AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY OPERATING AGREEMENT OF TRIMARAN POLLO PARTNERS, L.L.C.

EX-10.4 4 ex10-4.htm AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY OPERATING AGREEMENT OF TRIMARAN POLLO PARTNERS, L.L.C. ex10-4.htm

AMENDMENT NO. 1

SECOND AMENDED AND RESTATED

LIMITED LIABILITY COMPANY OPERATING AGREEMENT

TRIMARAN POLLO PARTNERS, L.L.C.

This AMENDMENT NO. 1 (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 26th day of December, 2007 by and among the parties whose names are set forth on Schedule A 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, FS Equity Partners V, L.P. (“FSEP V”), FS Affiliates V, L.P. (“FSA V”) and Peter Starrett, (“Starrett” and collectively with FSEP V and FSA V, “FS”), Chicken Acquisition Corp., EPL Intermediate, Inc. and El Pollo Loco, Inc., 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. CAC Board.

1.1.1. Section 3.04 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 11 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.

(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.” Subject to Section 3.04(c), the Non-Trimaran Directors shall initially include one designee of American Securities. 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.

(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) American Securities shall have the right, but not the obligation, to elect (or have elected by the Members) one Person to the CAC Board (which Person shall initially be Glenn Kaufman) until such time as American Securities no longer holds Membership Units; provided further, however, that upon consummation of an IPO, such right shall remain until such time as American Securities holds less than its Threshold Interest Amount, (ii) 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 John M. Roth) until such time as FS collectively holds less than 5% of the aggregate number of Membership Units outstanding, and (iii) 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.

(d)

Notwithstanding anything to the contrary herein, any Non-Trimaran Director shall be reasonably acceptable to the Managing Member (it being understood that Glenn Kaufman, David L. Horing, Michael G. Fisch, John M. Roth, Jon D. Ralph and Benjamin D. Geiger 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.

(e)

The Company shall take all Necessary Action to cause the election of the chief executive officer of EPL Holdings, Inc. as a Non-Trimaran Director.

(f)

Persons serving on the CAC Board or the boards of other Subsidiaries of the Company shall be reimbursed for reasonable, documented travel expenses incurred in connection with attendance at applicable board meetings.

(g)

The board of directors of each Material Subsidiary shall (i) consist of the same proportion of Trimaran Directors and Non-Trimaran Directors as that of the CAC Board and (ii) be elected and appointed in the same manner as the CAC Board, with each Investor Member that has the right to designate a member of the CAC Board having the right to designate a member of the board of directors of each Material Subsidiary. The Managing Member shall amend Schedule D to reflect any additional Material Subsidiaries. The Company shall use its reasonable best efforts to provide that directors and officers liability insurance maintained by CAC, and indemnification rights applicable to CAC directors, shall be similarly maintained or provided, as applicable, to Members serving in their capacities as directors of Material Subsidiaries.

(h)

The Continental Member and FS, for so long as FSEP V or FSA V continues to hold Membership Units, shall have observer rights with respect to CAC Board meetings.

(i)

Until such time as FS holds less than 15% of the aggregate number of Membership Units or (i) the FS Director shall be entitled to serve on the Compensation Committee of each of the CAC Board and of the board of directors of each Material Subsidiary and (ii) FS shall have observer rights with respect to any other committee of each of the CAC Board and of the board of directors of each Material Subsidiary.

1.2. Schedules A, B and C.

1.2.1. Schedules A, B and C of the Agreement shall be amended in their entirety to read as set forth in such Schedules hereto, respectively. Upon the First Closing under the Unit Purchase Agreement, by executing and delivering this Amendment, each of FSEP V, FSA V and Peter Starrett shall hereby become a party to, and agrees to be bound and comply with the provisions of the Agreement, as amended hereby, as a “Member” as that term is defined in the Agreement, as if the undersigned had entered into the Agreement, as amended, as an original party thereto in the capacity of a “Member,” including, without limitation, for purposes of making the representations set forth in Article XII of the Agreement, provided that the representation in Section 12.01(n) does not apply to the Unit Purchase Agreement which FS may rely upon, to the extent permitted thereunder, in connection with its purchase of Units, and FSA V does not make the representation that it is a Qualified Purchaser pursuant to Section 12.01(f).

1.3. Section 3.06 of the Agreement shall be amended to add the following at the end of said Section:

The Members hereby acknowledge and agree that CAC, Trimaran Fund Management, L.L.C. and Freeman Spogli & Co. V, L.P. will enter into an Amendment No. 1 to Monitoring and Management Agreement (the “Management Agreement”), the form of which is attached as Schedule D hereto.

1.4.

