EXHIBIT 99.4
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR REGISTERED OR QUALIFIED UNDER ANY APPLICABLE STATE SECURITIES LAW
AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE ASSIGNED
EXCEPT IN COMPLIANCE WITH THE REGISTRATION REQUIREMENTS OF SUCH ACT AND THE
REGISTRATION OR QUALIFICATION REQUIREMENTS OF SUCH STATE SECURITIES LAWS OR
PURSUANT TO AN EXEMPTION FROM SUCH REGISTRATION AND QUALIFICATION.
PAYMENT OF THE INDEBTEDNESS EVIDENCED BY THIS SECURITY, INCLUDING PRINCIPAL,
PREMIUM, IF ANY, AND INTEREST, AND THE RIGHTS OF ANY HOLDER OF THIS SECURITY ARE
SUBJECT TO THE TERMS AND CONDITIONS OF AN AMENDED AND RESTATED INTERCREDITOR AND
SUBORDINATION AGREEMENT DATED AS OF OCTOBER 29, 2002, BETWEEN XXXXXX XXXXXXXXX
CAPITAL PARTNERS II, L.P., AS THE HOLDER OF THIS SECURITY, AND UNION BANK OF
CALIFORNIA, N.A. A COPY OF SUCH AMENDED AND RESTATED INTERCREDITOR AND
SUBORDINATION AGREEMENT, AS AMENDED, MAY BE OBTAINED FROM THE ISSUER UPON
REQUEST.
THIS SECURITY WAS ISSUED INITIALLY WITH ORIGINAL ISSUE DISCOUNT (OID). PURSUANT
TO TREASURY REGULATION Section 1.1275-3(b)(1), XXXXXXX X. XXXXXXX, A
REPRESENTATIVE OF THE ISSUER, WILL, BEGINNING TEN DAYS AFTER THE ORIGINAL ISSUE
DATE OF THIS SECURITY, PROMPTLY MAKE AVAILABLE TO THE HOLDER UPON REQUEST THE
INFORMATION DESCRIBED IN TREASURY REGULATION Section 1.1275-3(b)(1)(i). XX.
XXXXXXX MAY BE REACHED AT TELEPHONE NUMBER (000) 000-0000.
OVERHILL FARMS, INC.
AMENDED AND RESTATED
SECURED SENIOR SUBORDINATED NOTE DUE 2004
$28,000,000.00 Dated November 24, 1999,
Xxxxxxx and Restated as
of October 29, 2002
FOR VALUE RECEIVED, OVERHILL FARMS, INC., a Nevada corporation (the
"Borrower" or the "Company"), hereby promises to pay to the order of XXXXXX
XXXXXXXXX CAPITAL PARTNERS II, L.P., a California limited partnership (the
"Purchaser"), or its assigns (together with the Purchaser, the "Holder"), the
sum of TWENTY-EIGHT MILLION DOLLARS ($28,000,000.00) in immediately available
funds and in lawful money of the United States of America, all as provided
below.
This Amended and Restated Secured Senior Subordinated Note Due 2004 (this
"Note") is being issued by the Company in connection with the execution and
delivery of that certain Amended and Restated Securities Purchase Agreement
dated of even date
herewith (as amended from time to time, the "Securities Purchase Agreement") by
and among the Company, the entities from time to time parties thereto as
Guarantors and the Purchaser, amends and restates the terms and other provisions
of that certain Secured Senior Subordinated Note Due 2004 dated November 24,
1999, made payable by the Company to the Purchaser in the original principal
amount of $28,000,000.00, as amended by an Amendment to Secured Senior
Subordinated Note Due 2004 effective as of May 1, 2001, and as further amended
by a Second Amendment to Secured Senior Subordinated Note Due 2004 effective as
of September 11, 2002 (as so amended, the "Original Note"), and supersedes the
Original Note insofar as the two are inconsistent. This Note is being amended
and restated in connection with the distribution by Overhill Corporation
(formerly known as Polyphase Corporation and to be known from and after the
effective date of the Spin-Off as TreeCon Resources, Inc.), a Nevada corporation
("TreeCon"), to its shareholders of all of the outstanding shares of Common
Stock owned or held by TreeCon, as contemplated by the Spin-Off.
