Exhibit
10.21


 


SIXTH
AMENDMENT AND MODIFICATION TO


LOAN AND SECURITY AGREEMENT


 


THIS SIXTH
AMENDMENT AND MODIFICATION TO LOAN AND SECURITY AGREEMENT (the “Amendment”)
is made this 24 day of November, 2003, by and among SHERWOOD BRANDS OF VIRGINIA, LLC (“VA”), SHERWOOD BRANDS, LLC
(“MD”), SHERWOOD BRANDS OF RI, INC. (“RI”),
ASHER CANDY, INC. (formerly known as Asher
Candy Acquisition Corporation) (“Asher”),
SHERWOOD BRANDS, INC. (“Guarantor”) and WACHOVIA BANK, NATIONAL ASSOCIATION, formerly known as First Union
National Bank (the “Lender”).  VA, MD, RI and Asher are referred to
collectively as “Borrowers” or
each as a “Borrower”.


 


BACKGROUND


 


A.            Borrowers,
Guarantor and Lender entered into that certain Loan and Security Agreement
dated June 12, 2001 (as amended by that certain First Amendment and
Modification to Loan and Security Agreement dated April 30, 2002, that certain
Second Amendment and Modification to Loan and Security Agreement dated
September 5, 2002, that certain Third Amendment and Modification to Loan and
Security Agreement dated April 7, 2003, that certain Fourth Amendment and
Modification to Loan and Security Agreement dated May 30, 2003, that certain
Fifth Amendment and Modification to Loan and Security Agreement dated July 30,
2003 (the “Fifth Amendment”) and as the same may
be further amended from time to time, the “Loan
Agreement”).


 


B.            Borrowers,
Guarantor and Lender desire to further amend the Loan Agreement in accordance
with the terms and conditions set forth herein.


 


NOW,
THEREFORE, intending
to be legally bound hereby, the parties hereto agree as follows:


 


1.             Temporary Line Increase.  Commencing the date hereof through and
including January 31, 2004 only, Section 10.1(a)
of the Loan Agreement, “Maximum Credit Amount”, is amended by replacing the
reference to “$18,000,000.00” with “20,000,000.00”.  Commencing February 1, 2004 and at all times
thereafter, Section 10.1(a) of the Loan
Agreement, “Maximum Credit Amount”, shall be “$18,000,000.00”.  Borrowers’ obligations in respect of sums due
under Revolving Loans and Letters of Credit shall continue to be evidenced by
that certain Amended and Restated Revolving Note from Borrowers to Lender dated
April 30, 2002 in the face amount of Twenty-Five Million Dollars
($25,000,000.00).


 


2.             Conditions of
Amendment.  The continued
effectiveness of the conditions of this Amendment is subject to the performance
by Borrowers of all of their agreements to be performed under the Loan
Agreement, the other Loan Documents, hereunder and to the following further
conditions:


 


(a)           No Revolving Loan or other extension of credit based on
the Permitted Out-of-Formula Amount shall be outstanding as of the date hereof
and no Permitted Out-of-Formula Amount shall be available to Borrowers
hereafter.


 





















 


(b)           On or before the date hereof, Borrowers shall deliver to
Lender a schedule, which shall be in form satisfactory to Lender, detailing the
(i) fixed assets of Borrower sold or moved to a location outside of the United
States since July 30, 2003 or scheduled to be sold or moved to a location
outside of the United States, (ii) estimated sale price or appraised value of
such fixed assets and (iii) date or estimated timing of such sale or move.  Any such sale or movement of fixed assets
shall be further subject to the terms and conditions of Section 8
of the Fifth Amendment.


 


(c)           On or before December 22, 2003, Borrowers shall deliver to
Lender a reforecast of Borrowers’ budget and business plan for Borrowers’
fiscal year ending July 31, 2004 which shall include, inter alia,
 (i) actual results of Borrowers’
operations through November 30, 2003, (ii) for the balance of such fiscal year,
projected consolidated  balance
sheets, statements of income and statements of cash flows of Borrowers on a
monthly basis for such fiscal year and (iii) for the balance of such fiscal
year, projected sources and usage of cash, projected Borrowing Base and
projected Net Excess Availability on a weekly basis for such fiscal year.  All of the foregoing shall be in such form,
and shall be accompanied by, such information with respect to the business of
Borrowers and/or their subsidiaries as Lender may request from time to time.


