Initial Public Offering (IPO): Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1 Registration Statement (General Form) 112 656K
9: EX-10.10 Amendment No. 2 to Loan and Security Agreement 10 32K
10: EX-10.11 Pledge Agreement, Made as of March 31, 1995 17 46K
11: EX-10.12 Pledge Agreement, Made as of March 31, 1995 16 45K
12: EX-10.13 Subordination Agreement, Dated March 31, 1995 9 34K
13: EX-10.14 Unconditional Guaranty, Made March 31, 1995 12 35K
14: EX-10.15 Subordinated Note, Dated March 31, 1995 16 68K
15: EX-10.16 Subordinated Note, Dated March 31, 1995 11 45K
16: EX-10.17 Form of Distribution Agreement 19 54K
17: EX-10.18 Form of Amendment Agreement 15 24K
18: EX-10.19 Addendum to Form of Distribution Agreement 4 18K
19: EX-10.22 Employment Agreement:Adzia 9 40K
20: EX-10.23 Employment Agreement:Garcia De Quevedo 16 40K
21: EX-10.24 Employment Agreement: Andruskiewicz 9 39K
22: EX-10.25 Employment Agreement:Foley 13 38K
2: EX-10.3 Stock Subscription Warrant, Dated March 31, 1995 26 96K
3: EX-10.4 Agreement Dated November 10, 1994 88 268K
4: EX-10.5 Purchase Agreement Amendment Dated Feb. 24, 1995 25 72K
5: EX-10.6 Second Purchase Agreement Amendment 2 15K
6: EX-10.7 Third Purchase Agreement Amendment 2 14K
7: EX-10.8 Loan and Security Agreement Dated March 31, 1995 185 566K
8: EX-10.9 Amendment No. 1 to Loan and Security Agreement 8 26K
23: EX-21.1 Subsidiaries of the Company 1 8K
24: EX-23.1 Consent of Kpmg Peat Marwick LLP 1 9K
25: EX-23.2 Consent of Price Waterhouse LLP 1 8K
26: EX-27.1 Financial Data Schedule 1 11K
EX-10.13 — Subordination Agreement, Dated March 31, 1995
EX-10.13 | 1st Page of 9 | TOC | ↑Top | Previous | Next | ↓Bottom | Just 1st |
---|
EXHIBIT 10.13
SUBORDINATION AGREEMENT
THIS SUBORDINATION AGREEMENT is dated as of March 31, 1995 and made
by PROSOURCE SERVICES CORPORATION, a Delaware corporation ("ProSource"), and
ONEX CORPORATION, a corporation organized under the laws of Ontario, Canada
("Onex"), in favor of NATIONSBANK OF GEORGIA, N.A., as agent (the
"Administrative Agent") under the Loan and Security Agreement dated as of March
31, 1995 (the "Loan Agreement"; capitalized terms used herein, unless otherwise
defined, being used herein as therein defined), among ProSource, BroMar
Services, Inc., a Delaware corporation ("BroMar"), ProSource Distribution
Services Limited, a Canadian corporation ("ProSource Canada" and together with
ProSource and BroMar, the "Borrowers"), NationsBank of Georgia, N.A.
("NationsBank"), The First National Bank of Boston and Shawmut Capital
Corporation as the Co-Agents, the financial institutions parties thereto from
time to time (the "Lenders"), and the Administrative Agent.
