EXHIBIT 10.11
RECOGNITION, SUBORDINATION and
LIMITED WAIVER AGREEMENT
Agreement entered into as of the 17th day of October, 1996 by and among
Technology Flavors & Fragrances, Inc., a Delaware corporation with offices
located at 00 Xxxxxx Xxxxxx Xxxx, Xxxxxxxxxx, XX 00000 ("Borrower"), North Fork
Bank, a New York banking corporation with offices located 000 Xxxx Xxxx,
Xxxxxxxxx, Xxx Xxxx 00000 ("Bank"), and each of the "Purchasers" (the
"Purchasers") from time to time party to the Purchase Agreement dated as of
October 17, 1996 by and among the Borrower and the Purchasers (the "Purchase
Agreement").
WHEREAS, the Borrower is currently indebted to the Bank under certain loan
obligations evidenced, in part, by an existing Term Loan Agreement dated
December 4, 1995 in the outstanding principal amount of $3,500,000 (the "Term
Loan"), and that certain existing Modified Revolving Credit Note dated as of
June 3, 1996 in the principal face amount of $2,000,000 and the current
outstanding principal amount of $1,450,000 (the "Existing Revolving Loan"); and
WHEREAS, the Borrower has requested that the Bank consolidate and modify
the terms and provisions of the Term Loan and the Existing Revolving Loan into a
single loan facility in the aggregate principal amount of $5,500,000 (the "New
Revolving Loan") (for purposes hereof, the Term Loan, the Existing Revolving
Loan and the New Term Loan are collectively referred to herein as the "Loan")
pursuant to a Consolidated, Modified Revolving Credit Note made by the Borrower
payable to the order of the Bank (the "New Note"); and
WHEREAS, the Borrower intends to enter into the Purchase Agreement pursuant
to which each Purchaser will purchase from the Borrower certain nine (9%)
percent Convertible Subordinated Notes (the "Subordinated Notes") and warrants
to purchase common stock of the Borrower, all as more particularly outlined in
that certain Purchase Agreement (the "Purchase Agreement"), a copy of which has
been provided to the Bank (the aforementioned transaction is referred to herein
as the "HVF Transaction"); and
WHEREAS, the obligations of the Borrower to the Purchasers will be
guaranteed by the Borrower's wholly-owned subsidiary, Technology Flavors &
Fragrances, Inc., an Ontario corporation (the "Guarantor"), pursuant to a
Guaranty substantially in the form of Exhibit E to the Purchase Agreement; and
WHEREAS, the obligations of the Borrower and the Guarantor to the
Purchasers will be secured by the collateral security described in the Security
Agreements substantially in the forms of Exhibits G and L, respectively, to the
Purchase Agreement; and
WHEREAS, consummation of the HVF Transaction would violate, and be
prohibited by, certain covenants and restrictions imposed upon the Borrower in
the documents evidencing the Loan; and
WHEREAS, the Borrower and the Purchaser have requested that the Bank
consent to the HVF Transaction (including, without limitation, the Guaranty and
Security Agreements described above); and
WHEREAS, the documents evidencing the Loan include a negative covenant
whereby the Borrower is prohibited from making or suffering advances to
shareholders and/or officers in excess of $10,000 per year; and
WHEREAS, the Borrower has indicated to the Bank that it has made advances
to Xxxxxx Xxxxxx and A. Xxxx Xxxxxxxx in violation of the foregoing covenant and
has requested that the Bank consent to said advances and waive the declaration
of a default based upon same; and
WHEREAS, the Bank has conditionally consented to the aforementioned
requests for the New Revolving Loan and to the HVF Transaction on those terms
and conditions set forth herein and in the commitment letter issued by the Bank
dated October 1, 1996;
NOW, THEREFORE, in consideration of the mutual covenants, obligations and
provisions set forth herein, and other good and valuable consideration, it is
hereby mutually agreed as follows:
1. Payment of any moneys by the Borrower to the Purchaser under the
terms of the Subordinated Notes, and the application of any assets of the
Borrower to the purchase, acquisition and/or retirement of the Subordinated
Notes, shall in all respects be subject to the terms hereof.
2. The Borrower agrees that it shall notify the Bank of any
intention to pay or apply, any moneys or assets, toward the obligations
evidenced by the Subordinated Notes no later than ten (10) days prior to the
date of said intended payment or application. The Notice required hereby shall
be accompanied by a signed written statement executed by an authorized officer
of the Borrower confirming that said payment or application will comply in all
respects with the terms and provisions hereof, together with all documentation
as shall be requested by the Bank in order to confirm that: (a) no Event of
Default (as defined in the New Note) has occurred in respect of the payment of
principal or interest under the Loan within the six (6) month period prior to
the date of said intended payment or application, (b) no Event of Default has
occurred with respect to the financial test covenants under the Loan within
fiscal quarter
immediately preceding the date of said intended payment or application and
(c) said payment and/or application will not cause or constitute an Event of
Default under the Loan.
