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-10.16 — Subordinated Note, Dated March 31, 1995
EX-10.16 | 1st Page of 11 | TOC | ↑Top | Previous | Next | ↓Bottom | Just 1st |
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EXHIBIT 10.16
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR ANY STATE SECURITIES OR "BLUE SKY" LAWS (COLLECTIVELY, "SECURITIES LAWS") AND
MAY NOT BE TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS IT HAS BEEN REGISTERED
UNDER THE SECURITIES LAWS OR AN EXEMPTION FROM REGISTRATION APPLIES TO SUCH
TRANSFER OR DISPOSITION.
PROSOURCE SERVICES CORPORATION
12% Subordinated Note
Due April 1, 2005
New York, New York
U.S. $15,000,000 March 31, 1995
FOR VALUE RECEIVED, the undersigned, PROSOURCE SERVICES CORPORATION, a
Delaware corporation (the "Company"), hereby promises to pay to ONEX OHIO
HOLDINGS, INC., a Delaware corporation, or registered assigns (in either case,
the "Holder"), (i) the principal sum of U.S. $15,000,000, payable on April 1,
2005 (the "Maturity Date"), and (ii) interest at a rate of 12% per year,
compounded annually, on the unpaid principal of this Note and shall be payable
annually on March 31st of each year or, if that day is not a Business Day, the
suceeding Business Day, beginning on April 1, 1996 and (iii) in the case of (i)
and (ii), interest at a rate of 12% per year, compounded annually, on overdue
principal and, to the extent legally enforceable, overdue interest. Payments of
principal and interest are to be made by federal funds check payable to the
order of the Holder or, if Holder so specifies by notice to the Company not less
five business days prior to the date such payment is due, by bank wire transfer,
in immediately available funds, to the account so specified, in lawful money of
the United States of America. Any payment of principal or payment of interest
that is due on a date that is not a business day shall be paid on the next
succeeding business day.
1. PREPAYMENTS. Subject to the provisions of Section 2 hereof, the Company
shall have the right at any time or from time to time to prepay this Note, in
whole or in part, without premium or penalty at any time.
2. SUBORDINATION, (a) The Company agrees, and the Holder by accepting this
Notes agrees, as follows:
(a) The indebtedness evidenced by this Note is subordinated in right
of payment, to the extent and in the manner provided in this Section 2, to
the prior indefeasible payment in full of all Senior Indebtedness, and the
subordination and the provisions of this Section 2 are for the benefit of
the holders of Senior Indebtedness.
(b) The Company shall not, and shall not allow any of its Affiliates
controlled directly or indirectly by the Company to make, directly or
indirectly, in cash or other property or in any other manner (including,
without limitation, from or by way of collateral), and the Holder shall
not ask, demand, sue for, take or receive from the Company or any
Affiliate, directly or indirectly, any payment of, or pledge or grant of a
security interest in any property as collateral security for the payment
of, any principal, interest or other amounts owing under this Note or take
any action to enforce the obligations of the Company under this Note
unless such action is solely to obtain specific performance of a
nonmonetary obligation under this Note that does not involve or result in
monetary damages or any other remedies that are inconsistent with the
provisions of this Section 2, provided, however, that subject to the
provisions of subsection (c) below, payments of principal, interest and
other amounts owing under this Note may be made, and, subject to the
provisions of Section 2(h) hereof, the Holder shall be entitled on and at
any time after the Maturity Date to ask, demand and sue for the payment of
any principal, interest or other amounts owing under this Note, unless
(i) at such time there exists and is continuing any Material
Default or Event of Default under the Bank Loan Agreement; or
(ii) any Default or Event of Default under the Bank Loan
Agreement would occur upon or by reason of such payment;
provided, however, that unless on or prior to the date that such payment
otherwise is required to be made hereunder the Holder shall have received
a copy of the written notice from the Administrative Agent or one or more
Senior Creditors to the Company that there exists a Material Default or
Event of Default under the Bank Loan Agreement or that a Default or Event
of Default thereunder would occur by reason of such payment, the Company
may make and the Holder may accept and retain such payment subject only to
the obligation to repay the amount so paid if the Holder subsequently is
notified by the Administrative Agent that a Default or Event of Default
under the Bank Loan Agreement did exist at the time of payment (to the
extent that such notification is made within 30 days after the
Administrative Agent (or if there is no Administrative Agent, the Senior
Creditors) obtained actual notice of such Default or Event of Default) or
a Default or Event of Default thereunder occurred on or by reason of such
payment.
