ex10-2.htm


    
      


       

      AMENDMENT
        NO. 1

      TO

      MONITORING
        AND MANAGEMENT SERVICES AGREEMENT

       

      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 Freeman Spogli & 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 Peter Starrett, 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 Freeman Spogli & 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

       

      
      

       

      
 

      
        
          
          

        

        
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      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 Freeman
        Spogli:

       

       If
        to FS, to:

       

                                                                             
        c/o Freeman Spogli & Co. V, L.P.

                                                                             
        11100 Santa Monica Boulevard

                                                                             
        Suite 1900

                                                                             
        Los Angeles, CA  90025

                                                                             
        Tel:  310-444-1822

                                                                             
        Fax:  310-444-1870

                                                                             
        Attention: John M. Roth

       

      
      

       

      
 

      
        
          
          

        

        
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      With
        copies to:

       

                                                                             
        Bingham McCutchen LLP

                                                                             
        355 South Grand Avenue, Suite 4400

                                                                             
        Los Angeles, CA 90071-3106

                                                                             
        Telephone: (213) 680-6400

                                                                             
        Telecopier: (213) 680-6499

                                                                             
        Attention: Richard J. Welch, 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 Americas, 34th
        Floor

                                                                             
        New York, New York 10019

                                                                             
        Attn:  Alberto Robaina

                                                                             
        Telephone:  (212) 616-3750

                                                                             
        Fax:  (212) 616-3704

      


      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.

      


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        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.

      


      
        	
              	
              	
                CHICKEN
                  ACQUISITION CORP.

                 

              
	
              	
              	
              
	
              	
              	
              
	
              	
              	
                By:

              	
                 /s/
                  Andrew R.
                  Heyer

              	
              
	
              	
              	
              	
                Name: 
                  Andrew R. Heyer

              
	
              	
              	
              	
                Title:   
                  Vice President

              
	
              	
              	
              	
              
	
              	
              	
              	
              
	
              	
              	
              	
              
	
              	
              	
                 

                 

                 

                TRIMARAN
                  FUND MANAGEMENT, L.L.C.

                 

              
	
              	
              	
              	
              
	
              	
              	
              	
              
	
              	
              	
                By:

              	
                 /s/
                  Andrew R.
                  Heyer

              	
              
	
              	
              	
              	
                Name: 
                  Andrew R. Heyer

              
	
              	
              	
              	
                Title:    
                  Managing Member

              
	
              	
              	
              	
              


      

      


      


      


      


      


      


      


      


      


      [
        Amendment No. 1 to Managing
        and Monitoring Agreement ]

      


       

      


      
        
          
          

        

        
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                FREEMAN
                  SPOGLI & CO. V, L.P.

                 

              
	
              	
              	
              	
                 
                  By:

              	
                Freeman
                  Spogli & Co. V, LLC,

              	
              
	
              	
              	
              	
              	
                 its
                  General
                  Partner

              	
              
	
              	
              	
              
	
              	
              	
                 

                 

              
	
              	
              	
                 By:

              	
                  /s/
                  John M.
                  Roth

              	
              
	
              	
              	
              	
                 Name:

              	
                 John
                  M. Roth

              
	
              	
              	
              	
                 Title:

              	
                 Managing
                  Member

              
	
              	
              	
              	
              


      

      


      


      


      


      


      


      


      


      [
        Amendment No. 1 to Managing and Monitoring Agreement ]

      


      
        	
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