EXHIBIT 10.11
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 November 14,
2001, 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 September 30, 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 September 30, 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:
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; (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
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annum Prime Rate (as defined below) plus two percent (2%) per
annum (the "Interest Rate") and (c) Letter of Credit Fees ("LC
Fee") in the amount of two percent (2%) of the face amount of
any such Letters of Credit previously issued for the account
of Borrower. 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.
(c) Section 9.1 of the Loan Agreement is deleted in its
entirety and replaced with the following:
9.1. This Agreement shall become effective upon
acceptance by FINOVA and shall continue in full force and
effect for a term ending October 15, 2002, unless and until
terminated pursuant to the terms hereof. FINOVA may terminate
this Agreement upon the occurrence of an Event of Default. No
termination of this Agreement, however, shall relieve or
discharge Borrower of Borrower's duties, obligations and
covenants hereunder until all Obligations have been paid in
full and FINOVA's continuing security in and to the Collateral
shall remain in effect until all such Obligations have been
fully discharged.
(d) Section 9.2 of the Loan Agreement is deleted in its
entirety and replaced with the following:
9.2. If FINOVA terminates this Agreement upon the
occurrence of an Event of Default or if Borrower terminates
this Agreement as to future transactions other than on the
Renewal Date or any anniversary of any Renewal Date, in view
of the impracticality and extreme difficulty in ascertaining
FINOVA's actual damages and by mutual agreement of the parties
as to a reasonable calculation of FINOVA's lost profits as a
result thereof, Borrower agrees that it should immediately pay
to FINOVA by wire transfer, certified check or bank cashier's
check, Borrower's Obligations owing thereunder, plus
liquidated damages in an amount equal to one percent (1%) of
the Line of Credit. Prior to its actual receipt of payment as
aforesaid, FINOVA shall be free to exercise, without
limitation, all of its rights under this Agreement or under
any other agreement it may then have with Borrower. Borrower's
default of any provision under this Agreement may be
considered and construed, at the sole option of FINOVA, as a
termination of this Agreement by Borrower. The liquidated
damages provided for in this paragraph 9.2 shall be deemed
included in the Obligations and shall be presumed to be the
amount of damages sustained by
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FINOVA due to the Borrower's early termination and Borrower
agrees that such damages are reasonable and appropriate under
the circumstances currently existing.
3. Notwithstanding anything to the contrary in the Loan Agreement
or any of the instruments, documents or agreements executed in connection
therewith, effective as of the date hereof, FINOVA shall no longer cause Letters
of Credit to be issued for the benefit of Borrower and no outstanding Letters of
Credit shall be extended or renewed beyond their current expiry date.
4. In addition to all other reporting requirements contained in
the Loan Agreement or in any other instruments, documents or agreements existing
between Borrower and FINOVA, Borrower shall provide to FINOVA weekly accounts
receivable agings and other information regarding its accounts receivable as
FINOVA shall request, in its sole discretion, no later than Wednesday of each
week for the preceding week.
5. The Borrower acknowledges that it owes the following amounts
on or before December 31, 2001: (i) Obligations to pay the deferred portion of
the waiver fee which is due and payable on December 31, 2001 in the amount of
$75,000 ("FINOVA Deferred Waiver Fee") pursuant to the terms of that certain
Amendment and Limited Waiver to Security Agreement dated July 13, 2001 between
FINOVA and Borrower; (ii) Obligations to pay the deferred waiver fee which is
due and payable on December 31, 2001 in the amount of $20,000 ("FMC Deferred
Waiver Fee") pursuant to the terms of that certain Amendment and Limited Waiver
dated July 13, 2001 between FINOVA Mezzanine Capital, Inc. and Borrower, (iii)
Obligations to FINOVA Mezzanine Capital, Inc. pursuant to its Amended and
Restated Secured Promissory Note dated July 31, 2001, in the original principal
amount of $815,000, which is due and payable on December 29, 2001 ("Mezz Term
Note"), and (iv) Obligations to pay the Waiver Fee which is due and payable on
December 31, 2001 in the amount of $50,000 ("FINOVA Waiver Fee") pursuant to the
terms of this certain Amendment and Limited Waiver to Security Agreement dated
November 14, 2001 between FINOVA and Borrower. Borrower hereby authorizes FINOVA
to cause advance(s) to be made under the revolving line of credit and to utilize
the proceeds of such advance(s) to satisfy Borrower's Obligations to pay the
FINOVA Deferred Waiver Fee, the FMC Deferred Waiver Fee, and the FINOVA Waiver
Fee (items i, ii, and iv, respectively) as and when due. In addition, Borrower
agrees to pay to FINOVA the first $815,000 immediately upon receipt of any new
capital raised prior to December 29, 2001 to ensure timely payment of the Mezz
Term Note.
6. 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.
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 on December 31,
2001.
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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.
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: /s/ Xxxxxxx X. XxXxxxxx
Print Name: Xxxxxxx X. XxXxxxxx
Title/Capacity: Vice President
GALAXY NUTRITIONAL FOODS, INC.
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxx
Print Name: Xxxxxx X. Xxxxxx
Title/Capacity: Chairman, President & CEO
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