(c) Upon any payment or distribution of assets of the Company or any
subsidiary in the event of any dissolution or winding up or total or
partial liquidation or reorganization of the Company, whether voluntary or
involuntary or in bankruptcy, insolvency, receivership or other
proceedings, any payment or distribution of any kind whether in cash,
securities, or other property which shall be payable or deliverable upon
or with respect to any indebtedness evidenced by this Note shall be paid
or delivered
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directly to the Administrative Agent for the ratable benefit of the Senior
Creditors, until all of the Senior Indebtedness has been indefeasibly paid
in full. Before any payment in respect of this Note may be made by the
Company upon any such dissolution or winding up or liquidation or
reorganization, any payment or distribution of assets of the Company to
which the Holder would be entitled, except for the provisions of this
paragraph (c), shall be made by the Company or by any receiver, trustee in
bankruptcy, liquidating trustee, agent or other person making such payment
or distribution, or by the Holder if received by it, directly to the
holders of the Senior Indebtedness or their representatives to the extent
necessary to pay all such Senior Indebtedness in full after giving effect
to any concurrent payment or distribution to the holders of such Senior
Indebtedness.
(d) If any proceeding referred to in subsection (c) above is
commenced by or against the Company,
(i) the Holder shall duly and promptly take such action as the
holders of the Senior Indebtedness may request (A) to collect the
obligations evidenced by this Note for the account of the holders of
the Senior Indebtedness and to file appropriate claims and proofs of
claim in respect of such obligations and this Note, (B) to execute
and deliver to the holders of the Senior Indebtedness 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 the
obligations evidenced by this Note, and (C) to collect and receive
any and all payments or distributions which may be payable or
deliverable upon or with respect to the obligations evidenced by
this Note; and
(ii) the holders of the Senior Indebtedness are hereby
irrevocably authorized and empowered (in their own name or in the
name of the Holder or otherwise), but shall have no obligation, if,
after demand the Holder refuses to do so, to demand, sue for,
collect and receive every payment or distribution referred to in
subsection (c) above and give acquittance therefor and to file
proofs of claims and take such other action (including, without
limitation, voting this Note and the obligations evidenced hereby)
as it may deem necessary or advisable for the exercise or
enforcement of any of their rights or interests hereunder.
(e) If, notwithstanding the foregoing provisions of this Section 2
prohibiting payments or distributions, the Holder receives any payment in
violation of paragraphs (b) or (c) of this Section 2, then and in such
event those payments or distributions shall be held in trust for the
benefit of, and shall be promptly paid over or delivered to, the holders
of Senior Indebtedness for application to the payment of all Senior
Indebtedness remaining unpaid to the extent necessary to pay in full the
principal of, interest on, or fees, costs or expenses relative to, or any
other amounts due in respect of, any of the Senior
3
Indebtedness after giving effect to any concurrent payment or distribution
to the holders of such Senior Indebtedness.
(f) The holders of the Senior Indebtedness are hereby authorized to
demand specific performance of the provisions of this Section 2, whether
or not the Company shall have complied with any of the provisions hereof
applicable to it, at any time when the Holder shall have failed to comply
with any other provisions of this Section 2 applicable to it. The Holder
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.
(g) The Holder, solely in its capacity as a creditor of the Company,
agrees that, so long as any of the Senior Indebtedness shall remain
unpaid, the Holder, will not commence, or join with any creditor other
than the holders of the Senior Indebtedness in commencing, any proceeding,
any proceeding referred to in paragraph (c) of this Section 2.
(h) Anything herein or in any other agreement between the Company
and the Holder or applicable law to the contrary notwithstanding, in no
event shall the Holder have any right to accelerate the obligations
hereunder prior to the Maturity Date unless (i) any of the Senior
Indebtedness shall have been accelerated or (ii) a bankruptcy,
reorganization or insolvency proceeding shall have been commenced by or
against the Company, provided that if the Holder shall accelerate the
obligations hereunder upon the commencement of any such proceeding and
such proceeding thereafter shall be dismissed, then such acceleration
shall be rescinded; provided, however that notwithstanding any other terms
or provisions of this Note, but nevertheless subject to the provisions of
this Section 2, the Holder shall be entitled to ask, demand and sue for
the payment of the obligations hereunder if the Holder has the right
(pursuant to this Section 2(h)) to accelerate the obligations hereunder
and has accelerated such obligations.
