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EXHIBIT 4(g)
AMENDMENT NO. 4 TO NOTE PURCHASE AGREEMENT
This Amendment No. 4 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, and that certain Amendment
No. 3 to Note Purchase Agreement, dated as of August 12, 1996 (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, the Company acknowledges that since August 1, 1997, the
Company has been in Default under the terms of the Purchase Agreement because
it engaged in transactions described in Section 2.4 herein, prior to the
execution by the Noteholder of this Amendment No. 4 (the "Default").
WHEREAS, on the terms and subject to the conditions set forth in this
Amendment, and as an inducement to the Noteholder to waive the Company's
Default acknowledged herein, 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:
Sec. 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
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rely on such representations and warranties as if they were made to the
Noteholder in this Amendment as of the date hereof.
Sec. 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.
Sec. 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:
Sec. 2.1. AMENDMENT TO SEC. 9.15 OF THE PURCHASE AGREEMENT. Sec. 9.15
of the Purchase Agreement is hereby amended by deleting it in its entirety and
substituting the following new Sec. 9.15 in lieu thereof:
Sec. 9.15 MERGER; SALE OF ASSETS. Other than the
Reorganization, the Initial Receivables Transfer or any
Additional Receivables Transfer, neither the Company nor any
Restricted Subsidiary will enter into any merger,
consolidation, reorganization or liquidation or transfer or
otherwise dispose of all or a Substantial Portion of its
property or business, unless approved in advance by the
holders of at least 66-2/3% in aggregate unpaid principal
amount of the Notes then Outstanding.
Sec. 2.2. AMENDMENT OF SEC. 9.24 TO THE PURCHASE AGREEMENT. Sec. 9.24
of the Purchase Agreement is hereby amended by deleting it in its entirety and
substituting the following Sec. 9.24 in lieu thereof:
Sec. 9.24 INVESTMENT AND LOAN LINK. Neither the
Company nor any Restricted Subsidiary, together or
individually, directly or indirectly, in any instance or in
the aggregate over time may: (a) invest in any manner more
than $10,800,000 in Pioneer/Canada or (b) loan more than an
aggregate principal amount of (i) $25,000,000 to
Pioneer/Canada; (ii) $55,000,000 to Pioneer/Maryland; (iv)
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$85,000,000 to Limited Partnership; (v) $15,000,000 to
Pioneer/Minnesota; and (vi) $10,000,000 to Pioneer/Illinois.
Sec. 2.3 AMENDMENT TO SEC. 12.1 OF THE PURCHASE AGREEMENT. The following
definitions are hereby added to Sec. 12.1 of the Purchase Agreement, to be
inserted therein in the appropriate alphabetical order:
The term "Amendment No. 4" shall mean Amendment No. 4 to Note Purchase
Agreement dated as of March 23, 1998 between the Company and the
Noteholder.
The term "Subordination Agreement" shall mean the Subordination
Agreement dated as of June 30, 1997 among Limited Partnership, the
Company, certain lenders, National City Bank, as agent for such lenders,
and executed effective as of March 23, 1998 by the Noteholder.
The term "Initial Receivables Transfer" shall mean the receivables
transfer of the Company to Pioneer LP in a maximum amount not to exceed
$90,000,000, as described in Item 6 of Exhibit C hereto.
The term "Additional Receivables Transfer" shall mean any of the one
or more transfers of additional receivables of the Company to Pioneer LP
in a maximum aggregate amount not to exceed $30,000,000, as described in
Item 6 of Exhibit C hereto.
Sec. 2.4. AMENDMENT TO EXHIBIT C TO THE PURCHASE AGREEMENT. Exhibit C to
the Purchase Agreement is hereby amended by adding the following Item 6 thereto:
6. DESCRIPTION OF INITIAL RECEIVABLES TRANSFER AND
ADDITIONAL RECEIVABLES TRANSFER
Pursuant to the restructuring of Pioneer-Standard Electronics, Inc.
