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Exhibit 10.2
EXECUTION
XXXXXXX PIANO & ORGAN COMPANY
FIFTH AMENDMENT AND LIMITED WAIVER AND CONSENT
TO
CREDIT AGREEMENT
This FIFTH AMENDMENT AND LIMITED WAIVER AND CONSENT TO CREDIT
AGREEMENT (this "AMENDMENT") is dated as of March 21, 2001 and entered into by
and among XXXXXXX PIANO & ORGAN COMPANY, a Delaware corporation ("BORROWER"),
GENERAL ELECTRIC CAPITAL CORPORATION ("GE CAPITAL"), as agent for itself and
Lenders ("AGENT"), the financial institutions listed on the signature pages
hereof ("LENDERS"), and, for purposes of Section 5 hereof, the Credit Parties
listed on the signature pages hereof, and is made with reference to: (i) that
certain Credit Agreement dated as of March 24, 2000, by and among Borrower, the
other Credit Parties party thereto, Lenders and Agent (as modified by the First
Amendment and Limited Waiver thereto dated as of August 11, 2000, the Limited
Waiver and Consent thereto dated as of September 28, 2000, the Extension of
Limited Waiver thereto dated as of October 30, 2000, the Second Amendment and
Limited Waiver thereto dated as of December 15, 2000, the Third Amendment and
Limited Waiver and Consent thereto dated as of January 26, 2001, the Extension
of Limited Waiver thereto dated as of February 16, 2001, the Fourth Amendment
and Limited Waiver and Consent thereto dated as of March 2, 2001, and as such
agreement may have otherwise been amended, restated, supplemented or otherwise
modified from time to time prior to the date hereof, the "CREDIT AGREEMENT");
and (ii) that certain Security Agreement dated as of March 24, 2000 (as
heretofore amended, restated, supplemented or otherwise modified from time to
time, the "SECURITY AGREEMENT") by and among Borrower, the Grantors party
thereto and GE Capital, as Agent for itself and Lenders. Capitalized terms used
herein without definition shall have the same meanings herein as set forth in
the Credit Agreement or the Security Agreement, as applicable.
R E C I T A L S
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WHEREAS, Borrower has informed Agent and Lenders that Borrower
has proposed to enter into a Retail Store Agreement (the "RETAIL STORE
AGREEMENT") with Biasco Piano Acquisitions, Inc., an Illinois corporation
("BIASCO PIANO ACQUISITIONS"), pursuant to which Borrower has agreed to sell to
Biasco Piano Acquisitions certain assets (as more particularly described in
Section 1.1 of the Retail Store Agreement) of Borrower that constitute its
retail stores operation (the "SUBJECT ASSETS").
WHEREAS, in connection with the Closing under the Retail Store
Agreement, Borrower and Biasco Piano Acquisitions have agreed to enter into a
Lease Agreement regarding the premises of Borrower located at 0000 Xxxx Xxxxxxx,
Xxxxxxxx, Xxxxxxx (the "MARIETTA LEASE") together with the Retail Store
Agreement, collectively, the "RETAIL STORE SALE DOCUMENTS").
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WHEREAS, Borrower has requested that Agent and Requisite
Lenders waive the restrictions contained in Sections 5.1, 6.7 and 6.8 of the
Credit Agreement to the extent necessary to permit the sale of the Subject
Assets to Biasco Piano Acquisitions for a gross cash purchase price of not less
than $4,905,885 (the "RETAIL STORE SALE") and consent to the release of liens
created by the Security Agreement on the Subject Assets pursuant to the terms
thereof.
WHEREAS, Agent and Requisite Lenders have agreed to make
certain amendments and waive certain requirements of the Credit Agreement and
consent to the release of liens created by the Security Agreement on the Subject
Assets, but only on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the terms
and conditions herein contained, Borrower, Agent and Requisite Lenders hereby
agree pursuant to Section 11.2 of the Credit Agreement as follows:
SECTION 1.
AMENDMENTS TO THE CREDIT AGREEMENT
On the basis of the representations and warranties contained
in this Amendment, and subject to the terms and the satisfaction of the
conditions set forth in this Amendment, Agent and Requisite Lenders hereby agree
as follows:
A. AMENDMENT TO SECTION 3. Section 3 of the Credit Agreement
is hereby amended by inserting a new Section 3.29 at the end thereof as follows:
"3.29 RETAIL STORE SALE DOCUMENTS. As of the Fifth Amendment
Effective Date, Borrower has delivered to Agent a complete and correct
copy of the Retail Store Sale Documents (including all schedules,
exhibits, amendments, supplements, modifications, assignments and all
other documents delivered pursuant thereto or in connection therewith).
