EXHIBIT 10.5
THIRD AMENDMENT TO
AMENDED AND RESTATED SECURITY AGREEMENT
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THIS THIRD AMENDMENT TO AMENDED AND RESTATED SECURITY AGREEMENT, dated
as of October 31, 2003 (this "AMENDMENT"), is made by OVERHILL FARMS, INC., a
Nevada corporation (the "COMPANY" or the "DEBTOR" and, together with any future
direct or indirect Subsidiaries of the Company from time to time party hereto,
the "DEBTORS") in favor of XXXXXX XXXXXXXXX CAPITAL PARTNERS II, L.P., a
California limited partnership ("SECURED PARTY").
RECITALS
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A. The Debtor, Overhill Ventures and Secured Party are parties to that
certain Amended and Restated Security Agreement dated as of October 29, 2002, as
amended by an Amendment to Amended and Restated Security Agreement dated as of
April 4, 2003, and a Second Amendment to Amended and Restated Security Agreement
dated as of April 16, 2003 (as so amended, the "SECURITY AGREEMENT"), pursuant
to which, among other things, the Debtors granted to Secured Party security
interests and liens in and to the Collateral to secure the payment and
performance of all Obligations as provided for therein. Capitalized terms used
and not defined herein have the meanings set forth in the Security Agreement.
B. On or about September 11, 2003, Overhill Ventures was fully and
finally dissolved in accordance with Applicable Laws. Accordingly Overhill
Ventures is no longer a party to, or a Debtor under, the Security Agreement.
C. Concurrently herewith, the parties hereto are entering into that
certain Third Amendment to Second Amended and Restated Securities Purchase
Agreement dated as of October 31, 2003, which amends further that certain Second
Amended and Restated Securities Purchase Agreement dated as of April 16, 2003
(as previously amended, the "SECURITIES PURCHASE AGREEMENT"), among the Company,
the entities from time to time a party thereto as Guarantors and the Secured
Party.
D. The parties wish to amend further Schedule 3 (Bank Accounts,
Instruments and Chattel Paper) to the Security Agreement as provided for herein.
AGREEMENT
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NOW, THEREFORE, in consideration of the promises and of the mutual
covenants contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
amend the Security Agreement as follows:
1. AMENDMENT TO SCHEDULE 3 (BANK ACCOUNTS, INSTRUMENTS AND CHATTEL
PAPER) TO SECURITY AGREEMENT. Pursuant to Section 19 of the Security Agreement,
Schedule 3 (Bank Accounts, Instruments and Chattel Paper) to the Security
Agreement is hereby amended by replacing such Schedule in its entirety with
Schedule 3 attached hereto which, from and after the date hereof, shall be a
part thereof.
2. ACKNOWLEDGMENT AND CONFIRMATION OF SECURITY INTEREST. The Debtor
hereby confirms and ratifies its prior assignment and grant of, and assigns and
grants to Secured Party, a valid, enforceable and continuing security interest
and Lien in and to all of the Debtor's right, title and interest in, to and
under the Collateral, subject only to the Liens in favor of the Senior Lender as
provided in the Security Agreement.
3. RATIFICATION. The Debtor acknowledges that the Security Agreement,
as amended hereby, shall remain binding upon the Debtor and all provisions
thereof shall remain in full force and effect. The Debtor expressly ratifies and
reaffirms its obligations to Secured Party under the Security Agreement and the
other Collateral Documents.
4. MISCELLANEOUS.
4.1 COMPLETE AGREEMENT. The Security Agreement, as amended by
this Amendment, constitutes the complete agreement among the parties with
respect to the subject matter hereof and thereof and supersedes any prior
written or oral agreements, writings, communications or understandings of the
parties hereto and thereto, with respect to such matter.
4.2 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.
4.3 GOVERNING LAW. 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.
4.4 NO LIMITATION ON RIGHTS. This Amendment amends the
Security Agreement on and as of the date hereof, and the Security Agreement, as
amended hereby, shall remain in full force and effect in accordance with its
terms. The execution, delivery and effectiveness of this Amendment shall not (a)
limit, impair, constitute a waiver by, or otherwise affect any right, power or
remedy of, Secured Party under the Security Agreement, as amended hereby, or any
other Investment Document, (b) constitute a waiver of any provision in the
Security Agreement or any other Investment Document or (c) except as set forth
in this Amendment, alter, modify, amend or in any way affect any of the terms,
conditions, obligations, covenants or agreements contained in the Security
Agreement or any other Investment Document, all of which are ratified and
affirmed in all respects and shall continue in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the date first written above.
DEBTOR
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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
ACKNOWLEDGED AND ACCEPTED:
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SECURED PARTY
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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.,
its General Partner
By: /S/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Vice President
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