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EXHIBIT 4.3
THIS NOTE IS SUBJECT TO A SUBORDINATION AGREEMENT DATED AS OF [ ] AMONG THE
MAKER, THE HOLDER, FLEET CAPITAL CORPORATION, IN ITS CAPACITY AS THE
ADMINISTRATIVE AGENT FOR THE LENDERS AND ISSUING BANK NAMED IN THE LOAN
AGREEMENT DEFINED IN SUCH SUBORDINATION AGREEMENT, AND [ ] (THE "SUBORDINATION
AGREEMENT"). BY ITS ACCEPTANCE OF THIS NOTE, THE HOLDER HEREOF AGREES TO BE
BOUND BY THE PROVISIONS OF SUCH SUBORDINATION AGREEMENT TO THE SAME EXTENT THAT
A SUBORDINATED CREDITOR (AS DEFINED THEREIN) IS BOUND.
SUBORDINATED PROMISSORY NOTE
$18,333,333.33 Ronkonkoma, New York
March [ ], 2001
FOR VALUE RECEIVED, the undersigned QK HEALTHCARE, INC., a Delaware
corporation (the "Maker"), and its successors and assigns, having an office at
0000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxx 00000, promises to pay to the order of
____________, having an address of __________________________ (the "Holder"),
the principal sum of EIGHTEEN MILLION THREE HUNDRED THIRTY-THREE THOUSAND THREE
HUNDRED THIRTY-THREE AND 33/100 DOLLARS ($18,333,333.33) as hereinafter
provided, together with interest (computed on the basis of a 360-day year of
twelve 30-day months) at a rate equal to seven and one-half percent (7-1/2%) per
annum on (i) the sum of the unpaid principal amount hereof from the date hereof
until paid in full, whether upon maturity or by acceleration or otherwise, and
(ii) the unpaid First Tranche Capitalized Interest (as defined below) from March
31, 2002, and (iii) the unpaid Second Tranche Capitalized Interests (as defined
below) from March 31, 2006, in each case until the principal amount hereof,
First Tranche Capitalized Interest or Second Tranche Capitalized Interest is
paid in full, whether upon maturity or by acceleration or otherwise.
A portion of the principal amount hereof equal to SEVEN MILLION FIVE
HUNDRED THOUSAND AND 00/100 DOLLARS ($7,500,000.00), less the lesser of (a)
$2,000,000, or (b) the Over-Allotment Prepayment (the "First Tranche
Principal"), and all interest accruing on the First Tranche Principal for the
period commencing on the date hereof through and including March 31, 2002 (the
"First Tranche Capitalized Interest") shall be payable in twenty-eight (28)
equal installments quarterly on June 30, September 30,
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December 31, and March 31 in each year commencing on June 30, 2002 and ending
March 31, 2009, each of which installments shall be in an amount equal to the
sum of the First Tranche Principal and the First Tranche Capitalized Interest
divided by twenty-eight (28). Interest accruing after March 31, 2002 on the
unpaid First Tranche Principal and the unpaid First Tranche Capitalized Interest
shall be payable quarterly on June 30, September 30, December 31, and March 31
in each year commencing on June 30, 2002 and ending on March 31, 2009.
FOUR MILLION ONE HUNDRED SIXTY-SIXTY THOUSAND SIX HUNDRED SIXTY-SEVEN
AND 67/100 DOLLARS of the principal hereof plus the Deferred Principal Amount
(as defined below), if any (the "Second Tranche Principal"), and all interest
accruing on such principal amount for the period commencing on the date hereof
and through and including March 31, 2006 (the "Second Tranche Capitalized
Interest" and, together with the First Tranche Capitalized Interest, the
"Capitalized Interest"), shall be payable in eight (8) equal installments
quarterly on June 30, September 30, December 31 and March 31 in each year
commencing on June 30, 2006 and ending on March 31, 2008, each of which
installments shall be in an amount equal to the sum of the Second Tranche
Principal and the Second Tranche Capitalized Interest divided by eight (8).
Interest accruing after March 31, 2006 on the unpaid Second Tranche Principal
and the unpaid Second Tranche Capitalized Interest shall be payable quarterly on
June 30, September 30, December 31 and March 31 in each year commencing June 30,
2006 until the Second Tranche Principal and the Second Tranche Capitalized
Interest shall be paid in full.
The balance of the sum of the unpaid principal and the unpaid
Capitalized Interest, together with any accrued and unpaid interest, shall be
due and payable in full on March 31, 2009 (the "Maturity Date"). At any point in
time during the term of this Note, the quarterly payments of principal and
Capitalized Interest, including the interest thereon, due and payable during the
immediately following period of twelve consecutive months shall be referred to
as the "Current Portion" of this Note. Conversely, any such quarterly payments
due and payable after the immediately following period of twelve consecutive
months shall be referred to as the "Non-Current Portion" of this Note.