 


3.             Subordinated Debt.


 


(a)           Notwithstanding
anything to the contrary contained in that certain Subordination Agreement
effective as of July 30, 2003 by and among Lana, LLC (“Creditor”),
Borrowers, Guarantor and Lender (the “Subordination Agreement”),
Borrowers and Guarantor hereby agree that Creditor shall not be paid anything
(of any kind or character) on account of the principal of or interest on any
Subordinated Debt (as defined in the Subordination Agreement) or any other sums
payable in connection therewith and no Borrower or Guarantor will make, either
directly or indirectly, payment (of any kind or character) of all or any part
of the Subordinated Debt (as defined in the Subordination Agreement) or any
other sums payable in connection therewith until (i) Lender has given Creditor
written notice that the “Maximum Credit Amount” set forth in Section 10.1(a) of the Loan Agreement
has been reduced to $18,000,000.00 and (ii) Borrowers, Guarantor and Creditor
have complied with all of the terms and conditions set forth in the
Subordination Agreement.


 


(b)           Borrowers and Guarantor acknowledge and agree that (i) the
only indebtedness of any Borrower and/or Guarantor to Creditor is the
indebtedness evidence by the Subordinated Note (as defined in the Subordination
Agreement) and (ii) any additional loans from Creditor to any Borrower and/or
Guarantor are included within the term Subordinated Debt and are subject to the
terms and conditions hereof and of the Subordination Agreement.  Borrowers and Guarantor further acknowledge
and agree that, as of the date hereof, the outstanding principal balance of the
Subordinated Note is Two Million Dollars ($2,000,000.00).


 


(c)           In addition to all of the other terms and conditions set
forth herein, this Amendment is contingent upon delivery to Lender, on of the
following: (i) the original of the Subordinated Note (as defined in the
Subordination Agreement) and (ii) an executed copy of any other documents
evidencing the Subordinated Debt and/or the Subordinated Debt Collateral (each
as defined in the Subordination Agreement).


 


4.             Amendment Fee.  Contemporaneously
with the execution of this Amendment, and in addition to all other sums due
under the Loan Agreement and under the other Loan Documents, Borrowers shall
pay to Lender an amendment fee in the amount of Five Thousand Dollars


 





















 


($5,000.00) (the “Amendment Fee”),
which has been fully earned by Lender as of the date hereof.  The Amendment Fee may be deducted from any
account of any Borrower maintained with Lender or charged as a Revolving Loan.


 


5.             Further Agreements
and Representations. Each Borrower and Guarantor does hereby:


 


(a)           ratify, confirm and acknowledge that, as amended hereby,
the Loan Agreement and the other Loan Documents are valid, binding and in full
force and effect;


 


(b)           covenant and agree to perform all of such Borrower’s and
Guarantor’s obligations under the Loan Agreement and the other Loan Documents,
as amended;


 


(c)           acknowledge and agree that as of the date hereof, neither
any Borrower nor Guarantor has any defense, set-off, counterclaim or challenge
against the payment of any sums owing under any of the Obligations, as amended,
or the enforcement of any of the terms of the Loan Agreement or of the other
Loan Documents, as amended;


 


(d)           acknowledge and agree that except as heretofore disclosed
to Lender by Borrowers in writing, all representations and warranties of
Borrowers and Guarantor contained in the Loan Agreement and/or the other Loan
Documents, as amended, are true, accurate and correct on and as of the date
hereof as if made on and as of the date hereof;


 


(e)           represent and warrant that, after giving effect to this
Amendment, no Event of Default or event which with the delivery of notice,
passage of time or both would constitute an Event of Default exists or will
exist and all information described in the foregoing Background is true and
accurate; and


 


(f)            covenant and agree that Borrowers’ or Guarantor’s failure
to comply with the terms of this Amendment or any of the documents executed or
delivered to Lender pursuant to the terms hereof shall constitute an Event of
Default under the Loan Agreement.


 


6.             Additional Documents;
Further Assurances. 
Borrowers and Guarantor covenant and agrees to execute and deliver to
Lender, or to cause to be executed and delivered to Lender contemporaneously
herewith, at the sole cost and expense of Borrowers, all documents, agreements,
statements, resolutions, certificates, consents and information as Lender may
require in connection with the matters or actions described herein.  Borrowers and Guarantor further covenant and
agree to execute and deliver to Lender or to cause to be executed and delivered
at the sole cost and expense of Borrowers, from time to time, any and all other
documents, agreements, statements, certificates and information as Lender shall
reasonably request to evidence or effect the terms hereof, the Loan Agreement,
as amended, or any of the other Loan Documents, or to enforce or to protect
Lender’s interest in the Collateral.  All
such documents, agreements, statements, etc., shall be in form and content
acceptable to Lender in its reasonable sole discretion.