1. Definitions. Unless otherwise indicated, all capitalized terms used
and not otherwise defined herein shall have the meanings ascribed to them in the
Securities Purchase Agreement.
2. Payment of Interest; Default Rate.
So long as no Default or Event of Default shall have occurred and be
continuing, the Borrower shall pay interest in cash on the unpaid principal
balance of this Note at a rate per annum (the "Base Rate") equal to (a) for any
period ending prior to September 11, 2002, the rate per annum provided for in
the Original Note applicable to such period, and (b) for any period ending on or
after September 11, 2002, thirteen and one-quarter percent (13.25%) until this
Note is fully paid; provided, however, that if (i) based upon a completed audit
by the Company's independent auditors of the Company's consolidated financial
statements for the Fiscal Year ending September 30, 2003, the Company achieves a
minimum EBITDA for such Fiscal Year of at least $16.0 million and (ii) the
Company thereafter delivers to the Holder an Officers' Certificate, in form and
substance satisfactory to the Holder and signed by the President and Chief
Executive Officer and Chief Financial Officer of the Company, certifying that
the Company has achieved such minimum EBITDA and attaching thereto copies of
such audited consolidated financial statements and the notes thereto (together
with the independent auditor's opinion) and the calculation thereof, prepared in
reasonable detail, the Base Rate will be reduced to twelve and one-half percent
(12.50%), effective from and after the date of receipt of such Officers'
Certificate (and the attachments) by the Holder.
Interest shall be payable monthly in arrears on the last Business Day
of each calendar month (or portion thereof) (each an "Interest Payment Date").
Interest shall be computed on the basis of the actual number of days elapsed
over a 360-day year, including the first and the last day.
If any Default or Event of Default shall have occurred and be
continuing, then, in addition to the rights, powers and remedies available to
the Holder under the Securities Purchase Agreement, this Note, the other
Investment Documents and Applicable Law, the Borrower shall pay interest on the
unpaid principal balance of, premium, if any,
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and accrued and unpaid interest on, and other amounts owing under, this Note at
a rate per annum (the "Default Rate") equal to the Base Rate then in effect,
plus two percent (2.0%). The Default Rate shall begin to accrue on the date on
which such Default or Event of Default shall be deemed to have occurred
(determined as provided in the last paragraph of Section 11.1 of the Securities
Purchase Agreement) and shall continue until such Default or Event of Default
shall have been cured or waived.
3. Payment of Principal. The Borrower shall pay in full the entire
outstanding principal balance of this Note, together with all premium, if any,
accrued and unpaid interest and other unpaid amounts owing under this Note, on
October 31, 2004 (the "Maturity Date").
4. Optional Prepayments.
(a) The Borrower may voluntarily prepay the principal balance of this
Note, in whole or in part, together with premium, if any, as follows:
(i) at 104.0% of the principal balance being prepaid at any
time on or before October 31, 2002;
(ii) at 101.0% of the first $10,000,000 of principal balance
being prepaid at any time during the period commencing after October
31, 2002 and ending on or before October 31, 2003, and at 102.0% of
any additional principal balance being prepaid at any time during such
period; and
(iii) at 100.0% of the principal balance being prepaid at any
time after October 31, 2003 and on or before October 31, 2004.
Each percentage set forth above is referred to herein as the "Prepayment
Percentage" applicable to any prepayment. Any prepayment of this Note made under
this Section 4 shall also include all accrued and unpaid interest on the then
outstanding principal balance of this Note, through the date of prepayment.
