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-10.12 — Pledge Agreement, Made as of March 31, 1995
Exhibit Table of Contents
Exhibit 10.12
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT, is made as of the 31st day of March, 1995, by
ProSource Services Corporation, a Delaware corporation (the "Pledgor"), 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 the Pledgor, BroMar Services, Inc., a Delaware
corporation ("BroMar"), ProSource Distribution Services Limited, a Canadian
corporation ("Prosource Canada") (the Pledgor, BroMar and ProSource Canada
being referred to herein collectively as the "Borrowers"), NationsBank, The
First National Bank of Boston and Shawmut Capital Corporation (the
"Co-Agents"), the Lenders and the Administrative Agent.
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. All
capitalized terms used herein that are not defined herein shall have the
meanings ascribed to such terms in the Loan Agreement.
In addition to being a Borrower under the Loan Agreement, the Pledgor is
the sole shareholder of each of BroMar and Prosource Canada and, as such,
benefits from the financial accommodations of the Lenders to BroMar and
ProSource Canada. The Lenders and the Administrative Agent have required as a
condition to entering into the Loan Agreement and extending the
credit described therein that the Pledgor enter into this Pledge Agreement.
Statement of Agreement
NOW, THEREFORE, in consideration of the premises and in order to induce
the Lenders to make Loans to the Borrowers under the Loan Agreement, the
Pledgor hereby agrees as follows:
Section 1. Definitions. For the purposes of this Agreement:
"Agreement" means this Agreement, as the same may be amended, modified or
supplemented from time to time.
"Borrower" means each of ProSource Services Corporation, a Delaware
corporation, BroMar Services, Inc., a Delaware corporation, ProSource
Distribution Services Limited, a Canadian corporation, and their successors and
assigns, and "Borrowers" means all of the foregoing.
"Commission" means the Securities and Exchange Commission, or any other
Federal agency then administering the Securities Act.
"Default" means any of the events listed in SECTION 11 of this Agreement
that with the giving of notice or the passage of time or both would constitute
an Event of Default.
"Event of Default" means any of the events listed in SECTION 11 of this
Agreement.
"Loan Agreement" means the Loan and Security Agreement dated of even date
herewith among the Borrowers, NationsBank, The First National Bank of Boston
and Shawmut Capital Corporation (the "Co-Agents"), the Lenders and the
Administrative Agent, as the same may be amended, modified, supplemented,
restated, renewed, refinanced or extended from time to time.
"Pledged Collateral" means and includes
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(a) the Pledged Shares and the certificates representing the Pledged
Shares and all dividends, cash, instruments and other property from time to
time received, receivable or otherwise distributed in respect of or in exchange
for any or all of the Pledged Shares;
(b) all additional shares of stock of any issuer of the Pledged Shares
from time to time acquired by the Pledgor in any manner and the certificates
representing such additional shares and all dividends, cash, instruments and
other property from time to time received, receivable or otherwise distributed
in respect of or in exchange for any or all of such shares; and
(c) all proceeds of the foregoing.
"Pledged Shares" means and include all of the issued and outstanding
shares of capital stock of BroMar and ProSource Canada now owned or hereafter
acquired by the Pledgor.
"Pledgor" means ProSource Services Corporation, a Delaware corporation,
and its successors and assigns.
"Secured Obligations" means and includes all obligations included in the
definition of "Secured Obligations," as such term is defined in the Loan
Agreement.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar Federal statute, and the rules and regulations of the Commission
thereunder, all as the same may from time to time be in effect.
"Securities Laws" means the Securities Act, the Securities Exchange Act of
1934, as amended, or any similar Federal statute, and the rules and regulations
of the Commission thereunder, together with any and all applicable state blue
sky laws, all as the same may from time to time be in effect.
Section 2. Pledge. To secure the payment, observance and performance of
the Secured Obligations, the Pledgor hereby mortgages, pledges and assigns to
the Administrative Agent, for the benefit of itself as Administrative Agent and
the Lenders,
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and grants to the Administrative Agent, for the benefit of itself as
Administrative Agent and the Lenders, a continuing security interest in the
Pledged Collateral.
