EXHIBIT 10.15
AMENDMENT AND LIMITED WAIVER
TO SECURITY AGREEMENT
This Amendment and Limited Waiver to Security Agreement (Accounts
Receivable, Inventory and Equipment) (this "Amendment") dated as of February 13,
2002, is entered into by and between GALAXY NUTRITIONAL FOODS, INC. ("Borrower")
and FINOVA CAPITAL CORPORATION ("FINOVA"), in reference to that certain Security
Agreement (Accounts Receivable, Inventory and Equipment) between them dated
November 1, 1996 (as amended from time to time, the "Loan Agreement";
capitalized terms used herein, unless otherwise defined, shall have the meanings
set forth in the Loan Agreement).
A. FINOVA currently provides financial accommodations to Borrower
pursuant to the terms of the Loan Agreement.
B. Borrower has notified FINOVA that Events of Default have
occurred under the Loan Agreement due to Borrower's failure to comply with the
minimum Total Debt Service Coverage Ratio and the Capital Expenditure
limitations set forth therein.
C. Borrower has requested that FINOVA grant a waiver of the
Events of Default and amend the Loan Agreement as provided herein. FINOVA
consents to Borrower's requests on the terms and subject to the conditions set
forth in this Amendment.
NOW THEREFORE, the parties hereto agree as follows:
1. Waiver. FINOVA hereby waives Borrower's duty to comply with
the minimum ratio of Operating Cash Flow/Actual to Total Contractual Debt
Service set forth in Section 6.18 of the Loan Agreement for the fiscal quarter
ended December 31, 2001. FINOVA also hereby waives Borrower's duty to comply
with the Capital Expenditure limitation set forth in Section 6.19 of the Loan
Agreement for the twelve (12) months ended December 31, 2001. The limited
waivers provided herein shall apply solely to the covenant violations described
above as of the periods referenced above. In all other respects, Borrower shall
comply with the terms of the Loan Agreement and the instruments, documents and
agreements executed in connection therewith, as amended hereby.
2. Amendments. The Loan Agreement is amended as follows:
(a) Section 3.1 of the Loan Agreement is deleted in its
entirety and replaced with the following:
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3.1. FINOVA is authorized to charge the
Borrower's loan account as an advance on the first day of each
month as follows (a) all costs and expenses and (b) interest
on Borrower's monthly average loan balance (inclusive of all
advances made pursuant to paragraph 2.1 of this Agreement,
together with all costs and expenses charged to Borrower's
account) which shall be payable by Borrower to FINOVA on the
Borrower's monthly average Revolving Line of Credit at the per
annum Prime Rate (as defined below) plus four percent (4%) per
annum (the "Interest Rate"). As used herein, the term "Prime
Rate" shall be deemed to mean the prime commercial rate as
published from time to time in the Wall Street Journal, in
effect on the date hereof (whether or not such rate is the
lowest rate available by FINOVA) and as same may be adjusted
upwards or downwards from time to time. Any change in the
Interest Rate shall become effective on the first day
following the day in which the Prime Rate shall have been
increased or decreased, as the case may be. The Interest Rate
shall be calculated based on a three hundred sixty (360) day
year for the actual number of days elapsed and shall be
charged to Borrower on all Obligations. All interest charged
or chargeable to Borrower shall be deemed as an additional
advance and shall become part of the Obligations.
3. Cash Remittances. In addition to the cash Collection required
under Section 5.1 of the Loan Agreement, Borrower shall immediately remit to
FINOVA all cash received by Borrower from time to time including, without
limitation, any proceeds of any additional equity or subordinated debt raised by
Borrower at any time. Such funds may be deposited into the FINOVA sweep account
or may be wired directly to FINOVA for next day availability.
4. Reaffirmation. Except as amended by the terms herein, the Loan
Agreement and each of the other documents, instruments and agreements executed
and delivered in connection therewith remain in full force and effect in
accordance with their terms. If there is any conflict between the terms and
conditions of the Loan Agreement and the terms and provisions of this Amendment,
the terms and provisions of this Amendment shall govern.
5. Release. Borrower hereby releases, remises, acquits and
forever discharges FINOVA and FINOVA's employees, agents, representatives,
consultants, attorneys, fiduciaries, servants, officers, directors, partners,
predecessors, successors and assigns, subsidiary corporations, parent
corporations and related corporate divisions (all of the foregoing hereinafter
called the "Released Parties"), from any and all actions and causes of action,
judgments, executions, suits, debts, claims, demands, liabilities, obligations,
damages and expenses of any and every character, known or unknown, direct and/or
indirect, at law or in equity, of whatsoever kind or nature, whether heretofore
or hereafter arising, for or because of any matter or things done, omitted or
suffered to be done by any of the Released Parties prior to and including the
date and execution hereof, and in any way directly or indirectly arising out of
or in any way connected to this Amendment, the Loan Agreement and the other Loan
Documents and the transactions related thereto (all of the foregoing
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hereinafter called the "Released Matters"); provided, however, that the
foregoing release shall not apply to discharge FINOVA from any obligations which
are expressly imposed upon FINOVA pursuant to the terms of this Amendment, the
Loan Agreement, or any of the other Loan Documents, as modified through the date
hereof. Borrower acknowledges that the agreements in this section are intended
to be in full satisfaction of all or any alleged injuries or damages arising in
connection with the Released Matters. Borrower represents and warrants to FINOVA
that it has not purported to transfer, assign or otherwise convey any right,
title or interest of Borrower in any Released Matter to any other Person and
that the foregoing constitutes a full and complete release of all Released
Matters.
6. Borrower reaffirms, ratifies and confirms its Obligations
under the Loan Agreement, acknowledges that all the terms and conditions in the
Loan Agreement (except as amended herein) remain in full force and effect and
further acknowledges that the security interest granted to FINOVA in the
Collateral is valid and perfected.
7. Fee. In consideration of the waiver and amendments granted
herein, Borrower shall pay to FINOVA a fee in the amount of $50,000, which shall
be deemed fully earned on the date hereof and due and payable in six weekly
installments of $8,333.33 beginning on February 14, 2002 and each Thursday
thereafter until fully paid.
8. Counterparts. This Amendment may be executed in multiple
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
9. Governing Law. This Amendment shall be governed by and
construed according to the laws of the State of New York.
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10. Attorneys' Fees and Waiver of Jury Trial. Borrower agrees to
pay, on demand, all attorneys' fees and costs incurred in connection with the
preparation, negotiation, documentation and execution of this Amendment. If any
legal action or proceeding shall be commenced at any time by any party to this
Amendment in connection with its interpretation, enforcement or otherwise
concerning its terms, the prevailing party in such action or proceeding shall be
entitled to reimbursement of its reasonable attorneys' fees and costs in
connection therewith, in addition to all other relief to which the prevailing
party may be entitled. Each of the parties hereto hereby waives any and all
rights to a trial by jury in any such action or proceeding.
FINOVA CAPITAL CORPORATION,
a Delaware corporation
By:
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Print Name:
Title/Capacity:
GALAXY NUTRITIONAL FOODS, INC.
a Delaware corporation
By:
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Print Name:
Title/Capacity:
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