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-10.14 — Unconditional Guaranty, Made March 31, 1995
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Exhibit 10.14
UNCONDITIONAL GUARANTY
THIS UNCONDITIONAL GUARANTY (the "Guaranty") is made as of the 31st day of
March, 1995, by PROSOURCE, INC., a Delaware corporation (the "Guarantor"), in
favor of NATIONSBANK OF GEORGIA, N.A. ("NationsBank"), a national banking
association with its principal office located in Atlanta, Georgia (the
"Administrative Agent"), in its capacity as agent for the financial
institutions (the "Lenders") party from time to time to the Loan and Security
Agreement of even date herewith (the same as it may be amended, modified,
supplemented, extended or refinanced from time to time, being the "Loan
Agreement"), by and between ProSource Services Corporation, a Delaware
corporation, BroMar Services, Inc., a Delaware corporation, ProSource
Distribution Services Limited, an Ontario corporation (the "Borrowers"),
NationsBank, The First National Bank of Boston and Shawmut Capital Corporation
(the "Co-Agents"), the Lenders and the Administrative Agent, and in favor of
the Lenders.
PRELIMINARY STATEMENT
Pursuant to the Loan Agreement, the Lenders have made or have agreed to
make certain financial accommodations to the Borrowers in the form of revolving
credit loans under a $210,000,000 revolving credit facility, term loans under
two $15,000,000 term loan facilities and in the form of the issuance of letters
of credit from time to time for the Borrowers' account, on the terms and
conditions and as more particularly set forth in the Loan Agreement. The
Guarantor is the sole shareholder, directly or indirectly of each Borrower and,
as such, benefits from the financial accommodations of the Lenders to the
Borrowers. The Lenders and the Administrative Agent have required as a
condition to entering into the Loan Agreement and extending the credit and
financial accommodations described therein that the Guarantor enter into this
Guaranty. All capitalized terms used herein that are not defined herein shall
have the meanings ascribed to them in the Loan Agreement.
STATEMENT OF AGREEMENT
NOW, THEREFORE, for and in consideration of the premises, the Lenders'
extension of the credit and financial accommodations described above, and in
order to induce the Lenders to extend such credit and make such financial
accommodations, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Guarantor agrees in favor of
the Administrative Agent, for the benefit of itself as Administrative Agent and
the Lenders, as follows:
Section 1. Guaranty.
(a) In consideration of the execution and delivery by the Lenders and the
Administrative Agent of the Loan Agreement and the making of the Revolving
Credit Loans and Term Loans to the Borrowers by the Lenders thereunder, and the
issuance from time to time thereunder of Letters of Credit for the account of
one or more Borrowers, the Guarantor, as primary obligor and not as surety
merely, hereby guarantees absolutely and unconditionally to the Administrative
Agent and the Lenders the due and punctual payment, when and as due (whether
upon demand, at maturity, by reason of acceleration or otherwise), of the
following (collectively the "Guaranteed Obligations"):
(i) the principal of and interest and premium, if any, on the Loans;
and
(ii) the other Secured Obligations.
(b) The Guarantor agrees to pay all reasonable expenses (including, but
not limited to, reasonable legal fees and disbursements) which may be incurred
by the Administrative Agent or the Lenders in enforcing their rights under this
Guaranty.
(c) This Guaranty shall be a continuing guaranty of any and all notes
given as evidence of or in extension or renewal of any Guaranteed Obligation.
The Guarantor understands, agrees and confirms that this is a guaranty of
payment when due and not of collection only and that demand for payment may be
made
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hereunder on any number of occasions and no single demand shall exhaust the
rights of the Administrative Agent or the Lenders hereunder.
Section 2. Payment by Guarantor. If the Borrowers shall fail to pay, when
due and payable, any Guaranteed Obligation, the Guarantor shall immediately make
such payment to the Administrative Agent on demand. If any Guaranteed Obligation
would be subject to acceleration, but such acceleration is enjoined or stayed,
the Guarantor will, to the extent permitted by law, purchase such portion of the
Guaranteed Obligations as shall equal the outstanding principal amount thereof,
plus such accrued interest and other amounts as would have been payable had such
Guaranteed Obligation been paid or prepaid at the time of such purchase. All
payments by the Guarantor under this Guaranty shall be made without any setoff,
counterclaim or deduction whatsoever, and in the same currency and funds as are
required to be paid by the Borrowers.
Section 3. Representations and Warranties. The Guarantor represents and
warrants to the Administrative Agent and the Lenders as follows:
(a) Organization; Authority. The Guarantor is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation and has the corporate power and authority to
execute, deliver and perform this Guaranty. The execution, delivery and
performance of this Guaranty have been duly authorized by all necessary
corporate action on the part of the Guarantor.
