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-10.10 — Amendment No. 2 to Loan and Security Agreement
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EXHIBIT 10.10
AMENDMENT NO. 2 AND WAIVER
dated as of March 28, 1996
to
LOAN AND SECURITY AGREEMENT
dated as of March 31, 1995
THIS AMENDMENT NO. 2 dated as of March 28, 1996 is made between PROSOURCE
SERVICES CORPORATION, a Delaware corporation (PROSOURCE), BROMAR SERVICES,
INC., a Delaware corporation (BROMAR), and PROSOURCE DISTRIBUTION SERVICES
LIMITED, a Canadian corporation (PROSOURCE CANADA and together with ProSource
and BroMar, the BORROWERS), the financial institutions party from time to time
to the Loan Agreement referred to below (the LENDERS), NATIONSBANK, N.A.
(SOUTH) (successor by merger to NationsBank of Georgia, N.A.), a national
banking association (NATIONSBANK), THE FIRST NATIONAL BANK OF BOSTON, a
national banking association (BANK OF BOSTON), FLEET CAPITAL CORPORATION
(successor by merger to Shawmut Capital Corporation), a Delaware corporation
(FLEET), as co-agents (each in that capacity a CO-AGENT and collectively the
CO-AGENTS) and NATIONSBANK, N.A. (SOUTH), as administrative agent for the
Lenders (in that capacity, together with any successors in that capacity, the
ADMINISTRATIVE AGENT).
Preliminary Statements
The Borrowers, the Lenders, the Co-Agents and the Administrative Agent are
parties to a Loan and Security Agreement dated as of March 31, 1995, as amended
by Amendment No. 1 dated as of December 29, 1995 (as so amended and as
otherwise heretofore amended, the LOAN AGREEMENT; terms defined therein and not
otherwise defined herein being used herein as therein defined).
The Borrowers have requested certain modifications to the provisions of
the Loan Agreement and the Lenders and the Administrative Agent have agreed to
such requests, upon and subject to all the terms, conditions and provisions of
this Amendment.
NOW, THEREFORE, in consideration of the Loan Agreement, the Loans made by
the Lenders and outstanding thereunder, the mutual promises hereinafter set
forth and other good and valuable consideration the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
Section 1. Amendments to Loan Agreement. The Loan Agreement is hereby
amended, subject to the provisions of Section 3 hereof, by
(a) amending Section 1.1 Definitions thereof by
(i) amending subsection (n) of the definition "Eligible Receivables" by
amending the proviso at the end thereof in its entirety to read as follows:
PROVIDED, that Receivables outstanding under contracts between
ProSource and Army & Air Force Exchange Services ("AAFES") up to an
amount equal to $5,000,000 at any time under all such contracts in the
aggregate, shall not be deemed ineligible by reason of this
subparagraph.
(ii) adding thereto in proper alphabetical order the following new
definition:
ACQUISITION RESERVE means the reserve for restructuring and other
charges (excluding costs and expenses related to the consummation of the
transactions contemplated by the Division Acquisition Agreement and this
Agreement and paid within 60 days after the Effective Date) established by
the Borrowers in connection with the Division Acquisition and in accordance
with GAAP.
(b) amending Section 9.5 Delivery of Instruments by (i) inserting after
the phrase "the relevant Borrower will" appearing therein, the phrase ", at the
request of the Administrative Agent," and (ii) adding after the final period at
the end thereof a new sentence to read as follows:
The Borrower will provide to the Administrative Agent and the Lenders a
listing, in reasonable detail, of all such Receivables and the related
instruments at any time and from time to time outstanding, as reasonably
requested by the Administrative Agent.
(c) amending Section 11.1 Financial Statements thereof by
(i) amending Section 11.1(c) in its entirety to read as follows:
(c) Financial Statements. As soon as available after the end of each
Fiscal Month, but in any event within 30 days after the end of each Fiscal
Month, copies of the unaudited balance sheet of ProSource as of the end of
such Fiscal Month and the related unaudited statements of income and cash
flow for ProSource for such Fiscal Month and for the portion of the Fiscal
Year through such Fiscal Month, including, in comparative form, (i) actual
financial results of ProSource for the corresponding periods (both
month-only and year-to-date) of the immediately preceding Fiscal Year and
(ii) budgeted financial performance of ProSource (both month-only and
year-to-date) based on ProSource's annual budget for the applicable
periods, in each case including computations of
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EBITDA for the applicable periods, certified by a Financial Officer of
ProSource as presenting fairly the financial condition and results of
operations of ProSource (subject to normal year-end audit adjustments).
Each balance sheet delivered pursuant to this SUBSECTION (c), shall itemize
the amounts included in "Total Liabilities" or such balance sheet for New
Subordinated Debt, the Parent Subordinated Debt and the Seller Note.
(ii) adding at the end of the final grammatical paragraph thereof the
following sentence:
Each balance sheet of ProSource and each Consolidated balance sheet
delivered pursuant to SUBSECTIONS (c) or (d) above shall reflect the
Acquisition Reserve as a separate line item.