WHEREAS, ProSource is or will be obligated to pay Onex management
fees in the amount of $792,796 per year, which amount may be increased for each
year after 1995 based on the Consumer Price Index - All Urban Consumers -
National Average (published by the United States Department of Labor
Statistics); and
WHEREAS, pursuant to the terms and subject to the conditions of the
Loan Agreement the Lenders will make loans and other extensions of credit to the
Borrowers; and
WHEREAS, the Lenders are unwilling to enter into the Loan Agreement
and to make loans, extensions of credit and other financial accommodations to
the Borrowers thereunder unless ProSource and Onex shall have joined in this
Agreement;
NOW, THEREFORE, for and in consideration of TEN DOLLARS ($10.00) and
other valuable consideration and the mutual covenants herein contained and to
induce the Lenders to provide financial accommodations to the Borrowers,
ProSource and Onex warrant to and covenant with the Administrative Agent and the
Lenders as follows:
SECTION 1. Definitions. In addition to such other terms as
are elsewhere defined herein, as used in this Agreement the following terms
shall have the following meanings:
"Senior Creditor" means each of the Administrative
Agent and the Lenders and each other holder, from time to
time, of any portion of the Senior Debt, including, without
limitation, each creditor that extends credit to the Borrowers (or
any of them) for the purpose of refinancing or repaying the Secured
Obligations, in whole or in part.
"Senior Debt" means the Secured Obligations under the
Loan Agreement, whether now owed or hereafter arising, and any other
Indebtedness incurred in connection with the refinancing or
repayment of the Secured Obligations, in whole or in part, provided
that in the event of a refinancing of the Secured Obligations in
part, then the obligations incurred in connection with such
refinancing shall be Senior Debt only if the Administrative Agent
shall consent thereto by written notice to the holders of such
obligations, ProSource and Onex.
"Subordinated Obligations" means ProSource's cumulative
obligation to pay the Management Fees to the extent that such
obligation exceeds $375,000 in any Fiscal Year and all other loans,
advances, liabilities, debit balances, obligations, covenants and
duties at any time or times owed by ProSource to Onex, whether
direct or indirect, absolute or contingent, secured or unsecured,
due or to become due, now existing or hereafter arising.
SECTION 2. Agreement to Subordinate. Each of Onex and ProSource
agrees that the Subordinated Obligations are and shall be subordinate, to the
extent and in the manner hereinafter set forth, in right of payment to the prior
payment in full of all Senior Debt. For the purposes of this Agreement, the
Senior Debt shall not be deemed to have been paid in full until the Loan
Agreement shall have been terminated and the Senior Creditors shall have
received irrevocable payment of the Senior Debt in immediately available funds
or in another manner satisfactory to the Senior Creditors.
SECTION 3. No Payment on or Collateral for the Subordinated
Obligations. Onex agrees not to ask, demand, sue for, take or receive from any
Borrower, directly or indirectly, in cash or other property or by set-off or in
any other manner payment of or collateral for the payment of all or any of the
Subordinated Obligations unless and until the Senior Debt shall have been paid
in full and, without the prior written consent of the Senior Creditor, will not
exercise any remedies available to it, whether by agreement, at law or equity or
otherwise, in respect of the nonpayment of the Subordinated Obligations.
Notwithstanding the foregoing,
(a) Onex may receive and ProSource may make payments on
the Subordinated Obligations to the extent that such payments are
permitted pursuant to Section 12.6(a) of the Loan Agreement (or any
comparable provision set forth in any
2
agreement evidencing the refinancing of the Secured Obligations in
whole); and
(b) Onex may, at such time as the Senior Debt shall have
been accelerated, take such action, except as set forth in SECTION 5
hereof, as may be available by agreement, at law or equity or
otherwise to enforce the Subordinated Obligations, subject, however,
at all times, to the limitations set forth in this Agreement.
SECTION 4. In Furtherance of Subordination. Onex agrees as
follows:
(a) Upon any distribution of all or any of the assets of
ProSource to its creditors upon the dissolution, winding up,
liquidation, arrangement or reorganization of ProSource, whether in
any bankruptcy, insolvency, arrangement, reorganization or
receivership proceedings or upon an assignment for the benefit of
creditors or any other marshalling of the assets and liabilities of
ProSource or otherwise, any payment or distribution of any kind
(whether in cash, property or securities) which otherwise would be
payable or deliverable upon or with respect to the Subordinated
Obligations shall be paid or delivered directly to the
Administrative Agent (or any successor agent) for application (in
the case of cash) to or as collateral (in the case of non-cash
property or securities) for the payment or prepayment of the Senior
Debt until the Senior Debt shall have been paid in full.
