Exhibit 10.21
SECOND AMENDMENT TO
SECURED SENIOR SUBORDINATED NOTE DUE 2004
THIS SECOND AMENDMENT TO SECURED SENIOR SUBORDINATED NOTE DUE 2004 is
effective as of the 11/th/ day of September 2002 (this "Amendment"), by and
between OVERHILL FARMS, INC., a Nevada corporation (the "Borrower" or the
"Company"), and XXXXXX XXXXXXXXX CAPITAL PARTNERS II, L.P., a California limited
partnership (the "Purchaser" or the "Holder").
R E C I T A L S
A. The Company, OVERHILL CORPORATION (formerly known as Polyphase
Corporation), a Nevada corporation, OVERHILL L.C. VENTURES, INC. and the
Purchaser entered into 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, and as further amended by a
Second Amendment to Securities Purchase Agreement dated as of January 11, 2002,
a Consent and Third Amendment dated as of January 31, 2002, and a Fourth
Amendment to Securities Purchase Agreement dated as of June 28, 2002 (as so
amended, the "Original Securities Purchase Agreement"), pursuant to which, among
other things, the Company issued to the Purchaser a Secured Senior Subordinated
Note Due 2004 dated November 24, 1999, as amended by an Amendment to Secured
Senior Subordinated Note Due 2004 dated as of May 1, 2001 (as so amended, the
"Note").
B. Concurrently herewith, the parties to the Original Securities
Purchase Agreement are entering into a Fifth Amendment to Securities Purchase
Agreement dated as of September 11, 2002 (the "Fifth Amendment"), pursuant to
which, among other things, the parties thereto are further amending the Original
Securities Purchase Agreement. The Original Securities Purchase Agreement, as
amended by such Fifth Amendment, is referred to herein as the "Securities
Purchase Agreement." Unless otherwise indicated, all capitalized terms used and
not otherwise defined herein have the meanings ascribed to them in the
Securities Purchase Agreement.
C. It is a condition precedent to the effectiveness of the Fifth
Amendment that the parties enter into and deliver this Amendment and further
amend the Note as provided for herein.
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 hereto hereby amend the Note as follows:
1. Amendment of Section 2 (Payment of Interest; Default Rate). Section 2
of the Note is hereby amended by deleting such Section in its entirety and
replacing it with the following:
"2. Payment of Interest; Default Rate.
So long as no Default or Event of Default shall have occurred and
be continuing, the Borrower shall pay interest in cash on the unpaid
principal balance of this Note at a rate per annum (the "Base Rate") equal
to (a) for any period ending prior to September 11, 2002, the rate per
annum provided for in this Note applicable to such period, and (b) for any
period ending on or after September 11, 2002, thirteen and one-quarter
percent (13.25%) until this Note is fully paid; provided, however, that
if, based upon a full audit by the Company's independent auditors of the
Company's consolidated financial statements for the Fiscal Year ending on
or about September 30, 2003, the Company achieves a minimum EBITDA for
such Fiscal Year of at least $16.0 million and, thereafter, delivers an
Officers' Certificate to the Holder, in form and substance satisfactory to
the Holder and signed by the President and Chief Executive Officer and
Chief Financial Officer of the Company, certifying that the Company has
achieved such minimum EBITDA and attaching thereto copies of such audited
financial statements and the notes thereto (together with the independent
auditor's opinion) and the calculation thereof, prepared in reasonable
detail, the Base Rate will be reduced to twelve and one-half percent
(12.50%), effective from and after the date of receipt of such Officers'
Certificate (and attachments) by the Holder.
Interest shall be payable monthly in arrears on the last Business
Day of each calendar month (or portion thereof) (each an "Interest Payment
Date"). Interest shall be computed on the basis of the actual number of
days elapsed over a 360-day year, including the first and the last day.
If any Default or Event of Default shall have occurred and be
continuing, then, in addition to the rights, powers and remedies available
to the Holder under the Securities Purchase Agreement, this Note, the
other Investment Documents and Applicable Law, the Borrower shall pay
interest on the unpaid principal balance of, premium, if any, and accrued
and unpaid interest on, and other amounts owing under, this Note at a rate
per annum (the "Default Rate") equal to the Base Rate then in effect, plus
two percent (2.0%). The Default Rate shall begin to accrue on the date on
which such Default or Event of Default shall be deemed to have occurred
(as provided in the last paragraph of Section 10.1 of the Securities
Purchase Agreement) and shall continue until such Default or Event of
Default shall have been cured or waived."
2. Amendment of Section 3 (Payment of Principal). Section 3 of the Note
is hereby amended by deleting such Section in its entirety and replacing it with
the following:
"3. Payment of Principal. The Borrower shall pay in full the
entire outstanding principal balance of this Note, together with all premium, if
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any, accrued and unpaid interest and other unpaid amounts owing under this
Note, on October 31, 2004 (the "Maturity Date")."
