Exhibit 10.16
FOURTH AMENDMENT TO
SECURITIES PURCHASE AGREEMENT
THIS FOURTH AMENDMENT TO SECURITIES PURCHASE AGREEMENT (this "Amendment")
is dated as of June 28, 2002 (the "Fourth Amendment Effective Date") by and
among OVERHILL FARMS, INC., a Nevada corporation (the "Company"), OVERHILL
CORPORATION (formerly known as Polyphase Corporation), a Nevada corporation
("Parent"), OVERHILL L.C. VENTURES, INC., a California corporation ("Overhill
Ventures" and, together with the Company and Parent, the "Company Parties"), and
XXXXXX XXXXXXXXX CAPITAL PARTNERS II, L.P., a California limited partnership
("LLCP").
R E C I T A L S
A. The Company Parties and LLCP are parties to that certain Securities
Purchase Agreement dated as of November 24, 1999, as amended by a Consent and
First Amendment to Securities Purchase Agreement dated as of August 23, 2000, by
that certain Second Amendment to Securities Purchase Agreement dated as of
January 11, 2002, and by that certain Consent and Third Amendment to Securities
Purchase Agreement dated as of January 31, 2002 (as so amended, the "Securities
Purchase Agreement"). Unless otherwise indicated, capitalized terms used and not
otherwise defined in this Amendment have the meanings ascribed to them in the
Securities Purchase Agreement.
B. The parties wish to amend further the Securities Purchase Agreement to
take into account, among other things, amendments and other changes to certain
Collateral Documents necessitated by or resulting from changes to the UCC.
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 Securities Purchase Agreement. Pursuant to Section 12.2
of the Securities Purchase Agreement, the Securities Purchase Agreement is
hereby amended as follows:
(a) Section 1.1 (Definitions) of the Securities Purchase Agreement is
amended by adding the following new definitions to such Section in
alphanumerical order:
"`Fourth Amendment' shall mean that certain Fourth Amendment to
Securities Purchase Agreement dated as of June 28, 2002, among the
parties."
(b) The following terms currently defined in Section 1.1
(Definitions) of the Securities Purchase Agreement are amended by deleting such
definitions in their entirety and replacing them with the following definitions,
respectively:
"`Intercreditor Agreement' shall mean that certain Intercreditor
and Subordination Agreement dated as of November 24, 1999, between the
Senior Lender and the Purchaser, and acknowledged by the Company, Parent
and Overhill Ventures, as amended by a First Amendment dated as of August
23, 2000, as provided for in (or supplemented by) the Consent under
Intercreditor and Subordination Agreement dated as of January 11, 2002, as
provided for in (or supplemented by) the Consent under Intercreditor and
Subordination Agreement dated as of January 31, 2002, as provided for in
(or supplemented by) the Consent under Intercreditor and Subordination
Agreement dated as of June 28, 2002, and as further amended, supplemented
or otherwise modified from time to time by the Senior Lender and the
Purchaser."
"`Security Agreement (Company)'" shall mean that certain Security
Agreement dated as of November 24, 1999, between the Company and the
Purchaser, as amended by an Amendment dated as of June 28, 2002, and as
further amended, supplemented or otherwise modified from time to time.
"`Security Agreement (Subsidiary)'" shall mean that certain
Security Agreement dated as of November 24, 1999, between Overhill Ventures
and the Purchaser, as amended by an Amendment dated as of June 28, 2002,
and as further amended, supplemented or otherwise modified from time to
time.
"`Senior Credit Agreement' shall mean that certain Loan and
Security Agreement dated as of November 24, 1999, among the Company,
Overhill Ventures and the Senior Lender, as amended by a First Amendment to
Loan and Security Agreement dated as of August 23, 2000, as further amended
by a Second Amendment to Loan and Security Agreement dated as of January
11, 2002, as further amended by a Third Amendment to Loan and Security
Agreement dated as of June 28, 2002, and as further amended, supplemented
or otherwise modified from time to time, subject to the terms of the
Intercreditor Agreement."
"`UCC'" shall have the meaning set forth in the Security
Agreement (Company).