(b) If the Borrower elects to prepay all or any portion of the
principal balance of this Note, the Borrower shall furnish written notice to the
Holder with respect to each voluntary prepayment not less than fourteen (14)
days prior to the date of prepayment. Such notice shall set forth the specific
date of prepayment and the principal amount of this Note to be prepaid on such
date and shall be irrevocable. Notice of prepayment having been given as
aforesaid, the Borrower shall make a prepayment to the Holder on such prepayment
date in an amount equal to (i) the Prepayment Percentage applicable to such
prepayment, multiplied by (ii) the principal amount of this Note set forth in
such prepayment notice to be prepaid on such prepayment date, together with any
premium and all accrued and unpaid interest through the date of prepayment.
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5. Mandatory Prepayments. In addition to the mandatory prepayments
required to be made by the Company pursuant to Section 6:
(a) Asset Sales. If at any time the Company intends to consummate any
Asset Sale in any Fiscal Year (which Asset Sale, when taken together with any
other Asset Sales in the same Fiscal Year, exceeds aggregate proceeds of
$100,000), it shall, within ten (10) Business Days prior to the proposed date of
consummation of such Asset Sale, notify the Holder in writing of the proposed
Asset Sale (including the subject matter and the material terms thereof and the
proposed date of consummation) and the proposed use of the proceeds to be
derived from such Asset Sale. Within five (5) Business Days following the
Holder's receipt of such written notice, the Holder may, by written notice
furnished to the Company, direct the Company to apply all Net Cash Proceeds
derived from such Asset Sale to prepay principal of, accrued and unpaid premium,
if any, and accrued and unpaid interest on this Note; provided, however, that
the Company shall not be obligated to so apply any Net Cash Proceeds derived
from any such Asset Sale involving equipment or other fixed assets used by the
Company in the conduct of its business to the extent that the Company uses such
Net Cash Proceeds to purchase newer, functionally equivalent equipment or fixed
assets, as the case may be, which is used by the Company in the conduct of its
business. If, subject to the proviso in the immediately preceding sentence, the
Holder directs the Company to make the mandatory prepayment contemplated by this
Section 5(a), the Company shall make such prepayment within one (1) Business Day
following the date of consummation of such Asset Sale. In addition, to the
extent that the Company receives any cash or cash equivalents upon the sale,
conversion, collection or other liquidation of any non-cash proceeds from such
Asset Sale, the Company shall notify the Holder in writing within one (1)
Business Day of such receipt. The Holder may, within five (5) Business Days
after receipt of such written notice, direct the Company to make a mandatory
prepayment under this Section 5(a) with such cash or cash equivalents and, if
the Holder so directs the Company, the Company shall make such mandatory
prepayment within one (1) Business Day following its receipt of the Holder's
notice.
(b) Excess Cash Flow. For each Fiscal Year, commencing with the
Fiscal Year ending October 1, 2000, the Company shall prepay the outstanding
principal balance of this Note in an amount equal to fifty percent (50.0%) of
the Excess Cash Flow (as such term is defined below) for such Fiscal Year. Such
mandatory prepayment shall be due and payable by the Company to the Holder not
later than January 15th of the following Fiscal Year (the date upon which such
prepayment will be made being referred to herein as the "Excess Cash Flow
Payment Due Date"). The next Excess Cash Flow Payment Due Date shall occur not
later than January 15, 2003. Not later than two (2) Business Days prior to each
Excess Cash Flow Payment Due Date, the Company shall deliver to the Holder an
Excess Cash Flow Calculation Certificate, in substantially the form previously
furnished by the Holder to the Company, signed by the Chief Financial Officer of
the Company, showing in reasonable detail the calculation of the amount of any
Excess Cash Flow payment due on such Excess Cash Flow Payment Due Date. For
purposes of this Section 5(b), the term "Excess Cash Flow" means, for any Fiscal
Year, (i) EBITDA of the Company and its Subsidiaries for such Fiscal Year, minus
(ii) the sum of (A) Cash Interest Expense; (B) payments of principal on any
Indebtedness of the Company and its Subsidiaries; (C) Capital Lease Obligations
of the Company or any of its Subsidiaries representing principal; (D) cash Taxes
paid by the Company and its Subsidiaries; (E) cash dividends or
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distributions, if any, paid by the Company; (F) Capital Expenditures; and (G)
all Tax Sharing Cash Payments, in each of clauses (A) through (G) for such
Fiscal Year.
