EXHIBIT 10
EXECUTION COPY
OVERHILL FARMS, INC.
SECOND AMENDMENT
TO SENIOR SECURED CREDIT AGREEMENT
This SECOND AMENDMENT TO SENIOR SECURED CREDIT AGREEMENT (this
"Amendment") is dated as of March 9, 2007 and entered into by and among Overhill
Farms, Inc., a Nevada corporation ("Borrower"), the lenders listed on the
signature pages hereof ("Lenders") and Guggenheim Corporate Funding, LLC, a
Delaware limited liability company, as collateral agent for the Lenders (
"Collateral Agent"), and as administrative agent, arranger and syndication agent
for the Lenders ("Administrative Agent"), and is made with reference to that
certain Senior Secured Credit Agreement, dated as of April 17, 2006 (the "Senior
Credit Agreement") as amended by the First Amendment, to the Credit Agreement
dated as of May 16, 2006 (the "First Amendment" and, together with the Senior
Credit Agreement, the "Credit Agreement"), by and among Borrower, the lenders
listed on the signature pages thereof, Collateral Agent and Administrative
Agent. Capitalized terms used herein without definition shall have the same
meanings herein as set forth in the Credit Agreement.
RECITALS
WHEREAS, Borrower, Lenders, Collateral Agent and
Administrative Agent desire to amend the Credit Agreement to increase the total
amount of each of the Tranche A commitment and the Tranche B commitment and to
add an additional Lender party thereto; and
WHEREAS, Borrower, Lender, Collateral Agent and Administrative
Agent desire to amend Section 9.07 of the Credit Agreement to increase the
permitted amount of Capital Expenditures in 2007 and to use the proceeds of the
increased Tranche A Commitments and Tranche B Commitments for that purpose.
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereto agree
as follows:
1. AMENDMENTS TO THE CREDIT AGREEMENT.
(a) Section 1.01 of the Credit Agreement is hereby amended by
deleting the definition of "TOTAL FACILITY" now contained therein and
substituting the following therefore:
"TOTAL FACILITY" means $54,500,000.
(b) Section 1.01 of the Credit Agreement is hereby amended by
deleting the definition of "TRANCHE A TERM LOAN COMMITMENT" now contained
therein and substituting the following therefore:
1
"TRANCHE A TERM LOAN COMMITMENT" means, with respect to any Tranche A
Lender, the obligation of such Tranche A Lender to make a Tranche A
Term Loan pursuant to the terms and conditions of this Agreement, and
which shall not exceed the principal amount set forth opposite such
Tranche A Lender's name on SCHEDULE 1.01(E) under the heading "Tranche
A Term Loan Commitment", and "Tranche A Term Loan Commitments" means
the aggregate principal amount of the Tranche A Term Loan Commitments
of all the Tranche A Lenders (it being understood and agreed that the
maximum aggregate principal amount of the Tranche A Term Loan
Commitments shall not exceed $28,500,000)
(c) Section 1.01 of the Credit Agreement is hereby amended by
deleting the definition of "TRANCHE B TERM LOAN COMMITMENT" now contained
therein and substituting the following therefore:
"TRANCHE B TERM LOAN COMMITMENT" means, with respect to any Tranche B
Lender, the obligation of such Tranche B Lender to make a Tranche B
Term Loan pursuant to the terms and conditions of this Agreement, and
which shall not exceed the principal amount set forth opposite such
Tranche B Lender's name on SCHEDULE 1.01(E) under the heading "Tranche
B Term Loan Commitment", and "Tranche B Term Loan Commitments" means
the aggregate principal amount of the Tranche B Term Loan Commitments
of all the Tranche B Lenders (it being understood and agreed that the
maximum aggregate principal amount of the Tranche B Term Loan
Commitments shall not exceed $18,500,000)
(d) Section 1.01 of the Credit Agreement is hereby amended by
adding the following proviso at the end of the definition of "Fixed Charge
Coverage Ratio":
"provided, however, that in the fiscal year 2007, Borrower may incur an
additional $7,000,000 of Capital Expenditures solely for the purpose of
(i) replacing existing physical assets, and (ii) acquiring additional
physical assets, in each case to be used in the existing operations of
Borrower located in Vernon, California, which additional amount of
Capital Expenditures shall not be included in the calculation of Fixed
Charge Coverage Ratio."