(b) Enforceability of Guaranty. This Guaranty has been duly executed and
delivered by a duly authorized officer of the Guarantor and is a legal, valid
and binding obligation of the Guarantor enforceable in accordance with its
terms.
(c) Compliance of Guaranty With Laws, Etc. The execution, delivery and
performance of this Guaranty in accordance with its terms and the guaranty of
the Guaranteed Obligations hereunder do not and will not, by the passage of
time, the giving of notice or otherwise,
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(i) require any Governmental Approval or violate any Applicable Law
relating to the Guarantor, the violation of which reasonably could be
expected to have a Materially Adverse Effect on the Guarantor,
(ii) conflict with, result in a breach of or constitute a default
under the Guarantor's certificate of incorporation or bylaws,
(iii) conflict with, result in a breach of or constitute a default
under any indenture, agreement or other instrument to which the Guarantor
is a party or by which it or any of its properties may be bound or any
Governmental Approval, if the effect thereof, singly or in the aggregate,
reasonably could be expected to have a Materially Adverse Effect on the
Guarantor, or
(iv) result in or require the creation or imposition of any Lien upon
or with respect to any property now owned or hereafter acquired by the
Guarantor other than the security interests granted under the Pledge
Agreement.
(d) Ownership of Borrowers. The Guarantor is the owner of, and has good,
marketable and legal title to, all of the issued and outstanding shares of the
capital stock of ProSource, which in turn has good, marketable and legal title
to, all of the issued and outstanding shares of each of the other Borrowers and
the Guarantor accordingly has an economic interest in the transactions
contemplated by the Loan Agreement and hereby confirms to the Administrative
Agent and the Lenders the benefits to it by reason of such transactions.
Section 4. Waiver. The Guarantor, to the fullest extent permitted by
Applicable Law, waives without any requirement of notice to or further assent by
the Guarantor
(a) diligence, presentment, demand, protest and notice of any kind
whatsoever,
(b) any requirement that the Administrative Agent or any Lender exhaust
any right or take any action against the
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Borrowers, other person or any of the collateral for the Guaranteed
Obligations,
(c) the benefit of all principles or provisions of Applicable Law which
are or might be in conflict with the terms of this Guaranty, including, without
limitation, Section 10-7-24 of the Official Code of Georgia Annotated,
(d) notice of acceptance hereof,
(e) notice of a default or event of default under the Loan Agreement or
the other Loan Documents,
(f) notice of any and all favorable and unfavorable information, financial
or otherwise, about any Borrower or any other Person, heretofore, now or
hereafter learned or acquired by the Administrative Agent or any Lender,
(g) all other notice to which the Guarantor or any Borrower might
otherwise be entitled,
(h) all defenses, set-offs and counterclaims (other than compulsory
counterclaims) of any kind whatsoever (but not the right to bring an
independent action),
(i) notice of the existence or creation of any Guaranteed Obligation,
(j) notice of any alteration, amendment, increase, extension or exchange
of any of the Guaranteed Obligations,
(k) notice of any amendments, modifications or supplements to the Loan
Agreement, the Notes or to any other Loan Document,
(l) all diligence in collection or protection of or realization upon the
collateral or any of the Guaranteed Obligations, and
(m) the right to require the Administrative Agent or any Lender to proceed
against any Borrower.
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Section 5. Consent. The Guarantor, to the fullest extent permitted by
Applicable Law, consents without the requirement of any notice to or further
assent by the Guarantor that
(a) the time of payment of any Guaranteed Obligation may be extended,
(b) any provision of the Loan Agreement or any other Loan Document may be
amended, waived or modified,
(c) any Borrower or other guarantor or obligor in respect of the
Guaranteed Obligations may be released from its obligations or other obligors
or guarantors substituted therefor or added,
(d) any property now or hereafter securing the Guaranteed Obligations may
be released, exchanged, substituted, compromised or subordinated in whole or in
part or any security may be added, and
(e) the Administrative Agent or any Lender may proceed against such
Guarantor without proceeding against the Borrowers, or any of them,
and the Guarantor will remain bound under this Guaranty notwithstanding such
changes, extensions, exchanges, substitutions, releases, compromises,
subordinations, amendments, waivers or modifications or any other circumstances,
whether or not referred to above, which might otherwise constitute a legal or
equitable discharge of a guaranty.