Section 3. Delivery of Pledged Collateral. All certificates representing
or evidencing the Pledged Collateral shall be delivered to and held by or on
behalf of the Administrative Agent, for the benefit of the Lenders, pursuant
hereto and shall be in suitable form for transfer by delivery, or shall be
accompanied by duly executed instruments of transfer or assignment in blank, all
in form and substance satisfactory to the Administrative Agent. The
Administrative Agent shall have the right, at any time in its discretion and
without notice to the Pledgor, to request the Borrowers or any transfer agent to
note the pledge of the Pledged Collateral on the stock transfer records of
BroMar and/or Prosource Canada. During the continuation of an Event of Default,
the Administrative Agent shall have the right at any time to exchange
certificates or instruments representing or evidencing Pledged Collateral for
certificates or instruments of smaller or larger denominations. The Pledgor
acknowledges that all certificates or instruments deposited by the Pledgor or
transferred to or registered in the name of the Administrative Agent in
accordance with this SECTION 3 are deposited, transferred or registered to
secure the payment of the Secured Obligations.
Section 4. Representations and Warranties. The Pledgor represents and
warrants as follows:
(a) The execution, delivery and performance of this Pledge Agreement in
accordance with its terms and the grant of the security interest hereunder are
within the Pledgor's corporate power and have been duly authorized by all
necessary corporate action on the part of the Pledgor. This Agreement has been
duly executed and delivered by an authorized officer of the Pledgor and is a
legal, valid and binding obligation of the Pledgor enforceable against the
Pledgor in accordance with its terms.
(b) The execution, delivery and performance of this Agreement in
accordance with its terms and the grant of the
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security interest hereunder do not and will not, by the passage of time, the
giving of notice or otherwise,
(i) require any Governmental Approval or violate any Applicable Law
relating to the Pledgor, the violation of which reasonably could be
expected to have a Materially Adverse Effect on the Pledgor,
(ii) conflict with, result in a breach of or constitute a default
under the Pledgor'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 Pledgor 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
Pledgor, 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
Pledgor, other than the security interest granted hereunder in favor of the
Administrative Agent, for the benefit of itself as Administrative Agent and
the Lenders.
(c) There is no pending or threatened action or proceeding affecting the
Pledgor before any court, governmental agency or arbitrator, which may have a
Materially Adverse Effect on the Pledgor.
(d) No authorization, approval, or other action by, and no notice to or
filing with, any governmental authority or regulatory body is required either
(i) for the pledge by the Pledgor of the Pledged Collateral pursuant to this
Agreement or for the execution, delivery or performance of this Agreement by
the Pledgor, or (ii) for the exercise by the Administrative Agent of the voting
or other rights provided for in this Agreement or the remedies in respect of
the Pledged Collateral pursuant to this Agreement, other than the filing of
financing statements for the purpose of
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giving public notice of the security interest granted hereby.
(e) The Pledged Shares are not subject to any restriction prohibiting or
limiting, in any material respect, the transfer thereof either by the Pledgor
in connection herewith or by the Administrative Agent in connection with the
exercise of its remedies hereunder, including, without limitation, any
restriction under Rule 144 promulgated under the Securities Act.
(f) The Pledged Shares have been duly authorized and validly issued and
are fully paid and non-assessable.
(g) As of the date hereof, the authorized capital of BroMar is 2,000
shares of common stock, no par value per share and the authorized capital stock
of ProSource Canada is an unlimited number of common shares, without par value.
Of the authorized shares of stock of BroMar, 1,000 shares are issued and
outstanding as of the date hereof and of the authorized shares of stock of
ProSource Canada, one share is issued and outstanding as of the date hereof.
All of such issued and outstanding shares of capital stock of BroMar and
ProSource Canada are registered in the name of the Pledgor and owned by the
Pledgor and constitute Pledged Shares.
(h) The Pledgor is the legal and beneficial owner of the Pledged
Collateral free and clear of any lien, security interest, option or other
charge or encumbrance, except for the security interest created by this
Agreement.
