EXHIBIT 10.2
FOURTH AMENDMENT TO
SECOND AMENDED AND RESTATED
SECURITIES PURCHASE AGREEMENT
-----------------------------
THIS FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED SECURITIES
PURCHASE AGREEMENT is dated October 6, 2004, to be effective as of September 26,
2004 (this "AMENDMENT"), by and among OVERHILL FARMS, INC., a Nevada corporation
(the "COMPANY"), the entities from time to time parties thereto as Guarantors
and XXXXXX XXXXXXXXX CAPITAL PARTNERS II, L.P., a California limited partnership
(the "PURCHASER").
R E C I T A L S
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A. The Company, the entities from time to time parties thereto as
Guarantors and the Purchaser are parties to 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, a Second Amendment to Second Amended and Restated
Securities Purchase Agreement dated as of June 19, 2003, and a Third Amendment
to Second Amended and Restated Securities Purchase Agreement dated as of October
31, 2003 (as so amended, the "SECURITIES PURCHASE AGREEMENT"). Unless otherwise
indicated, capitalized terms used and not otherwise defined herein have the
meanings ascribed to them in the Securities Purchase Agreement.
B. On May 27, 2004, the Purchaser agreed to permit the Company to (i)
exclude $150,000 of Capital Expenditures incurred by the Company in the Fiscal
Quarter ended June 27, 2004, in connection with the purchase and relocation of
spiral freezers, from Fixed Charges for purposes of calculating the minimum
Fixed Charge Coverage Ratio for the trailing three consecutive Fiscal Quarters
ended June 27, 2004, and (ii) increase the maximum amount of Capital
Expenditures permitted to be incurred by the Company in the Fiscal Quarter ended
June 27, 2004, by such $150,000 of Capital Expenditures.
C. The Company has requested that the Purchaser eliminate the
application of any Interest Rate Event to the Fiscal Quarters ending September
26, 2004 and January 2, 2005 (by amending the definition of Interest Rate
Measurement Period), and amend certain financial covenants as provided for
herein, and the Purchaser is willing to do so, but only on the terms and subject
to the conditions set forth herein.
D. In addition, Pleasant Street and the Company are entering into
certain amendments to the PSI Senior Credit Agreement and other Senior Credit
Documents as provided for therein.
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. Effective on and as of
the Fourth Amendment Effective Date (as defined in the Securities Purchase
Agreement, as amended by this Amendment), pursuant to Section 12.3 of the
Securities Purchase Agreement, the Securities Purchase Agreement shall be
amended as follows:
(a) Section 1.1 of the Securities Purchase Agreement shall be
amended by adding the following new definitions to Section 1.1 in alphabetical
order:
"'DEFAULT RATE' shall have the meaning set forth in
the November 1999 Note or any other Note, as applicable."
"'FISCAL MONTH' shall mean any of the monthly
accounting periods of the Company."
"'FOURTH AMENDMENT' shall mean that certain Fourth
Amendment to Second Amended and Restated Securities Purchase
Agreement dated October 6, 2004, to be effective as of
September 26, 2004, among the parties."
"'FOURTH AMENDMENT EFFECTIVE DATE' shall mean
September 26, 2004."
"'INCREMENTAL SENIOR TERM B LOAN PRINCIPAL PAYDOWN'
shall have the meaning set forth in the PSI Senior Credit
Agreement."
"'INTEREST RATE EVENT MEASUREMENT PERIOD' shall have
the meaning set forth in the November 1999 Note or any other
Note, as applicable."
(b) Section 1.1 of the Securities Purchase Agreement shall be
further amended by amending the following existing definitions to read in their
entirety as follows, respectively:
"'ADJUSTED CURRENT LIABILITIES' shall mean, at any
time, (i) all Indebtedness and other liabilities of the
Company that are classified as 'current liabilities' at such
time in accordance with GAAP, MINUS (ii) all Indebtedness
owing to Xxxxxx Xxxxxxxxx Capital Partners, II, L.P., in its
capacity as the Purchaser, at such time, if and only to the
extent such Indebtedness is classified at such time as a
'current liability' in accordance with GAAP."