Section 6. Absolute Obligation. To the extent permitted by Applicable Law,
the obligations of the Guarantor hereunder are irrespective of and shall not be
dependent upon or affected by
(a) the validity, legality, regularity or enforceability of the Loan
Agreement or any other Loan Document or any of the obligations in respect
thereof or any collateral therefor or guaranty thereof,
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(b) the existence, value or condition of any of the assets of any Borrower
or any collateral for the Guaranteed Obligations,
(c) the validity, perfection or priority of any Lien on the collateral for
the Guaranteed Obligations,
(d) any action or failure to take action by the Administrative Agent or
any Lender under, or with respect to, any of the Loan Documents,
(e) any right of offset with respect to obligations under the Loan
Documents at any time or from time to time held by the Administrative Agent or
any Lender and without regard to any defense, setoff or counterclaim which may
at any time be available to or be asserted by the Guarantor or the Borrowers
against the Administrative Agent or any Lender,
(f) any other dealings among the Administrative Agent, any Lender, the
Guarantor or any Borrower,
(g) any present or future law or order of any government or agency thereof
purporting to reduce, amend or otherwise affect any obligations of the
Borrowers, or
(h) any other circumstances whatsoever (with or without notice to or
knowledge of the Guarantor or any Borrower) that constitutes, or might be
construed to constitute, an equitable or legal discharge of the Guarantor or
the Borrowers (or any of them) for any Guaranteed Obligations or other
obligations of the Borrowers (or any of them) under any Loan Documents, in
bankruptcy or in any other instance.
Section 7. Recovery of Payments. In the event that any or all of the
Guaranteed Obligations are or were paid by the Borrowers or are or were paid or
reduced by application of the proceeds of any collateral for the Guaranteed
Obligations, and all or any part of such payment is recovered from the
Administrative Agent or any Lender under any applicable bankruptcy or insolvency
law or otherwise, the liability of the Guarantor under this Guaranty shall
continue or be reinstated, as
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the case may be, and remain in full force and effect to the extent permitted by
law.
Section 8. Waiver of Claims. The Guarantor will not exercise any rights
that it may acquire by way of subrogation under this Guaranty, by any payment
made hereunder or otherwise, until all Guaranteed Obligations have been paid in
full. If any amount shall be paid to the Guarantor contrary to the foregoing
provisions, on account of such subrogation rights at any time when all of the
Guaranteed Obligations shall not have been paid in full, such amount shall be
held in trust for the benefit of the Administrative Agent and the Lenders and
shall forthwith be paid to the Administrative Agent to be applied upon the
Guaranteed Obligations, whether matured or unmatured, in accordance with the
terms of the Loan Documents.
Section 9. Binding Nature of Certain Adjudications. Upon written notice of
the institution by the Administrative Agent or any Lender of any action or
proceeding, legal or otherwise, for the adjudication of any controversy with any
Borrower, the Guarantor will be conclusively bound by the adjudication in any
such action or proceedings and by a judgment, award or decree entered therein to
the extent that the same determines liability or responsibility for an amount
measured or that could be measured in money. The Guarantor waives the right to
assert in any action or proceeding brought by the Administrative Agent or any
Lender, upon any Loan Document, any offsets or counterclaims which the Guarantor
may have with respect thereto (other than the defense of payment).
Section 10. Validity and Enforceability of Guaranty. The Guarantor will
take all actions reasonably requested by the Administrative Agent or any Lender
required so that the guaranty contained herein will at all times be a binding
obligation of the Guarantor enforceable in accordance with its terms.
Section 11. Litigation. EACH OF THE GUARANTOR AND, BY ITS ACCEPTANCE
HEREOF, THE ADMINISTRATIVE AGENT FOR ITSELF AND THE LENDERS HEREBY KNOWINGLY,
INTENTIONALLY AND VOLUNTARILY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING
OF ANY KIND OR NATURE IN ANY COURT IN WHICH AN ACTION MAY BE COMMENCED BY OR
AGAINST THE GUARANTOR, THE ADMINISTRATIVE AGENT OR ANY LENDER ARISING OUT
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OF THIS GUARANTY OR BY REASON OF ANY OTHER CAUSE OR DISPUTE WHATSOEVER BETWEEN
THE GUARANTOR AND THE ADMINISTRATIVE AGENT OR ANY LENDER OF ANY KIND OR NATURE.