(i) The pledge of the Pledged Shares pursuant to this Pledge Agreement
creates a valid and perfected security interest in the Pledged Collateral,
securing the payment of the Secured Obligations, and all filings or other
actions necessary to perfect and protect such security interest have been
taken.
(j) None of the Pledged Collateral is evidenced by any instrument not
delivered to the Administrative Agent in accordance with the terms hereof.
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(k) The principal place of business and chief executive office of the
Pledgor is located at 550 Biltmore Way, Coral Gables, Dade County, Florida
33134.
Section 5. Further Assurances. The Pledgor agrees that at any time, and
from time to time, at the expense of the Pledgor, the Pledgor will 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 perfect and protect any security interest granted or
purported to be granted hereby or to enable the Administrative Agent to exercise
and enforce its rights and remedies hereunder with respect to any Pledged
Collateral.
Section 6. Voting Rights; Dividends; Etc. (a) So long as no Event of
Default shall have occurred and be continuing:
(i) The Pledgor shall be entitled to exercise any and all voting and
other consensual rights pertaining to the Pledged Collateral or any part
thereof for any purpose not inconsistent with the terms of this Agreement
or the Loan Agreement; PROVIDED, HOWEVER, that the Pledgor shall not
exercise or shall refrain from exercising any such right if, in the
Administrative Agent's judgment, such action would have a materially
adverse effect on the Administrative Agent's or any Lender's rights in the
Pledged Collateral.
(ii) The Pledgor shall be entitled to receive and retain any and all
dividends paid in respect of the Pledged Collateral; PROVIDED, HOWEVER,
that any and all
(A) dividends and interest paid or payable other than in cash in
respect of, and instruments and other property received, receivable or
otherwise distributed in respect of, or in exchange for, any Pledged
Collateral,
(B) dividends and other distributions paid or payable in cash in
respect of any Pledged Collateral in connection with a partial or
total liquidation or dissolution of ProSource or in connection with a
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reduction of capital, capital surplus or paid-in-surplus, and
(C) cash paid, payable or otherwise distributed in respect of
principal of, or in redemption of, or in exchange for, any Pledged
Collateral,
shall be Pledged Collateral and shall be forthwith delivered to the
Administrative Agent to hold, for the benefit of itself as Administrative
Agent and the Lenders, as Pledged Collateral and shall, if received by the
Pledgor, be received in trust for the benefit of the Administrative Agent,
be segregated from the other property or funds of the Pledgor and be
forthwith delivered to the Administrative Agent, for the benefit of itself
as Administrative Agent and the Lenders, as Pledged Collateral in the same
form as so received (with any necessary indorsement).
(iii) The Administrative Agent shall execute and deliver (or cause to
be executed and delivered) to the Pledgor all such proxies and other
instruments as the Pledgor may reasonably request for the purpose of
enabling the Pledgor to exercise the voting and other rights which it is
entitled to exercise pursuant to CLAUSE (i) above and to receive the
dividends or interest payments which it is authorized to receive and retain
pursuant to CLAUSE (ii) above.
(b) Upon the occurrence and during the continuance of an Event of Default:
(i) upon the Administrative Agent's election evidenced by a written
notice to the Pledgor, all rights of the Pledgor to exercise the voting and
other consensual rights which it would otherwise be entitled to exercise
pursuant to SECTION 6(a)(i) and to receive the dividends and interest
payments which it would otherwise be authorized to receive and retain
pursuant to SECTION 6(a)(ii) shall cease, and all such rights shall
thereupon become vested in the Administrative Agent, for the benefit of
itself as Administrative Agent and the Lenders, who shall thereupon have
the sole right to exercise such voting and other
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consensual rights and to receive and hold as Pledged Collateral such
dividends and interest payments; and
(ii) all dividends and interest payments which are received by the
Pledgor contrary to the provisions of CLAUSE (i) of this SECTION 6(b) shall
be received in trust for the benefit of the Administrative Agent, for the
benefit of itself as Administrative Agent and the Lenders, shall be
segregated from other funds of the Pledgor and shall be forthwith paid over
to the Administrative Agent, for the benefit of itself as Administrative
Agent and the Lenders, as Pledged Collateral in the same form as so
received (with any necessary indorsement).