"'FIXED CHARGES' shall mean, for any period and
without duplication, the sum of (i) Cash Interest Expense;
(ii) scheduled payments of principal on any Indebtedness of
the Company and its Subsidiaries, excluding (a) scheduled
payment at maturity of principal on the Term Loans and (b) the
Incremental Senior Term B Loan Principal Paydown; (iii)
scheduled Capitalized Lease Obligations of the Company or any
of its Subsidiaries for such period representing principal;
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(iv) Taxes estimated to be paid by the Company and its
Subsidiaries (after giving effect to the net operating loss
carryforward of TreeCon, if any, for any period ending on or
prior to the Spin-Off Effective Date); (v) cash dividends or
distributions, if any, paid by the Company or any of its
Subsidiaries; (vi) Capital Expenditures; and (vii) with
respect to any period ended on or before the Spin-Off
Effective Date, all Tax Sharing Cash Payments, in each of
clauses (i) through (vii) for such period."
"'INTERCREDITOR AGREEMENT' shall mean a Second
Amended and Restated Intercreditor and Subordination Agreement
dated as of April 16, 2003, between the Senior Lender and the
Purchaser, as amended by a First Amendment to and Consent
under Second Amended and Restated Intercreditor and
Subordination Agreement dated as of October 31, 2003, and as
supplemented by a Consent under Second Amended and Restated
Intercreditor and Subordination Agreement dated October 6,
2004, to be effective as of September 26, 2004, as further
amended or supplemented from time to time."
"'NOVEMBER 1999 NOTE' shall mean that certain Second
Amended and Restated Secured Senior Subordinated Note Due 2006
dated as of October 31, 2003, in the aggregate principal
amount of $28,858,000, as amended by an Amendment to Second
Amended and Restated Secured Senior Subordinated Note Due 2006
dated October 6, 2004, to be effective as of September 26,
2004, which amends and restates that certain Amended and
Restated Secured Senior Subordinated Note Due 2004 dated as of
October 29, 2002, as amended by an Amendment to Amended and
Restated Secured Senior Subordinated Note Due 2004 dated as of
April 4, 2003, which, in turn, amends and restates that
certain Secured Senior Subordinated Note Due 2004 dated
November 24, 1999, as amended, in the original principal
amount of $28,000,000, as further amended from time to time."
"'SENIOR CREDIT AGREEMENT' shall mean (i) that
certain Second Amended and Restated Loan and Security
Agreement dated as of April 16, 2003 (the "PSI SENIOR CREDIT
AGREEMENT"), among the Company, Overhill Ventures and Pleasant
Street, as the assignee of UBOC, as amended by a First
Amendment dated as of May 16, 2003, a Second Amendment dated
as of June 19, 2003, a Third Amendment dated as of October 31,
2003, and a Fourth Amendment dated October 6, 2004, to be
effective as of September 26, 2004, as further amended from
time to time, subject to the terms of the Intercreditor
Agreement, or (ii) such other loan or credit agreement entered
into by the Company and any other Senior Lender in connection
with a refinancing of the Senior Indebtedness owing to PSI
under the PSI Senior Credit Documents (the "OTHER SENIOR
CREDIT AGREEMENT"), subject to SECTION 9.10(B). The PSI Senior
Credit Agreement amends and restates the UBOC Senior Credit
Agreement."
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(c) The preamble to Section 9.14 (Financial Covenants) of the
Securities Purchase Agreement shall be amended to read in its entirety as
follows:
"9.14 FINANCIAL COVENANTS. Until the monetary
Obligations under the Note have been paid in full, the Company
shall perform, comply with and observe each of the covenants
set forth in this Section 9.14 (it being understood that
references to the 'Period' covering the 'Trailing four
consecutive Fiscal Quarters ending in December 2004' should in
fact be references to the 'Period' covering the 'Trailing four
consecutive Fiscal Quarters ending January 2, 2005')."
(d) Clause (b) (Minimum Fixed Charge Coverage Ratio) of
Section 9.14 (Financial Covenants) of the Securities Purchase Agreement shall be
amended by adding the following sentence immediately following the table set
forth therein:
"For purposes of calculating the Fixed Charge
Coverage Ratio for any of the "Periods" set forth in the
foregoing table that includes the Fiscal Quarter ended June
27, 2004, there shall be excluded from Fixed Charges for such
Fiscal Quarter up to $150,000 of Capital Expenditures incurred
by the Company in such Fiscal Quarter solely in connection
with the purchase and relocation of spiral freezers. For
purposes of calculating the Fixed Charge Coverage Ratio for
any of the "Periods" set forth in the foregoing table that
includes the Fiscal Quarter ended September 26, 2004, there
shall be excluded from Fixed Charges for such Fiscal Quarter
up to $350,000 of Capital Expenditures incurred by the Company
in such Fiscal Quarter solely in connection with the purchase
and relocation of spiral freezers."