3. The Borrower and the Purchaser acknowledge and agree that no
payment of any moneys shall be made, nor shall any assets be applied to the
purchase or other acquisition and/or retirement of the Subordinated Notes in the
event that:
(a) In the event that the Bank shall at any time accelerate the
maturity of the Loan;
(b) In the event that the Bank shall have notified the Purchasers
prior to the date of said intended payment or application that an
Event of Default in the payment of principal or interest shall have
occurred under the Loan within the last six (6) months prior to the
date of such payment or application;
(c) In the event that the Bank shall have notified the Purchasers prior to
the date of said intended payment or application that an Event of Default
shall have occurred with respect to the financial test covenants under the
Loan within the fiscal quarter immediately preceding the date of such
payment or application, unless ninety (90) days shall have elapsed from the
date that the Bank shall have received notice of said intended payment and
the Bank shall not have accelerated the maturity of the Loan and/or
(d) In the event that the Bank shall have notified the Purchasers prior to
the date of said intended payment or application that said payment and/or
application (with respect to principal only) would cause or constitute an
Event of Default under the Loan. In the event that said payment would
cause or constitute an Event of Default under the Loan with respect to the
financial test covenants, the Borrower may, ninety (90) days after the Bank
shall have received notice of the intended payment, (i) make payment to the
Purchaser in such amount as shall not cause an Event of Default under the
Loan and (ii) pay the balance of moneys due to the Purchaser in twelve (12)
equal monthly installments on the first day of the next twelve (12) months
thereafter provided, however, that during said twelve (12) month period the
Bank shall not accelerate the maturity of the Loan for any Event of Default
(including any Event of Default caused by said payments) in which event all
such payments shall cease in accordance with subsection (a) hereof;
(e) Notwithstanding the foregoing, in no event shall any Purchaser be
prohibited from receiving and retaining amounts due and owing to such
Purchaser for any period exceeding 270 consecutive days from the date that
the Bank shall have first given notice to the Purchasers under (b), (c) or
(d) above, unless the Bank shall have accelerated the maturity of the Loan.
For purposes of this paragraph, any such default as described herein shall
prohibit payment under the Subordinated Notes whether or not the Bank has
exercised its option to formally declare a default.
4. The Borrower and the Purchaser further acknowledge and agree that
the obligations of the Borrower to the Bank are secured by a first security
interest in all assets of the Borrower pursuant to a binding General Security
Agreement and subject UCC filings and that any security interest granted to the
Purchaser by the Borrower remains specifically subject and subordinate thereto.
5. Based upon the terms and conditions set forth herein and upon
consummation of the transaction relative to the New Revolving Loan, the Bank
consents to the HVF Transaction (including, without limitation, the Guaranty and
Security Agreement in favor of the Purchasers).
6. In the event that any moneys are paid, or any assets are applied,
toward or in payment of the Subordinated Notes in violation of this Agreement,
the Purchaser shall immediately deliver same to the Bank in the form received
(except for any endorsement or assignment where required by the Bank) for
application by the Bank to the Borrower's obligations under the Loan and until
so delivered, same shall be held in trust by the Purchaser for said purpose.
7. The Borrower represents that it shall in all respects utilize the
proceeds of the HVF Transaction solely for either (a) payment of the Loan or (b)
working capital purposes.
8. The Purchaser acknowledges that the Borrower and the Bank may
from time to time enter into agreements modifying, extending, renewing and/or
waiving certain terms and/or conditions of the Loan as shall hereafter be agreed
upon by both the Borrower and the Bank. The Purchaser agrees that no such
agreement or agreements shall in any way affect this Agreement and that (a) the
obligations of the Borrower to the Purchaser under the Subordinated Notes shall
remain subordinate to the obligations of the Borrower to the Bank under the
Loan, as modified, extended, renewed and/or waived, and (b) any security
interest granted by the Borrower to the Purchaser shall remain specifically
subordinate to that certain existing security interest granted by the Borrower
to the Bank.
9. The Bank hereby consents to those certain existing advances made
by the Borrower to Xxxxxx Xxxxxx and/or A. Xxxx Xxxxxxxx, provided (a) the
aggregate principal amount of such advances is less than $40,000, and (b) all
such sums advanced shall be repaid to the Borrower in full no later than
December 31, 1996.
10. The terms, covenants and provisions of this Agreement shall be
binding upon the successors and assigns of the parties hereto.
11. This Agreement shall be governed by and interpreted in accordance
with the laws of the State of New York.
12. This Agreement (including this Section "12") may not be changed,
modified, amended, waived, discharged, abandoned or terminated except by a
written instrument executed by the party against whom enforcement of such
modification, amendment, waiver, discharge, abandonment or termination is
sought.
13. Any notice required hereunder shall be in writing and shall be
deemed sufficiently given or served if delivered in person or sent by registered
or certified mail, return receipt requested to the appropriate party (a) if to
the Borrower or the Bank, at their respective addresses specified in the
preamble hereto and (b) if to any Purchaser, to such Purchaser c/o The High View
Fund, L.P., 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx
Xxxxx, or, as to any party, to such other address as may be specified in a
notice given by such party to the other parties in the manner specified herein.
14. The parties hereto by the execution hereof, consents to the
jurisdiction of the Courts of New York State in connection with any dispute or
controversy that may arise hereunder and to the venue of such action in the
Supreme Court of the State of New York, County of Suffolk.
15. The Limited waivers and consents on the part of the Bank as set
forth herein are made as an accommodation to, and at the requests of, the
Borrower and/or the Purchasers. Nothing herein is to be interpreted as imposing
any obligation on the Bank to waive, or consent to, any violation of any
covenant or provision set forth in the documents evidencing the Loan except as
expressly set forth herein. This Agreement is specifically limited to its terms.
16. Failure or delay on the part of the Bank to pursue or enforce any
right hereunder shall not in any way be deemed a waiver of said right in any
other instance.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the day and year first above written.
NORTH FORK BANK
By: /s/ Xxxxx X. Xxxxxx
_______________________________
Xxxxx X. Xxxxxx, Vice President
TECHNOLOGY FLAVORS & FRAGRANCES, INC.
By: /s/ Xxxxxx Xxxxxx
________________________
Xxxxxx Xxxxxx, President
THE HIGH VIEW FUND, L.P.
By: High View Capital Corporation, General Partner
By: /s/
________________________
Managing Director
THE HIGH VIEW FUND
By: High View Asset Management Corp., its attorney-in-fact
By: /s/
________________________
Managing Director
