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Exhibit 4(r)
[EXECUTION COPY]
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GUARANTEE AGREEMENT
Pioneer-Standard Electronics, Inc.
and
Wilmington Trust Company
Relating to the Preferred Securities of
Pioneer-Standard Financial Trust
Dated as of March 23, 1998
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CROSS REFERENCE TABLE*
SECTION OF TRUST SECTION OF
INDENTURE ACT OF GUARANTEE
1939, AS AMENDED AGREEMENT
310(a) 4.1(a)
310(b) 4.1(c), 2.8
310(c) Inapplicable
311(a) 2.2(b)
311(b) 2.2(b)
311(c) Inapplicable
312(a) 2.2(a)
312(b) 2.2(b)
313 2.3
314(a) 2.4
314(b) Inapplicable
314(c) 2.5
314(d) Inapplicable
314(e) 1.1, 2.5, 3.2
314(f) 3.2
315(a) 3.1(d)
315(b) 2.7
315(c) 3.1
315(d) 3.1(d)
316(a) 1.1, 2.6, 5.4
316(b) 5.3
317(a) Inapplicable
317(b) Inapplicable
318(a) 2.1(b)
318(b) 2.1
318(c) 2.1(a)
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* This Cross-Reference Table does not constitute part of this Guarantee
Agreement and shall not affect the interpretation of any of its terms
or provisions.
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TABLE OF CONTENTS
PAGE
ARTICLE 1 DEFINITIONS
SECTION 1.1 Definitions 1
ARTICLE 2 TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application 4
SECTION 2.2 List of Holders 4
SECTION 2.3 Reports by the Guarantee Trustee 4
SECTION 2.4 Periodic Reports to Guarantee Trustee 4
SECTION 2.5 Evidence of Compliance with Conditions Precedent 4
SECTION 2.6 Events of Default; Waiver 5
SECTION 2.7 Event of Default; Notice 5
SECTION 2.8 Conflicting Interests 5
ARTICLE 3 POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Guarantee Trustee 5
SECTION 3.2 Certain Rights of Guarantee Trustee 7
SECTION 3.3 Indemnity 8
ARTICLE 4 GUARANTEE TRUSTEE
SECTION 4.1 Guarantee Trustee; Eligibility 9
SECTION 4.2 Appointment, Removal and Resignation of the Guarantee Trustee 9
ARTICLE 5 GUARANTEE
SECTION 5.1 Guarantee 10
SECTION 5.2 Waiver of Notice and Demand 10
SECTION 5.3 Obligations Not Affected 10
SECTION 5.4 Rights of Holders 11
SECTION 5.5 Guarantee of Payment 11
SECTION 5.6 Subrogation 11
SECTION 5.7 Independent Obligations 11
ARTICLE 6 SUBORDINATION OF GUARANTEE PAYMENTS
SECTION 6.1 Guarantee Subordinate to the Guarantor Liabilities 12
SECTION 6.2 Payment Over of Proceeds Upon Dissolution, Etc. 12
SECTION 6.3 No Payment When Guarantor Liabilities in Default 13
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SECTION 6.4 Payment Permitted If No Default 13
SECTION 6.5 Guarantee Trustee to Effectuate Subordination 13
SECTION 6.6 No Waiver of Subordination Provisions 13
SECTION 6.7 Notice to Guarantee Trustee 14
SECTION 6.8 Reliance on Judicial Order or Certificate of Liquidating Agent 14
SECTION 6.9 Guarantee Trustee Not Fiduciary for Holders of Guarantor
Liabilities 14
SECTION 6.10 Rights of Guarantee Trustee as Holder of Guarantor Liabilities;
Preservation of Guarantee Trustee's Rights 14
ARTICLE 7 COVENANTS
SECTION 7.1 Certain Covenants of the Guarantor 15
ARTICLE 8 TERMINATION
SECTION 8.1 Termination 16
ARTICLE 9 MISCELLANEOUS
SECTION 9.1 Successors and Assigns 16
SECTION 9.2 Amendments 16
SECTION 9.3 Notices 17
SECTION 9.4 Benefit 17
SECTION 9.5 Interpretation 17
SECTION 9.6 Governing Law 18
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GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT, ("Guarantee Agreement") dated as of March 23,
1998, is executed and delivered by Pioneer-Standard Electronics, Inc., an Ohio
corporation (as more fully defined below, the "Guarantor"), and Wilmington Trust
Company, a banking corporation duly organized and existing under the laws of the
State of Delaware, as trustee (the "Guarantee Trustee"), for the benefit of the
Holders (as defined herein) from time to time of the Preferred Securities (as
defined herein) of Pioneer-Standard Financial Trust, a Delaware statutory
business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Trust Agreement (the
"Trust Agreement"), dated as of March 23, 1998, among the Trustees named
therein, the Guarantor, as Depositor, and the Holders from time to time of
undivided beneficial interests in the assets of the Issuer, the Issuer is
issuing 2,500,000 (2,875,000 if the overallotment option is exercised in full)
of its 6 3/4% Convertible Preferred Securities (liquidation preference $50 per
preferred security) (the "Preferred Securities") representing preferred
undivided beneficial interests in the assets of the Issuer and having the terms
set forth in the Trust Agreement;
WHEREAS, the Preferred Securities will be issued by the Issuer and the
proceeds thereof, together with the proceeds from the issuance of the Issuer's
Common Securities (as defined below), will be used to purchase the Series A
Debentures (as defined in the Indenture) of the Guarantor which will be
deposited with Wilmington Trust Company, as Property Trustee under the Trust
Agreement, as trust assets; and
WHEREAS, as incentive for the Holders to purchase Preferred Securities,
the Guarantor desires irrevocably and unconditionally to agree, to the extent
set forth herein, to pay to the Holders of the Preferred Securities the
Guarantee Payments (as defined herein) and to make certain other payments on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Preferred Securities, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes and delivers this Guarantee Agreement for
the benefit of the Holders.
