Exhibit 10.10
FIRST AMENDMENT TO AND CONSENT
UNDER SECOND AMENDED AND RESTATED
INTERCREDITOR AND SUBORDINATION AGREEMENT
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THIS FIRST AMENDMENT TO AND CONSENT UNDER SECOND AMENDED AND RESTATED
INTERCREDITOR AND SUBORDINATION AGREEMENT is entered into as of October 31, 2003
(this "CONSENT"), by and between XXXXXX XXXXXXXXX CAPITAL PARTNERS II, L.P., a
California limited partnership ("SUBORDINATED LENDER"), and PLEASANT STREET
INVESTORS, LLC, a Delaware limited liability company ("SENIOR LENDER").
R E C I T A L S
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A. Subordinated Lender and Senior Lender are parties to that certain
Second Amended and Restated Intercreditor and Subordination Agreement dated as
of April 16, 2003 (the "INTERCREDITOR AGREEMENT"), with respect to certain
financial accommodations made by each of them to OVERHILL FARMS, INC., a Nevada
corporation (the "COMPANY").
B. Concurrently herewith, the Company, the entities from time to time
parties thereto as Guarantors and Subordinated Lender are consummating the
transactions contemplated by that certain Third Amendment to Second Amended and
Restated Securities Purchase Agreement dated as of October 31, 2003 (the
"SUBORDINATED LENDER THIRD AMENDMENT"). The Third Amendment amends further that
certain Second Amended and Restated Securities Purchase Agreement dated as of
April 16, 2003, as amended by a First Amendment to Second Amended and Restated
Securities Purchase Agreement dated as of May 16, 2003 (the "SUBORDINATED LENDER
FIRST AMENDMENT"), and a Second Amendment to Second Amended and Restated
Securities Purchase Agreement dated as of June 19, 2003 (the "SUBORDINATED
LENDER SECOND AMENDMENT"). The Second Amended and Restated Securities Purchase
Agreement, as amended by the Subordinated Lender First Amendment, the
Subordinated Lender Second Amendment and the Subordinated Lender Third
Amendment, shall be referred to herein as the "SECURITIES PURCHASE AGREEMENT."
C Concurrently herewith, the Company and Senior Lender are consummating
the transactions contemplated by that certain Third Amendment to Second Amended
and Restated Loan and Security Agreement dated as of October 31, 2003 (the
"SENIOR LENDER THIRD AMENDMENT"). The Third Amendment amends further that
certain Second Amended and Restated Loan and Security Agreement dated as of
April 16, 2003, as amended by a First Amendment to Second Amended and Restated
Loan and Security Agreement dated as of May 16, 2003 (the " SENIOR LENDER FIRST
AMENDMENT "), and a Second Amendment to Second Amended and Restated Loan and
Security Agreement dated as of June 19, 2003 (the "SENIOR LENDER SECOND
AMENDMENT"). The Second Amended and Restated Securities Purchase Agreement, as
amended by the Senior Lender First Amendment, the Senior Lender Second Amendment
and the Senior Lender Third Amendment, shall be referred to herein as the
"SENIOR LOAN AGREEMENT."
D. Section 6 of the Intercreditor Agreement provides in relevant part
that Senior Lender may not amend, supplement or otherwise modify any Senior Loan
Documents without the prior written consent of Subordinated Lender.
E. Accordingly, Senior Lender has requested that Subordinated Lender
consent to the amendments contained in the Senior Lender First Amendment, the
Senior Lender Second Amendment and the Senior Lender Third Amendment, effective
on and as of the effective dates thereof, respectively. In addition, the parties
hereto wish to amend the Intercreditor Agreement on the terms provided for
herein.
A G R E E M E N T
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NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. AMENDMENT. Section 1 (Definitions) of the Intercreditor Agreement
shall be amended by amending the definition of "Subordinated Loan Documents" to
read in its entirety as follows:
"'SUBORDINATED LOAN DOCUMENTS' shall mean (a) the Securities
Purchase Agreement, (b) an Amended and Restated Secured Senior
Subordinated Note Due 2004 dated November 24, 1999, in the original
principal amount of $28,000,000, as amended and restated October 29,
2002, and as further amended and restated by a Second Amended and
Restated Secured Senior Subordinated Note Due 2006 as of October 31,
2003, in the stated principal amount of $28,858,000 (collectively, the
"SENIOR SUBORDINATED NOTE"), (c) the Amended and Restated Security
Agreement dated as of October 29, 2002, between Debtor and Subordinated
Lender, (d) the Amended and Restated Patent, Trademark and Copyright
Security Agreement dated as of October 29, 2002, (e) the Amended and
Restated Stock Pledge and Control Agreement dated as of October 29,
2002 between Debtor and Subordinated Lender, (f) the Amended and
Restated Suretyship Agreement dated as of October 29, 2002, between LCV
and Subordinated Lender, and (g) the Assignment of Representations,
Warranties, Covenants and Indemnities dated as of August 25, 2000,
between Debtor and Subordinated Lender, and consented to by SSE
Manufacturing, Inc., a California corporation, in each case as amended
from time to time."
2. CONSENT. Pursuant to Section 6 of the Intercreditor Agreement,
Subordinated Lender hereby consents to (a) the Company, LCV and Senior Lender
entering into and performing the Senior Lender First Amendment, effective on and
as of the date thereof, (b) the Company, LCV and Senior Lender entering into and
performing the Senior Lender Second Amendment, effective on and as of the date
thereof and (c) the Company and Senior Lender entering into and performing the
Senior Lender Third Amendment, effective on and as of the date hereof, and, in
each of clauses (a) through (c) above, such entry and performance shall not
constitute a default or event of default under, or a breach of any covenant in,
any Subordinated Loan Documents.
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3. DISSOLUTION OF LCV. The Company has advised Subordinated Lender and
Senior Lender that LCV has been liquidated, wound up and dissolved in accordance
with Applicable Laws.
4. MISCELLANEOUS.
4.1 GOVERNING LAW. This Consent 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.
4.2 ENTIRE AGREEMENT. This Consent constitutes the entire
understanding agreement and understanding between the parties with respect to
the subject matter hereof and supersedes any and all prior written or oral
agreements or understandings with respect to such subject matter.
4.3 SUCCESSORS AND ASSIGNS. This Consent shall inure to the
benefit of, and binding upon, the parties hereto and their respective successors
and assigns.
4.4 COUNTERPARTS. This Consent may be executed in one or more
counterparts or by facsimile transmission, each of which shall be an original
but all of which taken together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have caused this Consent to be executed
and delivered by their duly authorized representatives as of the date first
written above.
SUBORDINATED LENDER
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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
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Xxxxxx X. Xxxxxxx
Vice President
SENIOR LENDER
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PLEASANT STREET INVESTORS, LLC, a California
limited liability company
By: Xxxxxx Xxxxxxxxx Capital Partners, Inc.,
its Manager
By: /S/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Vice President
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ACKNOWLEDGMENT
The undersigned hereby acknowledges and consents to the foregoing
Consent Under Second Amended and Restated Intercreditor and Subordination
Agreement as of the first date written above.
COMPANY
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OVERHILL FARMS, INC., a Nevada corporation
By: /S/ Xxxxx Xxxxx
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Xxxxx Xxxxx
President and Chief Executive Officer
By: /S/ Xxxx Steinbrun
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Xxxx Steinbrun
Senior Vice President and Chief Financial
Officer
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