Upon the consummation of the Maker's initial public offering (the
"Offering"), $6,666,667 of the principal amount hereof (or such lesser amount as
shall be permitted to be prepaid pursuant to the Subordination Agreement) shall
be immediately due and payable. The difference between $6,666,667 and such
lesser amount is herein referred to as the "Deferred Principal Amount". In the
event the Maker's underwriters exercise their option (the "Over-Allotment
Option") to purchase additional shares of the Maker's Common Stock in connection
with the Offering, the Maker shall use the lesser of $2,000,000 or one sixth
(1/6) of one half (1/2) of the proceeds from the exercise of the Over-Allotment
Option to prepay the principal amount of this Note (the "Over-Allotment
Prepayment"). All payments of principal, Capitalized Interest and interest are
to be made in lawful money of the United States of America at Holder's aforesaid
address or at such other place or places as the holder hereof may from time to
time designate in writing.
The Maker, for itself and its successors and assigns, agrees, and the
Holder of this Note, by its acceptance hereof, agrees that the Non-Current
Portion of this Note is hereby expressly subordinated, to the extent and in the
manner hereinafter set forth, in right of payment to the prior payment or
satisfaction in full of the Maker's Current Liabilities,
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provided that the Maker's Current Liabilities shall be subordinated to the
Senior Indebtedness with respect to the rights of the holders of the Current
Liabilities to enforce the subordination provided for herein. As used herein,
"Current Liabilities" shall mean any liability of the Maker which is classified
as a current liability under generally accepted accounting principles as then in
effect, except for liabilities to the [Senior Lenders] (as defined in the
Subordination Agreement) constituting [Senior Indebtedness] (as defined in the
Subordination Agreement).
So long as any part of the Current Liabilities shall be unpaid, no
payment of principal, Capitalized Interest or interest hereunder shall be made
at any time without the consent of the then holders of the Current Liabilities
(the "Current Debt Holders"); provided, however, that (i) any payments due and
payable under the Current Portion of this Note shall be paid as they become due
and (ii) any further quarterly payments of interest and any regularly scheduled
principal or Capitalized Interest payments may be made as they become due
hereunder other than by way of acceleration as aforesaid if at the time of
payment or after giving effect to such payment there exists no event of default
under any agreement evidencing the Current Liabilities or any agreement pursuant
to which instruments evidencing the Current Liabilities have been issued and no
event which upon notice or lapse of time or both would constitute such an event
of default.
In the event of any acceleration of the Current Liabilities or
distribution of the assets, dissolution, winding-up, liquidation or
reorganization of the Maker (whether in bankruptcy, insolvency or receivership
proceedings or upon an assignment for the benefit of creditors or otherwise):
(a) Except for any payments due and payable under the Current
Portion of this Note, the Current Liabilities shall be paid or
satisfied in full before the Holder hereof is entitled to receive any
further payment on account of principal, Capitalized Interest or
interest hereunder, and any further payment or distribution to which
the Holder hereof would be entitled hereunder but for the subordination
provisions of this Note shall be paid directly to the Current Debt
Holders.
(b) In the event that any such further payment of principal,
Capitalized Interest or interest or other payment or distribution of
assets of the Maker shall be received by the Holder hereof,
notwithstanding the foregoing, in violation of the subordination
provisions of this Note while any Current Liability is unpaid, such
further payment or distribution shall be held by the Holder hereof for
the Current Debt Holders and paid over to such Current Debt Holders by
the Holder hereof.
The Holder hereof by his or her acceptance hereof irrevocably
authorizes and directs the Current Debt Holders and their successors and assigns
and any trustee in bankruptcy, receiver or assignee for the benefit of creditors
of the Maker, whether in voluntary or involuntary liquidation, dissolution or
reorganization, in his or her behalf to
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take such action as may be necessary or appropriate to effectuate the
subordination provided for in this Note (including, without limitation, the
right to file proof of claim for the debt represented by this Note and, upon
failure of the Holder to vote, to vote such claim in any such proceeding) and
irrevocably appoints the Current Debt Holders and their successors and assigns,
acting jointly, or any such trustee, receiver or assignee, his or her
attorneys-in-fact for such purpose with full powers of substitution and
revocation.
The foregoing subordination provisions are solely for the purpose of
defining the relative rights of the Current Debt Holders on the one hand, and
the Holder of the Note on the other hand, and nothing herein shall impair, as
between the Maker and the Holder of this Note, the obligation of the Maker,
which is unconditional and absolute, to pay the principal, Capitalized Interest
and interest on this Note in accordance with its terms, nor shall anything
herein prevent the Holder of this Note from exercising all remedies otherwise
permitted by applicable law or hereunder upon default hereunder, subject to the
rights of the Current Debt Holders as herein provided.