ARTICLE 1
DEFINITIONS
1.1 Definitions. As used in this Guarantee Agreement, the terms
set forth below shall, unless the context otherwise requires, have the following
meanings. Capitalized or otherwise defined terms used but not otherwise defined
herein unless otherwise provided herein shall have the meanings assigned to such
terms in the Trust Agreement as in effect on the date hereof.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct common control with such
specified Person,
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provided, however, that an Affiliate of the Guarantor shall not be deemed to
include the Issuer. For the purposes of this definition, "control" when used
with respect to any specified Person means the power to direct the management
and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Issuer.
"Company Common Stock" shall mean the common shares, without par value,
of the Guarantor.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Guarantee Agreement; provided, however,
that, except with respect to a default in payment of any Guarantee Payments, the
Guarantor shall have received written notice of default and shall not have cured
such default within 60 days after receipt of such notice.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Preferred Securities, to the extent not
paid or made by or on behalf of the Issuer: (i) any accumulated and unpaid
Distributions (as defined in the Trust Agreement) required to be paid on the
Preferred Securities, to the extent the Issuer shall have funds on hand
available therefor at such time, (ii) the redemption price, including all
accumulated and unpaid Distributions to the date of redemption (the "Redemption
Price"), with respect to the Preferred Securities called for redemption by the
Issuer to the extent the Issuer shall have funds on hand available therefor, and
(iii) upon a voluntary or involuntary dissolution of the Issuer, unless Series A
Debentures are distributed to the Holders, the lesser of (a) the aggregate of
the liquidation preference of $50 per Preferred Security plus accumulated and
unpaid Distributions on the Preferred Securities to the date of payment to the
extent the Issuer shall have funds on hand available to make such payment and
(b) the amount of assets of the Issuer remaining available for distribution to
Holders in dissolution of the Issuer (in either case, the "Stockholder
Distribution").
"Guarantee Trustee" means Wilmington Trust Company, until a Successor
Guarantee Trustee has been appointed and has accepted such appointment pursuant
to the terms of this Guarantee Agreement and thereafter means each such
Successor Guarantee Trustee.
"Guarantor" means Pioneer-Standard Electronics, Inc., and its successor
or successors by merger, consolidation or purchase of all or substantially all
of its assets.
"Guarantor Liabilities" has the meaning specified in Section 6.1.
"Holder" means any holder, as registered on the books and records of
the Issuer, of any Preferred Securities; provided, however, that in determining
whether the holders of the requisite percentage of Preferred Securities have
given any request, notice, consent or waiver hereunder, "Holder" shall not
include the Guarantor, the Guarantee Trustee or any Affiliate of the Guarantor
or the Guarantee Trustee.
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"Indenture" means the Junior Subordinated Indenture, dated as of March
23, 1998, as supplemented by the First Supplemental Indenture thereto dated as
of March 23, 1998, between the Guarantor and Wilmington Trust Company, as
trustee, as the same may be supplemented or amended with respect to the Series A
Debentures (as defined in the Indenture).
"List of Holders" has the meaning specified in Section 2.2 (a).
"Majority in Liquidation Preference of the Securities" means, except as
provided by the Trust Indenture Act, a vote by the Holder(s), voting separately
as a class, of more than 50% of the liquidation preference of all the
outstanding Preferred Securities issued by the Issuer.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by (i) the Chairman, Chief Executive Officer, President or a
Vice President, and by (ii) the Treasurer, an Assistant Treasurer, the
Controller, the Secretary or an Assistant Secretary of such Person, and
delivered to the Guarantee Trustee. Any Officers' Certificate delivered with
respect to compliance with a condition or covenant provided for in this
Guarantee Agreement shall include:
1. a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating
thereto;
2. a brief statement of the nature and scope of the examination
or investigation undertaken by each officer in rendering the Officers'
Certificate;
3. a statement that each such officer has made such examination
or investigation as, in such officer's opinion, is necessary to enable
such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
4. a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Proceedings" has the meaning specified in Section 6.2.
"Responsible Officer" means, with respect to the Guarantee Trustee, any
officer assigned to its Corporate Trust Office, including any managing director,
vice president, assistant vice president, assistant treasurer, assistant
secretary or any other officer of the Guarantee Trustee customarily performing
functions similar to those performed by any of the above designated officers and
having direct responsibility for the administration of this Guarantee Agreement,
and also, with respect to a particular matter, any other officer to whom such
matter is referred because of such officer's knowledge of and familiarity with
the particular subject.
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"Series A Debentures" means the Guarantor's Series A 6 3/4% Junior
Convertible Subordinated Debentures, due March 31, 2028.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
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ARTICLE 2
TRUST INDENTURE ACT
2.1 Trust Indenture Act; Application.
a. This Guarantee Agreement is subject to the provisions of the
Trust Indenture Act that are required to be part of this Guarantee
Agreement and shall, to the extent applicable, be governed by such
provisions.
b. If and to the extent that any provision of this Guarantee
Agreement limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act, such
imposed duties shall control.
2.2 List of Holders.
a. The Guarantor shall furnish or cause to be furnished
to the Guarantee Trustee (unless the Guarantee Trustee is acting as
Securities Registrar with respect to the Preferred Securities under the
Trust Agreement) (i) semi-annually, on or before January 15 and July 15
of each year, a list, in such form as the Guarantee Trustee may
reasonably require, of the names and addresses of the Holders ("List of
Holders") as of a date not more than 15 days prior to the delivery
thereof, and (ii) at such other times as the Guarantee Trustee may
request in writing, within 30 days after the receipt by the Guarantor
of any such written request, a List of Holders as of a date not more
than 15 days prior to the time such list is furnished, in each case to
the extent such information is in the possession or control of the
Guarantor and is not identical to a previously supplied list of Holders
or has not otherwise been received by the Guarantee Trustee.
