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Exhibit 10.14
[Execution Copy]
AMENDMENT NO. 6 AND CONSENT
dated as of February 7, 1997
to
LOAN AND SECURITY AGREEMENT
dated as of March 31, 1995
THIS AMENDMENT NO. 6 AND CONSENT dated as of February 7, 1997 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), a national banking association (NATIONSBANK), THE
FIRST NATIONAL BANK OF BOSTON, a national banking association (BANK OF BOSTON),
and FLEET CAPITAL CORPORATION, a Rhode Island corporation (FLEET), as co-agents
(each in that capacity a COAGENT 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, Amendment No. 2 and Waiver
dated as of March 28,1996, Amendment No. 3 and Consent dated as of September 6,
1996, Amendment No. 4 and Consent dated as of September 26, 1996 and Amendment
No. 5 and Consent dated as of December 27, 1996 (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. 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
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(a) amending Section 1.1 Definitions thereof by amending the definition
TERMINATION AND AMENDMENT CHARGES in its entirety to read as follows:
TERMINATION AND AMENDMENT CHARGES means income statement charges in an
aggregate amount not greater than the sum of (a) $17,000,000 (before taking into
account any associated tax benefit, which tax benefit will be determined based
on the Borrowers' effective tax rate for the period in which such charges are
recorded, all in accordance with GAAP) recorded by the Borrowers in Fiscal Year
1996 or the first Fiscal Quarter of Fiscal Year 1997, in connection with
prepayment charges, the write-off of deferred financing costs and other
appropriate charges in connection with the termination and/or amendment of
various agreement as to Debt of ProSource and other matters and (b) $10,600,000
(before taking into account any associated tax benefit, which tax benefit will
be determined based on the Borrowers' effective tax rate for the period in which
such charges are recorded, all in accordance with GAAP) recorded by the
Borrowers in Fiscal Year 1996 or the first Fiscal Quarter of Fiscal Year 1997,
in connection with the termination of ProSource's agreement to provide
distribution services to Arby's restaurants.
(b) 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 and
the Restructuring Reserve and of Termination and Amendment Charges
recorded during such Fiscal Quarter and the calculations required to
establish whether or not other Borrowers were in compliance with the
requirements of SECTIONS 12.1, 12.2, 12.5, 12.10, 12.11 AND 12.16;
(c) amending Section 12.17 Limitation on Restructuring Reserve by deleting
the figure "$2,700,000" appearing in clause (a) thereof and substituting
therefor the figure "$3,000,000."
Section 2. Consent and Waiver. The Lenders hereby (a) consent to the
Borrowers' recording in Fiscal Year 1996 and the first Fiscal Quarter of Fiscal
Year 1997, Termination and Amendment Charges, as defined in the Loan Agreement,
as amended by this Amendment and (b) waive any Default or Event of Default that
would otherwise result from such recording, PROVIDED that on the date on which
any action described in foregoing clause (a) is taken, and after giving effect
to this Amendment, no Default or Event of Default shall have occurred and be
continuing. The Lenders further waive compliance and the effects of
non-compliance by the Borrowers with the provisions of Section 11.1(d) of the
Loan Agreement, PROVIDED that the Borrowers' monthly operating budget for Fiscal
Year 1997 shall be delivered to the Lenders and the Administrative Agent not
later than March 15, 1997.
Section 3. Effectiveness of Amendment. Sections 1 and 2 of this Amendment
shall become effective as of October 1, 1996 upon receipt by the Administrative
Agent not later
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than February 12, 1997 of (a) at least ten copies of this Amendment duly
executed and delivered by each Borrower, the Co-Agents and each Lender, and (b)
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 or any Lender
or the Administrative 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 hereby 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]
Attest: By:/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
By:/s/ Xxxx X. Xxxxxx xx Xxxxxxx Executive Vice President
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Xxxx X. Xxxxxx xx Xxxxxxx
Secretary
BROMAR SERVICES, INC.
[Corporate Seal]
Attest: By:/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
By:/s/ Xxxx X. Xxxxxx xx Xxxxxxx Executive Vice President
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Xxxx X. Xxxxxx xx Xxxxxxx
Secretary
PROSOURCE DISTRIBUTION SERVICES
[Corporate Seal] LIMITED
Attest: By:/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
By:/s/ Xxxx X. Xxxxxx xx Xxxxxxx Executive Vice President
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Xxxx X. Xxxxxx xx Xxxxxxx
Secretary
(Signatures continued on following three pages)
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ADMINISTRATIVE AGENT:
NATIONSBANK, N.A. (SOUTH)
By:/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Vice President
CO-AGENTS AND LENDERS:
NATIONSBANK, N.A. (SOUTH),
as a Lender and Co-Agent
By:/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Vice President
THE FIRST NATIONAL BANK OF BOSTON,
as a Lender and Co-Agent
By:/s/ Xxxxxxxxx X. Xxxxxx
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Name: Xxxxxxxxx X. Xxxxxx
Title: Vice President
FLEET CAPITAL CORPORATION, as a Lender
and Co-Agent
By:/s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: Senior Vice President
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XXX XXXX XX XXXX XXXXXX, as a Lender
By:/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
Relationship Manager
BANKAMERICA BUSINESS CREDIT, INC., as
a Lender
By:/s/ X.X. Xxxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
THE CIT GROUP/BUSINESS CREDIT, INC.,
as a Lender
By:/s/ Xxxxxx Berniez
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Name: Xxxxxx Berniez
Title: Vice President
XXXXXX FINANCIAL, INC., as a Lender
By:/s/ Xxxxxxxxx Xxxxxxxx
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Name: Xxxxxxxxx Xxxxxxxx
Title: Assistant Vice President
SANWA BUSINESS CREDIT CORPORATION,
as a Lender
By:/s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President
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NATIONAL CITY COMMERCIAL FINANCE,
INC., as a Lender
By:/s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President
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