THE GUARANTOR AND, BY ITS ACCEPTANCE HEREOF, THE ADMINISTRATIVE AGENT FOR
ITSELF AND THE LENDERS HEREBY AGREE THAT THE FEDERAL COURT OF THE NORTHERN
DISTRICT OF GEORGIA OR, AT THE OPTION OF THE ADMINISTRATIVE AGENT OR ANY
LENDER, ANY COURT IN WHICH THE ADMINISTRATIVE AGENT OR SUCH LENDER SHALL
INITIATE LEGAL OR EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT MATTER
JURISDICTION OVER THE MATTER IN CONTROVERSY, SHALL HAVE NONEXCLUSIVE
JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THE GUARANTOR
AND THE ADMINISTRATIVE AGENT OR SUCH LENDER, PERTAINING DIRECTLY OR INDIRECTLY
TO THIS GUARANTY OR THE LOAN DOCUMENTS OR TO ANY MATTER ARISING THEREFROM. THE
GUARANTOR EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY
ACTION OR PROCEEDING COMMENCED IN SUCH COURTS, HEREBY WAIVING PERSONAL SERVICE
OF THE SUMMONS AND COMPLAINT, OR OTHER PROCESS OR PAPERS ISSUED THEREIN AND
AGREEING THAT SERVICE OF SUCH SUMMONS AND COMPLAINT OR OTHER PROCESS OR PAPERS
MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO THE GUARANTOR AT THE
ADDRESS OF THE GUARANTOR SET FORTH IN SECTION 15. THE NONEXCLUSIVE CHOICE OF
FORUM SET FORTH IN THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE THE ENFORCEMENT
OF ANY JUDGMENT OBTAINED IN SUCH FORUM OR THE TAKING OF ANY ACTION UNDER THIS
GUARANTY TO ENFORCE SAME IN ANY APPROPRIATE JURISDICTION.
Section 12. Titles and Captions. Titles and captions of Sections and
subsections in this Guaranty are for convenience only, and neither limit nor
amplify the provisions of this Guaranty.
Section 13. Severability of Provisions. Any provision of this Guaranty
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective only to the extent of such prohibition or
unenforceability without invalidating the remainder of such provision or the
remaining provisions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction.
Section 14. Governing Law. This Guaranty shall be construed in accordance
with and governed by the laws of the State of Georgia, except that the
provisions of SECTION 11 shall
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be construed in accordance with the internal laws of the forum state.
Section 15. Notices. All notices and the communications hereunder 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 when actually received or, if earlier, 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 day of
delivery to (and acceptance for delivery to be initiated on such day by) the
courier, and in the case of telex and facsimile transmission, upon transmittal
during business hours in the place of receipt or if after business hours, at the
opening of business on the next Business Day, 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 the Guarantor: ProSource, Inc.
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
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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.: 404-607-6437
If to a Lender: At the address of such Lender set
forth on the signature pages of the
Loan Agreement or in the Register,
as the case may be.
Section 16. Miscellaneous.
(a) This Guaranty and the other agreements contemplated by this Guaranty
supersede all prior negotiations, agreements and understandings, and constitute
the entire agreement between the parties with respect to the subject matter
thereof.
(b) All the provisions of this Guaranty shall be binding upon the
Guarantor and its successors and assigns, and the Administrative Agent and the
Lenders may assign or transfer any of their respective rights under this
Guaranty, provided that any such assignment or transfer shall be made only in
connection with an assignment of all or a portion of the Loans and the
Commitments that is permitted under the Loan Agreement.
(c) Any term, covenant, agreement or condition of this Guaranty may be
amended or waived, and any departure therefrom may be consented to, if, but
only if, such amendment, waiver or consent is in writing and is signed by an
authorized officer of the Administrative Agent and, in the case of any
amendment, also by the Guarantor. Unless otherwise specified in such waiver or
consent, a waiver or consent given hereunder shall be effective only in the
instance and for the specific purpose for which given and no waiver of any
condition, or of the breach of any term, provision, warranty, representation,
agreement or covenant contained in this Guaranty, whether by conduct or
otherwise, in any one or more instances shall be deemed or construed as a
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further or continuing waiver of any such condition or breach or a waiver of any
other condition or of the breach of any other term, provision, warranty,
representation, agreement or covenant contained in this Guaranty.
(d) The failure of the Administrative Agent or any Lender at any time or
times to require performance of any provisions of this Guaranty shall in no
manner affect the right to enforce the same.
(e) Whenever the context so requires, the singular number shall include
the plural and the plural shall include the singular, and the gender of any
pronoun shall include the other genders.
IN WITNESS WHEREOF, the Guarantor has executed this Guaranty as of the day
and year first above mentioned.
PROSOURCE, INC.
[CORPORATE SEAL]
By: /s/ D.R. Parker
--------------------------
Name:
------------------------
Title:
-----------------------
Attest:
By: /s/ Paul A. Garcia de Quevedo
-----------------------------
Name:
---------------------------
Title:
--------------------------
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