All mandatory prepayments provided for in this Section 5 shall be paid at 100.0%
of the principal amount required to be prepaid, and shall be accompanied by the
payment of any accrued and unpaid interest on, and other amounts owing under,
this Note through the date of prepayment, all as provided for above.
6. Change in Control. If a Change in Control shall occur at any time, the
Holder may, at its sole election, require the Borrower to prepay this Note, in
whole or in part, at any time during the one hundred and eighty (180) day period
following the occurrence of the Change in Control, at 104.0% of the principal
balance of this Note, plus all accrued and unpaid interest on, and other amounts
owing under, this Note through the date of prepayment. The Borrower shall notify
the Holder in writing, if possible, of any Change in Control at least ten (10)
days prior to the date that such Change in Control is scheduled to occur. The
Borrower shall also notify the Holder of the date on which any Change in Control
shall have actually occurred within one (1) Business Day after such date and
shall inform the Holder, in such notification, of the Holder's right to require
the Borrower to prepay this Note as provided in this Section 6 and of the date
on which such right shall terminate. If the Holder elects to require the
Borrower to prepay this Note pursuant to this Section 6, it shall furnish a
written notice to the Borrower advising the Borrower of such election and the
outstanding principal balance hereof, premium, accrued and unpaid interest and
all other amounts to be prepaid. The Borrower shall prepay this Note in
accordance with this Section 6 and such written notice within one (1) Business
Day after its receipt of such written notice.
7. Holder Entitled to Certain Benefits. This Note is the "Note" referred
to in the Securities Purchase Agreement which provides for, among other things,
the right of the Purchaser to accelerate the outstanding principal balance of,
premium, if any, and accrued and unpaid interest on, and all other amounts owing
under, this Note upon the occurrence of an Event of Default. In addition, this
Note is secured by the "Collateral" referred to in the Collateral Documents and
is guaranteed under the Guaranty.
8. Manner of Payment. Payments of principal, interest and other amounts
due under this Note shall be made no later than 12:00 p.m. (noon) (Los Angeles
time) on the date when due and in lawful money of the United States of America
and (by wire transfer in funds immediately available at the place of payment) to
such account as the Holder may designate in writing to the Borrower and, if to
the Purchaser, to: Bank of America, Century City, Private Banking, 0000 Xxxxxxx
Xxxx Xxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000; ABA No. 000000000; Account No.
1154603239; Attention: Xxxxxx Xxxxxxx (or such other place of payment as the
Purchaser may designate in writing). All such payments shall be made without any
deduction whatsoever, including any deduction for set-off, recoupment,
counterclaim or taxes. Any payments received after 12:00 p.m. (noon) (Los
Angeles time) shall be deemed to have been received on the next succeeding
Business Day. Any payments due hereunder which are due on a day which is not a
Business Day shall be payable on the immediately preceding Business Day,
together with all accrued and unpaid interest through the actual due date of
payment.
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9. Maximum Lawful Rate of Interest. The rate of interest payable under
this Note shall in no event exceed the maximum rate permissible under Applicable
Law. If the rate of interest payable on this Note is ever reduced as a result of
this Section 9 and at any time thereafter the maximum rate permitted under
Applicable Law exceeds the rate of interest provided for in this Note, then the
rate provided for in this Note shall be increased to the maximum rate provided
for under Applicable Law for such period as is required so that the total amount
of interest received by the Holder is that which would have been received by the
Holder but for the operation of the first sentence of this Section 9.