Notwithstanding the foregoing, the Guarantor shall not be obligated to
provide such List of Holders at any time the Preferred Securities are
represented by one or more Global Certificates (as defined in the Trust
Agreement). The Guarantee Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
b. The Guarantee Trustee shall comply with its obligations under
Section 311(a), Section 311(b) and Section 312(b) of the Trust
Indenture Act.
2.3 Reports by the Guarantee Trustee. Within 60 days after
December 31 in each calendar year, commencing with December 31, 1998, the
Guarantee Trustee shall provide to the Holders such reports as are required by
Section 313 of the Trust Indenture Act, if any, in the form and in the manner
provided by Section 313 of the Trust Indenture Act. The Guarantee Trustee shall
also comply with the requirements of Section 313(d) of the Trust Indenture Act.
2.4 Periodic Reports to Guarantee Trustee. The Guarantor shall
provide to the Guarantee Trustee, the Securities and Exchange Commission and the
Holders such documents, reports and information, if any, as required by Section
314 of the Trust Indenture Act and the compliance certificate required by
Section 314 of the Trust Indenture Act in the form, in the manner and at the
times required by Section 314
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of the Trust Indenture Act; and such compliance certificate of the Guarantor
shall be delivered on or before 120 days after the end of each calendar year.
2.5 Evidence of Compliance with Conditions Precedent. The
Guarantor shall provide to the Guarantee Trustee such evidence of compliance
with such conditions precedent, if any, provided for in this Guarantee Agreement
that relate to any of the matters set forth in Section 314(c) of the Trust
Indenture Act. Any certificate or opinion required to be given by an officer
pursuant to Section 314(c)(1) may be given in the form of an Officers'
Certificate.
2.6 Events of Default; Waiver. The Holders of a Majority in
Liquidation Preference of the Securities may, by vote, on behalf of all the
Holders, waive any past Event of Default and its consequences. Upon such waiver,
any such Event of Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this
Guarantee Agreement, but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent therefrom.
2.7 Event of Default; Notice.
a. The Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first class
postage prepaid, to the Holders, notices of all Events of Default
actually known to a Responsible Officer of the Guarantee Trustee,
unless such defaults have been cured before the giving of such notice,
provided, that, except in the case of a default in the payment of a
Guarantee Payment, the Guarantee Trustee shall be fully protected in
withholding such notice if and so long as the board of directors, the
executive committee or a trust committee of directors and/or
Responsible Officers of the Guarantee Trustee in good faith determines
that the withholding of such notice is in the interests of the Holders.
b. The Guarantee Trustee shall not be deemed to have actual
knowledge of any Event of Default unless the Guarantee Trustee shall
have received written notice, or a Responsible Officer charged with the
administration of the Trust Agreement shall have obtained written
notice, of such Event of Default.
2.8 Conflicting Interests. The Trust Agreement and the
Indenture shall be deemed to be specifically described in this Guarantee
Agreement for the purposes of clause (i) of the first proviso contained in
Section 310(b) of the Trust Indenture Act.
ARTICLE 3
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
3.1 Powers and Duties of the Guarantee Trustee.
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a. This Guarantee Agreement shall be held by the Guarantee
Trustee for the benefit of the Holders, and the Guarantee Trustee shall
not transfer this Guarantee Agreement to any Person except a Holder
exercising his or her rights pursuant to Section 5.4(iv) or to a
Successor Guarantee Trustee on acceptance by such Successor Guarantee
Trustee of its appointment to act as Successor Guarantee Trustee. The
right, title and interest of the Guarantee Trustee shall automatically
vest in any Successor Guarantee Trustee, upon acceptance by such
Successor Guarantee Trustee of its appointment hereunder, and such
vesting and cessation of title shall be effective whether or not
conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Guarantee Trustee.
b. If an Event of Default actually known to a Responsible Officer
of the Guarantee Trustee has occurred and is continuing, the Guarantee
Trustee shall enforce this Guarantee Agreement for the benefit of the
Holders.
c. The Guarantee Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are
specifically set forth in this Guarantee Agreement, and no implied
covenants shall be read into this Guarantee Agreement against the
Guarantee Trustee. In case an Event of Default has occurred (that has
not been cured or waived pursuant to Section 2.6) and is actually known
to the Responsible Officer of the Guarantee Trustee, the Guarantee
Trustee shall exercise such of the rights and powers vested in it by
this Guarantee Agreement, and use the same degree of care and skill in
its exercise thereof, as a prudent person would exercise or use under
the circumstances in the conduct of his or her own affairs.
d. No provision of this Guarantee Agreement shall be construed to
relieve the Guarantee Trustee from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct,
except that:
(1) prior to the occurrence of any Event of Default and
after the curing or waiving of all such Events of Default that may
have occurred;
(A) the duties and obligations of the Guarantee Trustee
shall be determined solely by the express provisions of this
Guarantee Agreement, and the Guarantee Trustee shall not be
liable except for the performance of such duties and
obligations as are specifically set forth in this Guarantee
Agreement, and no implied covenants or obligations shall be
read into this Guarantee Agreement against the Guarantee
Trustee; and
(B) in the absence of bad faith on the part of the
Guarantee Trustee, the Guarantee Trustee may conclusively
rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or
opinions
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furnished to the Guarantee Trustee and conforming to the
requirements of this Guarantee Agreement; but in the case of
any such certificates or opinions that by any provision hereof
or of the Trust Indenture Act are specifically required to be
furnished to the Guarantee Trustee, the Guarantee Trustee
shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Guarantee
Agreement;
2) the Guarantee Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer of the
Guarantee Trustee, unless it shall be proved that the Guarantee
Trustee was negligent in ascertaining the pertinent facts upon which
such judgment was made;
3) the Guarantee Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a
Majority in Liquidation Preference of the Securities relating to the
time, method and place of conducting any proceeding for any remedy
available to the Guarantee Trustee, or exercising any trust or power
conferred upon the Guarantee Trustee under this Guarantee Agreement;
and
4) no provision of this Guarantee Agreement shall require
the Guarantee Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers, if the
Guarantee Trustee shall have reasonable grounds for believing that
the repayment of such funds or liability is not reasonably assured
to it under the terms of this Guarantee Agreement or indemnity
satisfactory to it against such risk or liability is not reasonably
assured to it.
