EXHIBIT 10.1
EXECUTION
▇▇▇▇▇▇▇ PIANO & ORGAN COMPANY
FIRST AMENDMENT AND LIMITED WAIVER TO
CREDIT AGREEMENT
This FIRST AMENDMENT AND LIMITED WAIVER TO CREDIT AGREEMENT (this
"AMENDMENT") is dated as of August 11, 2000 and entered into by and among
▇▇▇▇▇▇▇ PIANO & ORGAN COMPANY, a Delaware corporation ("BORROWER"), GENERAL
ELECTRIC CAPITAL CORPORATION, as agent for itself and Lenders ("AGENT"), the
financial institutions listed on the signature pages hereof (the "LENDERS"),
and, for purposes of Section 5 hereof, the Credit Parties listed on the
signature pages hereof, and is made with reference to 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 and amended, the "CREDIT
AGREEMENT"). Capitalized terms used herein without definition shall have the
same meanings herein as set forth in the Credit Agreement.
R E C I T A L S
WHEREAS, Borrower has requested that Agent and Requisite Lenders waive
any Default or Event of Default which may occur as a result of Borrower's
failure to comply with the Minimum Fixed Charge Coverage and Minimum EBITDA
covenants contained in Annex G of the Credit Agreement as of June 30, 2000, and
(ii) the Minimum Consolidated Tangible Net Worth covenant contained in Annex G
to the Credit Agreement during the period from June 30, 2000 to September 30,
2000;
WHEREAS, Requisite Lenders and Agent have agreed to waive any such
Default and Event of Default and to make certain amendments to the Credit
Agreement, 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 subsection 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 1.5(a). Section 1.5(a) of the Credit Agreement
is hereby amended by inserting the following paragraph at the end thereof as
follows:
"Notwithstanding anything in the foregoing to the contrary, from and
after August 1, 2000, the Applicable Index Margin and Applicable L/C Margin
shall be fixed at 3.00% and 2.50%, respectively, without further adjustment."
B. AMENDMENT TO ANNEX G. Annex G of the Credit Agreement is hereby
amended by re-lettering the second paragraph (c) thereof (Minimum Tangible Net
Worth) as paragraph (d).
SECTION 2.
LIMITED WAIVER
On the basis of the representations and warranties contained in this
Amendment, and subject to the terms and conditions of this Amendment, Agent and
Requisite Lenders hereby agree to waive any Default or Event of Default which
may have occurred, or may hereafter occur, under Section 8.1(b) of the Credit
Agreement solely as a result of the Borrower's failure to comply with (i) the
covenants contained in paragraphs (b) (Minimum Fixed Charge Coverage Ratio) and
(c) (Minimum EBITDA) of Annex G to the Credit Agreement as of June 30, 2000 for
the Fiscal Quarter ending on such date and (ii) the covenant contained in
paragraph (d) (Minimum Tangible Net Worth) of Annex G to the Credit Agreement
for the period commencing on June 30, 2000 and continuing to but excluding
September 30, 2000; PROVIDED that, the waivers set forth in this Section 2 shall
cease to be of any force and effect on September 30, 2000.
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
paragraphs (b), (c), and (d) of Annex G 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)
paragraphs (b), (c), and (d) of Annex G of the Credit Agreement in any
other instance or (ii) any other term, provision or condition of the
Credit 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
or any other instrument or agreement referred to therein.
Except as expressly set forth herein, the terms, provisions and
conditions of the Credit Agreement and the other Loan Documents shall remain in
full force and effect and in all other respects are hereby ratified and
confirmed.
2
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 Amendment Effective Date, 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 Amendment Effective Date
to the same extent as though made on and as of the Amendment Effective, 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 that, all
representations and warranties contained in each Loan Document to which such
3
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 "AMENDMENT EFFECTIVE DATE")
only upon receipt of the following items by Agent:
(1) 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); and
(2) an amendment fee equal to $25,000 payable to Agent for the ratable
benefit of the Lenders.
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 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.
4
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.
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:
▇▇▇▇▇▇▇ PIANO & ORGAN COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President,
Chief Financial Officer and
Secretary
AGENT AND LENDERS:
GENERAL ELECTRIC CAPITAL
CORPORATION, AS AGENT FOR ITSELF
AND LENDERS
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Its Duly Authorized Signatory
OTHER CREDIT PARTIES:
THE WURLITZER COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President,
Chief Financial Officer and
Secretary
S-1
▇▇▇▇▇▇▇ TRADING COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President,
Chief Financial Officer and
Secretary
THE ▇▇▇▇▇▇▇ PIANO COMPANY (CANADA)
LIMITED
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President,
Chief Financial Officer and
Secretary
S-2