Exhibit 10.7
TERMINATION AGREEMENT RE:
EQUITY REPURCHASE OPTION AGREEMENT
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THIS TERMINATION AGREEMENT RE: EQUITY REPURCHASE OPTION
AGREEMENT is entered into as of October 31, 2003 (this "TERMINATION AGREEMENT"),
by and between OVERHILL FARMS, INC., a Nevada corporation (the "COMPANY"), and
XXXXXX XXXXXXXXX CAPITAL PARTNERS II, L.P., a California limited partnership
("LLCP").
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 LLCP 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 (the "FIRST AMENDMENT"), and a Second Amendment to Second
Amended and Restated Securities Purchase Agreement dated as of June 19, 2003
(the "SECOND AMENDMENT").
B. Concurrently herewith, the Company, the entities from time to time
parties thereto as Guarantors and LLCP are consummating the transactions
contemplated by a Third Amendment to Second Amended and Restated Securities
Purchase Agreement dated as of October 31, 2003 (the "THIRD AMENDMENT"). The
Second Amended and Restated Securities Purchase Agreement, as amended by the
First Amendment, the Second Amendment and the Third Amendment, shall be referred
to herein as the "SECURITIES PURCHASE AGREEMENT."
C. The parties hereto are currently parties to that certain Equity
Repurchase Option Agreement dated as of September 11, 2003, as amended by an
Amendment to Equity Repurchase Option Agreement dated as of April 16, 2003 (as
so amended, the "OPTION AGREEMENT"). Unless otherwise indicated, capitalized
terms used and not otherwise defined herein have the meanings ascribed to them
in the Securities Purchase Agreement or the Option Agreement, as the case may
be.
D. The parties hereto wish to terminate the Option Agreement on the
terms and conditions set forth herein. It is a condition precedent to the
effectiveness of the Third Amendment that the parties hereto enter into this
Termination Agreement and terminate the Option Agreement.
A G R E E M E N T
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NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. TERMINATION. Effective on and as of the date hereof, the Option
Agreement shall terminate in full and be of no further force or effect, and each
party hereto shall have no further liabilities or obligations thereunder.
2. FURTHER ASSURANCES. Each party hereto agrees to execute and deliver
to the other party such agreements, instruments and other documents as the other
party may request to effectuate the intent and purposes of this Termination
Agreement.
3. MISCELLANEOUS.
3.1 GOVERNING LAW. This Termination Agreement 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.
3.2 ENTIRE AGREEMENT. This Termination Agreement constitutes
the entire understanding agreement and understanding between the parties with
respect to the termination of the Option Agreement and supersedes all prior
written or oral agreements or understandings with respect to such subject
matter.
3.3 SUCCESSORS AND ASSIGNS. This Termination Agreement shall
inure to the benefit of, and binding upon, the parties hereto and their
respective successors and assigns.
3.4 COUNTERPARTS. This Termination Agreement may be executed
in one or more counterparts or by facsimile transmission, each of which shall be
an original but all of which taken together shall constitute one and the same
instrument.
3.5 WAIVER OF TRIAL BY JURY. The parties acknowledge and
confirm that Section 12.16 of the Securities Purchase Agreement shall apply to
this Termination Agreement as if such Section were fully set forth herein.
3.6 INVESTMENT DOCUMENT. This Termination Agreement
constitutes an Investment Document.
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IN WITNESS WHEREOF, the parties have caused this Termination Agreement
to be executed and delivered by their duly authorized representatives as of the
date first written above.
COMPANY
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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
By: /S/ Xxxx Steinbrun
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Xxxx Steinbrun
Senior Vice President and Chief Financial
Officer
LLCP
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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: /S/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Vice President
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