EXHIBIT 10.13
November 14, 2001
Galaxy Nutritional Foods, Inc.
0000 Xxxxxxxx Xxx
Xxxxxxx, XX 00000
Attention: Xx. Xxxxxx Xxxxxx, Chief Executive Officer
Re: Galaxy Nutritional Foods, Inc.
Dear Xx. Xxxxxx:
Galaxy Nutritional Foods, Inc. (the "Company") has requested that
FINOVA Mezzanine Capital, Inc. ("FMC") waive certain Events of Default which
have occurred under that certain Loan Agreement dated September 30, 1999 between
the Company and FMC, as amended from time to time (the "Loan Agreement"). Unless
otherwise defined, all capitalized terms herein shall have the meaning given in
the Loan Agreement.
Subject to satisfaction of the conditions set forth below, FMC hereby
waives the Events of Default under Section 5.1.3 of the Loan Agreement which
have arisen by virtue of Borrower's failure to maintain the required Funded Debt
to EBITDA Ratio as of the fiscal quarter ended September 30, 2001 as set forth
in Section 3.22 of the Loan Agreement and Borrower's failure to maintain the
required Debt Service Coverage Ratio as of its fiscal quarter ended September
30, 2001 pursuant to Section 3.23 of the Loan Agreement.
The waivers granted herein are expressly conditioned upon Borrower
executing an allonge to the Second Amended and Restated Secured Promissory Note
("Note") dated July 12, 2001 from the Company to FMC in the original principal
amount of $4,000,000 amending such Note to provide that the maturity thereof
shall be October 15, 2002, in form and substance acceptable to FINOVA, and
Borrower's payment to FINOVA of a waiver fee ("Waiver Fee") in the amount of
$10,000, which fee shall be deemed fully earned on the date hereof and due and
payable on December 31, 2001.
Borrower hereby authorizes FINOVA Capital Corporation ("FINOVA") to
cause advance(s) to be made under that certain Security Agreement (Accounts
Receivable, Inventory, and Equipment) between Borrower and FINOVA dated November
1, 1996 and to utilize the proceeds of such advance(s) to satisfy Borrowers
Obligations to pay the Waiver Fee and any other interest, fees, commissions,
charges, costs and expenses incurred with or in respect of the Loan Agreement.
Galaxy Nutritional Foods, Inc.
Attention: Xx. Xxxxxx Xxxxxx, President
November 14, 2001
Page 2
Except as specifically waived hereby, the Loan Agreement and other
documents, instruments or agreements entered into, executed or delivered in
connection therewith (collectively, the "Loan Documents") shall remain in full
force and effect and are hereby ratified and confirmed, and the execution,
delivery and performance of this limited waiver and consent shall not, except as
expressly provided herein, operate as a waiver of any right, power or remedy of
the undersigned under the Loan Documents. Without limiting the generality of the
foregoing, the waiver set forth above shall be limited precisely as set forth
above, and nothing in this limited waiver and consent shall, except as expressly
provided herein, operate as a waiver of any right, power or remedy of the
undersigned under the Loan Documents. Without limiting the generality of the
foregoing, the waiver set forth above shall be limited precisely as set forth
above, and nothing in this limited waiver and consent shall be deemed (i) to
constitute a waiver of compliance by Borrower with respect to any other
provision of the Loan Agreement or other Loan Documents, or (ii) to prejudice
any right or remedy that the undersigned may now have or may have in the future
under or in connection with the Loan Agreement or any other Loan Document.
Sincerely,
FINOVA Mezzanine Capital, Inc.
By: /s/ Xxxxxxx X. XxXxxxxx
------------------------------------
Name: Xxxxxxx XxXxxxxx
Title: Vice President
Agreed to and Acknowledged this 14th day of November 2001.
GALAXY NUTRITIONAL FOODS, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chairman, President & Chief Executive Officer