Section 7. Transfers and Other Liens.
(a) The Pledgor agrees that it will not (i) sell or otherwise dispose of,
or grant any option with respect to, any of the Pledged Collateral, or (ii)
create or permit to exist any lien, security interest, or other charge or
encumbrance upon or with respect to any of the Pledged Collateral, except for
the security interest granted to the Administrative Agent under this Agreement.
(b) The Pledgor agrees that it (i) will cause the issuers of the Pledged
Shares (to the extent that the Pledgor has the power to so cause) not to issue
any stock or other securities in addition to or in substitution for the Pledged
Shares issued by such issuers, except to the Pledgor, and (ii) will pledge
hereunder, immediately upon the Pledgor's acquisition (directly or indirectly)
thereof, any and all additional shares of stock or other securities of each
issuer of the Pledged Shares.
Section 8. Administrative Agent Appointed Attorney-in-Fact. The Pledgor
hereby appoints the Administrative Agent, for the benefit of itself as
Administrative Agent and the Lenders, as the Pledgor's attorney-in-fact, with
full authority in the place and stead of the Pledgor and in the name of the
Pledgor or otherwise, from time to time in the Administrative Agent's discretion
to take any action and to execute any instrument which the Administrative Agent
may deem necessary or advisable to accomplish the purposes of this Pledge
Agreement, including,
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without limitation, subject to the provisions of SECTION 6, to receive, indorse
and collect all instruments made payable to the Pledgor representing any
dividend, interest payment or other distribution that constitutes Pledged
Collateral or that is payable to the Administrative Agent pursuant to the terms
hereof and to give full discharge for the same.
Section 9. Administrative Agent May Perform. If the Pledgor fails to
perform any agreement contained herein, the Administrative Agent may itself
perform, or cause performance of, such agreement, and the reasonable expenses of
the Administrative Agent incurred in connection therewith shall be payable by
the Pledgor under SECTION 14.
Section 10. Reasonable Care. The Administrative Agent and the Lenders
shall be deemed to have exercised reasonable care in the custody and
preservation of the Pledged Collateral in the Administrative Agent's possession
if the Pledged Collateral is accorded treatment substantially equal to that
which the Administrative Agent accords its own property of the same type, or if
the Administrative Agent appoints an agent to hold the Pledged Collateral on its
behalf or on behalf of the Lenders and such agent agrees to be bound by a
similar standard of care, it being understood that neither the Administrative
Agent, any Lender nor any such agent shall have any responsibility for (i)
ascertaining or taking action with respect to calls, conversions, exchanges,
maturities, tenders or other matters relative to any Pledged Collateral, whether
or not the Administrative Agent, any Lender or any such agent has or is deemed
to have knowledge of such matters, or (ii) taking any necessary steps to
preserve rights against any parties with respect to any Pledged Collateral.
Section 11. Events of Default. The occurrence of any one or more of the
following shall constitute an Event of Default hereunder:
(a) the occurrence of any "Event of Default" under the Loan Agreement;
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(b) the failure of the Pledgor to perform any of its agreements or
obligations as specified in this Pledge Agreement; or
(c) if, at any time, any representation, warranty, certificate, schedule
or report made or delivered by the Pledgor to the Administrative Agent and the
Lenders hereunder shall prove to have been false or misleading in any material
respect as of the time made or furnished.
