EXHIBIT 10.11
DECEMBER 12, 2003
Xxxxx Xxxxx
President and Chief Executive Officer
Overhill Farms, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Re: Waiver Letter
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Dear Xx. Xxxxx:
We refer 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, as amended further by a Second Amendment to Second Amended and Restated
Securities Purchase Agreement dated as of June 19,2003, and as amended further
by a Third Amendment to Second Amended and Restated Securities Purchase
Agreement dated as of October 31, 2003 (as so amended, the "SECURITIES PURCHASE
AGREEMENT"), 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 Partner II, L.P. (the "PURCHASER"). Unless otherwise
indicated, all capitalized terms used and not defined herein have the meanings
ascribed to them in the Securities Purchase Agreement.
1. Waiver of Specified Event of Default.
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The Company has advised the Purchaser that the Company failed to
perform, comply with and observe the Minimum Net Working Capital requirements
set forth in Section 9.14(g) of the Securities Purchase Agreement in that Net
Working Capital for the "fiscal month" ended October 26, 2003, was less than the
minimum amount required by Section 9.14(g) (the "SPECIFIED EVENT OF DEFAULT").
The Specified Event of Default constitutes an Event of Default under Section
11.1(b)(ii)(z) of the Securities Purchase Agreement. Accordingly, the Company
has requested that the Purchaser waive the Specified Event of Default as of
October 26, 2003.
At the request of the Company, and pursuant to Section 11.5 of the
Securities Purchase Agreement, the Purchaser waives the Specified Event of
Default as of October 26, 2003. The waiver provided for in this Section 1 shall
be limited solely to the
Xxxxx Xxxxx
Overhill Farms, Inc.
December 12, 2003
Specified Event of Default and shall not give rise to any obligation
whatsoever on the part of the Purchaser to grant any waivers in the future.
2. General Matters.
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In order to induce the Purchaser to grant the waiver provided for
herein, the Company hereby represents and warrants to the Purchaser that, as of
the Third Amendment Effective Date, no Default or Event of Default has occurred
or is continuing.
This waiver letter 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 other Investment Documents, Applicable Laws or
otherwise, and shall not constitute or be deemed to constitute an amendment or
other modification of, or a supplement to, the Securities Purchase Agreement,
the Note or any other Investment Document. In addition, except as expressly
provided in Section 1 above with respect to the waiver of the Specified Event of
Default, nothing contained in this letter 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, the Note, the
Collateral Documents or any other Investment Document, 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 and the other Investment Documents and Applicable
Law, whether at law or in equity. All of the provisions of the Securities
Purchase Agreement, the Note and the other Investment Documents shall remain in
full force and effect.
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Xxxxx Xxxxx
Overhill Farms, Inc.
December 12, 2003
Please acknowledge your agreement with the foregoing by signing this
waiver letter in the space indicated below and returning a signed copy to us as
soon as possible.
Sincerely yours,
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
AGREED:
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OVERHILL FARMS, INC., a Nevada
corporation
By: /s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
President and Chief Executive Officer
cc: Xxxxx X. Amber, Esq.
Xxxxxxxx X. Xxxxx, Esq.
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