reserved].
1.4.
Transfers to
Affiliates
1.4.1. Section
8.05 of the Agreement shall be amended to read in its entirety as
follows:
Subject
to Section 8.06, any Member may Transfer any Membership Units to an Affiliate
of
such Member; provided that such
Transfer shall not be effective unless and until the Managing Member is
reasonably satisfied that such Transfer complies with the conditions set
forth
in clauses (i) through (iv) of Section 8.01(c); and, provided
further
that,
notwithstanding anything to the contrary herein, transfers to Affiliates
shall
not trigger the right of first offer, tag-along or drag-along rights described
in Sections 8.02, 8.03 and 8.04, respectively.
1.5.
Schedules A, B
and
C.
1.5.1. Schedules
A, B and C of the Agreement shall be amended in their entirety to read as
set
forth in such Schedules hereto, respectively.
1.6.
The definition of "American Securities" shall be deleted in its
entirety.
1.7.
The definition of "Capital
Contributions" shall be amended in its entirety to read as follows:
"Capital
Contribution"
means, with respect to any Member, the total amount of cash or the value
of
other property contributed to the Company by such Member pursuant to this
Agreement; provided that
the
Managing Member shall determine in its reasonable discretion the value
of any
property other than cash contributed by any Member; provided, further,
that any
Capital Contributions made following the date of this Agreement shall consist
solely of cash.
3
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 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.
[Remainder
of page intentionally left
blank]
4
IN
WITNESS WHEREOF, the parties hereto have duly executed and delivered this
Amendment as of the date first written above.
|
THE
COMPANY
|
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|
TRIMARAN
POLLO PARTNERS, L.L.C.
|
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|
By:
|
/s/
Xxx X. Xxxxx
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|
Name:
|
Xxx
X. Xxxxx
|
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|
Title:
|
Vice
President and Secretary
|
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|
MANAGING
MEMBER
|
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|
TRIMARAN
CAPITAL, L.L.C.
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By:
|
/s/
Xxx X. Xxxxx
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|
Name:
|
Xxx
X. Xxxxx
|
||
|
Title:
|
Managing
Director
|
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[
Amendment No. 2 to Second
Amended and Restated Limited Liability Company
Operating
Agreement of Trimaran
Pollo Partners, L.L.C. Signature Page ]
|
OTHER
MEMBERS
|
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|
TRIMARAN
FUND II, L.L.C.
|
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By:
|
/s/
Xxx X. Xxxxx
|
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|
Name:
|
Xxx
X. Xxxxx
|
||
|
Title:
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|
TRIMARAN
PARALLEL FUND II, L.P.
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By:
|
/s/
Xxx X. Xxxxx
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|
Name:
|
Xxx
X. Xxxxx
|
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|
Title:
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|
CIBC
EMPLOYEE PRIVATE EQUITY
|
|||
|
FUND
(TRIMARAN) PARTNERS
|
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|
By:
|
/s/
Xxx X. Xxxxx
|
||
|
Name:
|
Xxx
X. Xxxxx
|
||
|
Title:
|
|||
[
Amendment No. 2 to Second
Amended and Restated Limited Liability Company
Operating
Agreement of Trimaran
Pollo Partners, L.L.C. Signature Page ]
|
CIBC
CAPITAL CORPORATION
|
|||
|
By:
|
/s/
Xxx X. Xxxxx
|
||
|
Name:
|
Xxx
X. Xxxxx
|
||
|
Title:
|
|||
[
Amendment No. 2 to Second
Amended and Restated Limited Liability Company
Operating
Agreement of Trimaran
Pollo Partners, L.L.C. Signature Page ]
|
CONTINENTAL
CASUALTY COMPANY
|
|||
|
By:
|
/s/
Xxxxxxx X. XxXxxx
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||
|
Name:
|
Xxxxxxx
X. XxXxxx
|
||
|
Title:
|
Vice
President and Assistant Treasurer
|
||
[
Amendment No. 2 to Second
Amended and Restated Limited Liability Company
Operating
Agreement of Trimaran
Pollo Partners, L.L.C. Signature Page ]
|
MULTI-STRATEGY
HOLDINGS, L.P.
|
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|
By:
|
Multi-Strategy
Holdings Offshore
|
||
|
Advisors,
Inc., its General Partner
|
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|
By:
|
/s/
Xxxx Xxxxxxx
|
||
|
Name:
|
Xxxx
Xxxxxxx
|
||
|
Title:
|
Vice
President
|
||
|
VF
III HOLDINGS, L.P.