Section 5.01(c) of the Agreement shall be amended in its entirety to read as follows:

(c)

In the event the Managing Member distributes non-Marketable Securities to any Member pursuant to the terms of this Agreement, other than (i) Newly Issued Securities, (ii) any securities distributed in connection with a dissolution of the Company (other than a dissolution pursuant to Section 11.01(a)(i)), or (iii) any securities distributed pursuant to Section 5.01(f) of this Agreement, such Member shall enter into a stockholders agreement with the Managing Member (or its designee) in respect of such non-Marketable Securities (A) containing substantially the same terms and conditions as set forth in Articles VII, VIII, and XIII, and Sections 9.04, 5.01(f), and 3.04 hereof, (B) providing that the right to vote such non-Marketable Securities shall remain with the Company or, if the Company has been dissolved, shall lie with the Managing Member and (C) in the event that such non-Marketable Securities are distributed to the limited partners of the any of the Trimaran Vehicles, containing no greater restrictions on such Member than apply to the non-Marketable Securities that are held by the limited partners of such Trimaran Vehicle. Any such agreement shall terminate upon the earlier of (i) the time that the Managing Member (or its Affiliates) no longer Controls, directly or indirectly, CAC, and (ii) the sixth anniversary of an IPO.

1.5.

Section 5.01 of the Agreement shall be amended to add the following provision at the end of such section:

(f)

Beginning (i) two (2) years following the consummation of a Qualified Public Offering (as defined in the Stockholders Agreement), or (ii) any time after the value of common stock of CAC, based on any daily closing price, previously sold to the public pursuant to a registration statement or pursuant to Rule 144 under the Securities Act, exceeds $100 million, but not before two (2) years after an IPO, (iii) on the date on or after an IPO on which the Trimaran Vehicles shall have Transferred, directly or indirectly, Membership Units or shares of CAC common stock representing more than fifty percent (50%) of the number of shares of CAC common stock Beneficially Owned by the Trimaran Vehicles as of the date hereof, FS shall be entitled to receive a pro rata distribution of the shares of CAC common stock held by the Company in proportion to its ownership of membership interests in the Company for subsequent resale in compliance with applicable securities laws and with the Stockholders Agreement. In the event that FS receives any distribution of shares pursuant to the foregoing, FS agrees that it shall (i) execute a supplementary agreement pursuant to Article IX of the Stockholders Agreement adding FS as an Additional Stockholder under such agreement and (ii) comply with any customary requests by underwriters with respect to lockup or similar arrangements with securityholders to the extent major stockholders are similarly bound. Any distribution to FS pursuant to this Section 5.01(f) shall be in termination of its entire collective interest in the Company, subject to its rights pursuant to Article X which shall continue in full force and effect with respect to

any period prior to such distribution during which FS was a Member of the Company. In the event that any Affiliate of CAC completes an IPO prior to any distribution pursuant to Section 5.01(f) of this Agreement, each of the Company and FS shall use commercially reasonable efforts to preserve each of FS and the Trimaran Vehicles’ rights pursuant to Section 3.04 of this Agreement.

1.6.

Section 7.02(d) of the Agreement shall be amended in its entirety to read as follows:

(d)

Promptly following the end of the Election Period, the Company shall notify each electing Member of the amount of Newly Issued Securities or Other Securities (as the case may be) for which it has exercised its rights under this Section 7.02, each such Member shall make a Capital Contribution to the Company in an amount equal to the purchase price for such Newly Issued Securities or Other Securities (as the case may be), and the Managing Member shall apply such Capital Contributions to the purchase by the Company of such Newly Issued Securities or Other Securities (as the case may be). The Managing Member, in its reasonable discretion, shall determine whether the Newly Issued Securities or Other Securities (as the case may be) shall be held by such Member or by the Company and, if by the Company, the number and class of new membership interests in the Company to be issued in respect of any Capital Contributions by such Member for such Newly Issued Securities or Other Securities (as the case may be) and the terms and conditions applicable to such membership interests. The Managing Member shall amend Schedule B to reflect the purchase of any such membership interests. Alternatively, in the event the Managing Member determines that such Member shall hold such Newly Issued Securities or Other Securities (as the case may be) directly rather than through its membership interest in the Company, such Member hereby agrees that it shall, upon the Managing Member's request, (i) enter into a shareholders agreement with the Managing Member (or its designee) in respect of such Newly Issued Securities or Other Securities (as the case may be) containing substantially the same terms and conditions set forth in Section 5.01(f) and Articles VII, VIII, and XIII hereof, and providing that the right to vote such Newly Issued Securities or Other Securities (as the case may be) shall remain with the Company, or, if the Company has been dissolved, shall lie with the Managing Member, until such time as the Managing Member (or its Affiliates) no longer Control, directly or indirectly, CAC, and (ii) become a party to the Stockholders Agreement (or a similar agreement containing registration rights); provided, in each case that acquiring such securities directly and entering into such stockholders agreement does not violate any of the provisions of the underlying agreements governing such Newly Issued Securities or Other Securities.

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.

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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Amendment as of the date first written above.

	THE COMPANY

	TRIMARAN POLLO PARTNERS, L.L.C.

		By: TRIMARAN CAPITAL, L.L.C., as Managing Member By: Trimaran Fund Management, L.L.C., its investment manager


	By:	/s/ Dean C. Kehler
		Name: Dean C. Kehler
		Title: Managing Member


	MANAGING MEMBER

	TRIMARAN CAPITAL, L.L.C.

	By: Trimaran Fund Management,L.L.C., its investment manager

	By:	/s/ Dean C. Kehler
		Name: Dean C. Kehler
		Title: Managing Member

[ Amendment No. 1 to Second Amended and Restated Limited Liability Company