(b) If any proceeding referred to in SUBSECTION (A)
above is commenced by or against ProSource,
(i) the Administrative Agent is hereby irrevocably
authorized and empowered (in its own name or in the name
of Onex or otherwise), but shall have no obligation, to
demand, sue for, collect and receive every payment or
distribution referred to in SUBSECTION (a) above and
give acquittance therefor and to file claims and proofs
of claim and take such other action (including, without
limitation, voting the Subordinated Obligations or
enforcing any security interest or other lien securing
payment of the Subordinated Obligations) as it may deem
necessary or advisable for the exercise or enforcement
of any of its rights or interests hereunder; and
(ii) Onex shall duly and promptly take such action
as the Administrative Agent may request (A) to collect
the Subordinated Obligations for the account of the
Administrative Agent and to file appropriate claims or
proofs of claim in respect of the Subordinated
3
Obligations, (B) to execute and deliver to the
Administrative Agent such powers of attorney,
assignments or other instruments as it may request in
order to enable it to enforce any and all claims with
respect to, and any security interests and other liens
securing payment of, the Subordinated Obligations, and
(C) to collect and receive any and all payments or
distributions which may be payable or deliverable upon
or with respect to the Subordinated Obligations.
(c) All payments or distributions upon or with respect
to the Subordinated Obligations which are received by Onex contrary
to the provisions of this Agreement shall be received in trust for
the benefit of the Administrative Agent, shall be segregated from
other funds and property held by Onex and shall be forthwith paid
over to the Administrative Agent in the same form as so received
(with any necessary indorsement) to be applied (in the case of cash)
to or held as collateral (in the case of non-cash property or
securities) for the payment or prepayment of the Senior Debt in
accordance with the terms of the Loan Agreement.
(d) The Administrative Agent is hereby authorized to
demand specific performance of this Agreement, whether or not
ProSource shall have complied with any of the provisions hereof
applicable to it, at any time when Onex shall have failed to comply
with any of the provisions of this Agreement applicable to it. Onex
hereby irrevocably waives any defense based on the adequacy of a
remedy at law which might be asserted as a bar to such remedy of
specific performance.
SECTION 5. No Commencement of Any Proceeding. Onex agrees that, so
long as any of the Senior Debt shall remain unpaid, it will not commence, or
join with any creditor other than the Senior Creditors in commencing, any
proceeding referred to in SECTION 4(a).
SECTION 6. Rights of Subrogation. Onex agrees that no payment or
distribution to the Administrative Agent or any Senior Creditor pursuant to the
provisions of this Agreement shall entitle Onex to exercise any rights of
subrogation in respect thereof until the Senior Debt shall have been paid in
full.
SECTION 7. Subordination Legend; Further Assurances. Onex
and ProSource will cause each instrument evidencing the Subordinated
Obligations to be endorsed with the following legend:
"The indebtedness evidenced by this instrument is
subordinated to the prior payment in full of the Senior Debt
4
(as defined in the Subordination Agreement hereinafter referred to)
pursuant to, and to the extent provided in, the Subordination
Agreement dated as of March 31, 1995 by the maker hereof and payee
named herein in favor of NationsBank of Georgia, N.A., as
Administrative Agent."
Each of Onex and ProSource will further mark its books of account in such a
manner as shall be effective to give proper notice of the effect of this
Agreement. Each of Onex and ProSource will, at its expense and at any time and
from time to time, promptly execute and deliver all further instruments and
documents, and take all further action, that may be necessary or desirable, or
that the Administrative Agent may request in order to protect any right or
interest granted or purported to be granted hereby or to enable the
Administrative Agent to exercise and enforce its rights and remedies hereunder.