(e) Clause (d) (Maximum Capital Expenditures) of Section 9.14
(Financial Covenants) of the Securities Purchase Agreement shall be amended to
read in its entirety as follows:
"(d) MAXIMUM CAPITAL EXPENDITURES. Capital
Expenditures shall not exceed $300,000 in any Fiscal Quarter;
PROVIDED, HOWEVER, that:
(i) if (A) the Company prepares and
furnishes to the Purchaser a "payback" analysis of
Capital Expenditures it proposes to make or incur in
any Fiscal Quarter in excess of such maximum Fiscal
Quarterly amount, (B) the Purchaser has at least five
(5) Business Days to review such analysis and (C) if
satisfied with such analysis in its sole discretion,
the Purchaser consents in writing to such excess
amount(s) prior to the incurrence thereof, then the
Company may make or incur such excess Capital
Expenditures in such Fiscal Quarter; and
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(ii) in addition to the $300,000 of Capital
Expenditures the Company may incur in any Fiscal
Quarter as provided above, (A) the Company may incur
an aggregate of $850,000 of Capital Expenditures in
the Fiscal Year ending September 26, 2004, to expand
its "mandarin chicken" manufacturing line, (B) the
Company may incur an aggregate of $150,000 of Capital
Expenditures in the Fiscal Quarter ended June 27,
2004, solely in connection with the purchase and
relocation of spiral freezers and (C) the Company may
incur an aggregate of $350,000 of Capital
Expenditures in the Fiscal Quarter ending September
26, 2004, solely in connection with the purchase and
relocation of such spiral freezers."
(f) Clause (g) (Minimum Net Working Capital) of Section 9.14
(Financial Covenants) of the Securities Purchase Agreement shall be amended to
read in its entirety as follows:
"(g) MINIMUM NET WORKING CAPITAL. For each of the
Fiscal Months listed in the table below, Net Working Capital
at the end of each such Fiscal Month shall not be less than
the amount set forth opposite each such Fiscal Month:
Minimum Net
Fiscal Month Working Capital
------------ ---------------
September 2004...................... $11,165,000
October 2004........................ 11,067,500
November 2004....................... 10,970,000
December 2004....................... 10,972,500
January 2005........................ 10,775,000
February 2005....................... 11,044,445
March 2005.......................... 11,413,890
April 2005.......................... 11,583,335
May 2005............................ 11,852,780
June 2005........................... 12,322,225
July 2005........................... 12,391,670
August 2005......................... 12,661,115
September 2005...................... 13,030,560
October 2005........................ 12,400,005
November 2005....................... 12,500,005
December 2005....................... 12,700,005
January 2006........................ 12,500,005
February 2006....................... 12,600,005
March 2006.......................... 13,000,005
April 2006.......................... 13,200,005
May 2006............................ 13,400,005
June 2006........................... 13,700,005
July 2006........................... 13,800,005
August 2006......................... 14,000,005
September 2006...................... 14,300,005
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(g) Each of the Disclosure Schedules to the Securities
Purchase Agreement, the Security Agreement and the PTC Security Agreement listed
in EXHIBIT A attached hereto shall be amended by the Disclosure Schedules
attached to EXHIBIT A as provided for in such amended Disclosure Schedules (it
being understood that such amended Disclosure Schedules shall update the
corresponding Disclosure Schedules through and including the Fourth Amendment
Effective Date).
2. CONDITIONS PRECEDENT TO AMENDMENTS. The effectiveness of the
amendments set forth in Section 1 as of the Fourth Amendment Effective Date
shall be subject to the satisfaction, in the Purchaser's sole discretion, of
each of the following conditions precedent:
(a) FOURTH AMENDMENT EFFECTIVE DATE. All of the conditions
precedent set forth in this Section 2 shall have been satisfied effective as of
the Fourth Amendment Effective Date.
