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EXHIBIT 4(h)
AMENDMENT NO.5 TO NOTE PURCHASE AGREEMENT
This Amendment No.5 to Note Purchase Agreement (this "Amendment") is
entered into as of March 23, 1998 by PIONEER-STANDARD ELECTRONICS, INC. (the
"Company") and TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA (the
"Noteholder").
PRELIMINARY STATEMENT.
WHEREAS, the Company and the Noteholder have entered into a Note
Purchase Agreement, dated as of October 31, 1990 (the "Original Purchase
Agreement"), pursuant to which, at a closing held on November 2, 1990, the
Noteholder purchased $20,000,000 in aggregate principal amount of the Company's
9.79% Senior Notes due November 1, 2000 (the "Notes"), which Original Purchase
Agreement has been amended by that certain Amendment No. 1 to Note Purchase
Agreement, dated as of November 1, 1991, that certain Amendment No. 2 to Note
Purchase Agreement, dated as of November 30, 1995, that certain Amendment No. 3
to Note Purchase Agreement, dated as of August 12, 1996, and that certain
Amendment No. 4 to Note Purchase Agreement, dated as of March 23, 1998 (as so
amended, the "Purchase Agreement"). The Noteholder was the sole purchaser and
remains the sole record and beneficial owner of the Notes. Capitalized terms
used herein and not otherwise defined herein are used with the meanings assigned
thereto in the Purchase Agreement.
WHEREAS, on the terms and subject to the conditions set forth in this
Amendment, and as an inducement to the Noteholder to consent to the Company's
offering of the Convertible Debentures (as defined herein) and certain other
actions, the Company and the Noteholder desire to amend the Purchase Agreement
as set forth below.
NOW, THEREFORE, the Company and the Noteholder agree as follows:
SECTION 1. GENERAL REPRESENTATIONS AND WARRANTIES OF
THE COMPANY.
The Company hereby represents and warrants to the Noteholder as
follows:
SECTION 1.1. REPRESENTATIONS AND WARRANTIES IN PURCHASE AGREEMENT.
The representations and warranties with respect to the Company contained in the
Purchase Agreement are true and correct in all material respects and the
Noteholder shall be entitled to rely on such representations and warranties as
if they were made to the Noteholder in this Amendment as of the date hereof.
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SECTION 1.2. REPRESENTATIONS AND WARRANTIES IN CREDIT AGREEMENT. The
representations and warranties with respect to the Company contained in the
Credit Agreement and in any document, certificate or instrument delivered
pursuant to the Credit Agreement are true and correct in all material respects
and the Noteholder shall be entitled to rely on such representations and
warranties as if they were made to the Noteholder in this Amendment as of the
date hereof.
SECTION 1.3. REPRESENTATIONS AND WARRANTIES IN SUBORDINATION
AGREEMENT. The representations and warranties with respect to the Company
contained in the Subordination Agreement and in any document, certificate or
instrument delivered pursuant to the Subordination Agreement are true and
correct in all material respects and the Noteholder shall be entitled to rely on
such representations and warranties as if they were made to the Noteholder in
this Amendment as of the date hereof.
SECTION 2. AMENDMENTS TO THE PURCHASE AGREEMENT.
The Purchase Agreement is hereby amended in the following respects:
SECTION 2.1. ADDITION OF SECTION 9.25 TO THE PURCHASE AGREEMENT. The
following new Section 9.25 shall be added to the Purchase Agreement:
Section 9.25 AMENDMENT OF CONVERTIBLE DEBENTURES. The
Company will not amend or otherwise modify the terms or provisions of
the Convertible Debentures or the Junior Subordinated Indenture or
First Supplemental Indenture executed by the Company in connection
with the issuance of the Convertible Debentures; provided, however,
the Company is permitted to enter into supplemental indentures
permitted pursuant to Section 9.1(h) or (i) of the Junior Subordinated
Indenture.
Section 2.2. AMENDMENT TO SECTION 12.1 OF THE PURCHASE AGREEMENT.
Section 12.1 of the Purchase Agreement is hereby amended by deleting the
definition of "Indebtedness" in its entirety and substituting the following new
definition in lieu thereof:
The term "INDEBTEDNESS", with respect to any Person, shall
mean and include the aggregate amount of, without duplication: (a) all
obligations of such Person for borrowed money; (b) all obligations of
such Person evidenced by bonds, debentures, notes, or other similar
instruments; (c) all Capitalized Lease Obligations of such Person; (d)
all obligations or liabilities of others secured by a Lien on any
Asset owned by such Person, irrespective of whether such obligation or
liability is assumed, to the extent of the lesser of such obligation
or liability or the fair
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market value of such Asset; (e) all obligations of such Person to pay
the deferred purchase price of Assets or services, exclusive of trade
and other payables which, by their terms, are due and payable within
ninety (90) calendar days of the creation thereof and are not overdue
or are being properly and expeditiously contested in good faith by
appropriate proceedings, so long as appropriate reserves have been
established and the use by such Person of any Assets involved has not
been materially interfered with; (f) any liability (whether contingent
or not) in respect of unfunded vested accrued benefits under any
Pension Plan which is subject to Title IV of ERISA; (g) all
liabilities of such Person in respect of letters of credit or
instruments serving a similar function issued or accepted for its
account by banks and other financial institutions (whether or not
representing obligations for borrowed money); and (h) any Guaranty of
Indebtedness described in any of clauses (a) through (g) above,
including reimbursement obligations in respect of letters of credit;
provided, however, that Indebtedness shall not include any Guaranty
(i) by the Company of Indebtedness of a Restricted Subsidiary or (ii)
by a Restricted Subsidiary of Indebtedness of another Restricted
Subsidiary; and provided, further, that, for purposes of any
determination of whether Short-Term Indebtedness shall be permitted
under Section 9.17 hereof, or whether Consolidated Funded Indebtedness
shall be permitted under Section 9.20 hereof, (i) no Guaranty shall be
treated as Indebtedness to the extent that the obligation guaranteed
thereby is Indebtedness, and (ii) the obligations of the Company to
make payments of principal and interest on the Convertible Debentures
shall not be treated as Indebtedness; and, provided, further, that
Indebtedness shall not include any Guaranty by the Company or a
Restricted Subsidiary of the Indebtedness of another Person if (i)
treating such Guaranty as Indebtedness would result in a violation of
Section 9.20 hereof at the time the Company or such Restricted
Subsidiary becomes liable therefor, (ii) the Company elects (and
evidences such election by prompt written notice thereof to each
holder of a Note) to treat such Guaranty as a Restricted Investment
and (iii) treated as a Restricted Investment, the incurrence of such
Guaranty can be effected in compliance with Section 9.19 hereof.