3.2 Certain Rights of Guarantee Trustee.
a. Subject to the provisions of Section 3.1:
1) The Guarantee Trustee may conclusively rely and shall
be fully protected in acting or refraining from acting upon any
resolution, certificate, statement, proxy, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed, sent or
presented by the proper party or parties.
2) Any direction or act of the Guarantor contemplated by
this Guarantee Agreement shall be sufficiently evidenced by an
Officers' Certificate unless otherwise prescribed herein.
3) Whenever, in the administration of this Guarantee
Agreement, the Guarantee Trustee shall deem it desirable that a
matter
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be proved or established before taking, suffering or omitting to
take any action hereunder, the Guarantee Trustee (unless other
evidence is herein specifically prescribed) may, in the absence of
bad faith on its part, request and conclusively rely upon an
Officers' Certificate which, upon receipt of such request from the
Guarantee Trustee, shall be promptly delivered by the Guarantor.
4) The Guarantee Trustee may consult with legal counsel,
and the written advice or opinion of such legal counsel with respect
to legal matters shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be
taken by it hereunder in good faith and in accordance with such
advice or opinion. Such legal counsel may be legal counsel to the
Guarantor or any of its Affiliates and may be one of its employees.
The Guarantee Trustee shall have the right at any time to seek
instructions concerning the administration of this Guarantee
Agreement from any court of competent jurisdiction.
5) The Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Guarantee
Agreement at the request or direction of any Holder, unless such
Holder shall have provided to the Guarantee Trustee and its
officers, directors and agents such adequate security and indemnity
as would satisfy a reasonable person in the position of the
Guarantee Trustee, against the costs, expenses (including attorneys'
fees and expenses) and liabilities that might be incurred by it in
complying with such request or direction, including such reasonable
advances as may be requested by the Guarantee Trustee; provided
that, nothing contained in this Section 3.2(a)(v) shall be taken to
relieve the Guarantee Trustee, upon the occurrence of an Event of
Default, of its obligation to exercise the rights and powers vested
in it by this Guarantee Agreement and use the same degree of care
and skill in the exercise thereof as a prudent person would exercise
or use under the circumstances in the conduct of his or her own
affairs.
6) The Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the
Guarantee Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit.
7) The Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or
by or through its agents, custodians, nominees or attorneys or any
Affiliate, and the Guarantee Trustee shall not be responsible for
any misconduct or negligence on the part of any such agent or
attorney appointed with due care by it hereunder.
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8) Whenever in the administration of this Guarantee
Agreement the Guarantee Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or taking
any other action hereunder, the Guarantee Trustee (A) may request
written instructions from the Holders of a Majority in Liquidation
Preference of the Securities, (B) may refrain from enforcing such
remedy or right or taking such other action until such instructions
are received, and (C) shall be fully protected in acting in
accordance with such instructions.
b. No provision of this Guarantee Agreement shall be deemed to
impose any duty or obligation on the Guarantee Trustee to perform any
act or acts or exercise any right, power, duty or obligation conferred
or imposed on it in any jurisdiction in which it shall be illegal, or
in which the Guarantee Trustee shall be unqualified or incompetent in
accordance with applicable law, to perform any such act or acts or to
exercise any such right, power, duty or obligation. No permissive power
or authority available to the Guarantee Trustee shall be construed to
be a duty to act in accordance with such power and authority.
3.3 Indemnity. The Guarantor agrees to indemnify the Guarantee
Trustee for, and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on the part of the Guarantee Trustee,
arising out of or in connection with the acceptance or administration of this
Guarantee Agreement, including the reasonable costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The Guarantee Trustee will
not claim or exact any lien or charge on any Guarantee Payment as a result of
any amount due to it under this Guarantee Agreement.
ARTICLE 4
GUARANTEE TRUSTEE
4.1 Guarantee Trustee; Eligibility.
a. There shall at all times be a Guarantee Trustee which shall:
1) not be an Affiliate of the Guarantor; and
2) be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital and surplus
of at least $50,000,000, and shall be a corporation meeting the
requirements of Section 310(a) of the Trust Indenture Act. If such
corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the supervising or
examining authority, then, for the purposes of this Section and to
the extent permitted by the Trust Indenture Act, the combined
capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report
of condition so published.
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b. If at any time the Guarantee Trustee shall cease to be
eligible to so act under Section 4.1(a), the Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section
4.2(c).
c. If the Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the
Trust Indenture Act, the Guarantee Trustee and Guarantor shall in all
respects comply with the provisions of Section 310(b) of the Trust
Indenture Act.
4.2 Appointment, Removal and Resignation of the Guarantee
Trustee.
a. Subject to Section 4.2(b), the Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor.
b. The Guarantee Trustee shall not be removed until a Successor
Guarantee Trustee has been appointed and has accepted such appointment
by written instrument executed by such Successor Guarantee Trustee and
delivered to the Guarantor.
c. The Guarantee Trustee appointed hereunder shall hold office
until a Successor Guarantee Trustee shall have been appointed or until
its removal or resignation. The Guarantee Trustee may resign from
office (without need for prior or subsequent accounting) by an
instrument in writing executed by the Guarantee Trustee and delivered
to the Guarantor, which resignation shall not take effect until a
Successor Guarantee Trustee has been appointed and has accepted such
appointment by an instrument in writing executed by such Successor
Guarantee Trustee and delivered to the Guarantor and the resigning
Guarantee Trustee.
d. If no Successor Guarantee Trustee shall have been appointed
and accepted appointment as provided in this Section 4.2 within 60 days
after delivery to the Guarantor of an instrument of resignation, the
resigning Guarantee Trustee may petition, at the expense of the
Guarantor, any court of competent jurisdiction for appointment of a
Successor Guarantee Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a
Successor Guarantee Trustee. 2. No Guarantee Trustee shall be liable
for the acts or omissions of any Successor Guarantor Trustee.
e. Upon the removal or resignation of the Guarantee Trustee, the
Guarantor shall pay all amounts due and owing to such Guarantee
Trustee.