The Maker shall be entitled to offset against any payment of principal,
Capitalized Interest, interest or any other amount then due and payable
hereunder any amount due and payable to the Maker with respect to Losses, Taxes
or Third Party Claims (each as defined in that certain Indemnification,
Noncompetition and Tax Cooperation Agreement of even date herewith (the
"Indemnification Agreement") among the Maker, Quality King Distributors, Inc.
("QK") and Pro's Choice Beauty Care, Inc. ("Pro's Choice")) or any other amount
payable under the Indemnification Agreement, which shall not be paid within
fifteen (15) days of notice of claim therefor in accordance with the
Indemnification Agreement, or, if such amount relates to a Third Party Claim,
within fifteen (15) days of determination of the amount of such Third Party
Claim whether by final judicial or arbitral non-appealable order or as the
result of a settlement entered into in accordance with the Indemnification
Agreement (a "Final Determination"); provided that, if the Subordination
Agreement shall prohibit payment of any amount due and payable hereunder, any
offset against such payment in accordance with the foregoing provisions shall be
deferred until the Maker shall be permitted to make such payment under the terms
of the Subordination Agreement. The foregoing proviso shall not prejudice or
diminish the right of Maker then to be paid with respect to any amount due to
the Maker from time to time under the Indemnification Agreement. Notwithstanding
any other provision of this Note to the contrary, if (i) Maker shall have
notified QK of a Third Party Claim (an "Unliquidated Claim") under the
Indemnification Agreement and there shall have been no Final Determination with
respect thereto, and (ii) a majority of the independent directors shall have
made a reasonable estimate of the amount of the probable Loss with respect to
such Third Party Claim (the "Claim Amount"), Maker shall be entitled to defer
all or any portion of any payment of principal, Capitalized Interest, interest
or any other amount due hereunder equal to such Claim Amount until a Final
Determination shall have been made with respect to such Unliquidated Claim;
provided that QK shall not have provided adequate security for the payment of
the Claim Amount in the event of a Final Determination with respect to such
Third Party Claim, which
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security shall be reasonably acceptable to a majority of the independent
directors of Maker.
The Maker hereby waives all applicable exemption rights as well as
valuation and appraisement, presentment and demand for payment, protest and
notice of protest, notice of dishonor, protest and demand, demand and dishonor,
and non-payment of this Note, and expressly agrees that its liability under this
Note shall not be affected by any renewal or extension in the time of payment of
the principal, Capitalized Interest and/or interest due and payable hereunder,
regardless of the number of such renewals and extensions. No failure or delay by
the Holder in exercising any right, power or privilege hereunder shall operate
as a waiver thereof; nor shall any single or partial exercise thereof preclude
any other or further exercise thereof or the exercise of any rights, power or
privilege.
If this Note (a) is not paid when due or (b) is collected through a
bankruptcy, receivership or other court proceeding, whether before or after this
Note is due, or (c) is placed in the hands of attorneys for collection, the
undersigned agrees to pay, in addition to the then outstanding balance of the
principal sum, Capitalized Interest, any accrued and unpaid interest thereon and
all other fees, sums, charges and amounts due and payable under this Note, all
costs of collecting or attempting to collect the same (including, but not
limited to, attorney' fees and disbursements) incurred by the Maker hereof.
This Note may not be altered, amended, canceled, changed, discharged,
modified, terminated or waived orally, but only by an agreement in writing dated
and executed by the party against which enforcement of such alteration,
amendment, change, cancellation, discharge, modification, termination or waiver
is sought and in the case of the Maker, such alteration, amendment, change,
cancellation, discharge, modification, termination or waiver is approved by the
majority of the members of the Maker's Board of Directors (including the
majority of independent directors). A director shall be deemed to be an
"independent director" if he or she satisfies the requirement of independence
set forth in the then current rules of the New York Stock Exchange.
Any notice, request, demand, consent, approval or other communication
which the holder hereof or the undersigned is obligated or may elect to give
hereunder ("Notice") shall be given by registered or certified mail, return
receipt requested, postage prepaid, addressed to the party to receive such
Notice at such party's address first above set forth. Either party may, by
Notice given as aforesaid, change its address for all subsequent Notices.
Notices shall be deemed given as of the second business day following the date
when mailed as aforesaid.
The provisions of this Note shall be binding upon and inure to the
benefit of the undersigned and the holder hereof and their respective heirs,
legal representatives, successors and assigns. For the purposes of this Note,
the phrase "Holder" shall mean and include all subsequent holders of this Note.
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In case any one or more of the provisions contained in this Note shall
for any reason be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other
provisions hereof, but this Note shall be construed as if such invalid, illegal
or unenforceable provision had never been included.
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This Note shall be governed by, and construed and enforced in
accordance with, the laws of the State of New York.
QK HEALTHCARE, INC.
By:__________________________
Name:
Title:
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