No Credit Party and no other Person party thereto is in default in the
performance or compliance with any provisions thereof. Each of the
Retail Store Sale Documents complies with, and the Retail Store Sale
has been consummated in accordance with, all applicable laws. Each of
the Retail Store Sale Documents is in full force and effect as of the
Fifth Amendment Effective Date and has not been terminated, rescinded
or withdrawn. All requisite approvals by Governmental Authorities
having jurisdiction over Biasco Piano Acquisitions, any Credit Party
and other Persons referenced therein, with respect to the transactions
contemplated by the Retail Store Sale Documents, have been obtained,
and no such approvals impose any conditions to the consummation of the
transactions contemplated by the Retail Store Sale Documents or to the
conduct by any Credit Party of its business thereafter. To the best of
each Credit Party's knowledge, none of the representations or
warranties of Biasco Piano Acquisitions in the Retail Store Agreement
contain any untrue statement of a material fact. Each of the
representations and warranties given by each applicable Credit Party in
the Retail Store Agreement is true and correct in all material respects
and does not omit any fact necessary to make the statements therein not
misleading. Notwithstanding anything
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contained in the Retail Store Agreement to the contrary, such
representations and warranties of the Credit Parties are incorporated
into this Agreement by this SECTION 3.29 and shall, solely for purposes
of this Agreement and the benefit of Agent and Lenders, survive the
consummation of the Retail Store Sale."
B. AMENDMENT TO ANNEX A. Annex A of the Credit Agreement is
hereby amended by inserting the following definitions therein in alphabetical
order:
"`BIASCO PIANO ACQUISITIONS" means Biasco Piano Acquisitions,
Inc., an Illinois corporation, and its successors and assigns.
`FIFTH AMENDMENT' means that certain Fifth Amendment and
Limited Waiver and Consent to Credit Agreement dated as of March 21,
2001 by and among Borrower, the Lenders signatory thereto, Agent and
other Credit Parties signatory thereto.
`FIFTH AMENDMENT EFFECTIVE DATE' means the Fifth Amendment
Effective Date as defined in the Fifth Amendment."
`MARIETTA LEASE' means that certain Lease Agreement made and
entered into as of March 21, 2001 by and between by Borrower and Biasco
Piano Acquisitions in connection with the Retail Store Sale, as such
agreement may be amended, supplemented or otherwise modified in
accordance with Section 6.19.
`RETAIL STORE AGREEMENT' means that certain Retail Store
Agreement dated as of March 21, 2001 by and between Borrower and Biasco
Piano Acquisitions, as such agreement may be amended, supplemented or
otherwise modified in accordance with Section 6.19.
`RETAIL STORE SALE' means the sale by Borrower to Biasco Piano
Acquisitions of certain assets (as more particularly described in
Section 1.1 of the Retail Store Agreement) of Borrower relating to and
used by Borrower in its retail stores operation.
`RETAIL STORE SALE DOCUMENTS" shall mean the Retail Store
Agreement and Marietta Lease.
C. AMENDMENT TO DISCLOSURE SCHEDULE A. Disclosure Schedule A
of the Credit Agreement is hereby amended by inserting the following at the end
thereof:
"14. Retail Store Agreement
15. Marietta Lease".
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SECTION 2.
LIMITED WAIVER AND CONSENT TO THE CREDIT AGREEMENT
On the basis of the representations and warranties contained
in this Limited Waiver, and subject to the terms and conditions of this Limited
Waiver, Agent and Requisite Lenders hereby agree to waive the restrictions
contained in Sections 5.1, 6.7 and 6.8 of the Credit Agreement solely to the
extent necessary to permit Borrower and Biasco Piano Acquisitions to consummate
the Retail Store Sale pursuant to the terms of the Retail Store Sale Documents;
PROVIDED that concurrently with the consummation of the Retail Store Sale,
Borrower shall deposit proceeds received in connection with the Retail Store
Sale to the Collection Account and one hundred percent (100%) of such proceeds
shall be used to prepay the Loans, it being understood that such prepayment
shall not permanently reduce the Commitments. Requisite Lenders hereby authorize
Agent to, at Borrower's sole cost and expense, execute and deliver such partial
releases of its security interest in and Liens on such Collateral which
constitutes Subject Assets as may be reasonably requested by Borrower in
connection with the Retail Store Sale, including, without limitation, any UCC-3
termination statements and other full or partial release instruments, as
applicable. Notwithstanding anything contained herein to the contrary, this
Limited Waiver shall cease to be of any force or effect if the Retail Store Sale
has not been consummated on or before March 30, 2001.