(i) No present or future holder of Senior Indebtedness shall be
prejudiced in its right to enforce subordination of this Note by any act
or failure to act on the part of the Company. Nothing contained in this
Section 2 is intended to or shall impair, as between the Company and its
subsidiaries, their respective creditors (other than the holders of Senior
Indebtedness) and the Holder, the obligation of the Company, which is
absolute and unconditional, to pay to the Holder the principal of and
interest on this Note, as and when the same become due and payable, or to
affect the relative rights against the Company of the Holder and other
creditors of the Company and its subsidiaries (other than the holders of
Senior Indebtedness). Upon any distribution of assets of the Company or
any subsidiary referred to in this Section 2, the Holder shall be entitled
to rely upon any order or decree made by any court of competent
jurisdiction in which such dissolution, winding up, liquidation or
reorganization proceedings are pending, or a
4
certificate of the liquidating trustee or agent or other person making
such distribution, delivered to the Holder, for the purpose of
ascertaining the persons entitled to receive payment from the Holder
pursuant to subsection (e) of this Section 2, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Section.
(j) The provisions of this Section 2 shall continue to be effective
or be reinstated, as the case may be, if at any time any payment in
respect of any Senior Indebtedness is rescinded or must otherwise be
returned by the holder thereof upon the insolvency, bankruptcy or
reorganization of the Company or otherwise, all as though such payment had
not been made.
(k) In the event that cash, securities or other property otherwise
payable or deliverable to the Holder of this Note shall have been applied
to the payment of Senior Indebtedness in full, then the Holder of this
Note shall be subrogated, from and after such time as the Senior
Indebtedness shall have been paid in full and all commitments of the
Senior Creditors under the Bank Loan Agreement shall have terminated, to
any rights of any holders of Senior Indebtedness to receive any further
payments or distributions of assets of the Company applicable to the
Senior Indebtedness until this Note shall be paid in full. For purposes of
such subrogation, no payments or distributions to the holders of Senior
Indebtedness of any cash, property or securities to which the Holder of
this Note would be entitled except for the provisions of this Section 2
shall, as between the Company and its creditors other than the holders of
Senior Indebtedness on the one hand and the Holder of this Note on the
other hand, be deemed to have been made as a payment by the Company to or
on account of Senior Indebtedness.
(l) The Holder shall not
(i) cancel or otherwise discharge any of the obligations
evidenced by this Note (except upon payment in full thereof paid to
the holders of the Senior Indebtedness as contemplated by paragraph
(e) of this Section 2) or subordinate any of the obligations
evidenced by this Note to any indebtedness of the Company other than
the Senior Indebtedness;
(ii) sell, assign, pledge, encumber or otherwise dispose of
any of the obligations evidenced hereby unless such sale,
assignment, pledge, encumbrance or disposition is made expressly
subject to the terms of this Section 2; or
(iii) permit the terms of this Note or of any other agreement
evidencing or relating to the obligations evidenced hereby to be
changed in such a manner as to
5
have an adverse effect upon the rights or interests of the holders
of the Senior Indebtedness hereunder.
(m) All rights and interests of the holders of the Senior
Indebtedness, and all agreements and obligations of the Holder and the
Company, under this Section 2 shall remain in full force and effect
irrespective of:
(i) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Senior Indebtedness, or any
other amendment or waiver of or any consent to departure from the
Bank Loan Agreement or any other agreement or instrument evidencing
or relating to the Senior Indebtedness; or
(ii) any exchange, release or non-perfection of any collateral
for the Senior Indebtedness, or any release or amendment or waiver
of or consent to departure from any guaranty, for any of the Senior
Indebtedness.
(n) The provisions of this Section 2 evidence a continuing agreement
and shall (i) remain in full force and effect until the Senior
Indebtedness shall have been paid in full and the commitments of the
Senior Creditors under the Bank Loan Agreement shalt have terminated, (ii)
be binding upon the Holder, the Company and their respective successors
and assigns, and (iii) inure to the benefit of and be enforceable by the
holders of the Senior Indebtedness and their respective successors,
transferees and assigns. Without limiting the generality of clause (iii)
of this paragraph (n), any Senior Creditor may assign or otherwise
transfer its interest in the Senior Indebtedness and the documents
evidencing the Senior Indebtedness to any other person or entity in
accordance with the Bank 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.
