EXHIBIT 99.13
AMENDMENT TO
AMENDED AND RESTATED SECURED
SENIOR SUBORDINATED NOTE DUE 2004
THIS AMENDMENT TO AMENDED AND RESTATED SECURED SENIOR SUBORDINATED NOTE DUE
2004 is effective as of the 4th day of April, 2003 (this "Amendment"), by and
between OVERHILL FARMS, INC., a Nevada corporation (the "Borrower" or the
"Company"), and XXXXXX XXXXXXXXX CAPITAL PARTNERS II, L.P., a California limited
partnership (the "Purchaser" or, including the Purchaser and its assigns, the
"Holder").
R E C I T A L S
A. The Company, Overhill Ventures, as a Guarantor, and the Purchaser are
parties to that certain Amended and Restated Securities Purchase Agreement dated
as of October 29, 2002 (the "Amended and Restated Securities Purchase
Agreement"), pursuant to which, among other things, on and as of the Effective
Date, (i) the parties amended and restated the Original Securities Purchase
Agreement, the Original Note, the Original Warrant and certain other Original
Investment Documents and (ii) the Purchaser consented to the Spin-Off Related
Matters, all on the terms and subject to the conditions set forth in the Amended
and Restated Securities Purchase Agreement and the Investment Documents.
B. In connection with the Spin-Off, the Company and the Purchaser amended
and restated the Original Note as provided in that certain Amended and Restated
Secured Senior Subordinated Note Due 2004 dated November 24, 1999, as amended
and restated as of October 29, 2002 (the "Amended and Restated Note").
C. The Company, Overhill Ventures, as a Guarantor, and the Purchaser have
entered into a First Amendment to Securities Purchase Agreement dated as of
April 4, 2003 (the "First Amendment"), pursuant to which, among other things, on
and as of the date hereof, the Purchaser is waiving the Specified Events of
Default, the Company is issuing and selling to the Purchaser, and the Purchaser
is purchasing from the Company, the Bridge Note and the parties are amending the
Amended and Restated Securities Purchase Agreement (the Amended and Restated
Securities Purchase Agreement, as amended by the First Amendment, is referred to
herein as the "Securities Purchase Agreement") and certain other Investment
Documents, all on the terms and subject to the conditions set forth in the First
Amendment. Unless otherwise indicated, capitalized terms used and not otherwise
defined herein have the meanings ascribed to them in the Securities Purchase
Agreement or the Amended and Restated Note, as the case may be.
D. In connection with the closing of the transactions contemplated by the
First Amendment, the parties wish to amend the Amended and Restated Note as
provided for herein.
A G R E E M E N T
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants,
conditions and provisions contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby amend the Amended and Restated Note as follows:
1. Amendment of Section 2 (Payment of Interest; Default Rate). Section 2
of the Amended and Restated Note is hereby amended by deleting such Section in
its entirety and replacing it with the following:
"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 fifteen percent (15.0%). 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, and accrued and unpaid interest on, and other amounts owing
under, this Note at a rate per annum (the "Default Rate") equal to
seventeen percent (17.0%) for the first sixty (60) days during which
such Default or Event of Default shall remain uncured or unwaived and,
thereafter, such rate shall increase by one percent (1.0%) per annum
over the rate applicable to the thirty (30) days prior thereto for
each additional thirty (30) days that such Default or Event of Default
remains uncured or unwaived; provided, however, that the Default Rate
shall not exceed twenty percent (20.0%). 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."
2. Full Force and Effect. This Amendment amends the Amended and Restated
Note effective on and as of the First Amendment Effective Date, and the Amended
and Restated Note, as amended by this Amendment, shall remain in full force and
effect and is hereby ratified and affirmed by the Company in all respects. The
execution, delivery and performance of this Amendment shall not operate as a
waiver or limitation of or, except as expressly set forth herein, as an
amendment to any right, power or remedy of the Purchaser under the Amended and
Restated Note or any other Investment Document.
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3. Confirmation of Security. The Company hereby confirms that the
security interests and liens granted by the Company under the Collateral
Documents continue to constitute legal, valid, enforceable and perfected
security interests in the Collateral, prior in right to all other Liens (other
than the Liens in favor of the Senior Lender) and secure the due and punctual
payment, performance and observance of all Secured Obligations (as defined in
the Security Agreement (Company)), including, without limitation, the
obligations of the Company under the Amended and Restated Note as amended
hereby.
4. Entire Agreement; Successors and Assigns. This Amendment, together
with the Amended and Restated Note, constitute the entire understanding and
agreement with respect to the subject matter hereof and supersede all prior oral
and written, and all contemporaneous oral, agreements and understandings with
respect thereto. This Amendment shall inure to the benefit of, and be binding
upon, the Company, the Holder and their respective successors and permitted
assigns.
5. Governing Law. IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE, THIS AMENDMENT 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 PRINCIPLES
REGARDING CHOICE OF LAW OR CONFLICTS OF LAWS.
6. Representations. The Company represents and warrants to the Purchaser
that this Amendment has been duly authorized, executed and delivered by the
Company and constitutes a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms.
7. Successors and Assigns. This Amendment shall inure to the benefit of,
and be binding upon, the parties hereto and their respective successors and
permitted assigns.
8. Counterparts. This Amendment may be executed in any number of
counterparts and by facsimile, each of which shall be deemed an original, but
all of which taken together shall constitute one and the same instrument.
9. 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 AMENDMENT, THE AMENDED AND RESTATED NOTE OR ANY OTHER
INVESTMENT DOCUMENTS, INCLUDING ANY PRESENT OR FUTURE AMENDMENT THEREOF, OR ANY
OF THE TRANSACTIONS CONTEMPLATED BY OR RELATED TO THIS AMENDMENT, THE AMENDED
AND RESTATED NOTE OR ANY OTHER INVESTMENT DOCUMENTS, OR (b) ANY CONDUCT, ACT OR
OMISSION OF THE PARTIES OR THEIR AFFILIATES (OR ANY OF THEM) WITH RESPECT TO
THIS AMENDMENT, THE AMENDED AND RESTATED NOTE OR ANY OTHER INVESTMENT DOCUMENTS,
INCLUDING
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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.
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IN WITNESS WHEREOF, the Borrower has caused this Amendment to be executed
and delivered by its duly authorized representatives as of the date first
written above.
BORROWER OR COMPANY
OVERHILL FARMS, INC., a Nevada corporation
By: /s/ Xxxxx Xxxxx
-------------------------------
Xxxxx Xxxxx
President and Chief Executive Officer
By: /s/ Xxxx Steinbrun
-------------------------------
Xxxx Steinbrun
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 GUARANTOR
The undersigned Guarantor hereby acknowledges that it has read the
foregoing Amendment to Secured Senior Subordinated Note Due 2004 and consents to
the terms thereof. The undersigned further acknowledges and agrees that the
Amended and Restated Note, as amended by the foregoing Amendment, constitutes a
Guarantied Obligation and reaffirms its obligations under the Securities
Purchase Agreement (including, without limitation, the Guaranty) and the other
Investment Documents to which it is a party, all of which remains in full force
and effect.
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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