10. Xxxxxxxx's Waivers. The Borrower hereby waives presentment for
payment, demand, protest, notice of protest and notice of dishonor, and all
other notices of any kind whatsoever to which it may be entitled under
Applicable Law or otherwise, except for notices to which the Borrower is
expressly entitled under this Note.
11. Registration of Notes. The Company shall maintain at its principal
executive office a register in which it shall register this Note, any
Assignments of this Note or any other notes and any other notes issued upon
surrender hereof and thereof. Upon surrender at the Company's principal
executive office of this Note for registration of any Assignment, the Company
shall, at its expense and within three (3) Business Days of such surrender,
execute and deliver one or more new notes of like tenor in the requested
principal denominations and register such new note or notes in the register to
be maintained by the Company. At the option of the Holder, this Note may be
exchanged for one or more new notes of like tenor in the requested principal
denominations, and the Borrower shall deliver such new notes not later than
three (3) Business Days after the Holder's request.
12. Persons Deemed Owners; Participations. Prior to due presentment for
registration of any Assignment, the Company may treat the Person in whose name
any Note is registered as the owner and Holder of such Note for all purposes
whatsoever, and the Company shall not be affected by notice to the contrary.
Subject to the preceding sentence, the Purchaser may grant to any Person
participations from time to time in all or any part of this Note on such terms
and conditions as may be determined by the Purchaser in its sole and absolute
discretion. Notwithstanding anything to the contrary herein or otherwise (other
than as provided in Section 12.6 of the Securities Purchase Agreement), nothing
contained in this Note or any other Investment Document shall confer upon the
participant any rights in the Securities Purchase Agreement or any other
Investment Document, and the Purchaser shall retain all rights with respect to
the administration, waiver, amendment, collection and enforcement of, compliance
with and consent to the terms and provisions of this Note, the Securities
Purchase Agreement and any other Investment Document. In addition, the Purchaser
may, without the consent of the participant, give or withhold its consent or
agreement to any amendments to or modifications of this Note, the Securities
Purchase Agreement or any other Investment Document, waive any of the provisions
hereof or thereof or exercise or refrain from exercising any other rights or
remedies which the Purchaser may have under this Note, the Securities Purchase
Agreement, any other Investment Document or otherwise. Notwithstanding the
foregoing, the Purchaser will not agree with the Company, without the prior
written consent of the participant (which consent shall be given or
affirmatively withheld not later than three (3) Business Days after the
Purchaser's request therefor): (a) to reduce the principal of or rate of
interest on this Note or (b) to postpone the date fixed for payment of principal
of or interest on the Indebtedness evidenced by this
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Note. If the participant does not timely reply to the Purchaser's request for
such consent, the participant shall be deemed to have consented to such
agreement and the Purchaser may take such action in such manner as the Purchaser
determines in the exercise of its independent business judgment.
13. Assignment and Transfer. Subject to Applicable Law, the Holder may, at
any time and from time to time and without the consent of the Company, assign or
transfer to one or more Persons all or any portion of this Note or any portion
thereof (but not less than $500,000 in principal amount in any single assignment
(unless such lesser amount represents the entire outstanding principal balance
hereof)). Upon surrender of this Note at the Company's principal executive
office for registration of any such assignment or transfer, accompanied by a
duly executed instrument of transfer, the Company shall, at its expense and
within three (3) Business Days of such surrender, execute and deliver one or
more new notes of like tenor in the requested principal denominations and in the
name of the assignee or assignees and bearing the legends set forth on the face
of this Note, and this Note shall promptly be canceled. Each assignment or
transfer of this Note, in whole or in part, shall be registered on the register
maintained by the Borrower pursuant to Section 11 immediately following the
surrender of this Note. If the entire outstanding principal balance of this Note
is not being assigned, the Borrower shall issue to the Holder hereof, within
three (3) Business Days of the date of surrender hereof, a new note of like
tenor which evidences the portion of such outstanding principal balance not
being assigned. If this Note is divided into one or more Notes and is held at
any time by more than one Holder, any payments of principal of, premium, if any,
and interest or other amounts on this Note which are not sufficient to pay all
interest or other amounts due thereunder, shall be made pro rata with respect to
all such Notes in accordance with the outstanding principal amounts thereof,
respectively.