SECTION 3.
LIMITATION OF WAIVER
Without limiting the generality of the provisions of Section
11.2 of the Credit Agreement, the waiver set forth above shall be limited
precisely as written and relates solely to noncompliance by Borrower with the
provisions of Sections 5.1, 6.7 and 6.8 of the Credit Agreement in the manner
and to the extent described above and nothing in this Amendment shall be deemed
to:
(a) constitute a waiver of compliance by Borrower with
respect to (i) Sections 5.1, 6.7 and 6.8 of Credit Agreement in any other
instance or (ii) any other term, provision or condition of the Credit Agreement,
Security Agreement or any other instrument or agreement referred to therein; or
(b) prejudice any right or remedy that Agent or any Lender
may now have (except to the extent such right or remedy was based upon existing
defaults that will not exist after giving effect to this Amendment) or may have
in the future under or in connection with the Credit Agreement, Security
Agreement or any other instrument or agreement referred to therein.
Except as expressly set forth herein, the terms, provisions
and conditions of the Credit Agreement, Security Agreement and the other Loan
Documents shall remain in full force and effect and in all other respects are
hereby ratified and confirmed.
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SECTION 4.
REPRESENTATIONS AND WARRANTIES
In order to induce Agent and Lenders to enter into this
Amendment, Borrower hereby represents and warrants to Agent and Lenders that:
A. AUTHORIZATION; BINDING OBLIGATIONS. Each Credit Party has
all requisite corporate power and authority to enter into this Amendment. The
execution, delivery and performance of this Amendment have been duly authorized
by all necessary corporate action by each Credit Party. This Amendment has been
duly executed and delivered by each Credit Party and is the legal, valid and
binding obligation of each Credit Party, enforceable against each Credit Party
in accordance with its terms, except to the extent that the enforceability
thereof may be limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or similar laws generally affecting
creditors' rights and by equitable principles (regardless of whether enforcement
is sought in equity or at law). As of the Fifth Amendment Effective Date (as
hereinafter defined), the Credit Agreement, as amended by this Amendment, will
constitute the legal, valid and binding obligation of each Credit Party,
enforceable against each Credit Party in accordance with its terms, except to
the extent that the enforceability thereof may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
similar laws generally affecting creditors' rights and by equitable principles
(regardless of whether enforcement is sought in equity or at law).
B. INCORPORATION OF REPRESENTATIONS. Each representation and
warranty of each Credit Party contained in each of the Loan Documents is true,
correct and complete in all material respects on and as of the Fifth Amendment
Effective Date to the same extent as though made on and as of the Fifth
Amendment Effective Date, except to the extent such representations and
warranties relate to an earlier date, in which case they were true, correct and
complete in all material respects as of such earlier date.
C. ABSENCE OF DEFAULTS. No event has occurred and is
continuing or would result from the execution, delivery or performance of this
Amendment that constitutes or would constitute a Default or Event of Default
after giving effect to this Amendment.
D. PERFORMANCE. Borrower has performed in all material
respects all agreements to be performed on its part on or before the date hereof
as set forth in the Credit Agreement.
SECTION 5.
ACKNOWLEDGEMENT AND CONSENT BY CREDIT PARTIES
Borrower and each other Credit Party executing a counterpart
hereto agree to and acknowledge the terms and provisions of this Amendment and
confirm that each Loan Document to which such Credit Party is a party shall
continue in full force and effect and that all of its obligations thereunder
shall be valid and enforceable and shall not be impaired or affected by the
execution of this Amendment, except as specifically provided herein. Borrower
and each other Credit Party executing a counterpart hereof represent and warrant
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that, all representations and warranties contained in each Loan Document to
which such Credit Party is a party are true, correct and complete in all
material respects as of the date hereof to the same extent as though made on
each such date and that Borrower and each such Credit Party has performed in all
material respects all agreements to be performed on its part on or before the
date hereof as set forth in the Loan Documents.
SECTION 6.