ARTICLE 5
GUARANTEE
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5.1 Guarantee. The Guarantor irrevocably and unconditionally
agrees to pay in full to the Holders the Guarantee Payments (without duplication
of amounts theretofore paid by or on behalf of the Issuer), as and when due,
regardless of any defense, right of set-off or counterclaim which the Issuer may
have or assert other than the defense of payment. The Guarantor's obligation to
make a Guarantee Payment may be satisfied by direct payment of the required
amounts by the Guarantor to the Holders or by causing the Issuer to pay such
amounts to the Holders.
5.2 Waiver of Notice and Demand. The Guarantor hereby waives
notice of acceptance of this Guarantee Agreement and of any liability to which
it applies or may apply, presentment, demand for payment, any right to require a
proceeding first against the Guarantee Trustee, Issuer or any other Person
before proceeding against the Guarantor, protest, notice of nonpayment, notice
of dishonor, notice of redemption and all other notices and demands.
5.3 Obligations Not Affected. The obligations, covenants,
agreements and duties of the Guarantor under this Guarantee Agreement shall in
no way be affected or impaired by reason of the happening from time to time of
any of the following:
a. the release or waiver, by operation of law or otherwise, of
the performance or observance by the Issuer of any express or implied
agreement, covenant, term or condition relating to the Preferred
Securities to be performed or observed by the Issuer;
b. the extension of time for the payment by the Issuer of all or
any portion of the Distributions (other than an extension of time for
payment of Distributions that results from the extension of any
interest payment period on the Series A Debentures as so provided in
the Indenture), Redemption Price, Liquidation Distribution or any other
sums payable under the terms of the Preferred Securities or the
extension of time for the performance of any other obligation under,
arising out of, or in connection with, the Preferred Securities;
c. any failure, omission, delay or lack of diligence on the part
of the Holders to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Holders pursuant to the terms of the
Preferred Securities, or any action on the part of the Issuer granting
indulgence or extension of any kind;
d. the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for
the benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the
Issuer or any of the assets of the Issuer;
e. any invalidity of, or defect or deficiency in, the Preferred
Securities;
f. the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
17
g. any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it
being the intent of this Section 5.3 that the obligations of the
Guarantor hereunder shall be absolute and unconditional under any and
all circumstances.
There shall be no obligation of the Holders or the Guarantee Trustee to
give notice to, or obtain the consent of, the Guarantor with respect to the
happening of any of the foregoing.
5.4 Rights of Holders. The Guarantor expressly acknowledges
that: (i) this Guarantee Agreement will be deposited with the Guarantee Trustee
to be held for the benefit of the Holders; (ii) the Guarantee Trustee has the
right to enforce this Guarantee Agreement on behalf of the Holders; (iii) the
Holders of a Majority in Liquidation Preference of the Securities have the right
to direct the time, method and place of conducting any proceeding for any remedy
available to the Guarantee Trustee in respect of this Guarantee Agreement or to
direct the exercise of any trust or power conferred upon the Guarantee Trustee
under this Guarantee Agreement; and (iv) if the Guarantee Trustee fails to
enforce the Guarantee, any Holder may institute a legal proceeding directly
against the Guarantor to enforce its rights under this Guarantee Agreement,
without first instituting a legal proceeding against the Guarantee Trustee, the
Issuer or any other Person.
5.5 Guarantee of Payment. This Guarantee Agreement creates a
guarantee of payment and not of collection. This Guarantee Agreement will not be
discharged except by payment of the Guarantee Payments in full (without
duplication of amounts theretofore paid by the Issuer) or upon distribution of
Series A Debentures to Holders as provided in the Trust Agreement.
5.6 Subrogation. The Guarantor shall be subrogated to all (if
any) rights of the Holders against the Issuer in respect of any amounts paid to
the Holders by the Guarantor under this Guarantee Agreement and shall have the
right to waive payment by the Issuer pursuant to Section 5.1; provided, however,
that the Guarantor shall not (except to the extent required by mandatory
provisions of law) be entitled to enforce or exercise any rights which it may
acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Guarantee Agreement,
if, at the time of any such payment, any amounts are due and unpaid under this
Guarantee Agreement. If any amount shall be paid to the Guarantor in violation
of the preceding sentence, the Guarantor agrees to hold such amount in trust for
the Holders and to pay over such amount to the Holders.
5.7 Independent Obligations. The Guarantor acknowledges that
its obligations hereunder are independent of the obligations of the Issuer with
respect to the Preferred Securities and that the Guarantor shall be liable as
principal and as debtor hereunder to make Guarantee Payments pursuant to the
terms of this Guarantee Agreement notwithstanding the occurrence of any event
referred to in subsections (a) through (g), inclusive, of Section 5.3 hereof.
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ARTICLE 6
SUBORDINATION OF GUARANTEE PAYMENTS
SECTION 6.1 Guarantee Subordinate to the Guarantor Liabilities. The
Company covenants and agrees, and each Holder, by its acceptance thereof,
likewise covenants and agrees, that, to the extent and in the manner hereinafter
set forth in this Article, the Guarantee Payments are hereby expressly made
junior and subordinate and subject in right of payment to the prior payment in
full of all amounts then due and payable in respect of all liabilities of the
Guarantor (whether outstanding on the date hereof or hereafter created,
incurred, assumed or guaranteed) (the "Guarantor Liabilities"), and pari passu
with the most senior preferred stock, if any, now or hereafter issued by the
Guarantor and with any guarantee now or hereafter entered into by the Guarantor
in respect of any preferred or preference stock of any Affiliate of the
Guarantor, and that the subordination is for the benefit of the holders of
Guarantor Liabilities.