 


7.             Release. Borrowers and Guarantor acknowledge and
agree that they have no claims, suits or causes of action against Lender and
hereby remise, release and forever discharge Lender and its officers,
directors, shareholders, employees, agents, successors and assigns from any
claims, suits or causes of action whatsoever, in law or equity, which any
Borrower or Guarantor has or may have


 





















 


arising from any act, omission or otherwise, at any time up to and
including the date of this Amendment.


 


8.             Certain Fees,
Costs, Expenses And Expenditures.  Borrowers will pay all of the Lender’s
expenses in connection with the review, preparation, negotiation, documentation
and closing of this Amendment and the consummation of the transactions
contemplated hereunder, including without limitation, fees, disbursements,
expenses, appraisal costs and fees and expenses of counsel retained by Lender
and all fees related to filings, recording of documents and searches, whether
or not the transactions contemplated hereunder are consummated.  Nothing contained herein shall limit in any
manner whatsoever Lender’s right to reimbursement under any of the Loan
Documents.


 


9.             No Further
Amendment; No Course of Dealing. 
Nothing contained herein constitutes an agreement or obligation by
Lender to grant any further amendments with respect to any of the Loan
Documents.  Any waiver or implied waiver
by Lender of any obligations or covenants of Borrowers, Guarantor or any of
them, under the Loan Documents is expressly terminated and rescinded and
Borrowers shall strictly perform and comply with all obligations and covenants
under the Loan Documents.


 


10.           Inconsistencies.
To the extent of any inconsistencies between the terms and conditions of this
Amendment and the terms and conditions of the Loan Agreement, the terms and
conditions of this Amendment shall prevail. All terms and conditions of the
Loan Agreement not inconsistent herewith shall remain in full force and effect
and are hereby ratified and confirmed by Borrowers.


 


11.           Construction.  Any capitalized terms used in this Amendment
not otherwise defined shall have the meaning as set forth in the Loan
Agreement.


 


12.           Binding Effect.  This Amendment, upon due execution hereof,
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.


 


13.           Governing Law.  This Amendment shall be governed and
construed in accordance with the laws of the Commonwealth of Pennsylvania.


 


14.           Severability.  The provisions of this Amendment and all
other Loan Documents are deemed to be severable, and the invalidity or
unenforceability of any provision shall not affect or impair the remaining
provisions which shall continue in full force and effect.


 


15.           No Third Party
Beneficiaries.  The rights
and benefits of this Amendment and the Loan Documents shall not inure to the
benefit of any third party.


 


16.           Headings.  The headings of the Articles, Sections,
paragraphs and clauses of this Amendment are inserted for convenience only and
shall not be deemed to constitute a part of this Amendment.


 


17.           Counterparts.  This Amendment may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Amendment by signing
any such counterpart.


 





















 


IN WITNESS
WHEREOF, the parties
hereto, intending to be legally bound hereby, have caused this Amendment to be
executed the day and year first above written.


 


	
  LENDER:

  	
   

  	
  BORROWERS:

  
	
   

  	
   

  	
   

  	
   

  
	
  WACHOVIA
  BANK,

  NATIONAL ASSOCIATION

  	
   

  	
  SHERWOOD
  BRANDS OF VIRGINIA,

  LLC

  
	
   

  	
   

  	
  a Virginia limited
  liability company

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   /s/
  George C. Kyvernitis

  	
   

  	
  By:

  	
  SHERWOOD
  BRANDS, INC.,

  
	
  George C. Kyvernitis, Vice President

  	
   

  	
  Sole Member

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Amir Frydman

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Amir Frydman

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SHERWOOD BRANDS, LLC,

  
	
   

  	
   

  	
  a Maryland limited liability company

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  SHERWOOD BRANDS, INC.,

  
	
   

  	
   

  	
   

  	
  Sole Member

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Amir Frydman

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Amir Frydman

  
	
   

  	
   

  	
   

  	
   

  	
  Executive Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SHERWOOD BRANDS OF RI, INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Amir Frydman

  	
   

  
	
   

  	
   

  	
   

  	
  Amir Frydman

  
	
   

  	
   

  	
   

  	
  Executive Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ASHER CANDY, INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Amir Frydman

  	
   

  
	
   

  	
   

  	
   

  	
  Amir Frydman

  
	
   

  	
   

  	
   

  	
  Executive Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  GUARANTOR:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SHERWOOD BRANDS, INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Amir Frydman

  	
   

  
	
   

  	
   

  	
   

  	
  Amir Frydman

  
	
   

  	
   

  	
   

  	
  Executive Vice President