(d) amending Section 11.2 Accountants' Certificate by deleting therefrom
the reference in subsection (b) thereof to "SECTIONS 12.1, 12.2, 12.5, 12.10
AND 12.11" and substituting therefor a reference to "SECTIONS 12.1, 12.2, 12.5,
12.10, 12.11 and 12.16";
(e) amending Section 11.3 Officer's Certificate by amending subsection (a)
thereof in its entirety to read as follows:
(a) setting forth as at the end of such Fiscal Quarter a reasonably
detailed schedule of charges to the Acquisition Reserve recorded during
such Fiscal Quarter and the calculations required to establish whether or
not the Borrowers were in compliance with the requirements of SECTIONS
12.1, 12.2, 12.5, 12.10, 12.11 and 12.16;
(f) adding to Article 11 a new Section 11.10 to read in its entirety as
follows:
SECTION 11.10 Guarantor Financial Statements. As soon as available,
but in any event within 90 days after the end of each Fiscal Year, copies
of the consolidated balance sheets of the Parent and its consolidated
Subsidiaries (including, without being limited to, the Borrowers) as at the
end of such Fiscal Year and the related statements of income, shareholders'
equity and cash flows for such Fiscal Year, in each case setting forth in
comparative form comparable figures for the previous Fiscal Year, reported
on, without qualification as to the scope of the audit or the status of the
Parent or any material Subsidiary of the Parent (including, without being
limited to, any Borrower) as a "going concern," by KPMG Peat Marwick LLP or
other independent certified public accountants of nationally recognized
standing.
(g) amending Section 12.1 Financial Ratios by amending subsection (c)
thereof in its entirety to read as follows:
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(c) Minimum Fixed Charge Coverage Ratio. The Fixed Charge Coverage
Ratio, as of the last day of Fiscal Year 1995 (for the Fiscal Year ending
on such date) to be less than 0.60 to 1, or as of the last day of any
period of four consecutive Fiscal Quarters ending during a period described
below, to be less than the ratio shown opposite such period:
[Download Table]
Period Ratio
------------------------------- -----
Fiscal Year 1996 (excluding
the last day thereof) 0.60 to 1
Last day of Fiscal Year
1996 to (but not including)
last day of Fiscal Year 1997 0.70 to 1
Last day of Fiscal Year 1997 to
(but not including) last day of
Fiscal Year 1998 0.90 to 1
From and after the last day
of Fiscal year 1998 1.00 to 1
(h) amending Section 12.16 Limitations on Acquisition Reserves in its
entirety to read as follows:
SECTION 12.16 Limitation on Acquisition Reserve. The Acquisition
Reserve shall not exceed $20,000,000 as of the Effective Date, nor
$16,000,000 as of December 31, 1995 or any date thereafter, nor shall the
Acquisition Reserve reflect charges against it made during Fiscal Year 1996
of more than $10,000,000.
Section 2. Confirmation and Waiver. The Lenders hereby (a) confirm the
reduction from 3.00% to 2.75% in the Eurodollar Rate Margin, effective February
1, 1996, agreed to by the Lenders on the basis of the unaudited financial
statements of the Borrowers (notwithstanding the provisions of the definition
EURODOLLAR RATE MARGIN set forth in Section 1.1 of the Loan Agreement) and (b)
waive, subject to the provisions of Section 3, compliance by the Borrowers with
the provisions of Section 12.16 of the Loan Agreement to the extent of any
noncompliance that would not have occurred had said Section 12.16 as amended by
this Amendment been in effect at all times from and after the Effective Date.
Section 3. Effectiveness of Amendment. Section 1 of this Amendment shall
become effective as of its date upon receipt by (a) the Administrative Agent of
at least ten copies of this Amendment duly executed and delivered by each
Borrower, the Co-Agents and
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each Lender, (b) the Administrative Agent of a certificate of the President of
ProSource or of the Financial Officer as to the continuing accuracy of the
Schedules to the Loan Agreement, having attached thereto any revised Schedules
necessary to permit such certification and (c) the Administrative Agent of a
confirmation duly executed and delivered by the Guarantor of its Unconditional
Guaranty and the Pledge Agreement in the form attached to this Amendment.
Section 4. Effect of Amendment. From and after the effectiveness of this
Amendment, all references in the Loan Agreement and in any other Loan Document
to "this Agreement," "the Loan Agreement," "hereunder," "hereof" and words of
like import referring to the Loan Agreement, shall mean and be references to the
Loan Agreement as amended by this Amendment. Except as expressly amended
hereby, the Loan Agreement and all terms, conditions and provisions thereof
remain in full force and effect and are hereby ratified and confirmed. The
execution, delivery and effectiveness of this Amendment shall not, except as
expressly provided herein, operate as a waiver of any right, power or remedy of
any Lender or the Agent under any of the Loan Documents, nor constitute a waiver
of any provision of any of the Loan Documents.
Section 5. Counterpart Execution; Governing Law.
(a) Execution in Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to
be an original and all of which taken together shall constitute but one and the
same agreement.
