Exhibit 16.1
[LOGO]
Textron Financial Corporation, Subsidiary of Textron Inc.
THIRD AMENDMENT
TO
LOAN AND SECURITY AGREEMENT
This Third Amendment to Loan and Security Agreement (the "Amendment")
is executed as of November 10, 2004 (the "Effective Date"), by and between
GALAXY NUTRITIONAL FOODS, INC., a Delaware corporation ("Borrower"), and TEXTRON
FINANCIAL CORPORATION, a Delaware corporation ("Lender").
RECITALS
A. Lender and Borrower have established a discretionary revolving
credit facility pursuant to that certain Loan and Security Agreement dated as of
May 27, 2003, as may have been previously amended, modified or supplemented (the
"Agreement"). All documents, agreements and/or instruments executed in
connection with the Agreement are hereinafter collectively referred to as the
"Transaction Documents."
B. Lender and Borrower wish to amend certain provisions of the
Agreement, as provided in this Amendment.
AGREEMENT
In reliance on the representations, warranties and covenants of
Borrower set forth in the Agreement, as hereby amended, Lender and Borrower
agree as follows:
1. Capitalized terms not defined in this Amendment shall have the
definitions given to them in the Agreement, where applicable, or the Uniform
Commercial Code of the State of Rhode Island (the "UCC"), as the same may be
amended from time to time. If there are conflicting definitions in the Agreement
and the UCC, the definition in the Agreement shall control.
2. From and after the Effective Date, the Agreement is amended to
insert "Employment Contract" as a defined term in the Definitions section as
follows:
"Employment Contract" means the Second Amended and Restated
Employment Agreement effective October 13, 2003 by and between
Borrower and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, and the Separation and
Settlement Agreement dated July 8, 2004 by and between
Borrower and ▇▇▇▇▇▇▇▇▇▇▇ ▇. New.
3. The parties to this Amendment acknowledge and agree that the
security interests created pursuant to the Agreement shall remain in full force
and effect and shall constitute the legal, valid, binding and enforceable
obligations of Borrower. Without limiting the generality of the foregoing, the
parties expressly do not intend to extinguish any security interest created by
the Agreement or the Transaction Documents.
4. Borrower hereby represents and warrants to Lender as follows: (a)
except as disclosed in that certain letter dated the date hereof from Borrower
to Lender, the Representations and Warranties contained in Article V of the
Agreement are true and correct as of the date of this Amendment; (b) the
execution, delivery and performance by Borrower of this Amendment have been duly
authorized by all necessary corporate and other action and do not and will not
require any registration with, consent or approval of, or notice to or action
by, any third person party in order to be effective and enforceable; and (c) the
Agreement, as amended, constitutes the legal, valid and binding obligation of
Borrower, enforceable against Borrower in accordance with its terms, without
defense, counterclaim, recoupment or offset.
5. This Amendment shall not be effective until each party named on the
signature pages of this Amendment shall have executed and delivered a
counterpart of this Amendment to the other party.
6. Except as expressly amended in this Amendment, all terms, covenants
and provisions of the Agreement are and shall remain in full force and effect
without further modification or amendment. This Amendment shall be deemed
incorporated into, and made a part of, the Agreement.
7. This Amendment, together with the Agreement, contains the entire and
exclusive agreement of the parties with reference to all matters discussed in
this Amendment, and this Amendment supersedes all prior drafts and
communications with respect thereto.
The undersigned, pursuant to due authority, have caused this Amendment
to be executed as of the date set forth above.
LENDER: BORROWER:
TEXTRON FINANCIAL CORPORATION GALAXY NUTRITIONAL FOODS, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Print Name: ▇▇▇▇ ▇▇▇▇▇▇ Print Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Print Title: Portfolio Manager Print Title: Chief Financial Officer
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