(c) Section 2.9A (Fundamental Changes) of Annex A to the Securities
Purchase Agreement is amended by (i) replacing the period (.) at the end of
clause (g) with "; or" and (ii) adding the following new clause (h) to the end
of such Section:
"(h) reincorporate or reorganize itself under the laws of any
jurisdiction other than the jurisdiction in which it is incorporated or
organized as of the Closing Date."
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2. Certain Deliveries. Concurrently with the execution and delivery of
this Amendment, the Company is delivering to LLCP, or is causing the delivery to
LLCP of, each of the following documents:
(a) An Amendment to the Security Agreement (Company), in form and
substance satisfactory to LLCP, dated as of the Fourth Amendment Effective Date
and duly executed by the Company;
(b) An Amendment to the Security Agreement (Subsidiary), in form and
substance satisfactory to LLCP, dated as of the Fourth Amendment Effective Date
and duly executed by Overhill Ventures;
(c) A Consent under the Intercreditor Agreement dated as of November
24, 1999, in form and substance satisfactory to LLCP and the Senior Lender,
dated as of the Fourth Amendment Effective Date and duly executed by the Senior
Lender;
(d) A Deposit Account Control Agreement, in form and substance
satisfactory to LLCP, dated as of the Fourth Amendment Effective Date and duly
executed by the Senior Lender and the Company;
(e) True, correct and complete copies of resolutions duly adopted by
the Board of Directors of each of the Company, Parent and Overhill Ventures,
respectively, duly authorizing and approving this Amendment and the other
Amendment Documents (as defined below) and the transactions contemplated hereby
and thereby, in each case certified by the Secretary of the Company, Parent and
Overhill Ventures, respectively, in a Secretary's Certificate in form and
substance satisfactory to LLCP;
(f) True, correct and complete copies of all consents, authorizations
and approvals necessary or required to be obtained in connection with this
Amendment and the other Amendment Documents and the transactions contemplated
hereby and thereby, including, without limitation, the written consent of the
Senior Lender; and
(g) True, correct and complete copies of all amendments and other
documents entered into between the Company Parties (or any of them), on the one
hand, and the Senior Lender, on the other, with respect to the matters addressed
herein or such other matters as LLCP may request, all in form and substance
reasonably satisfactory to LLCP.
This Amendment, together with the other agreements, instruments and
documents described in this Section 2, are collectively referred to herein as
the "Amendment Documents."
3. Representations and Warranties. In order to induce LLCP to enter into
this Amendment, the Company Parties hereby represent and warrant to LLCP that:
(a) The Company Parties have each duly authorized, executed and
delivered this Amendment and the other Amendment Documents, and this Amendment
and each other Amendment Document is the legal, valid and binding obligation of
the Company Parties, respectively, enforceable against them, respectively, in
accordance with its terms;
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(b) The Company Parties have each obtained all consents,
authorizations and approvals necessary or required to enter into, deliver and
perform this Amendment and the other Amendment Documents and to consummate the
transactions contemplated hereby and thereby;
(c) The execution, delivery and performance by the Company Parties of
this Amendment and the other Amendment Documents and the consummation of the
transactions contemplated hereby and thereby do not and will not violate,
conflict with or result in the breach of any of the provisions of, or constitute
(with or without notice or lapse of time or both) a default under, or result in
the imposition of any Lien upon any of the assets or properties of the Company
Parties or any of their Subsidiaries under, (x) the charter or bylaws of the
Company Parties or any of their Subsidiaries, as in effect on the date hereof;
(y) any lease, credit agreement, indenture, note, mortgage, instrument or other
agreement to which the Company Parties or any of their Subsidiaries is a party
or by which any of their properties or assets are bound and which is material to
the businesses or operations of the Company Parties or any of their
Subsidiaries, respectively; or (z) any Applicable Laws;
(d) No Default or Event of Default has occurred and is continuing or
will occur as a result of the execution, delivery or performance of this
Amendment or any other Amendment Document or the consummation of the
transactions contemplated hereby or thereby; and
(e) The Company has delivered to LLCP each of the documents to be
delivered by it as contemplated by Section 2.