(b) Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of Georgia.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
BORROWERS:
PROSOURCE SERVICES CORPORATION
[Corporate Seal]
By: /s/ William F. Evans
Attest: --------------------------
William F. Evans
By: /s/ Paul A. Garcia de Quevedo Executive Vice President
------------------------------
Paul A. Garcia de Quevedo
Secretary
BROMAR SERVICES, INC.
[Corporate Seal]
By: /s/ William F. Evans
Attest: ------------------------------
William F. Evans
By: /s/ Paul A. Garcia de Quevedo Executive Vice President
-------------------------------
Paul A. Garcia de Quevedo
Secretary
PROSOURCE DISTRIBUTION SERVICES
[Corporate Seal] LIMITED
By: /s/ William F. Evans
Attest: -----------------------------
William F. Evans
By: /s/ Paul A. Garcia de Quevedo Executive Vice President
-------------------------------
Paul A. Garcia de Quevedo
Secretary
(Signatures continued on following three pages)
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ADMINISTRATIVE AGENT:
NATIONSBANK, N.A. (SOUTH)
By: /s/ Jeffrey L. Guldner
------------------------------
Jeffrey L. Guldner
Vice President
CO-AGENTS AND LENDERS:
NATIONSBANK, N.A. (SOUTH),
as a Lender and Co-Agent
By: /s/ Jeffrey L. Guldner
------------------------------
Jeffrey L. Guldner
Vice President
THE FIRST NATIONAL BANK OF BOSTON,
as a Lender and Co-Agent
By: /s/ William C. Purinton
------------------------------
William C. Purinton
Vice President
FLEET CAPITAL CORPORATION
as a Lender and Co-Agent
By: /s/ Elizabeth L. Waller
--------------------------------
Name: Elizabeth L. Waller
Title: Vice President
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THE BANK OF NOVA SCOTIA,
as a Lender
By: /s/ Frank F. Sandler
______________________________
Name: Frank F. Sandler
Title: Relationship Manager
By:______________________________
Name:
Title:
BANKAMERICA BUSINESS CREDIT, INC.,
as a Lender
By: /s/ Margaret E. Lambka
______________________________
Name: Margaret E. Lambka
Title: Vice President
THE CIT GROUP/BUSINESS CREDIT, INC.,
as a Lender
By: /s/ Robert Bernier
______________________________
Name: Robert Bernier
Title: Vice President
HELLER FINANCIAL, INC.,
as a Lender
By: /s/ Salvadore A. Salzill
______________________________
Name: Salvadore A. Salzill
Title: AVP
SANWA BUSINESS CREDIT CORPORATION
as a Lender
By: /s/ Peter L. Skavla
______________________________
Name: Peter L. Skavla
Title: Vice President
-8-
NATIONAL CITY COMMERCIAL FINANCE,
INC., as a Lender
By: /s/ Lee K. Mosley
______________________________
Name: Lee K. Mosley
Title: Vice President - Operations
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CONSENT, RELEASE AND CONFIRMATION OF GUARANTOR
The undersigned Guarantor as defined in the Loan and Security Agreement
dated as of March 31, 1995 by and among ProSource Services Corporation, BroMar
Services, Inc. and ProSource Distribution Services Limited as the Borrowers,
the financial institutions party thereto as the Lenders, NationsBank, N.A.
(South) (successor by merger to NationsBank of Georgia, N.A. ("NationsBank")),
The First National Bank of Boston and Fleet Capital Corporation as the
Co-Agents, and NationsBank as the Administrative Agent for the Lenders, as
amended to date (the "Loan Agreement"; terms defined therein, unless otherwise
defined herein, being used herein as therein defined), hereby acknowledges
receipt of the foregoing Amendment No. 2 and Waiver and Amendment No. 1 dated
as of December 29, 1995 to the Loan Agreement and confirms for the benefit of
the Administrative Agent and the Lenders, that the Unconditional Guaranty dated
as of March 31, 1995, as amended, executed and delivered by the undersigned
continues in full force and effect as a guaranty in accordance with its terms
and continues to be secured by any collateral therefor and that the undersigned
hereby waives and releases any and all claims it may have against the
Administrative Agent or any Lender or any of their respective shareholders,
directors, employees or agents arising out of any event or circumstance
existing on or prior to the date hereof and arising under the Loan Agreement,
the Unconditional Guaranty or any related document or in connection with the
transactions contemplated thereby.
PROSOURCE, INC.
[Corporate Seal]
By: /s/ David R. Parker
Attest: -----------------------
David R. Parker
By: /s/ Paul A. Garcia de Quevedo Chairman
------------------------------
Paul A. Garcia de Quevedo
Secretary
10
Dates Referenced Herein
| Referenced-On Page |
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| This ‘S-1’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 9/6/96 | | | | | | | None on these Dates |
| | 3/28/96 | | 1 |
| | 2/1/96 | | 4 |
| | 12/31/95 | | 4 |
| | 12/29/95 | | 1 | | 10 |
| | 3/31/95 | | 1 | | 10 |
| List all Filings |
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