|
|||
|
By:
|
VF
III Holdings Offshore Advisors,
|
||
|
Inc.,
its General Partner
|
|||
|
By:
|
/s/
Xxxx Xxxxxxx
|
||
|
Name:
|
Xxxx
Xxxxxxx
|
||
|
Title:
|
Vice
President
|
||
[
Amendment No. 2 to Second
Amended and Restated Limited Liability Company
Operating
Agreement of Trimaran
Pollo Partners, L.L.C. Signature Page ]
|
ZG
INVESTMENTS III LTD.
|
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|
By:
|
/s/
Xxxxxxx Xxxxx
|
||
|
Name:
|
Xxxxxxx
Xxxxx
|
||
|
Title:
|
Director
|
||
[
Amendment No. 2 to Second
Amended and Restated Limited Liability Company
Operating
Agreement of Trimaran
Pollo Partners, L.L.C. Signature Page ]
|
BRODY
2005 LLC
|
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|
By:
|
/s/
Xxxxxx Xxxx
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||
|
Name:
|
Xxxxxx
Xxxx
|
||
|
Title:
|
Managing
Member
|
||
[
Amendment No. 2 to Second
Amended and Restated Limited Liability Company
Operating
Agreement of Trimaran
Pollo Partners, L.L.C. Signature Page ]
|
FS
EQUITY PARTNERS V, L.P.,
|
|||
|
By:
|
FS
Capital Partners V, LLC
|
||
|
its
General Partner
|
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|
By:
|
/s/
Xxxx X. Xxxx
|
||
|
Name:
|
Xxxx
X. Xxxx
|
||
|
Title:
|
Managing
Member
|
||
|
FS
AFFILIATES V, L.P.
|
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|
By:
|
FS
Capital Partners V, LLC,
|
||
|
its
General Partner
|
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|
By:
|
/s/
Xxxx X. Xxxx
|
||
|
Name:
|
Xxxx
X. Xxxx
|
||
|
Title:
|
Managing
Member
|
||
[
Amendment No. 2 to Second
Amended and Restated Limited Liability Company
Operating
Agreement of Trimaran
Pollo Partners, L.L.C. Signature Page ]
SCHEDULE
A
NAMES
AND ADDRESSES OF MEMBERS
|
Name
|
Address
|
|
|
Continental
Casualty Company
|
Xxxx
Xxxx
CNA
000
Xxxxx Xxxxxx Xxxxxx, 00 Xxxxx
Xxxxxxx,
Xxxxxxxx 00000
Attention: Xxxxxxx
Xxxx
Telephone: 000-000-0000
|
|
|
Multi-Strategy
Holdings, L.P.
|
Multi-Strategy
Holdings, L.P.
00
Xxx Xxxx, 00xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn: Xxxx
Xxxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
|
|
|
VF
III Holdings, L.P.
|
VF
III Holdings, L.P.
00
Xxx Xxxx, 00xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn: Xxxx
Xxxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
|
|
|
Trimaran
Capital, L.L.C.
|
c/o
Trimaran Fund Management, L.L.C.
1325
Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxxx
Xxxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
|
Schedule
X-0
|
Xxxxxxxx
Xxxx XX, X.X.X.
|
c/o
Trimaran Fund Management, L.L.C.
1325
Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxxx
Xxxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
|
|
|
Trimaran
Parallel Fund II, L.P.
|
c/o
Trimaran Fund Management, L.L.C.
1325
Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxxx
Xxxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
|
|
|
CIBC
Employee Private Equity Fund (Trimaran) Partners
|
c/o
Trimaran Fund Management, L.L.C.
1325
Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxxx
Xxxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
|
|
|
CIBC
Capital Corporation
|
c/o
Trimaran Fund Management, L.L.C.
1325
Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxxx
Xxxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
|
|
|
Brody
2005 LLC
|
x/x
Xxx Xxxxxxxxxxxxx
0000
Xxxxxx of the Americas
Xxx
Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx
Xxxx
Telephone: 000-000-0000
Fax: 000-000-0000
|
|
|
ZG
Investments III Ltd.
|
Courier
Address
Wellesley
House,
90
Pitt’s Bay Road,
Pembroke
HM 08,
BERMUDA
Mailing
Xxxxxxx
X.X.
Xxx XX 0000,
Xxxxxxxx
XX XX,
XXXXXXX
Telephone:
0-000-000-0000
Fax:
0-000-000-0000
Attention:
Xxxx Xxxxx
|
Schedule
A-2
|
With
a copy to:
Zurich
Alternative Asset Management, LLC
000
Xxxx 00xx Xxxxxx
Xxx
Xxxx, XX 00000
Attention:
General Counsel
|
||
|
FS
Equity Partners V, L.P.