SECTION 6.2 Payment Over of Proceeds Upon Dissolution, Etc. Upon any
payment or distribution of assets of the Guarantor to creditors upon any
liquidation, dissolution, winding up, reorganization, assignment for the benefit
of creditors, marshaling of assets or any bankruptcy, insolvency, debt
restructuring or similar proceeding in connection with any insolvency or
bankruptcy proceeding of the Guarantor (each such event, if any, herein
sometimes referred to as a "PROCEEDING"), then the holders of Guarantor
Liabilities shall be entitled to receive payment in full of principal of (and
premium, if any) and interest (including interest after the commencement of any
such Proceeding at the rate specified in the applicable Guarantor Liability), if
any, on such Guarantor Liabilities, or provision shall be made for such payment
in cash or cash equivalents or otherwise in a manner satisfactory to the holders
of Guarantor Liabilities, before the Holders are entitled to receive or retain
any payment or distribution of any kind or character on account of any Guarantee
Payments pursuant to this Guarantee Agreement, whether in cash, property or
securities (except for any Guarantee Payments that are due based upon funds
deposited pursuant to Section 4.1(a)(ii)(B) of the Indenture or funds deposited
for the redemption of Series A Debentures for which notice of redemption has
been given and the applicable Redemption Date has passed), and to that end the
holders of Guarantor Liabilities shall be entitled to receive, for application
to the payment thereof any payment or distribution of any kind or character,
whether in cash, property or securities, which may be payable or deliverable in
respect of the Guarantee Payments in any such Proceeding.
In the event that, notwithstanding the foregoing provisions of this
Section, any payment or distribution of assets of the Guarantor of any kind or
character is made at a time when the respective payment or distribution is not
permitted to be made as a result of the subordination provisions described above
and before all Guarantor Liabilities are paid in full or payment thereof is
provided for in cash or cash equivalents or otherwise in a manner satisfactory
to the holders of Guarantor Liabilities, and if such fact shall, at or prior to
the time of such payment or distribution, have been made known to the
19
Guarantee Trustee or, as the case may be, such Holder, then and in such event
such payment or distribution shall be paid over or delivered forthwith to the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent
or other Person making payment or distribution of assets of the Guarantor for
application to the payment of all Guarantor Liabilities remaining unpaid, to the
extent necessary to pay all Guarantor Liabilities in full, after giving effect
to any concurrent payment or distribution to or for the holders of Guarantor
Liabilities.
For the purposes of this Article only, the words "any payment or
distribution of any kind or character, whether in cash, property or securities"
shall not be deemed to include shares of stock of the Guarantor, as reorganized
or readjusted, or securities of the Guarantor or any other corporation provided
for by a plan of reorganization or readjustment which securities are
subordinated in right of payment to all then outstanding Guarantor Liabilities
to substantially the same extent as the Guarantee Payments are so subordinated
as provided in this Article. The consolidation of the Guarantor with, or the
merger of the Guarantor into, another Person or the liquidation or dissolution
of the Guarantor following the sale of all or substantially all of its
properties and assets as an entirety to another Person upon the terms and
conditions set forth in Article 8 of the Indenture shall not be deemed a
Proceeding for the purposes of this Section, if the Person formed by such
consolidation or into which the Guarantor is merged or the Person which acquires
by sale such properties and assets as an entirety, as the case may be, shall, as
a part of such consolidation, merger, or sale, comply with the conditions set
forth in Article 8 of the Indenture.
SECTION 6.3 No Payment When Guarantor Liabilities in Default. In the
event and during the continuation of any default in the payment of principal of
(or premium, if any) or interest on any Guarantor Liability, or in the event
that any event of default with respect to any Guarantor Liability shall have
occurred and be continuing and shall have resulted in such Guarantor Liability
becoming or being declared due and payable prior to the date on which it would
otherwise have become due and payable, unless and until such event of default
shall have been cured or waived or shall have ceased to exist and such
acceleration shall have been rescinded or annulled, or (b) in the event any
judicial proceeding shall be pending with respect to any such default in payment
or such event of default, then no payment or distribution of any kind or
character, whether in cash, properties or securities shall be made by the
Guarantor on account of Guarantee Payments, other than any Guarantee Payments
that are due based upon funds deposited pursuant to Section 4.1(a)(ii)(B) of the
Indenture or funds deposited for the redemption of Series A Debentures for which
notice of redemption has been given and the applicable Redemption Date has
passed.
In the event that, notwithstanding the foregoing, the Guarantor shall
make any payment to the Trustee or any Holder prohibited by the foregoing
provisions of this Section, and if such fact shall, at or prior to the time of
such payment, have been made known as set forth in Section 6.7 to a Responsible
Officer of the Guarantee Trustee or, as the case may be, such Holder, then and
in such event such payment shall be paid over and delivered forthwith to the
Guarantor.
The provisions of this Section shall not apply to any payment with
respect to which Section 6.2 would be applicable.
20
SECTION 6.4 Payment Permitted If No Default. Nothing contained in this
Article or elsewhere in this Guarantee Agreement shall prevent (a) the
Guarantor, at any time except during the pendency of any Proceeding referred to
in Section 6.2 or under the conditions described in Sections 6.3 and 6.4, from
making Guarantee Payments at any time, or (b) the application by the Guarantee
Trustee of any money deposited with it hereunder to the payment of or on account
of Guarantee Payments or the retention of such payment by the Holders, if, at
the time of such application by the Guarantee Trustee, a Responsible Officer of
the Trustee did not have actual knowledge that such payment would have been
prohibited by the provisions of this Article.
SECTION 6.5 Guarantee Trustee to Effectuate Subordination. Each Holder
by his or her acceptance thereof authorizes and directs the Guarantee Trustee on
his or her behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination provided in this Article and
appoints the Guarantee Trustee his or her attorney-in-fact for any and all such
purposes.