(o) The Holder shall deliver written notice to the holders of the
Senior Indebtedness promptly upon the occurrence of an Event of Default
hereunder or the occurrence of any event that with the giving of notice or
the expiration of time or both would constitute an Event of Default
hereunder.
3. EVENTS OF DEFAULT; ACCELERATION.
(a) Any of the following events constitutes an "Event of Default":
(i) the Company defaults in the payment of any portion of the
principal of this Note when such principal shall become due and
payable, and such default continues uncured for a period of five
business days after the Holder gives the Company notice of such
default; or
6
(ii) the Company defaults in the payment of any interest on
this Note when such interest shall become due and payable, and such
default continues uncured for a period of five business days after
the Holder gives the Company notice of such default; or
(iii) the Company defaults in the due observance or
performance of any other term, covenant, agreement or warranty of
the Company in this Note, and such default continues uncured for a
period of five business days after the Holder gives the Company
notice specifying such default or breach and requesting that such
default or breach be remedied and stating that such notice is a
notice of default hereunder; or
(iv) Senior Indebtedness having an aggregate principal amount
of at least $5,000,000 shall have become due and payable prior to
its stated maturity by reason of a default or event of default
thereunder; or
(v) the Company pursuant to or within the meaning of any
Bankruptcy Law:
(1) commences a voluntary case in bankruptcy or any
other action or proceeding for any other similar relief under
any Bankruptcy Law,
(2) consents by answer or otherwise to the commencement
against it of an involuntary case of bankruptcy,
(3) seeks or consents to the appointment of a receiver,
trustee, assignee, liquidator, custodian or similar official
(collectively, a "Custodian") of it or for all or
substantially all of its assets,
(4) makes a general assignment for the benefit of its
creditors, or
(5) generally is unable to pay its debts as its debts
become due;
(vi) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(1) is for relief against the Company in an involuntary
case of bankruptcy against the Company,
(2) appoints a Custodian of the Company for all or
substantially all of its assets, or
7
(3) orders the liquidation of the Company,
and the order remains unstayed and in effect for 30 days, or any
dismissal, stay, rescission or termination thereof ceases to remain
in effect.
(b) Subject to the provisions of Section 2, if any Event of Default
shall occur and be continuing, the Holder shall have the right, by notice
to the Company, to declare the entire principal amount then outstanding on
this Note and accrued interest thereon immediately due and payable,
whereupon all such amounts shall become immediately due and payable, all
without diligence, presentment, demand of payment, protest or further
notice of any kind, all of which are hereby expressly waived by the
Company, provided, however, that so long as any Senior Indebtedness is
outstanding, such declaration shall not become effective until the earlier
of (a) five business days after delivery of a notice to the holders of the
Senior Indebtedness that the Holder has declared the principal of and
interest on this Note to be due and payable immediately and (b) the
acceleration of any Senior Indebtedness. If the Company shall default in
the payment of principal of, or interest on, this Note, it will pay the
Holder such amounts, to the extent lawful, as shall be sufficient to pay
costs and expenses of collection or of otherwise enforcing the Holder's
rights incurred in connection with the exercise of any remedy whether
provided herein or available under any applicable law, including
reasonable counsel fees and expenses.
The preceding paragraph is subject to the condition that if at any
time after the principal of this Note has been declared due and payable
and before any judgment with respect thereto has been entered, all arrears
of interest have been paid and every other Event of Default has been made
good or cured, then the Holder of this Note may, by written instrument
filed with the Company, rescind and annul such declaration and its
consequences; but no such rescission shall extend to or affect any
subsequent default or Event of Default or impair any right thereon. Upon
any such rescission, any enforcement action commenced pursuant to the
preceding paragraph shall be terminated.
4. DEFINITIONS. For purposes of this Note:
"Administrative Agent" means NationsBank of Georgia, N.A., or any
successor agent appointed pursuant to the Bank Loan Agreement, or if there
is no Administrative Agent under the Bank Loan Agreement or if there is no
Bank Loan Agreement in effect, any other agent for the Senior Creditors.
"Bank Loan Agreement" shall mean the Loan and Security Agreement
dated as of March 31, 1995, by and between ProSource Services Corporation,
BroMar Services, Inc., ProSource Distribution Services Limited, the Senior
Creditors and
8
the Administrative Agent, as administrative agent for the Senior
Creditors, as the same shall be amended, supplemented, restated, extended
or refinanced from time to time, including any such amendment, supplement,
restatement, extension or refinancing resulting in an increase in the
amount of the credit facilities provided for thereunder.