CONDITIONS TO EFFECTIVENESS
This Amendment shall become effective (the "FIFTH AMENDMENT
EFFECTIVE DATE") only upon receipt of the following items by Agent:
(a) counterparts hereof duly executed by each Credit Party and
Requisite Lenders (or, in the case of any Lender, telex or telephone
confirmation from such Lender of its execution hereof);
(b) the form and substance of the Retail Store Sale Documents,
which form and substance shall in all respects be satisfactory to Agent and
Requisite Lenders (which satisfaction shall be evidenced by such Lenders
executing a counterpart hereof);
(c) the final form of the Retail Store Sale Documents which
shall be in the form approved by Agent and Requisite Lenders with such changes
thereto as may be acceptable to Agent, together with duly executed originals of
an officer's certificate dated the Fifth Amendment Effective Date certifying
that: (i) attached thereto is a true, correct and complete copy of the Retail
Store Sale Documents (including all schedules, exhibits, amendments,
supplements, modifications, assignments and all other documents delivered
pursuant thereto or in connection therewith); (ii) no Credit Party and no other
Person party to the Retail Store Sale Documents is in default in the performance
or compliance with any provisions thereto; (iii) each of the Retail Store Sale
Documents complies with, and the Retail Store Sale has been consummated in
accordance with, all applicable laws; (iv) each of the Retail Store Sale
Documents is in full force and effect as of the Fifth Amendment Effective Date
and has not been terminated, rescinded or withdrawn; (v) all requisite approvals
by Governmental Authorities having jurisdiction over Biasco Piano Acquisitions,
any Credit Party and other Persons referenced in the Retail Store Sale
Documents, with respect to the transactions contemplated by the Retail Store
Sale Documents, have been obtained, and no such approvals impose any conditions
to the consummation of the transactions contemplated by the Retail Store Sale
Documents or to the conduct by any Credit Party of its business thereafter; (vi)
to the best of each Credit Party's knowledge, none of the representations or
warranties of Biasco Piano Acquisitions in the Retail Store Agreement contain
any untrue statement of a material fact; and (vii) each of the representations
and warranties given by each applicable Credit Party in the Retail Store
Agreement is true and correct in all material respects and does not or omit any
fact necessary to make the statements therein not misleading;
(d) a Borrowing Base Certificate reflecting the sale of the
retail stores and reduction in inventory and the application of proceeds to the
Loans; and
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(e) such other documents as Agent may reasonably request.
SECTION 7.
MISCELLANEOUS
A. EFFECT OF AMENDMENT. Except as specifically provided
herein, this Amendment does not in any way waive, amend, modify, affect or
impair the terms and conditions of the Credit Agreement or the other Loan
Documents, and all terms and conditions of the Credit Agreement and the other
Loan Documents are hereby ratified and confirmed and shall remain in full force
and effect unless otherwise specifically amended, waived, modified or changed
pursuant to the terms and conditions of this Amendment.
On and after the Fifth Amendment Effective Date, each
reference in the Credit Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of like import referring to the Credit Agreement, and each
reference in the other Loan Documents to the "Credit Agreement", "thereunder",
"thereof", or words of like import referring to the Credit Agreement shall mean
and be a reference to the Credit Agreement as modified by this Amendment.
B. FEES AND EXPENSES. Borrower acknowledges that all costs,
fees and expenses as described in Section 11.3 of the Credit Agreement incurred
by Agent, Lenders and their respective counsel with respect to this Amendment
and the documents and transactions contemplated hereby shall be for the account
of Borrower.
C. HEADINGS. Section and subsection headings in this Amendment
are included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
D. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT STATE AND ANY APPLICABLE
LAWS OF THE UNITED STATES OF AMERICA.
E. COUNTERPARTS. This Amendment may be executed in any number
of counterparts, including by telecopy, and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed an original, but all such counterparts together shall constitute but one
and the same instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document.
[Remainder of page left blank intentionally.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
BORROWER:
XXXXXXX PIANO & ORGAN COMPANY
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: Chief Financial Officer
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AGENT AND LENDERS:
GENERAL ELECTRIC CAPITAL
CORPORATION, AS AGENT FOR ITSELF AND
LENDERS
By: /s/ Xxxxx XxXxxxxx
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Name: Xxxxx XxXxxxxx
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Title: Its Duly Authorized Signatory
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OTHER CREDIT PARTIES:
THE WURLITZER COMPANY
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: Chief Financial Officer
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XXXXXXX TRADING COMPANY
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: Chief Financial Officer
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THE XXXXXXX PIANO COMPANY (CANADA) LIMITED
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: Chief Financial Officer
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