SECTION 6.6 No Waiver of Subordination Provisions. No right of any
present or future holder of any Guarantor Liability to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Guarantor or by any act or failure to
act, in good faith, by any such holder, or by any noncompliance by the Guarantor
with the terms, provisions and covenants of this Guarantee Agreement, regardless
of any knowledge thereof that any such holder may have or be otherwise charged
with.
SECTION 6.7 Notice to Guarantee Trustee. The Guarantor shall give
prompt written notice to the Guarantee Trustee of any fact known to the
Guarantor which would prohibit the making of any payment to or by the Guarantee
Trustee in respect of the Guarantee Payments. Notwithstanding the provisions of
this Article or any other provision of this Guarantee Agreement, the Guarantee
Trustee shall not be charged with knowledge of the existence of any facts which
would prohibit the making of any payment to or by the Guarantee Trustee in
respect of the Guarantee Payments, unless and until the Guarantee Trustee shall
have received written notice thereof from the Guarantor or a Person representing
itself as a holder of any Guarantor Liability or from any trustee, agent or
representative therefor (whether or not the facts contained in such notice are
true).
SECTION 6.8 Reliance on Judicial Order or Certificate of Liquidating
Agent. Upon any payment or distribution of assets of the Guarantor referred to
in this Article, the Guarantee Trustee, subject to the provisions of Article 3,
and the Holders shall be entitled to conclusively rely upon any order or decree
entered by any court of competent jurisdiction in which a Proceeding is pending,
or a certificate of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Guarantee Trustee or to the
Holders, for the purpose of ascertaining the Persons entitled to participate in
such payment or distribution, the holders of the Guarantor Liabilities, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article.
21
SECTION 6.9 Guarantee Trustee Not Fiduciary for Holders of Guarantor
Liabilities. With respect to the holders of the Guarantor Liabilities, the
Guarantee Trustee undertakes to perform or observe only such of its obligations
and covenants as are set forth in this Article 6, and no implied covenants or
obligations with respect to the holders of such Guarantor Liabilities shall be
read into this Guarantee Agreement against Wilmington Trust Company and/or the
Guarantee Trustee. Wilmington Trust Company and/or the Guarantee Trustee shall
not be deemed to owe any fiduciary duty to the holders of such Guarantor
Liabilities and, subject to the provisions of Section 3.2, neither the Guarantee
Trustee (nor Wilmington Trust Company) shall be liable to the holder of any
Guarantor Liability if it shall pay over or deliver to Holders, the Guarantor,
or any other Person, money or assets to which any holder of such Guarantor
Liabilities shall be entitled to by virtue of this Article or otherwise.
SECTION 6.10 Rights of Guarantee Trustee as Holder of Guarantor
Liabilities; Preservation of Guarantee Trustee's Rights. The Guarantee Trustee
in its individual capacity shall be entitled to all the rights set forth in this
Article with respect to any Guarantor Liabilities which may at any time be held
by it, to the same extent as any other holder of Guarantor Liabilities, and,
subject to the requirements of the Trust Indenture Act, nothing in this
Guarantee Agreement shall deprive the Guarantee Trustee of any of its rights as
such holder.
22
ARTICLE 7
COVENANTS
SECTION 7.1 Certain Covenants of the Guarantor.
a. Guarantor covenants and agrees that if and so long as (i) the
Issuer is the holder of all the Series A Debentures, (ii) a Tax Event
(as defined in the Trust Agreement) in respect of the Issuer has
occurred and is continuing and (iii) the Guarantor has elected, and has
not revoked such election, to pay Additional Sums (as defined in the
Trust Agreement) in respect of the Preferred Securities and Common
Securities, the Guarantor will pay to the Issuer such Additional Sums.
b. The Guarantor covenants and agrees that it will not, and
will not cause any subsidiary of the Guarantor to, (i) declare or pay
any dividends or distributions on, or redeem, purchase, acquire, or
make a liquidation payment with respect to, any of the Guarantor's
capital stock or (ii) make any payment of principal, interest or
premium, if any, on or repay or repurchase or redeem any debt
securities (including guarantees of indebtedness for money borrowed) of
the Guarantor that rank pari passu with or junior to the Series A
Debentures (other than (a) any dividend, redemption, liquidation,
interest, principal or guarantee payment by the Guarantor where the
payment is made by way of securities (including capital stock) that
rank pari passu with or junior to the securities on which such
dividend, redemption, interest, principal or guarantee payment is being
made, (b) redemptions or purchases of any rights pursuant to the
Shareholder Rights Agreement (as defined in the Indenture), and the
declaration of a dividend of such rights or the issuance of Company
Common Stock under such agreement in the future, (c) payments under
this Guarantee Agreement and any similar guarantee agreements issued by
the Guarantor on behalf of the holders of preferred securities issued
by any trust or other issuer holding Debentures (as defined in the
Indenture) of any series, (d) purchases of Company Common Stock related
to the issuance of Company Common Stock under the Benefits Trust (as
defined in the Indenture ) or any of the Guarantor's benefit plans for
its directors, officers or employees, (e) as a result of a
reclassification of the Guarantor's capital stock or the exchange or
conversion of one series or class of the Guarantor's capital stock for
another series or class of the Guarantor's capital stock and (f) the
purchase of fractional interests in shares of the Guarantor's capital
stock pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged) if at such time (i)
there shall have occurred any event of which the Guarantor has actual
knowledge that (a) with the giving of notice or the lapse of time, or
both, would constitute an "Event of Default" under the Indenture with
respect to the Series A Debentures and (b) in respect of which the
Guarantor shall not have taken reasonable steps to cure, (ii) the
Guarantor shall be in default with respect to its payment of any
obligations under this Guarantee Agreement or (iii) the Guarantor shall
have given notice of its selection of an Extension Period (as defined
in the Indenture) with respect to the Series A Debentures and shall not
have rescinded such notice, or such Extension Period, or any extension
thereof, shall be continuing.