"Bankruptcy Law" shall mean Title 11 of the United States Code or
any similar Federal, state, Canadian or provincial law for the relief of
debtors.
"Business Day" shall mean any day other than Saturday, Sunday or
other day on which the banks in New York, New York are authorized or
required to be closed.
"holders of Senior Indebtedness" shall mean the Administrative
Agent, in its capacity as administrative agent for itself and the Senior
Creditors (or if there is no Administrative Agent, the Senior Creditors),
so long as any Senior Indebtedness remains outstanding under or in
connection with the Bank Loan Agreement or any commitment to make loans
and advances under the Bank Loan Agreement remains outstanding.
"Material Default" means any Default under the Bank Loan Agreement
other than a Non-Material Default thereunder.
"Non-Material Default" means a Default thereunder the existence of
which the Administrative Agent has actual notice of and as to which the
Required Lenders (as defined in the Bank Loan Agreement) have elected not
to take any action required to be taken thereunder as a precondition for
such Default to become an Event of Default thereunder.
"Reimbursement Obligations" means the Reimbursement Obligations as
defined in the Bank Loan Agreement.
"Senior Creditor" means each of the Lenders under and as defined in
the Bank Loan Agreement and each other holder, from time to time, of any
portion of the Senior Indebtedness arising under or in connection with the
Bank Loan Agreement, including, without limitation, each creditor that
extends credit to the Company for the purpose of refinancing or repaying
such Senior Indebtedness, in whole or in part.
"Senior Indebtedness" shall consist of so long as any Senior
Indebtedness remains outstanding under or in connection with the Bank Loan
Agreement or any
9
commitment to make loans and advances under the Bank Loan Agreement
remains outstanding, any obligation pursuant to the Bank Loan Agreement to
pay principal, premium (if any), interest, reimbursements (including the
Reimbursement Obligations) or indemnity amounts and fees, costs or
expenses (including interest that would accrue on or after the filing of
any petition in bankruptcy (whether or not allowed) or for the
reorganization relating to the Company but for the filing of such
petition).
5. NOTICES. All notices hereunder shall be in writing and delivered
personally or sent by telecopier or by registered or certified mail (return
receipt requested) by the party sending such notice to each of the other parties
listed below at the following addresses (or such other addresses as shall be
specified by like notice):
Onex Ohio Holdings, Inc.
421 Leader Street
Marion, Ohio 43302
Attention: Donald F. West
Phone: (614) 382-5701
Telecopy: (614) 383-2615
ProSource Services Corporation
550 Biltmore Way, 10th Floor
Coral Gables, Florida 33134
Attention: Thomas C. Highland
Phone: (305) 529-2501
Telecopy: (305) 529-2573
Onex Corporation
Canada Trust Tower
161 Bay Street - Suite 2500
Toronto, Ontario, Canada M5J 2S1
Attention: Mr. Anthony R. Melman
Phone: (416) 362-7711
Telecopy: (416) 362-5765
10
Kaye, Scholer, Fierman, Hays & Handler
425 Park Avenue
New York, New York 10022
Attention: Joel I. Greenberg, Esq.
Phone: (212) 836-8201
Telecopy: (212) 836-7149
and, so long as any Senior Indebtedness remains outstanding under or
in connection with the Bank Loan Agreement or any commitment to make
loans and advances under the Bank Loan Agreement remains
outstanding, with copies to:
NationsBank of Georgia, N.A.
Business Credit Division
600 Peachtree Street
13 Plaza
Atlanta, Georgia 30308
Attn: John W. Getz
Telecopy: 404-607-6437
All notices shall be deemed given when received by the addressees.
6. CHOICE OF LAW. This Note shall be construed and enforced in accordance
with the laws of the State of New York, without reference to the choice of law
principles thereof.
IN WITNESS WHEREOF, the Company has caused this Note to be signed on its
behalf, in its corporate name, by its duly authorized officer, as an instrument
under seal, as of the day and year first above written.
PROSOURCE SERVICES CORPORATION
By: /s/D.R. Parker
--------------------------------
Name: D.R. Parker
Title: Chairman
11
Dates Referenced Herein
| Referenced-On Page |
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This ‘S-1’ Filing | | Date | | First | | Last | | | Other Filings |
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| | |
| | 4/1/05 | | 1 | | | | | None on these Dates |
Filed on: | | 9/6/96 |
| | 4/1/96 | | 1 |
| | 3/31/95 | | 1 | | 8 |
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