FS
Affiliates V, L.P.
|
FS
Equity Partners V, L.P.
FS
Affiliates V, L.P.
00000
Xxxxx Xxxxxx Xxxxxxxxx
Xxxxx
0000
Xxx
Xxxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
With
a copy to:
Xxxxxxx
XxXxxxxxx, LLP
000
Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxxxx
X. Xxxxx
Tel: 000-000-0000
Fax: 000-000-0000
|
|
|
Xxxxx
Xxxxxxxx
|
00000
Xxxxx Xxxxxx Xxxxxxxxx
Xxxxx
0000
Xxx
Xxxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
|
Schedule
A-3
SCHEDULE
B
CAPITAL
CONTRIBUTIONS AND
MEMBERSHIP
UNITS
|
Name
|
Capital
Contribution
|
Membership
Units
|
Percentage
|
||
|
Continental
Casualty Company
|
$5,000,000.00
|
57,848.70
|
2.49%
|
||
|
Multi-Strategy
Holdings, L.P.
|
$659,963.26
|
7,635.60
|
0.33%
|
||
|
VF
III Holdings, L.P.
|
$9,340,036.74
|
108,061.79
|
4.66%
|
||
|
Trimaran
Capital, L.L.C.
|
$2,666,954.28
|
30,855.97
|
1.33%
|
||
|
Trimaran
Fund II, L.L.C.
|
$41,305,098.22
|
477,889.24
|
20.60%
|
||
|
Trimaran
Parallel Fund II, L.P.
|
$17,390,592.84
|
201,204.63
|
8.67%
|
||
|
CIBC
Employee Private Equity Fund (Trimaran) Partners
|
$26,895,806.98
|
311,177.49
|
13.41%
|
||
|
CIBC
Capital Corporation
|
$29,342,494.69
|
339,485.03
|
14.63%
|
||
|
Brody
2005 LLC
|
$1,446,292.57
|
16,733.23
|
.72%
|
||
|
ZG
Investments III Ltd.
|
$10,000,000.00
|
115,697.40
|
4.99%
|
||
|
FS
Equity Partners V, L.P.
|
$64,984,438.49
|
642,389.62
|
27.69%
|
||
|
FS
Affiliates V, L.P.
|
$869,268.94
|
8,592.97
|
.37%
|
||
|
Xxxxx
Xxxxxxxx
|
$250,000.00
|
2,272.73
|
0.10%
|
||
|
Total
|
$210,150,947.01
|
2,319,844.40
|
100%
|
Schedule
B-1
SCHEDULE
C
INVESTOR
MEMBERS
|
Name
|
Address
|
|
|
Continental
Casualty Company
|
Xxxx
Xxxx
CNA
000
Xxxxx Xxxxxx Xxxxxx, 00 Xxxxx
Xxxxxxx,
Xxxxxxxx 00000
Attention: Xxxxxxx
Xxxx
Telephone: 000-000-0000
|
|
|
Multi-Strategy
Holdings, L.P.
|
Multi-Strategy
Holdings, L.P.
00
Xxx Xxxx, 00xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn: Xxxx
Xxxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
|
|
|
VF
III Holdings, L.P.
|
VF
III Holdings, L.P.
00
Xxx Xxxx, 00xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn: Xxxx
Xxxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
|
|
|
Brody
2005 LLC
|
x/x
Xxx Xxxxxxxxxxxxx
0000
Xxxxxx of the Americas
Xxx
Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx
Xxxx
Telephone: 000-000-0000
Fax: 000-000-0000
|
|
|
ZG
Investments III Ltd.
|
Courier
Address
Wellesley
House,
90
Pitt’s Bay Road,
Pembroke
HM 08,
BERMUDA
Mailing
Address
X.X.
Xxx XX 0000,
Xxxxxxxx
XX XX,
XXXXXXX
|
Xxxxxxxx
X-0
|
Telephone:
0-000-000-0000
Fax:
0-000-000-0000
Attention:
Xxxx Xxxxx
With
a copy to:
Zurich
Alternative Asset Management, LLC
000
Xxxx 00xx Xxxxxx
Xxx
Xxxx, XX 00000
Attention:
General Counsel
|
||
|
FS
Equity Partners V, L.P.
FS
Affiliates V, L.P.
|
FS
Equity Partners V, L.P.
FS
Affiliates V, L.P.
00000
Xxxxx Xxxxxx Xxxxxxxxx
Xxxxx
0000
Xxx
Xxxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
With
a copy to:
Xxxxxxx
XxXxxxxxx, LLP
000
Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxxxx
X. Xxxxx
Tel: 000-000-0000
Fax: 000-000-0000
|
Schedule
C-2