23
c. The Guarantor covenants and agrees (i) to maintain directly or
indirectly 100% ownership of the Common Securities, provided that
certain successors which are permitted by the Indenture may succeed to
the Guarantor's ownership of the Common Securities, (ii) not to
voluntarily dissolve the Issuer, except (a) in connection with a
distribution of the Series A Debentures to the holders of the
Preferred Securities in dissolution of the Issuer or (b) in connection
with certain mergers, consolidations or amalgamations permitted by the
Trust Agreement, (iii) to use its reasonable efforts, consistent with
the terms and provisions of the Trust Agreement, to cause the Issuer
to remain classified as a grantor trust and not as an association
taxable as a corporation for United States Federal income tax
purposes, (iv) for so long as Preferred Securities are outstanding,
not to convert Series A Debentures except pursuant to a notice of
conversion delivered to the Conversion Agent (as defined in the Trust
Agreement) by a Holder, (v) to maintain the reservation for issuance
of the number of shares of Company Common Stock that would be required
from time to time upon the conversion of all the Series A Debentures
then outstanding, (vi) to deliver shares of Company Common Stock upon
an election by the Holders to convert such Preferred Securities into
Company Common Stock and (vii) to honor all obligations described
herein relating to the conversion or exchange of the Preferred
Securities into or for Company Common Stock or Series A Debentures.
ARTICLE 8
TERMINATION
SECTION 8.1 Termination. This Guarantee Agreement shall terminate and
be of no further force and effect upon (i) full payment of the Redemption Price
or Optional Redemption Price, as the case may be, of all Preferred Securities,
(ii) the distribution of Series A Debentures to the Holders in exchange for all
of the Preferred Securities, (iii) full payment of the amounts payable in
accordance with the Trust Agreement upon dissolution of the Issuer or (iv) upon
the distribution, if any, of Company Common Stock to the holders of the
Preferred Securities in respect of the conversion of all such holders' Preferred
Securities into Company Common Stock. Notwithstanding the foregoing, this
Guarantee Agreement will continue to be effective or will be reinstated, as the
case may be, if at any time any Holder must restore payment of any sums paid
with respect to Preferred Securities or this Guarantee Agreement.
ARTICLE 9
MISCELLANEOUS
SECTION 9.1 Successors and Assigns. All guarantees and agreements
contained in this Guarantee Agreement shall bind the successors, assigns,
receivers, trustees and representatives of the Guarantor and shall inure to the
benefit of the Holders of the Preferred Securities then Outstanding. Except in
connection with a consolidation, merger or sale involving the Guarantor that is
permitted under Article 8 of the Indenture and pursuant to which the assignee
agrees in writing to perform the
24
Guarantor's obligations hereunder, the Guarantor shall not assign its
obligations hereunder.
SECTION 9.2 Amendments. Except with respect to any changes which do not
adversely affect the rights of the Holders in any material respect (in which
case no consent of the Holders will be required), this Guarantee Agreement may
only be amended with the prior approval of the Holders of not less than a
Majority in Liquidation Preference of the Securities. The provisions of Article
6 of the Trust Agreement concerning meetings of the Holders shall apply to the
giving of such approval. The Guarantor shall furnish the Guarantee Trustee with
an Officers' Certificate and an Opinion of Counsel (as defined in the Trust
Agreement) to the effect that any amendment of this Guarantee Agreement is
authorized and permitted.
SECTION 9.3 Notices. Any notice, request or other communication
required or permitted to be given hereunder shall be in writing, duly signed by
the party giving such notice, and delivered, telecopied or mailed by first class
mail as follows:
(a) if given to the Guarantor, to the address set forth below
or such other address as the Guarantor may give notice of to the
Holders:
Pioneer-Standard Electronics, Inc.
0000 Xxxx 000xx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Phone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Vice President -- Treasurer
(b) if given to the Issuer, in care of the Guarantor, at the
Issuer's (and the Guarantee Trustee's) address set forth below or such
other address as the Guarantee Trustee on behalf of the Issuer may give
notice of to the Holders:
Pioneer-Standard Financial Trust
c/o Pioneer-Standard Electronics, Inc.
0000 Xxxx 000xx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Phone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Vice President -- Treasurer
with a copy to:
Wilmington Trust Company
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Phone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Corporate Trust Administration
25
(c) if given to any Holder, at the address set forth on the
books and records of the Issuer.
All notices hereunder shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
SECTION 9.4 Benefit. This Guarantee Agreement is solely for the benefit
of the Holders and is not separately transferable from the Preferred Securities.
SECTION 9.5 Interpretation. In this Guarantee Agreement, unless the
context otherwise requires:
(a) capitalized terms used in this Guarantee Agreement but not
defined in the preamble hereto have the respective meanings assigned to
them in Section 1.1;
(b) a term defined anywhere in this Guarantee Agreement has
the same meaning throughout;
(c) all references to "the Guarantee Agreement" or "this
Guarantee Agreement" are to this Guarantee Agreement as modified,
supplemented or amended from time to time;
1. all references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee Agreement
unless otherwise specified;
1. a term defined in the Trust Indenture Act has the same meaning
when used in this Guarantee Agreement unless otherwise defined in this
Guarantee Agreement or unless the context otherwise requires;
1. a reference to the singular includes the plural and vice
versa; and
1. the masculine, feminine or neuter genders used herein shall
include the masculine, feminine and neuter genders.
SECTION 9.6 Governing Law. THIS GUARANTEE AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
26
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
THIS GUARANTEE AGREEMENT is executed as of the day and year first above
written.
PIONEER-STANDARD ELECTRONICS, INC.
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxx
-----------------------------------
Title: Vice President, Treasurer and
Assistant Secretary
----------------------------------
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Guarantee Trustee
By: /s/ Xxxxxx X. XxxXxxxxx
-------------------------------------
Name: Xxxxxx X. XxxXxxxxx
-----------------------------------
Title: Assistant Vice President
----------------------------------
