Exhibit 4.2
FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT, dated as of March 2, 2001 (this "AMENDMENT"), to the Existing Credit
Agreement (as hereinafter defined), by and among (i) THE SELMER COMPANY, INC., a
Delaware corporation ("SELMER"), (ii) STEINWAY, INC., a Delaware corporation
("STEINWAY"), (iii) UNITED MUSICAL INSTRUMENTS USA, INC., an Indiana corporation
("UMI" and together with Selmer and Steinway, the "BORROWERS"), (iv) those
signatories hereto and identified on Schedule I (as may be amended from time to
time) as Guarantors (the "GUARANTORS"), (v) the lenders (the "LENDERS") from
time to time party to the Agreement (defined below) and GMAC COMMERCIAL CREDIT
LLC, a New York limited liability company ("GMACCC"), as administrative agent
for the Lenders hereunder.
RECITALS
The Borrowers, Guarantors, GMACCC, as administrative agent and
the Lenders have entered into the Existing Credit Agreement, pursuant to which
the Lenders are providing to Selmer and Steinway a $120,000,000 revolving credit
facility, a $22,500,000 term loan facility and a $45,000,000 term loan facility,
each of which are secured by certain accounts receivable, real estate, and other
collateral of Selmer, Steinway and UMI and guaranteed by the Guarantors and the
parties desire to amend certain provisions of the Existing Credit Agreement as
hereinafter provided.
In consideration of the foregoing and of the mutual covenants
and undertakings herein contained, the parties hereto hereby agree that the
Existing Credit Agreement is amended as hereinafter provided.
ARTICLE I
Definitions
1. DEFINITIONS. (a) In addition to the definitions set forth
in the heading and the recitals to this Amendment, the following definitions
shall apply hereto:
"AGREEMENT" means the Existing Credit Agreement as amended,
supplemented or otherwise modified from time to time up to and including this
Amendment.
"EXISTING CREDIT AGREEMENT" shall mean the Second Amended and
Restated Credit Agreement, dated as of September 14, 2000, among (i) Selmer,
(ii) Steinway, (iii) UMI, (iv) the Guarantors, (v) the Lenders and (vi) GMACCC
as amended or otherwise modified from time to time prior to the First Amendment
Effective Date.
(b) Unless otherwise indicated, capitalized terms that are
used but not defined herein shall have the meanings ascribed to them in the
Existing Credit Agreement.
ARTICLE II
Representations
1. REPRESENTATIONS. Each of the Borrowers and Guarantors
hereby represents and warrants as follows:
(a) It has full power, authority and legal right, to enter
into this Amendment and perform all of its respective obligations hereunder. The
execution, delivery and performance hereof is within its powers and has been
duly authorized, is not in contravention of any law(s) which might have a
material adverse effect upon it, the Collateral, its operations, financial
condition or prospects, or in contravention of the terms of its by-laws,
certificate of incorporation, declaration of trust or other documents relating
to its formation, as applicable, or to the conduct of its business or of any
material agreement or undertaking to which it is a party or by which it is
bound, and will not conflict with or result in any breach of any of the
provisions of, or constitute a default under, or result in the creation of any
Lien upon any of its assets under, the provisions of any agreement, charter,
instrument, by-law, declaration of trust or other instrument to which it is a
party or by which it or its assets may be bound.
(b) It is duly organized and in good standing under the laws
of its respective state of organization and it is qualified to do business and
is in good standing in which qualification and good standing are necessary for
it to conduct its businesses and own its properties and where the failure to so
qualify would have a Material Adverse Effect.
(c) This Amendment has been duly executed and delivered on its
behalf and this Amendment constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the enforcement of creditors' rights generally and by
general equitable principles (whether enforcement is sought by proceedings in
equity or at law).
(d) The conditions contained in Article IV hereof have been
satisfied.
(e) Each of the Loan Documents is on the date hereof in full
force and effect.
(f) No Default or Event of Default has occurred and is
continuing.
ARTICLE III
Amendments to Existing Credit Agreement
1. AMENDMENTS TO SECTION 1. (a) Section 1.1 of the Existing
Credit Agreement is hereby amended by inserting at the end of the definition of
"Lenders" immediately after the words "the Issuing Lender" and before the period
(".") the words "and, solely for the purposes of Section 12.11, any Affiliate of
any Lender."
(b) Section 1.1 of the Existing Credit Agreement is hereby
amended by deleting the definition of "Required Lenders" in its entirety and
replacing it with the following:
"REQUIRED LENDERS": (i) at any time there are three
(3) or fewer Lenders, all of the Lenders, (ii) at any time there are
four (4) Lenders, at least three (3) Lenders and (iii) at any time
there are more than four (4) Lenders, three (3) or more Lenders holding
in the aggregate at least 66-2/3% Credit Exposure Percentage.
(c) Section 1.1 of the Existing Credit Agreement is hereby
amended (i) by inserting in the seventh line of the definition of the term
"Tangible Net Worth" after the words "6.1(b) hereto," the words "plus (c) the
aggregate amount of Eligible Intellectual Property calculated in accordance with
GAAP consistently applied," and (ii) by deleting in the seventh line the letter
"(c)" and replacing the letter "(d)".
2. AMENDMENT TO SECTION 2.2(a). Section 2.2(a) of the Existing
Credit Agreement is hereby amended (i) by deleting in the second line thereof
after the words "in the form of Exhibit" the letter "N" and replacing it with
the letter "J", and (ii) by deleting in the last line thereof the words "on the
dates specified in Section 5.1(e)" and replacing them with the words "as
specified in the Term A Note".
3. AMENDMENT TO SECTION 5.9. Section 5.9 of the Existing
Credit Agreement is hereby amended by deleting in the second and sixth lines
thereof the words "Administrative Agent" and replacing them with the words
"Required Lenders".
