SECOND AMENDMENT
SECOND AMENDMENT, dated as of January 1, 1997 (this "AMENDMENT"),
to the Credit Agreement (as hereinafter defined), by and among (i) THE SELMER
COMPANY, INC., a Delaware corporation f/k/a Symphony Industries, Inc.
("SELMER"), (ii) STEINWAY, INC., a Delaware corporation ("STEINWAY" and,
together with Selmer, the "BORROWERS"), (iii) STEINWAY MUSICAL INSTRUMENTS,
INC., a Delaware corporation f/k/a Selmer Industries, Inc. ("SMI"), (iv) BOSTON
PIANO COMPANY, INC., a Massachusetts corporation ("BOSTON PIANO CO."), (v) THE
SMI TRUST, a Massachusetts business trust ("SMIT"), (vi) S&B RETAIL, INC., a
Delaware corporation ("S&B RETAIL"), and (vii) BNY FINANCIAL CORPORATION, a New
York corporation (the "LENDER").
RECITALS
The Borrowers, SMI, Boston Piano Co., SMIT, S&B Retail and the
Lender are all of the parties to the Credit Agreement, pursuant to which the
Lender is providing to the Borrowers a $60,000,000.00 credit facility, which is
secured by certain accounts receivable and other collateral of the Borrowers and
guaranteed by SMI, Boston Piano Co., SMIT and S&B Retail and the Credit Parties
have requested that the Lender reduce the rate of interest applied to advances
made under the Credit Agreement and the Lender is willing to do so, but only on
the terms and subject to the conditions set forth in this Amendment.
In consideration of the foregoing and of the mutual covenants and
undertakings herein contained, the parties hereto hereby agree that the Credit
Agreement is amended as hereinafter provided.
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:
"CREDIT AGREEMENT": means the Amended and Restated Revolving
Credit, Term Loan and Security Agreement, dated as of May 25, 1995, by and among
Selmer, Steinway, SMI, Steinway Musical Properties, Inc., Boston Piano Co. and
the Lender, as amended by the First Amendment, Consent Waiver and Agreement,
dated as of December 31, 1996, by and among Selmer, Steinway, SMI, Steinway
Musical Properties, Inc., Boston Piano Co., SMIT, S&B Retail and the Lender, as
amended, supplemented or otherwise modified from time to time up to and
including this Amendment.
(b) Unless otherwise indicated, capitalized terms that are used
but not defined herein shall have the meanings ascribed to them in the Credit
Agreement.
2. AMENDMENTS.: The definition of Advance Interest Rate in the
Credit Agreement is hereby amended by deleting such definition in its entirety
and substituting in lieu thereof a new definition to read in its entirety as
follows:
""ADVANCE INTEREST RATE" shall mean an interest rate per annum
equal to (i) with respect to Alternate Base Rate Loans, the Alternate Base Rate
plus one percent (1%), and (ii) with respect to Eurodollar Advances, the
Eurodollar Rate plus two and one-half percent (2.5%)."
3. EFFECTIVENESS. This Amendment shall be effective as of
January 1, 1997.
4. REPRESENTATIONS. (a) Each of the Credit Parties hereby
represents and warrants as follows:
(i) 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 are within its powers and have been
duly authorized, are 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 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.
(ii) 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 the states listed on SCHEDULE 5.2 of the Credit Agreement,
which constitute all states 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 on it or its
businesses.
(iii) 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).
(iv) Each of the Credit Documents is on the date hereof in full
force and effect.
(v) After giving effect to the amendments provided for herein,
the representations and warranties contained in the Credit Agreement and the
other Basic Documents will be true and correct in all material respects as if
made on and as of the date hereof and that no Default or Event of Default will
have occurred and be continuing.
5. NO OTHER AMENDMENTS. Except as expressly amended hereby, the
Credit Agreement, the Notes and the other Basic Documents shall remain in full
force and effect in
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accordance with their respective terms, without any waiver, amendment or
modification of any provision thereof.
6. COUNTERPARTS. 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.
7. EXPENSES. The Borrowers agree to pay and reimburse the Lender
for all of the out-of-pocket costs and expenses reasonably incurred by the
Lender in connection with the preparation, execution and delivery of this
Amendment, including, without limitation, the reasonable fees and disbursements
of Cadwalader, Wickersham & Taft, counsel to the Lender.
8. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed and delivered as of the day and year first above written.
THE SELMER COMPANY, INC.
By /s/ Dana D. Messina
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Name: Dana D. Messina
Title:
STEINWAY, INC.
By /s/ Dana D. Messina
-------------------------------
Name: Dana D. Messina
Title:
STEINWAY MUSICAL INSTRUMENTS, INC.
By /s/ Dana D. Messina
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Name: Dana D. Messina
Title:
BOSTON PIANO COMPANY, INC.
By /s/ Dana D. Messina
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Name: Dana D. Messina
Title:
THE SMI TRUST
By/s/ Dana D. Messina
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Name: Dana D. Messina
Title:
[SIGNATURE BLOCKS CONTINUED ON NEXT PAGE]
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S&B RETAIL, INC.
By /s/ Dana D. Messina
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Name: Dana D. Messina
Title:
BNY FINANCIAL CORPORATION
By /s/ Mary E. Duffy
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Name: MARY E. DUFFY
Title: VICE PRESIDENT
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