Section 12. Remedies upon Default. If any Event of Default shall have
occurred and be continuing:
(a) The Administrative Agent may, and at the direction of the Required
Lenders in their sole and absolute discretion shall, exercise in respect of the
Pledged Collateral, in addition to other rights and remedies provided for
herein or otherwise available to it, all the rights and remedies of a secured
party upon default under the Uniform Commercial Code, and the Administrative
Agent may also, and at the direction of the Required Lenders in their sole and
absolute discretion shall, upon notice specified below, sell the Pledged
Collateral or any part thereof in one or more parcels at public or private
sale, at any exchange, broker's board or at any of the Administrative Agent's
offices or elsewhere, for cash, on credit or for future delivery, and at such
price or prices and upon such other terms as the Administrative Agent may deem
commercially reasonable. The Pledgor agrees that, to the extent notice of sale
shall be required by law, at least five days' notice to the Pledgor of the time
and place of any public sale or the time after which any private sale may be
made shall constitute reasonable notification. The Administrative Agent shall
not be obligated to make any sale of Pledged Collateral regardless of notice of
sale having been given. The Administrative Agent may adjourn any public or
private sale from time to time by announcement at the time and place fixed
therefor, and such sale may, without further notice, be made at the time and
place to which it was so adjourned. The Administrative Agent shall have the
right to bid for and purchase any of the Pledged Collateral at any such public
sale and shall not be deemed thereby to have retained the Pledged Collateral in
satisfaction of the Secured Obligations.
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(b) Any cash held by the Administrative Agent as Pledged Collateral and
all cash proceeds received by the Administrative Agent in respect of any sale
of, or other realization upon all or any part of the Pledged Collateral may, in
the discretion of the Administrative Agent, be held by the Administrative Agent
as collateral for, and/or then or at any time thereafter applied (after payment
of any amounts payable to the Administrative Agent pursuant to SECTION 14) in
whole or in part by the Administrative Agent against, all or any part of the
Secured Obligations in such order as the Administrative Agent shall elect. Any
surplus of such cash proceeds held by the Administrative Agent and remaining
after payment in full of all the Secured Obligations shall be paid over to the
Pledgor or to whomsoever may be lawfully entitled to receive such surplus. THE
PLEDGOR SHALL REMAIN LIABLE FOR ANY DEFICIENCY.
(c) The Pledgor acknowledges that compliance with the Securities Laws may
very strictly limit the course of the Administrative Agent's conduct in the
disposition of all or any part of the Pledged Collateral in accordance with
this SECTION 12, and may also limit the extent to which or the manner in which
any subsequent transferee of any Pledged Collateral may dispose of the same.
Pledgor acknowledges and agrees that the Administrative Agent shall be entitled
to place all or any part of the Pledged Collateral for private placement by an
investment banking firm, that any such investment banking firm may purchase all
or any part of the Pledged Collateral for its own account and that the
Administrative Agent shall be entitled to place all or any part of the Pledged
Collateral privately with a purchaser or purchasers who will represent and
agree that they are purchasing the Pledged Collateral for their own account for
investment and not with a view to the distribution or sale thereof in violation
of the Securities Laws, notwithstanding the existence of a public or private
market upon which the quotations or sales prices may exceed substantially the
price at which the Administrative Agent sells.
Section 13. Annual Report, Proxy Statements, Etc. The Pledgor shall
deliver to the Administrative Agent, promptly upon receipt thereof, copies of
all annual reports, proxy statements and other reports and notices to
shareholders that the Pledgor receives from ProSource.
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Section 14. Expenses. The Pledgor will upon demand pay to the
Administrative Agent and each Lender the amount of any and all reasonable
expenses, including the reasonable fees and expenses of its counsel and of any
experts and agents, which the Administrative Agent or such Lender may incur in
connection with (a) the administration of this Pledge Agreement, (b) the custody
or preservation of, or the sale of, collection from, or other realization upon,
any of the Pledged Collateral, (c) the exercise or enforcement of any of the
rights of the Administrative Agent or any Lender hereunder, or (d) the failure
by the Pledgor to perform or observe any of the provisions hereof. The Lenders
shall to the extent reasonably practicable coordinate their activities in the
administration of this Pledge Agreement through the Administrative Agent to
avoid unnecessary duplication of costs and expenses that the Pledgor is required
to pay under this SECTION 14, provided that neither the Lenders nor the
Administrative Agent shall be under any obligation to coordinate such activities
during the continuation of an Event of Default.