(b) AMENDED INVESTMENT DOCUMENTS. The Purchaser shall have
received the following closing documents, each effective as of the Fourth
Amendment Effective Date (collectively, and together with this Amendment, the
"FOURTH AMENDMENT DOCUMENTS"):
(i) AMENDMENT TO INTERCREDITOR AGREEMENT. A First
Amendment to and Consent Under Second Amended and Restated Intercreditor and
Subordination Agreement, in form and substance satisfactory to the Purchaser,
duly executed by the Company; and
(ii) AMENDMENT TO NOVEMBER 1999 NOTE. An amendment to
the November 1999 Note, in form and substance satisfactory to the Purchaser,
duly executed by the Company.
(c) AMENDMENT TO PSI SENIOR CREDIT AGREEMENT. The Senior
Lender and the Company shall have entered into a fourth amendment to the PSI
Senior Credit Agreement, in form and substance satisfactory to the Purchaser.
(d) REPRESENTATIONS AND WARRANTIES. The Purchaser shall have
received from the Company an Officers' Certificate, in form and substance
satisfactory to the Purchaser, effective as of the Fourth Amendment Effective
Date and duly executed by the President and Chief Executive Officer and the
Chief Financial Officer of the Company, to the effect that (i) after giving
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effect to the execution, delivery and performance of this Amendment and the
other Fourth Amendment Documents and the amended Disclosure Schedules attached
as EXHIBIT A hereto, each of the representations and warranties of the Company
contained in the Securities Purchase Agreement, the Security Agreement and the
PTC Security Agreement was true and correct on and as of the date made and was
true and correct on and as of the Fourth Amendment Effective Date, with the same
effect as if made on and as of the Fourth Amendment Effective Date; (ii) each of
the covenants and agreements of the Company required to be performed or
satisfied under this Amendment on or before the Fourth Amendment Effective Date
has been performed or satisfied on or before the Fourth Amendment Effective
Date; (iii) the Company has satisfied or fulfilled each of the conditions
precedent set forth in this Section 2; (iv) no Default or Event of Default has
occurred and is continuing or will result from the execution, delivery or
performance of this Amendment or any other Fourth Amendment Document and (v)
since September 28, 2003, no Material Adverse Change has occurred other than as
previously disclosed to the Purchaser in writing or as previously disclosed in
the Company's SEC Documents.
(e) [INTENTIONALLY OMITTED.]
(f) REIMBURSEMENT OF FEES AND EXPENSES. The Company shall have
reimbursed the Purchaser for all actual and estimated fees, costs and expenses,
including attorneys' fees and expenses, incurred or to be incurred by the
Purchaser and remaining unpaid as of the Fourth Amendment Effective Date, as
required under the Investment Documents, including the fees and expenses
incurred or to be incurred in connection with the preparation, execution,
delivery and performance of this Amendment and the other Fourth Amendment
Documents and the consummation of the transactions contemplated hereby and
thereby.
(g) CONSENTS. The Company shall have obtained or made all
Consents required to be obtained from all Governmental Authorities and other
Persons in connection with the execution, delivery and performance of this
Amendment and the other Fourth Amendment Documents, and the Purchaser shall have
approved the terms and conditions thereof.
(h) CERTIFIED BOARD RESOLUTIONS. The Purchaser shall have
received a Secretary's Certificate from the Company, in form and substance
satisfactory to the Purchaser, duly executed by the Secretary of the Company and
effective as of the Fourth Amendment Effective Date, certifying as to (i) the
charter of the Company, as amended, (ii) the bylaws of the Company, as amended,
and (iii) the resolutions of the Board of Directors of the Company approving the
execution, delivery and performance of this Amendment and each of the other
Fourth Amendment Documents and the consummation of the transactions contemplated
hereby and thereby.
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(i) GOOD STANDING CERTIFICATES. The Purchaser shall have
received (i) a corporate good standing certificate and a tax good standing
certificate, if available, for the Company from the Secretary of State of the
State of Nevada and Nevada taxing authority, (ii) a corporate good standing
certificate and a tax good standing certificate for the Company from the
Secretary of State of the State of California and the Franchise Tax Board of the
State of California, respectively, and (iii) a corporate good standing
certificate and a tax good standing certificate, if available, of the Company
from the Secretaries of State or similar governmental authority of each
jurisdiction in which the Company is required to be qualified to transact
business as a foreign corporation or other entity, in each case dated as of a
recent practicable date.