14. Loss, Theft, Destruction or Mutilation of this Note. Upon receipt of
evidence reasonably satisfactory to the Borrower of the loss, theft, destruction
or mutilation of this Note and, in the case of any such loss, theft or
destruction, upon receipt of an indemnity agreement or other indemnity
reasonably satisfactory to the Borrower or, in the case of any such mutilation,
upon surrender and cancellation of such mutilated Note, the Borrower shall make
and deliver within three (3) Business Days a new Note, of like tenor, in lieu of
the lost, stolen, destroyed or mutilated Note.
15. Costs of Collection. The Borrower agrees to pay all costs and
expenses, including the fees and expenses of all attorneys, accountants and
other experts retained by the Holder, which are expended or incurred by or on
behalf of the Holder in connection with (a) the collection and enforcement of
this Note, whether or not any action, suit or other proceeding is commenced; (b)
any actions for declaratory relief in any way related to this Note or the
Indebtedness evidenced hereby; (c) the protection or preservation of any rights
or remedies of the Holder under this Note; (d) the negotiation, preparation,
execution and delivery of any amendment, waiver, consent or release relating to
or under this Note; (e) any actions taken in reviewing the business or financial
affairs of the Company or any of its Subsidiaries if any Event of Default has
occurred or the Holder has determined in good faith that an Event of Default may
likely occur, which actions include the following: (i) inspect the facilities of
the Borrower or any of its Subsidiaries or conduct audits or appraisals of the
financial condition of the Borrower and any of its Subsidiaries; (ii) have an
accounting or
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other firm selected by the Holder review the books and records of the Borrower
and any of its Subsidiaries and perform a thorough and complete examination
thereof; (iii) interview the Borrower's and each of its Subsidiaries' employees,
attorneys, accountants, customers and any other Persons related to the Borrower
or such Subsidiaries; and (iv) undertake any other action which the Holder
believes is necessary to assess accurately the financial condition and prospects
of the Borrower and any of its Subsidiaries; (f) any refinancing, restructuring
(whether in the nature of a "work out" or otherwise), bankruptcy or insolvency
proceeding involving the Borrower, any of its Subsidiaries or any other
Affiliate of the Borrower securing the payment and performance of this Note; (g)
any actions taken to verify, maintain, perfect and protect any Lien granted to
the Holder; or (h) any effort by the Holder to protect, assemble, complete,
collect, sell, liquidate or otherwise dispose of any Collateral, including in
connection with any case under Bankruptcy Law. The Borrower hereby consents to
the taking of the foregoing actions by the Holder (provided, however, that, with
respect to clause (e)(iii) above, the Borrower will not be required to produce
any document or disclose material to the Holder which would otherwise be
expressly protected from production or disclosure by any attorney-client or
accountant-client privilege existing under Applicable Law, unless waived by the
Borrower).
16. Extension of Time. The Holder may, at its sole option, extend the time
for payment of this Note, postpone the enforcement hereof, or grant any other
indulgence without affecting or diminishing the Holder's right to full recourse
against the Borrower hereunder, which right is expressly reserved.
17. Notations. Before disposing of this Note or any portion thereof, the
Purchaser may make a notation thereon (or on a schedule attached thereto) of the
amount of all principal payments previously made by the Company with respect
thereto.
18. GOVERNING LAW. IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE, THIS NOTE AND THE RIGHTS AND OBLIGATIONS ARISING
HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF CALIFORNIA APPLICABLE TO CONTRACTS MADE AND PERFORMED
IN SUCH STATE, WITHOUT REGARD TO CHOICE OF LAW OR CONFLICTS OF LAW PRINCIPLES.