SECTION 8. No Change in or Disposition of Subordinated
Obligations. Onex and ProSource each agrees that it will not:
(a) Cancel or otherwise discharge any of the
Subordinated Obligations that have accrued (except upon payment in
full thereof paid to the Administrative Agent as contemplated by
SECTION 4(c)) or subordinate any of the Subordinated Obligations to
any indebtedness of ProSource other than the Senior Debt;
(b) Sell, assign, pledge, encumber or otherwise dispose
of any of the Subordinated Obligations unless such sale, assignment,
pledge, encumbrance or disposition is made expressly subject to this
Agreement; or
(c) Permit the terms of any of the Subordinated
Obligations to be changed in such a manner as to have an adverse
effect upon the rights or interests of the Administrative Agent or
the Senior Creditors hereunder.
SECTION 9. No Security. Each of Onex and ProSource agrees that it
will not take or make any payment of (other than as expressly permitted hereby),
or accept or grant a security interest in any of the assets of ProSource as
security for, any of the Subordinated Obligations or take any other action in
contravention of the provisions of this Agreement, nor will ProSource cause or
permit any of its Subsidiaries to do any of the foregoing.
SECTION 10. Obligations Hereunder Not Affected. All rights and
interests of the Administrative Agent and the Senior Creditors hereunder, and
all agreements and obligations of Onex and ProSource under this Agreement, shall
remain in full force and effect irrespective of:
5
(i) any lack of validity or enforceability of the Loan
Agreement, the Notes or any other agreement or instrument relating
thereto;
(ii) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Senior Debt, or any other
amendment or waiver of or any consent to departure from the Notes or
the Loan Agreement;
(iii) any exchange, release or non-perfection of any Collateral,
or any release or amendment or waiver of or consent to departure
from any guaranty, for all or any of the Senior Debt; or
(iv) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, ProSource (or any other
Borrower) in respect of the Senior Debt or Onex in respect of this
Agreement other than as expressly provided herein.
This Agreement shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Senior Debt is rescinded or must
otherwise be returned by the Administrative Agent or any Senior Creditor upon
the insolvency, bankruptcy or reorganization of ProSource or otherwise, all as
though such payment had not been made.
SECTION 11. Waiver. Onex and ProSource each hereby waives
promptness, diligence, notice of acceptance and any other notice with respect to
any of the Senior Debt and this Agreement and any requirement that the
Administrative Agent or any Senior Creditor protect, secure, perfect or insure
any security interest or lien or any property subject thereto or exhaust any
right or take any action against ProSource or any other person or entity or any
collateral.
SECTION 12. Representations and Warranties. ProSource hereby
represents and warrants that true and complete copies of all agreements relating
to the Subordinated Obligations have been furnished to the Administrative Agent.
SECTION 13. Amendments, Etc. No amendment or waiver of any provision
of this Agreement nor consent to any departure by Onex or ProSource therefrom
shall in any event be effective unless the same shall be in writing and signed
by the Administrative Agent and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given.
SECTION 14. Expenses. Onex and ProSource jointly and severally agree
to pay, upon demand, to the Administrative Agent the amount of any and all
reasonable expenses, including the reasonable fees and expenses of its counsel,
which the
6
Administrative Agent or any Senior Creditor may incur in connection with the
exercise or enforcement of any of its rights or interests hereunder.
SECTION 15. Addresses for Notices. All notices and the
communications hereunder and thereunder shall be in writing or by telephone,
subsequently confirmed in writing. Notices in writing shall be delivered
personally or sent by certified or registered mail, postage pre-paid, or by
overnight courier, telex or facsimile transmission and shall be deemed received
in the case of personal delivery, when delivered, in the case of mailing, when
receipted for, in the case of overnight delivery, on the next Business Day after
the Business Day of delivery to the courier, and in the case of telex and
facsimile transmission, upon transmittal, provided that in the case of notices
to the Administrative Agent, notice shall be deemed to have been given only when
such notice is actually received by the Administrative Agent. A telephonic
notice to the Administrative Agent, as understood by the Administrative Agent,
will be deemed to be the controlling and proper notice in the event of a
discrepancy with or failure to receive a confirming written notice.