(e) Section 2.02(d) of the Credit Agreement shall be amended
and restated in its entirety as follows:
"(d) REPAYMENT OF TRANCHE A TERM LOANS. The aggregate
principal amount of the Tranche A Term Loans shall be payable in
Dollars in installments on the dates and in the amounts set forth
below:
2
PRINCIPAL PAYMENT DATES QUARTERLY AMORTIZATION PAYMENT
----------------------- ------------------------------
June 30, 2006 $500,000
September 30, 2006 $500,000
December 31, 2006 $500,000
March 31, 2007 $500,000
June 30, 2007 $500,000
September 30, 2007 $500,000
December 31, 2007 $500,000
March 31, 2008 $500,000
June 30, 2008 $500,000
September 30, 2008 $500,000
December 31, 2008 $500,000
March 31, 2009 $500,000
June 30, 2009 $625,000
September 30, 2009 $625,000
December 31, 2009 $625,000
March 31, 2010 $625,000
June 30, 2010 $750,000
September 30, 2010 $750,000
December 31, 2010 $750,000
March 31, 2011 $750,000
Tranche A Maturity Date $17,000,000
-----------
Total $28,500,000
===========
PROVIDED that the final installment payable by the Borrower on the
Tranche A Maturity Date in respect of the Tranche A Term Loans shall be
in an amount, if such amount is different from that specified above,
sufficient to repay the aggregate outstanding principal amount of all
Tranche A Term Loans."
(f) Section 9.07 of the Credit Agreement shall be amended by
adding the following proviso at the end of such section:
"PROVIDED, HOWEVER, that in the fiscal year 2007, Borrower may
incur an additional $7,000,000 of Capital Expenditures solely for the purpose of
(i) replacing existing physical assets, and (ii) acquiring additional physical
assets, in each case to be used in the existing operations of Borrower located
in Vernon, California."
(g) Schedule 1.01(E) to the Credit Agreement is hereby amended
by deleting such Schedule 1.01(E) in its entirety and substituting a new
Schedule 1.01(E) in the form attached to this Amendment.
3
2. BORROWER'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to
amend the Credit Agreement in the manner provided herein, Borrower represents
and warrants to each Lender that the following statements are true, correct and
complete:
(a) CORPORATE POWER AND AUTHORITY. Borrower has all requisite
corporate power and authority to enter into this Amendment and to carry out the
transactions contemplated by, and perform its obligations under, the Credit
Agreement as amended by this Amendment (the "Amended Agreement").
(b) AUTHORIZATION OF AGREEMENTS. The execution and delivery of
this Amendment and the performance of the Amended Agreement have been duly
authorized by all necessary corporate action on the part of Borrower.
(c) NO CONFLICT. The execution and delivery by Borrower of
this Amendment and the performance by Borrower of the Amended Agreement do not
and will not (i) violate any provision of any law or any governmental rule or
regulation applicable to Borrower, the Certificate or Articles of Incorporation
or Bylaws of Borrower or any order, judgment or decree of any court or other
agency of government binding on Borrower, (ii) conflict with, result in a breach
of or constitute (with due notice or lapse of time or both) a default under any
Contractual Obligation of Borrower, (iii) result in or require the creation or
imposition of any Lien upon any of the properties or assets of Borrower (other
than Liens created under any of the Loan Documents in favor of Collateral Agent
on behalf of Lenders), or (iv) require any approval of stockholders or any
approval or consent of any Person under any Contractual Obligation of Borrower.
(d) GOVERNMENTAL CONSENTS. The execution and delivery by
Borrower of this Amendment and the performance by Borrower of the Amended
Agreement do not and will not require any registration with, consent or approval
of, or notice to, or other action to, with or by, any federal, state or other
governmental authority or regulatory body.
(e) BINDING OBLIGATION. This Amendment and the Amended
Agreement have been duly executed and delivered by Borrower and are the legally
valid and binding obligations of Borrower, enforceable against Borrower in
accordance with their respective terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or limiting
creditors' rights generally or by equitable principles relating to
enforceability.
(f) INCORPORATION OF REPRESENTATIONS AND WARRANTIES FROM
CREDIT AGREEMENT. The representations and warranties contained in Section 6 of
the Credit Agreement are and will be true, correct and complete in all material
respects on and as of the date hereof to the same extent as though made on and
as of that date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case they were true, correct
and complete in all material respects on and as of such earlier date.
(g) ABSENCE OF DEFAULT. No event has occurred and is
continuing or will result from the consummation of the transactions contemplated
by this Amendment that would constitute an Event of Default or a Default, except
as waived pursuant to Section 3 hereof.
4
3. WAIVER
(a) The Lenders, the Collateral Agent and the Administrative
Agent understand that, as of February 25, 2007, Borrower has made Capital
Expenditures for fiscal year 2007 that exceed the $3,000,000 permitted for
fiscal year 2007 by Section 9.07 of the Credit Agreement. The Lenders, the
Collateral Agent and the Administrative Agent hereby waive any Event of Default
or Default that may have been caused by the Capital Expenditures referred to in
the preceding sentence. Nothing herein, nor any actions taken by the Lenders,
the Collateral Agent or the Administrative Agent in connection herewith, shall
be deemed or construed as a waiver of any other Event of Default or Default,
whether now existing or occurring after the date hereof, known or unknown, under
the Loan Documents, or as a permanent waiver or forbearance of any Lender's
rights, remedies and powers against the Borrower, any of its Affiliates or any
Collateral under the Loan Documents.
