EXHIBIT 10.3
AMENDMENT TO
SECOND AMENDED AND RESTATED
SECURED SENIOR SUBORDINATED NOTE DUE 2006
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THIS AMENDMENT TO SECOND AMENDED AND RESTATED SECURED SENIOR
SUBORDINATED NOTE DUE 2006 is dated October 6, 2004, to be effective as of
September 26, 2004 (this "AMENDMENT"), by and between OVERHILL FARMS, INC., a
Nevada corporation (the "COMPANY"), 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.
B. Contemporaneously herewith, the Company and the Purchaser are
entering into a Fourth Amendment to Second Amended and Restated Securities
Purchase Agreement dated of even date herewith (the "FOURTH Amendment") pursuant
to which, among other things, the parties thereto are further amending the
Second Amended and Restated Securities Purchase Agreement. The Second Amended
and Restated Securities Purchase Agreement, as previously amended (including as
amended by the Fourth Amendment), shall be referred to herein as the "SECURITIES
PURCHASE AGREEMENT."
C. The Purchaser is the holder of that certain Second Amended and
Restated Secured Senior Subordinated Note Due 2006 in the principal amount of
$28,858,000.00, originally issued November 24, 1999, and amended and restated as
of October 29, 2002, and as of October 31, 2003 (the "NOTE"). In connection with
the consummation of the transactions contemplated by the Fourth Amendment, the
parties wish to amend Section 2(b) of the Note on the terms set forth herein.
Unless otherwise indicated, all capitalized terms used and not otherwise defined
herein have the meanings ascribed to them in the Securities Purchase Agreement
or the November 1999 Note, as the case may be.
A G R E E M E N T
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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 amend the Note as follows:
1. AMENDMENT OF DEFINITION OF INTEREST RATE EVENT MEASUREMENT PERIOD.
The preamble of clause (i) of paragraph (b) of Section 2 (Payment of Interest;
Default Rate) of the Note is hereby amended by replacing the preamble of such
clause with the following:
"If the Company fails to achieve, for any measurement
"Period" described in Section 9.14(a), (b) or (c) of the
Securities Purchase Agreement, as applicable (each such
"Period," excluding (x) the trailing four consecutive Fiscal
Quarters ending September 26, 2004, and (y) the trailing four
consecutive Fiscal Quarters ending January 2, 2005, being
referred to herein as an "INTEREST RATE EVENT MEASUREMENT
PERIOD"):"
2. FULL FORCE AND EFFECT. This Amendment amends the Note effective on
and as of the Fourth Amendment Effective Date, and the Note, as amended by this
Amendment, shall remain in full force and effect and is 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.
3. CONFIRMATION OF SECURITY. The Company hereby confirms that the
security interests and Liens granted by the Company under the Collateral
Documents 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 secure the due and punctual
payment, performance and observance of all Secured Obligations (as defined in
the Security Agreement (Company)).
4. ENTIRE AGREEMENT; SUCCESSORS AND ASSIGNS. This Amendment, together
with the Note, 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 Company, the
Holder (including the Purchaser) and their respective successors and permitted
assigns.
5. 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.
6. COUNTERPARTS. This Amendment may be executed in any number of
counterparts and by facsimile transmission, each of which shall be deemed an
original, but all of which taken together shall constitute one and the same
instrument.
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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
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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
PURCHASER
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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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