4. Confirmation; Full Force and Effect. Section 2 of this Amendment
amends the Securities Purchase Agreement effective on and as of Fourth Amendment
Effective Date, and the Securities Purchase Agreement shall remain in full force
and effect as amended thereby on and as of the Fourth Amendment Effective Date
in accordance with its terms. The Company Parties acknowledge, confirm and
ratify in all respects the terms and other provisions set forth in, and their
respective obligations under, the Securities Purchase Agreement and the other
Investment Documents.
5. No Other Amendments. This Amendment is being delivered without
prejudice to the rights, remedies or powers of LLCP under or in connection with
the Securities Purchase Agreement, the other Investment Documents, Applicable
Laws or otherwise and, except as set forth in Section 2 above, shall not
constitute or be deemed to constitute an amendment or other modification of, or
a supplement to, the Securities Purchase Agreement or any other Investment
Document. In addition, nothing contained in this Amendment is intended to or
shall be construed as a waiver of any breach, violation, Default or Event of
Default, whether past, present or future, under the Securities Purchase
Agreement or any other Investment Document, or a forbearance by LLCP of any of
its rights, remedies or powers against the Company Parties (or any of them), or
the Collateral, and LLCP hereby expressly reserves all of its rights, powers and
remedies under or in connection with the Securities Purchase Agreement and the
other Investment Documents,
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whether at law or in equity, including, without limitation, the right to declare
all Obligations to Purchaser to be due and payable.
6. Miscellaneous.
(a) Fees and Expenses. The Company Parties each acknowledge and
reaffirm its and their obligations to pay all fees, costs and expenses expended
or incurred by or on behalf of LLCP, including all fees and expenses of its
attorneys, as provided in Section 8.6 of the Securities Purchase Agreement,
including, without limitation, in connection with this Amendment and the
transactions contemplated hereby.
(b) Entire Agreement; Counterparts. This Amendment and the other
Amendment Documents, together with the Securities Purchase Agreement and the
other Investment Documents, constitutes the entire agreement and understanding
among the parties and supersede all prior oral and written, and all
contemporaneous oral, agreements and discussions with respect to the subject
matter hereof and thereof. Except as otherwise expressly modified herein, the
Securities Purchase Agreement and the other Investment Documents shall remain in
full force and effect. 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.
(c) Governing Law. IN ALL RESPECTS, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS CONSENT AND 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).
(d) 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.
(e) Further Assurances. The parties shall, at any time and from time
to time, execute and deliver all such further instruments and other documents
and take all such further actions as may be necessary or appropriate to carry
out the provisions of this Amendment.
[REST OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
and delivered by their duly authorized representatives as of the first date
written above.
COMPANY
OVERHILL FARMS, INC., a Nevada corporation
By:________________________________________
Xxxxx Xxxxx
President and Chief Executive Officer
PARENT
OVERHILL CORPORATION (formerly known as
Polyphase Corporation), a Nevada corporation
By:________________________________________
Xxxxx Xxxxx
President and Chief Executive Officer
OVERHILL VENTURES
OVERHILL L.C. VENTURES, INC., a
California corporation
By:________________________________________
Xxxxx Xxxxx
President
LLCP
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:_________________________________
Xxxxxx X. Xxxxxxxxx
Chief Executive Officer
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ACKNOWLEDGMENT AND REAFFIRMATION OF GUARANTY
The undersigned Guarantors hereby acknowledge that they have read the
foregoing Fourth Amendment to Securities Purchase Agreement and the other
Amendment Documents. The undersigned hereby consent to the Fourth Amendment to
Securities Purchase Agreement and the other Amendment Documents, ratify and
reaffirm the Guaranty as set forth in Section 9 of the Securities Purchase
Agreement, as amended by the Fourth Amendment to Securities Purchase Agreement,
and acknowledge that the same shall remain in full force and effect in
accordance with it terms.
GUARANTORS
OVERHILL CORPORATION (formerly known as
Polyphase Corporation), a Nevada corporation
By:________________________________________
Xxxxx Xxxxx
President and Chief Executive Officer
OVERHILL L.C. VENTURES, INC., a
California corporation
By:________________________________________
Xxxxx Xxxxx
President
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