19. Construction and Interpretation. The rules of interpretation and
construction specified in Sections 1.2 through 1.6 of the Securities Purchase
Agreement shall likewise govern the interpretation and construction of this
Note.
20. WAIVER OF JURY TRIAL. THE COMPANY AND THE HOLDER EACH HEREBY
KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT
COUNSEL, WAIVES, RELINQUISHES AND FOREVER FORGOES THE RIGHT TO A TRIAL BY JURY
IN ANY ACTION, SUIT OR OTHER PROCEEDING BASED UPON, ARISING OUT OF OR IN ANY WAY
RELATING TO (a) THIS NOTE, THE SECURITIES PURCHASE AGREEMENT OR ANY OTHER
INVESTMENT DOCUMENTS, INCLUDING ANY PRESENT OR FUTURE AMENDMENT THEREOF, OR ANY
OF THE TRANSACTIONS CONTEMPLATED BY OR RELATED TO THIS AGREEMENT OR ANY OTHER
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INVESTMENT DOCUMENT, OR (b) ANY CONDUCT, ACT OR OMISSION OF THE PARTIES OR THEIR
AFFILIATES (OR ANY OF THEM) WITH RESPECT TO THIS NOTE, THE SECURITIES PURCHASE
AGREEMENT OR ANY OTHER INVESTMENT DOCUMENTS, INCLUDING ANY PRESENT OR FUTURE
AMENDMENT THEREOF, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, REGARDLESS
OF WHICH PARTY INITIATES SUCH ACTION, SUIT OR OTHER PROCEEDING; AND THE COMPANY
AND THE HOLDER EACH HEREBY AGREES AND CONSENTS THAT ANY SUCH ACTION, SUIT OR
OTHER PROCEEDING SHALL BE DECIDED BY A COURT TRIAL WITHOUT A JURY, AND THAT
EITHER THE COMPANY OR THE HOLDER MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF
THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE OTHER TO
THE WAIVER OF ANY RIGHT IT OR THEY MIGHT OTHERWISE HAVE TO TRIAL BY JURY.
[REST OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Borrower has caused this Note to be executed and
delivered by its duly authorized representatives on the date first above
written.
OVERHILL FARMS, INC., a Nevada
corporation
By: /s/ XXXXX XXXXX
-----------------------------------------
Xxxxx Xxxxx
President and Chief Executive Officer
By: /s/ XXXXXXX X. XXXXXXX
-----------------------------------------
Xxxxxxx X. Xxxxxxx
Senior Vice President and Chief Financial
Officer
AGREED TO AND ACCEPTED:
XXXXXX XXXXXXXXX CAPITAL PARTNERS II, L.P.,
a California limited partnership
By: LLCP California Equity Partners II, L.P., a
California limited partnership, its General
Partner
By: Xxxxxx Xxxxxxxxx Capital Partners, Inc.,
a California corporation, its General Partner
By: /s/ XXXXXX X. XXXXXXX
-----------------------------------------
Xxxxxx X. Xxxxxxx
Vice President
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ACKNOWLEDGMENT AND CONSENT OF GUARANTORS
The undersigned hereby acknowledges that it has read the foregoing Amended
and Restated Secured Senior Subordinated Note Due 2004 and consents to the terms
and other provisions hereof. The undersigned further reaffirms its obligations
under the Guaranty and the other provisions of the Securities Purchase Agreement
and the other Investment Documents and agrees that all such Investment
Documents, as amended and/or restated if applicable, remain in full force and
effect in accordance with their respective terms.
GUARANTOR
OVERHILL L.C. VENTURES, INC., a
California corporation
By: /s/ XXXXX XXXXX
---------------------------------------
Xxxxx Xxxxx
President and Chief Executive Officer
By: /s/ XXXXXXX X. XXXXXXX
---------------------------------------
Xxxxxxx X. Xxxxxxx
Chief Financial Officer
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