(the "Company"), the Company transferred approximately, but not in excess of,
$90,000,000 in accounts receivables (the "Receivables") to Pioneer-Standard
Electronics, Ltd. ("Pioneer LP"), its wholly-owned subsidiary (the "Initial
Receivables Transfer"). The Initial Receivables Transfer occurred on August 1,
1997 and was a capital contribution to Pioneer LP. At the completion of the
Initial Receivables Transfer, Pioneer LP owns the Receivables and the proceeds
to be collected from the Receivables.
Subsequent to the Initial Receivables Transfer, Pioneer LP paid the
Company a servicing fee to collect the Receivables on behalf of Pioneer LP.
Pioneer LP then loaned the Company, on a daily basis, as the cash is collected
from customers, the proceeds of the Receivables. The Receivables transferred as
part of the Initial Receivables Transfer were collected and loaned back to the
Company within the fifty-day period commencing with the Initial Receivables
Transfer.
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After such fifty-day elapsed, a $90,000,000 loan from Pioneer LP to
the Company will be outstanding and is evidenced by a demand note.
The Company also will have the right to perform one or more additional
transfers of accounts receivables (the "Additional Receivables") to Pioneer LP
(each, an "Additional Receivables Transfer") in an aggregate amount not to
exceed $30,000,000.
Upon the completion of any Additional Receivables Transfer, Pioneer LP
will own the Additional Receivables and the proceeds to be collected from the
Additional Receivables.
Subsequent to any Additional Receivables Transfer, Pioneer LP will pay
the Company a servicing fee to collect the Additional Receivables on behalf of
Pioneer LP. Pioneer LP will then loan to the Company, on a daily basis, as the
cash is collected from customers, the proceeds of the Additional Receivables.
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 been satisfied or waived:
Sec. 3.1 OPINIONS OF COUNSEL FOR THE COMPANY. The Noteholder and its
special counsel shall have received from Xxxxxx, Halter & Xxxxxxxx, Cleveland,
Ohio, special counsel for the Company, an opinion, dated the date hereof, in
form and substance 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.
Sec. 3.2 SUBORDINATION AGREEMENT. The Subordination Agreement and all
other agreements, documents, certificates or instruments delivered in
connection therewith shall have been reduced to writing and furnished to the
Noteholder and its special counsel, and the Subordination Agreement and such
other agreements, documents, certificates and instruments (collectively,
"Documents") shall be in form and substance satisfactory to the Noteholder and
its special counsel. The Noteholder and its special counsel shall have received
from Xxxxxx, Halter & Xxxxxxxx, Cleveland, Ohio, special counsel for the
Company, an opinion, dated the date hereof, in form and substance satisfactory
to the Noteholder and its special counsel, relating to the due authorization,
execution and delivery by the Company and Pioneer LP of the subordination
Agreement and the enforceability against the Company and Pioneer LP of the
Subordination Agreement, in accordance with its terms. The Noteholder shall
also have received an Officer's Certificate of the Company certifying that
attached thereto are true, correct and complete copies of a fully executed
Subordination Agreement and such other Documents, that such Documents
constitute the only other agreements between such parties relating to the
transactions contemplated by the Subordination Agreement, and that the
Subordination Agreement and each other Document is in full force and effect
without any term or condition thereof having been amended, modified or waived.
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SECTION 4. WAIVER OF DEFAULT.
Sec. 4.1. The Noteholder hereby waives the Default by the Company as
acknowledged herein.
SECTION 5. MISCELLANEOUS
Sec. 5.1. CROSS-REFERENCES. References in this Amendment to any Section
(or "Sec.") are, unless otherwise specified, to such Section (or "Sec.") of
this Amendment.
Sec. 5.2. INSTRUMENT PURSUANT TO PURCHASE AGREEMENT. This Amendment is
executed pursuant to Sec. 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.
Sec. 5.3. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns.
Sec. 5.4. 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.
Sec. 5.5. 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/ Xxxx X. Xxxxxxx
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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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