Section 15. Security Interest Absolute. All rights of the Administrative
Agent and security interests hereunder, and all obligations of the Pledgor
hereunder, shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of the Loan Agreement or any
other agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any other
term of, all or any of the Secured Obligations, or any other amendment or
waiver of or any consent to any departure from the Loan Agreement or the Notes
or any extension of the maturity date of any of the Notes;
(c) any exchange, release or nonperfection of any other collateral for all
or any of the Secured Obligations; or
(d) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, the
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Pledgor in respect of the Secured Obligations or this Pledge Agreement or
otherwise.
Section 16. Release of Security Interests. Upon the payment and performance
in full of the Secured Obligations and the termination of each of the Lenders'
Commitments under the Loan Agreement, the Administrative Agent shall release its
security interests hereunder in the Pledged Collateral, and the Pledgor shall be
entitled to the return, upon its request and at its expense, of such of the
Pledged Collateral as shall not have been sold or otherwise applied pursuant to
the terms hereof and the Administrative Agent shall, at the Pledgor's request
and expense, execute and deliver such other releases, confirmations and
acknowledgements as may reasonably be requested to evidence such release.
Section 17. Amendments, Etc. No amendment or waiver of any provision of
this Agreement nor consent to any departure by the Pledgor herefrom 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 18. Litigation. EACH OF THE PLEDGOR AND THE ADMINISTRATIVE AGENT
FOR ITSELF AND EACH OF 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
PLEDGOR, THE ADMINISTRATIVE AGENT OR ANY LENDER ARISING OUT OF THIS AGREEMENT OR
BY REASON OF ANY OTHER CAUSE OR DISPUTE WHATSOEVER BETWEEN THE PLEDGOR AND THE
ADMINISTRATIVE AGENT OR ANY LENDER OF ANY KIND OR NATURE. THE PLEDGOR AND 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 PLEDGOR AND THE ADMINISTRATIVE AGENT OR SUCH LENDER, PERTAINING DIRECTLY OR
INDIRECTLY TO THIS AGREEMENT OR THE LOAN DOCUMENTS OR TO ANY
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MATTER ARISING THEREFROM. THE PLEDGOR 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 PLEDGOR AT THE ADDRESS OF THE PLEDGOR SET FORTH IN
SECTION 19. 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 AGREEMENT TO ENFORCE SAME IN ANY
APPROPRIATE JURISDICTION.
Section 19. Notices. All notices and other communications provided for
hereunder shall be in writing and given in accordance with the provisions of
Section 16.1 of the Loan Agreement and such provisions are hereby incorporated
herein by this reference as if fully set forth herein.
Section 20. Continuing Security Interest. This Agreement shall create a
continuing security interest in the Pledged Collateral and shall (a) remain in
full force and effect until the release thereof as provided in SECTION 16, (b)
be binding upon the Pledgor, its successors and assigns, and (c) inure to the
benefit of the Administrative Agent and the Lenders and their respective
successors and assigns, provided that any assignment of the Administrative
Agent's or any Lender's rights hereunder that is made other than during the
continuance of an Event of Default 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.
Section 21. Governing Law; Terms. This Agreement shall be governed by and
construed in accordance with the laws of the State of Georgia, except as
required by mandatory provisions of law and except to the extent that the
validity or perfection of the security interest hereunder, or remedies
hereunder, in respect of any particular Pledged Collateral are governed by the
laws of a jurisdiction other than the State of Georgia. Unless otherwise
defined herein or in the Loan Agreement, terms defined in Article 9 of the
Uniform Commercial Code are used herein as therein defined.
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IN WITNESS WHEREOF, the Pledgor and the Administrative Agent have caused
this Agreement to be duly executed and delivered under seal by their respective
officers thereunto duly authorized as of the date first above written.
PLEDGOR:
PROSOURCE SERVICES CORPORATION
[CORPORATE SEAL]
By: /s/ D.R. Parker
--------------------------
Name:
------------------------
Title:
-----------------------
Attest:
By: /s/ Paul A. Garcia de Quevedo
-----------------------------
Name:
---------------------------
Title:
--------------------------
ADMINISTRATIVE AGENT:
NATIONSBANK OF GEORGIA, N.A.
By: /s/ John W. Getz
--------------------------
Name:
------------------------
Title:
-----------------------
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Filing Submission 0000950123-96-004896 – Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)
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