3. Amendment of Section 4 (Optional Prepayments). Clause (ii) of Section
4 of the Note is hereby amended by deleting such clause in its entirety and
replacing it with the following:
"(ii) at 101.0% of the first $10,000,000 of principal balance
being prepaid at any time during the period commencing after October 31,
2002 and ending on or before October 31, 2003, and at 102.0% of any
additional principal balance being prepaid at any time during such period;
and".
4. [Intentionally Omitted].
5. Full Force and Effect. This Amendment amends the Note effective on and
as of the Fifth Amendment Effective Date, and the Note shall remain in full
force and effect in accordance with its terms as amended hereby. The Note, as
amended by this Amendment, and all other Investment Documents are hereby
ratified and affirmed by the Company in all respects. The execution, delivery
and performance of this Amendment shall not operate as a waiver or limitation of
or, except as expressly set forth herein, as an amendment to any right, power or
remedy of the Purchaser under the Note or any other Investment Document.
6. Confirmation of Security. The Company hereby confirms that the
security interests granted by the Company to the Purchaser under the Security
Agreement (Company), the Company Pledge Agreement, as amended, and the PTC
Security Agreement, as amended, continue to constitute legal, valid, enforceable
and perfected security interests in the Collateral, prior in right to all other
Liens (other than the Liens in favor of the Senior Lender and Permitted Liens)
and secure the due and punctual payment, performance and observance of all
Secured Obligations (as defined in the Security Agreement (Company)), including,
without limitation, the obligations of the Company under the Note as amended
hereby.
7. 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 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.
8. Representations. The Company represents and warrants to the Purchaser
that (a) this Amendment has been duly authorized, executed and delivered by the
Company and constitutes a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, and (b) it has
obtained all consents, authorizations and approvals necessary or required to
enter into and deliver this Amendment and perform its obligations hereunder.
9. 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.
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10. Counterparts. This Amendment may be executed in any number of
counterparts and by facsimile, each of which shall be deemed an original, but
all of which taken together shall constitute one and the same instrument.
11. WAIVER OF JURY TRIAL. EACH PARTY HEREBY KNOWINGLY, INTENTIONALLY AND
VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL, WAIVES, RELINQUISHES
AND FOREVER FORGOES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION, SUIT OR OTHER
PROCEEDING BASED UPON, ARISING OUT OF OR IN ANY WAY RELATING TO (a) THIS
AMENDMENT, THE SECURITIES PURCHASE AGREEMENT, THE NOTE OR ANY OTHER INVESTMENT
DOCUMENT, INCLUDING ANY PRESENT OR FUTURE AMENDMENT THEREOF, OR ANY OF THE
TRANSACTIONS CONTEMPLATED BY OR RELATED THERETO, OR (b) ANY CONDUCT, ACT OR
OMISSION OF THE PARTIES OR THEIR AFFILIATES (OR ANY OF THEM) WITH RESPECT TO
THIS AMENDMENT, THE SECURITIES PURCHASE AGREEMENT, THE NOTE OR ANY OTHER
INVESTMENT DOCUMENTS, INCLUDING ANY PRESENT OR FUTURE AMENDMENT THEREOF, WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE, REGARDLESS OF WHICH PARTY INITIATES
SUCH ACTION, SUIT OR OTHER PROCEEDING; AND EACH PARTY HEREBY AGREES AND CONSENTS
THAT ANY SUCH ACTION, SUIT OR OTHER PROCEEDING SHALL BE DECIDED BY A COURT TRIAL
WITHOUT A JURY, AND THAT ANY PARTY MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF
THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES TO
THE WAIVER OF ANY RIGHT THEY MIGHT OTHERWISE HAVE TO TRIAL BY JURY.
[REST OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, Borrower has caused this Amendment to be executed and
delivered by its duly authorized representatives as of the date first written
above.
BORROWER OR COMPANY
OVERHILL FARMS, INC., a Nevada corporation
By: _____________________________________________
Xxxxx Xxxxx
President and Chief Executive Officer
By: _____________________________________________
Xxxxxxx X. Xxxxxxx
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.,
a California corporation, its General Partner
By: ____________________________________
Xxxxxx X. Xxxxxx
President
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ACKNOWLEDGMENT AND CONSENT OF GUARANTORS
Each of the undersigned Guarantors hereby acknowledges that it has read the
foregoing Second Amendment to Note and consents to the amendments to the Note
and the other matters contained in the foregoing Second Amendment. Each of the
undersigned further reaffirms its obligations under the Securities Purchase
Agreement (including, without limitation, the Guaranty) and the other Investment
Documents and agrees that all such Investment Documents, as previously amended,
remain in full force and effect in accordance with their respective 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 and Chief Executive Officer
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