4. MISCELLANEOUS
(a) REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE
OTHER LOAN DOCUMENTS.
(i) Upon the effectiveness of this Amendment, each
reference in the Credit Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of like import referring to the Credit Agreement, and each
reference in the other Loan Documents to the "Credit Agreement", "thereunder",
"thereof" or words of like import referring to the Credit Agreement shall mean
and be a reference to the Amended Agreement.
(ii) Except as specifically amended by this
Amendment, the Credit Agreement and the other Loan Documents shall remain in
full force and effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this
Amendment shall not, except as expressly provided herein, constitute a waiver of
any provision of, or operate as a waiver of any right, power or remedy of Agent
or any Lender under, the Credit Agreement or any of the other Loan Documents.
(b) HEADINGS. Section and subsection headings in this
Amendment are included herein for convenience of reference only and shall not
constitute a part of this Amendment for any other purpose or be given any
substantive effect.
(c) APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW
YORK (INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW
OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
(d) COUNTERPARTS; EFFECTIVENESS. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed an original, but all such counterparts together shall constitute but one
and the same instrument; signature pages may be detached from multiple separate
5
counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document. This Amendment shall become
effective upon the execution of a counterpart hereof by each of Borrower,
Lenders, Collateral Agent and Administrative Agent, and receipt by
Administrative Agent of such executed counterparts.
[Remainder of page intentionally left blank]
6
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
BORROWER:
---------
OVERHILL FARMS, INC.
By: /s/ Xxxxx Xxxxx
-------------------------------------
Name: Xxxxx Xxxxx
----------------------------------
Title: President
----------------------------------
7
ADMINISTRATIVE AGENT:
--------------------
GUGGENHEIM CORPORATE FUNDING, LLC
By: /s/ X. X. Xxxxxx
-------------------------------------
Name: Xxxx Xxxxxx
----------------------------------
Title: Director and Counsel
----------------------------------
8
COLLATERAL AGENT:
----------------
GUGGENHEIM CORPORATE FUNDING, LLC
By: /s/ X. X. Xxxxxx
-------------------------------------
Name: Xxxx Xxxxxx
----------------------------------
Title: Director and Counsel
----------------------------------
9
LENDERS:
--------
MIDLAND NATIONAL LIFE INSURANCE COMPANY, as
Revolving Lender
By: MIDLAND ADVISORS COMPANY, as its agent
By: /s/ Xxxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Director
MIDLAND NATIONAL LIFE INSURANCE COMPANY, as
Tranche A Lender
By: MIDLAND ADVISORS COMPANY, as its agent
By: /s/ Xxxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Director
NORTH AMERICAN COMPANY FOR LIFE AND HEALTH
INSURANCE, as Trance A Lender
By: MIDLAND ADVISORS COMPANY, as its agent
By: /s/ Xxxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Director
10
ORPHEUS HOLDINGS LLC, as Tranche A Lender
By: GUGGENHEIM INVESTMENT MANAGEMENT, LLC,
as its manager
By: /s/ Xxxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Director
ORPHEUS HOLDINGS LLC, as Tranche B Lender
By: GUGGENHEIM INVESTMENT MANAGEMENT, LLC,
as its manager
By: /s/ Xxxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Director
11
SCHEDULE 1.01(E)
TRANCHE A TERM LOAN COMMITMENT
------------------------------------------------------------ ---------------------------------------------------------
Tranche A Lender Principal Amount
------------------------------------------------------------ ---------------------------------------------------------
Midland National Life Insurance Company $14,000,000
------------------------------------------------------------ ---------------------------------------------------------
North American Company for Life and Health Insurance $11,000,000
------------------------------------------------------------ ---------------------------------------------------------
Orpheus Holdings LLC $3,500,000
------------------------------------------------------------ ---------------------------------------------------------
TRANCHE B TERM LOAN COMMITMENT
------------------------------------------------------------ ---------------------------------------------------------
Tranche B Lender Principal Amount
------------------------------------------------------------ ---------------------------------------------------------
Orpheus Holdings LLC $18,500,000
------------------------------------------------------------ ---------------------------------------------------------
REVOLVING LOAN COMMITMENT
------------------------------------------------------------ ---------------------------------------------------------
Revolving Lender Principal Amount
------------------------------------------------------------ ---------------------------------------------------------
Midland National Life Insurance Company $7,500,000
------------------------------------------------------------ ---------------------------------------------------------
12