Notices to any party shall be sent to it at the following addresses,
or any other address of which all the other parties are notified in writing
If to ProSource: ProSource Services Corporation
550 Biltmore Way - 10th Floor
Coral Gables, Florida 33134
Attn: David R. Parker
Facsimile No.: (305) 529-2573
with a copy to: Kaye, Scholer, Fierman, Hays &
Handler
425 Park Avenue
New York, New York 10022
Attention: Joel I. Greenberg,
Esq.
Facsimile No.: (212) 836-7152
If to Onex: Onex Corporation
161 Bay Street
49th Floor, Commerce Court West
Toronto, Ontario, Canada M5J 2S1
Attn: Anthony R. Melman
Facsimile No.: (416) 362-5765
7
with a copy to: Kaye, Scholer, Fierman, Hays &
Handler
425 Park Avenue
New York, New York 10022
Attention: Joel I. Greenberg,
Esq.
Facsimile No.: (212) 836-7152
If to the
Administrative Agent: NationsBank of Georgia, N.A.
Business Credit Division
600 Peachtree Street
13 Plaza
Atlanta, Georgia 30308
Attn: John W. Getz
Facsimile No.: 404-607-6439
If to a Senior Creditor: At the address of such Senior
Creditor set forth on the signature
pages of the Loan Agreement or in
the Register.
SECTION 16. No Waiver; Remedies. No failure on the part of the
Administrative Agent or any Senior Creditor to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any right hereunder preclude any other or further
exercise thereof or the exercise of any other right. The remedies provided
herein are cumulative and not exclusive of any remedies provided by law.
SECTION 17. Continuing Agreement; Transfer of Notes. This Agreement
is a continuing agreement and shall (a) remain in full force and effect until
the Senior Debt shall have been paid in full and the commitments of the Senior
Creditors under the Loan Agreement shall have terminated, (b) be binding upon
Onex, ProSource and their respective successors and assigns, and (c) inure to
the benefit of and be enforceable by the Administrative Agent and the Senior
Creditors and their respective successors, transferees and assigns. Without
limiting the generality of the foregoing CLAUSE (c), any Senior Creditor may
assign or otherwise transfer the Notes held by it to any other person or entity
in accordance with the Loan Agreement, which person or entity shall thereupon
become vested with all the rights in respect thereof granted to such Senior
Creditor herein or otherwise.
SECTION 18. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Georgia.
8
IN WITNESS WHEREOF, Onex and ProSource each has caused
this Agreement to be duly executed and delivered by its officer thereunto duly
authorized as of the date first above written.
PROSOURCE SERVICES CORPORATION
[CORPORATE SEAL]
By: /s/ D.R. Parker
---------------------------
Name: D.R. Parker
Title: Chairman
Attest:
By: /s/ Paul A. Garcia de Quevedo
-----------------------------
Name: _______________________
Title: ______________________
ONEX CORPORATION
[CORPORATE SEAL]
By: /s/ Anthony Melman
---------------------------
Name: Anthony Melman
Title: Vice President
Attest:
By: /s/ Mark L. Hilson
---------------------------
Name: Mark L. Hilson
Title: Vice President
9
Dates Referenced Herein
| Referenced-On Page |
---|
This ‘S-1’ Filing | | Date | | First | | Last | | | Other Filings |
---|
| | |
Filed on: | | 9/6/96 | | | | | | | None on these Dates |
| | 3/31/95 | | 1 | | 5 |
| List all Filings |
↑Top
Filing Submission 0000950123-96-004896 – Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)
Copyright © 2024 Fran Finnegan & Company LLC – All Rights Reserved.
About — Privacy — Redactions — Help —
Thu., Mar. 28, 7:48:43.1am ET