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SECTION 2.3. AMENDMENT OF SECTION 12.1 TO THE PURCHASE AGREEMENT.
Section 12.1 of the Purchase Agreement is hereby amended by deleting the
definition of "Total Capitalization"" in its entirety and substituting the
following new definition in lieu thereof:
The term "TOTAL CAPITALIZATION" shall mean the sum of (i)
Consolidated Funded Indebtedness, plus (ii) Consolidated Shareholders'
Equity, plus (iii) the aggregate principal amount of the Convertible
Debentures then outstanding, but only to the extent that Consolidated
Shareholders' Equity does not include the Trust Preferred Securities.
SECTION 2.4. FURTHER AMENDMENT TO SECTION 12.1 OF THE PURCHASE
AGREEMENT. The following definitions are hereby added to Section 12.1 of the
Purchase Agreement, to be inserted therein in the appropriate alphabetical
order:
The term "Amendment No.5" shall mean Amendment No. 5 to Note
Purchase Agreement dated as of March 23, 1998 between the Company and
the Noteholder.
The term "CONVERTIBLE DEBENTURES" shall mean the Series A 6
3/4% Junior Convertible Subordinated Debentures of the Company, due
March 31, 2028, issued in an aggregate original principal amount of up
to $150,000,000, under that certain Junior Subordinated Indenture,
dated as of March 23, 1998, of the Company to Wilmington Trust
Company, as trustee, as supplemented by that certain First
Supplemental Indenture, dated as of March 23, 1998, of the Company to
Wilmington Trust Company, as trustee.
The term "TRUST PREFERRED SECURITIES" shall mean the up to
2,875,000 6 3/4% Convertible Trust Preferred Securities of the
Pioneer-Standard Financial Trust, a Delaware statutory business
trust, offered pursuant to the Offering Memorandum dated March 18,
1998.
SECTION 3. CONDITIONS TO EFFECTIVENESS OF THIS AMENDMENT.
This Amendment shall not be effective unless and until each party
hereto shall have executed and delivered an original counterpart hereof and the
following conditions shall have been satisfied or waived:
SECTION 3.1. OPINIONS OF COUNSEL FOR THE COMPANY. The Noteholder and
its special counsel shall have received from ▇▇▇▇▇▇, Halter & ▇▇▇▇▇▇▇▇,
Cleveland, Ohio, special counsel for the Company, an opinion, dated the date
hereof, in form and substance
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satisfactory to the Noteholder and its special counsel, relating to the due
authorization, execution and delivery by the Company of this Amendment and the
enforceability against the Company of this Amendment, in accordance with its
terms.
SECTION 3.2. AMENDMENT FEE. In consideration for its agreement to
enter into this Amendment, the Noteholder shall have received a payment in
immediately available funds in the amount of Twenty-one Thousand Four Hundred
Dollars ($21,400).
SECTION 4. MISCELLANEOUS.
SECTION 4.1. CROSS-REFERENCES. References in this Amendment to any
Section (or "Section") are, unless otherwise specified, to such Section
(or "Section") of this Amendment.
SECTION 4.2. INSTRUMENT PURSUANT TO PURCHASE AGREEMENT. This Amendment
is executed pursuant to 13.4 of the Purchase Agreement and shall (unless
otherwise expressly indicated herein) be construed, administered and applied in
accordance with all of the terms and provisions of the Purchase Agreement.
Except as expressly amended hereby, all of the representations, warranties,
terms, covenants and conditions of the Purchase Agreement and the Notes shall
remain unamended and unwaived. The amendments set forth herein shall be limited
precisely as provided for herein to the provisions expressly amended herein and
shall not be deemed to be a waiver of, amendment of, consent to or modification
of any other term or provision of the Purchase Agreement or the Notes or of any
term or provision of any other document or of any transaction or further action
on the part of the Company which would require the consent of any Noteholder
under the Purchase Agreement.
SECTION 4.3. SUCCESSORS AND ASSIGNS. This Amendment shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
SECTION 4.4. COUNTERPARTS. This Amendment may be executed
simultaneously in two or more counterparts, each of which shall be deemed to be
an original but all of which shall constitute together but one and the same
instrument.
SECTION 4.5. GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the law of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers duly authorized thereunto as of the
date and year first above written.
PIONEER-STANDARD ELECTRONICS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Vice President, Treasurer and
Assistant Secretary
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
By: /s/ Authorized Officer
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