4. AMENDMENT TO SECTION 8.2(c). Section 8.2(c) of the Existing
Credit Agreement is hereby amended by (i) deleting in the fifth line thereof,
after the words "Section 8 hereof" the words "and Section 9.17, and (iii)" and
replacing them with the words ", Section 9.1 hereof, (iii) no Event of Default
has occurred under the Senior Subordinated Note Indenture and (iv)".
5. AMENDMENT TO SECTION 9.1(b). Section 9.1(b) of the Existing
Credit Agreement is hereby amended by deleting in the second line thereof the
words "1.3 to 1 for each period" and replacing them with the words "1.1 to 1 for
each period".
6. AMENDMENT TO SECTION 12.4(b). Section 12.4(b) is hereby
amended by inserting the words "at the direction of the Required Lenders" after
the words "the Administrative Agent" and before the words "shall have the
continuing and exclusive right" where they appear in the second line thereof.
7. AMENDMENT TO SCHEDULE 2.1. Schedule 2.1 to the Existing
Agreement is hereby deleted in its entirety and replaced by Schedule 2.1
attached hereto.
8. AMENDMENT TO SCHEDULE 2.2. The Term Loan A-Payment Schedule
in Schedule 2.2 to the Existing Agreement is hereby amended by deleting in the
last row of the table the number "170,000.00" and replacing it with the words
"all amounts outstanding with respect to Term Loan A".
9. AMENDMENT TO EXHIBITS X-0 XXX X-0 XXX X-0. Xxxxxxxx X-0,
X-0 and J-3 are hereby deleted in their entirety and replaced by Exhibits J-1,
J-2 and J-3 attached hereto.
ARTICLE IV
Conditions to Effectiveness
This Amendment, and the modifications to the Existing Credit
Agreement provided for herein, shall become effective on the date (the "FIRST
AMENDMENT EFFECTIVE DATE") on which all of the following conditions have been
(or are concurrently being) satisfied:
1. This Amendment shall have been duly executed and delivered
by each party thereto.
2. Each of the representations and warranties made by the
Borrowers and Guarantors in or pursuant to the Loan Documents shall be true and
correct in all material respects on and as of the First Amendment Effective Date
as if made on and as of such date (except to the extent the same relate to
another, earlier date, in which case they shall be true and correct in all
material respects as of such earlier date).
3. No Default or Event of Default shall have occurred and be
continuing.
4. All corporate and other proceedings, and all documents,
instruments and other legal matters in connection with the transactions
contemplated by the Existing Credit Agreement and this Amendment shall be
reasonably satisfactory in form and substance to the GMACCC, and GMACCC shall
have received such other documents in respect of any aspect or consequence of
the transactions contemplated hereby or thereby as it shall reasonably request.
ARTICLE VII
Miscellaneous
1. PAYMENT OF EXPENSES. Notwithstanding any provisions of
Section 12.8 of the Agreement, the parties shall bear their own costs and
expenses incurred in connection with this Amendment.
2. NO OTHER AMENDMENTS; CONFIRMATION. Except as expressly
amended, modified and supplemented hereby and by the documents related hereto,
the provisions of the Existing Credit Agreement and the other Loan Documents
shall remain in full force and effect.
3. AFFIRMATION BY LOAN PARTIES. Each Loan Party hereby
reaffirms its obligations under the Loan Documents executed by such Loan Party.
4. GOVERNING LAW; COUNTERPARTS. (a) This Amendment and the
rights and obligations of the parties hereto shall be governed by, and construed
and interpreted in accordance with, the laws of the State of New York.
(b) This Amendment may be executed by one or more of the
parties hereto on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Amendment signed by all the parties
shall be lodged with each of the Borrowers and GMACCC, as Administrative Agent.
This Amendment may be delivered by facsimile transmission of the relevant
signature pages hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered as of the day and year first above
written.
THE SELMER COMPANY, INC.,
Borrower
By /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Title: Vice President
STEINWAY, INC.,
Borrower
By /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Title: Vice President
UNITED MUSICAL INSTRUMENTS USA, INC.,
Borrower
By /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Title: Vice President
GMAC COMMERCIAL CREDIT LLC,
as Administrative Agent and as a Lender
By /s/ Xxxxx Xxxxxxxx
-------------------------------------
Title: Senior Vice President
GMAC COMMERCIAL CREDIT LLC,
as Lender
By /s/ Xxxxx Xxxxxxxx
-------------------------------------
Title: Senior Vice President
SCHEDULE I
GUARANTORS
STEINWAY MUSICAL INSTRUMENTS, INC.,
Guarantor
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Title:
000 Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
XXXXXXX MUSICAL INSTRUMENTS, INC.,
Guarantor
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Title:
00000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
THE STEINWAY PIANO COMPANY, INC.,
Guarantor
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Title:
000 Xxxxxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
THE SMI TRUST,
Guarantor
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Title:
000 Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
S&B RETAIL, INC.,
Guarantor
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Title:
000 Xxxxx 00 Xxxxx
Xxxxxxx, Xxx Xxxxxx 00000
BOSTON PIANO COMPANY, INC.,
Guarantor
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Title:
00-00 00xx Xxxxxx
Xxxx Xxxxxx Xxxx, XX 00000
THE O.S. XXXXX CORPORATION,
Guarantor
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Title:
X.X. Xxx 0000
000 X. Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
THE O.S. XXXXX COMPANY,
Guarantor
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Title:
X.X. Xxx 0000
000 X. Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
UNITED MUSICAL INSTRUMENTS HOLDINGS, INC.,
Guarantor
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Title:
000 Xxxxxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
