EXHIBIT 10.13
AMENDMENT TO
CONTINUING GUARANTY
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THIS AMENDMENT TO CONTINUING GUARANTY is dated as of the 16th day of
April 2003 (this "AMENDMENT"), by and among OVERHILL L.C. VENTURES, INC., a
California corporation (the "GUARANTOR") and PLEASANT STREET INVESTORS, LLC, a
California limited liability company, as the assignee of Bank (as defined below)
(the "LENDER").
R E C I T A L S
A. Pursuant to that certain Loan and Security Agreement dated as of
November 24, 1999 (the "ORIGINAL LOAN AGREEMENT"), among OVERHILL FARMS, INC., a
Nevada corporation ("BORROWER"), the Guarantor and UNION BANK OF CALIFORNIA,
N.A. ("BANK"), as previously amended, Bank made certain financial accommodations
to Borrower on the terms and subject to the conditions set forth therein.
B. In connection with the execution and delivery of the Original Loan
and Security Agreement, pursuant to that certain Continuing Guaranty dated as of
November 24, 1999 (including all exhibits and schedules thereto, and as the same
may be subsequently amended, restated, supplemented or otherwise modified from
time to time, the "GUARANTY"), the Guarantor and TreeCon Resources, Inc.
(formerly known as Polyphase Corporation and Overhill Corporation and the former
parent of Borrower), a Nevada corporation ("TREECON") unconditionally,
irrevocably and absolutely guarantied to Bank the prompt payment and performance
of the Obligations, all on the terms and subject to the conditions set forth
therein.
C. In connection with the execution and delivery of that certain
Amended and Restated Loan and Security Agreement dated as of October 29, 2002
(as previously amended, the "EXISTING LOAN AGREEMENT"), among Borrower,
Guarantor and Bank, which amended and restated the Original Loan Agreement,
TreeCon and Bank entered into that certain Limited Release Agreement dated as of
October 29, 2002, pursuant to which, among other things, TreeCon was released
from all Guaranteed Obligations (as defined therein), subject to certain
exceptions. Accordingly, Treecon, no longer being a Guarantor of the Guaranteed
Obligations, neither is nor need be a party hereto.
D. Concurrently herewith, pursuant to that certain Agreement of
Purchase and Sale dated of even date herewith (the "PURCHASE AGREEMENT") by and
between Bank and Lender, the Lender has purchased, and Bank has sold to Lender,
all of Bank's right, title and interest in and to the Assigned Interests (as
defined in the Purchase Agreement), including, without limitation, Bank's rights
and benefits under the Loan Agreement (as defined below) and the Guaranty.
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E. In addition, concurrently herewith, the Existing Loan Agreement is
being amended and restated pursuant to that certain Second Amended and Restated
Loan and Security Agreement dated of even date herewith (including all exhibits
and schedules thereto, and as the same may be subsequently amended, restated,
supplemented or otherwise modified from time to time, collectively the "LOAN
AGREEMENT"), by and among Borrower, Guarantor and the Lender to, among other
things, recognize that Lender is the assignee of Bank. Unless otherwise set
forth herein, capitalized terms and rules of construction defined or established
in SCHEDULE A to the Loan Agreement shall be applied herein as defined or
established therein.
F. The Guarantor and the Lender are entering into this Amendment to
amend certain provisions in the Guaranty and to confirm that, notwithstanding
the amendment and restatement of the Existing Loan Agreement, the Guaranty
continues in full force and effect in favor of the Lender.
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 agree as follows:
1. AMENDMENTS TO GUARANTY. Effective on and as of the Effective Date,
the Guaranty shall be amended as follows:
(a) All references in the Guaranty to the "Bank" shall be
deemed to mean and refer to the Lender.
(b) The definition of "Guaranty Termination Date" shall be
amended to read in its entirety as follows:
"GUARANTY TERMINATION DATE" shall mean the date on which the
then due and payable Obligations and Guaranty Obligations shall have been
completely satisfied and performed in full."
(c) Section 9 (APPLICATION OF PAYMENTS) of the Guaranty shall
be amended to read in its entirety as follows:
"Any payments by any Guarantor under this Guaranty shall be
applied by Lender first, to the satisfaction of Guarantors' indemnification
liabilities pursuant to SECTION 10, and then, in the order of priorities set
forth in SECTION 1.13 of the Loan Agreement."
(d) Section 4.9 (LITIGATION) of the Guaranty shall be amended
to read in its entirety as follows:
"4.9 LITIGATION. No material litigation,
investigation or proceeding of any Governmental Authority is
pending or, to the knowledge of such Guarantor, threatened
against any Guarantor, except as disclosed to Lender in
SCHEDULE 3.20 to the Loan Agreement or otherwise."
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2. CONFIRMATION; FULL FORCE AND EFFECT. The amendments set forth in
Section 1 above shall amend the Guaranty on and as of the Effective Date, and
the Guaranty shall otherwise remain in full force and effect, as amended
thereby, from and after the Effective Date in accordance with its terms. The
Guarantor hereby ratifies, approves and affirms in all respects each of the Loan
Agreement, the Term Notes, the Collateral Documents (including the Liens granted
in favor of the Lender under the Collateral Documents) and each of the other
Loan Document, the terms and other provisions hereof and thereof and the
Obligations hereunder and thereunder.
3. CONFIRMATION OF GUARANTY. The Guarantor hereby acknowledges that it
has read this Amendment and the other Loan Documents and consents to their
terms. Further, the undersigned hereby (a) confirms that it is a party to the
Guaranty and that, among other things, the payment and performance of the
Obligations is guarantied by it under the Guaranty, (b) ratifies, approves and
reaffirms in all respects the terms and other provisions of, and its obligations
under, the Guaranty, the Collateral Documents and the other Loan Documents to
which it is a party or which it has consented to or acknowledged and (c)
confirms that the Guaranty, the Collateral Documents and the other Loan
Documents to which it is a party remain in full force and effect in accordance
with their respective terms.
4. MISCELLANEOUS PROVISIONS.
(a) ENTIRE AGREEMENT; SUCCESSORS AND ASSIGNS. This Amendment,
together with the other Loan Documents, 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 parties and their respective successors and permitted assigns.
(b) 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 INTERNAL LAWS OF THE STATE OF
CALIFORNIA APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT STATE (WITHOUT
REGARD TO THE CHOICE OF LAW OR CONFLICTS OF LAW PROVISIONS THEREOF).
(c) COUNTERPARTS. This Amendment may be executed in any number
of counterparts and by facsimile transmission, each of which shall be deemed an
original and all of which taken together shall constitute one and the same
instrument.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their duly authorized representatives as of the date
first written above.
GUARANTOR
OVERHILL L.C. VENTURES, INC., a California
corporation
By: /S/ XXXXX XXXXX
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Xxxxx Xxxxx
President and Chief Executive Officer
By: /S/ XXXX STEINBRUN
-----------------------------------------
Xxxx Steinbrun
Senior Vice President and
Chief Financial Officer
LENDER
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PLEASANT STREET INVESTORS, LLC, a California
limited liability company
By: Xxxxxx Xxxxxxxxx Capital Partners, Inc.,
a California corporation, its Manager
By: /S/ XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx
Vice President
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