(j) CERTIFIED FINANCIAL PROJECTIONS. The Company shall have
delivered to the Purchaser, and the Purchaser shall have approved, consolidated
financial projections of the Company for the two-year period commencing
September 27, 2004, and ending on the last day of the Fiscal Year ending in
September 2006. Such financial projections shall be prepared in accordance with
the requirements of Section 8.3(d) of the Securities Purchase Agreement and,
among other things, shall specify the assumptions on which they are based and
shall be made in good faith. The financial projections shall be accompanied by
an Officers' Certificate, in form and substance satisfactory to the Purchaser,
duly executed by the President and Chief Executive Officer and the Chief
Financial Officer of the Company, certifying as to the assumptions on which such
financial projections are based.
(k) LEGAL PROHIBITIONS. The consummation of the transactions
contemplated by this Amendment and the other Fourth Amendment Documents shall
not be prohibited by or violate any Applicable Laws and shall not subject any
party to any Tax, penalty or liability, under or pursuant to any Applicable
Laws.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. In order to induce
the Purchaser to enter into this Amendment, the Company represents and warrants
to the Purchaser as follows:
(a) AUTHORIZATION; BINDING EFFECT. The Company has the full
power and authority to enter into, deliver and perform its obligations under
this Amendment and the other Fourth Amendment Documents. The execution, delivery
and performance by the Company of this Amendment and the other Fourth Amendment
Documents and the consummation of the other transactions contemplated hereby and
thereby have been duly and validly authorized by all necessary action on the
part of the Company. This Amendment has been, and as of the Fourth Amendment
Effective Date each of the Fourth Amendment Documents will be, duly executed and
delivered by the Company. This Amendment constitutes, and as of the Fourth
Amendment Effective Date each of the Fourth Amendment Documents will constitute,
the legal, valid and binding obligations of the Company, enforceable against the
Company in accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or
conveyance or similar laws relating to or limiting creditors' rights generally
or by equitable principles relating to enforceability and except as rights of
indemnity or contribution may be limited by federal or state securities or other
laws or the public policy underlying such laws.
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(b) NO CONFLICT. The execution, delivery and performance by
the Company of this Amendment and the other Fourth Amendment Documents and the
consummation of the transactions contemplated hereby and thereby do not and will
not violate or conflict with, or cause a default under, or give rise to a right
of termination under, (i) the charter or bylaws of the Company, as in effect on
the date hereof; (ii) any Applicable Laws; or (iii) any term of any material
contract, indenture, note, mortgage, instrument, agreement or other document to
which the Company is a party or by which any of its properties or assets are
bound.
(c) RANK; OBLIGATIONS. No Indebtedness of the Company ranks
senior to the Indebtedness evidenced by the November 1999 Note other than the
Senior Indebtedness. No Indebtedness of the Company ranks PARI PASSU with any
Indebtedness evidenced by the November 1999 Note. Immediately following the
closing of the transactions contemplated hereby, there will be no agreement,
indenture, instrument or other document to which the Company is a party or by
which it or they are bound that requires the subordination in right of payment
or rights upon liquidation of any Obligations to Purchaser (including principal,
interest, premium, if any, or other amounts under the November 1999 Note) to the
repayment of any other existing or future Indebtedness or other obligations of
the Company other than the Senior Indebtedness.
(d) NO CONSENTS. Neither the Company nor any of its Affiliates
is required to obtain from or make with any Governmental Authority or any other
Person any Consent in connection with execution, delivery or performance of this
Amendment or any other Fourth Amendment Document or for the purpose of
maintaining in full force and effect any Licenses and Permits of the Company,
except where the failure to obtain or make such Consent or maintain any such
License or Permit, as the case may be, could not have a Material Adverse Effect.
There are no orders, decrees, judgments, injunctions or rulings of any
Governmental Authority against the Company or any of its assets.
(e) REPRESENTATIONS AND WARRANTIES. After giving effect to the
amended Disclosure Schedules attached as EXHIBIT A hereto, each of the
representations and warranties of the Company contained in the Securities
Purchase Agreement, the Security Agreement and the PTC Security Agreement is
true and correct in all material respects (it being understood that Overhill
Ventures has been liquidated, wound up and dissolved and the Company has no
Subsidiaries).
(f) NO DEFAULT. No Default or Event of Default has occurred
and is continuing or will result from the execution and delivery of this
Amendment or the other Fourth Amendment Documents or the consummation of the
other transactions contemplated hereby or thereby.
(g) COLLATERAL SECURITY. The Liens granted in favor of the
Purchaser under the Collateral Documents constitute valid, enforceable,
perfected and continuing security interests and Liens in, on and to the
Collateral to secure the payment and performance in full of all Obligations,
including all Indebtedness under the November 1999 Note and all other
Obligations, and such security interests and liens are subject, as to priority,
only to the Senior Liens and Permitted Liens to the extent entitled to priority
under Applicable Law.
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(h) NOVEMBER 1999 NOTE. As of the date hereof, the principal
amount of the November 1999 Note outstanding is $28,858,000.
4. CONFIRMATION; FULL FORCE AND EFFECT. The amendments set forth in
Section 1 shall amend the Securities Purchase Agreement on and as of the Fourth
Amendment Effective Date, and the Securities Purchase Agreement shall otherwise
remain in full force and effect, as amended thereby, from and after the Fourth
Amendment Effective Date in accordance with its terms. The Company hereby
ratifies, approves and affirms in all respects each of the Securities Purchase
Agreement, as amended hereby, the Note, the Collateral Documents (including the
Liens granted in favor of the Purchaser under the Collateral Documents) and each
of the other Investment Documents, the terms and other provisions hereof and
thereof and the Obligations hereunder and thereunder.
5. NO OTHER AMENDMENTS. This Amendment is being delivered without
prejudice to the rights, remedies or powers of the Purchaser under or in
connection with the Securities Purchase Agreement, the Note, the Collateral
Documents and the other Investment Documents, Applicable Laws or otherwise and,
except as expressly provided in Section 1 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 Investment Document or the obligations
of the Company Parties thereunder. In addition, nothing contained in this
Amendment is intended to constitute, or shall be construed as, a waiver of any
Interest Rate Event, Default or Event of Default, or other breach or violation
of the Securities Purchase Agreement, the Note, the Collateral Documents or any
other Investment Document, whether past, present or future, or a forbearance by
the Purchaser of any of its rights, remedies or powers against the Company
Parties (or any of them) or the Collateral. The Purchaser hereby expressly
reserves all of its rights, powers and remedies under or in connection with the
Securities Purchase Agreement, the Note, the Collateral Documents and the other
Investment Documents, whether at law or in equity, including, without
limitation, the right to declare all Obligations to be due and payable.
6. MISCELLANEOUS PROVISIONS.
(a) ENTIRE AGREEMENT; SUCCESSORS AND ASSIGNS. This Amendment
and the other Fourth Amendment 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).
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(c) COUNTERPARTS. This Amendment may be executed in one or
more 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.
[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 on the first
date written above, to be effective as of the Fourth Amendment Effective Date.
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
PURCHASER
---------
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., its General Partner
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Xxxxxx X. Xxxxxxx
Vice President
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EXHIBIT A
Amended Disclosure Schedules
----------------------------
Attached hereto are amended, updated versions of the following
Disclosure Schedules, which Disclosure Schedules are amended and updated through
and including the Fourth Amendment Effective Date (it being understood that all
other Disclosure Schedules shall remain unamended and in full force and effect):
Securities Purchase Agreement
-----------------------------
Schedule 3.5 -- Conflicts with Other Instruments; Existing
Defaults; Rank
Schedule 3.10 -- SEC Documents
Schedule 3.12(a)(i) -- Existing Indebtedness
Schedule 3.12(a)(iv) -- UCC Financing Statements
Schedule 3.12(a)(v) -- Payables Aging Schedule
Schedule 3.14 -- Material Contracts
Schedule 3.20 -- Legal Action
Schedule 3.23 -- Licenses and Permits
Schedule 3.25 -- Real Property
Schedule 3.31 -- Insurance
Schedule 3.32 -- Customers
Schedule 3.33 -- Suppliers
Schedule 3.35 -- Personal Property Leases
Schedule 3.36 -- Employment Agreements
Security Agreement
------------------
Schedule 1 -- Chief Executive Office and Corporate names;
Locations of Collateral
PTC Security Agreement
----------------------
None.
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