EXHIBIT 4.1
EXECUTION COPY
FIFTH AMENDMENT, CONSENT, WAIVER AND AGREEMENT
FIFTH AMENDMENT, CONSENT, WAIVER AND AGREEMENT, dated as of May 21,
1999 (this "AMENDMENT"), to the Existing 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"),
(vii) EMERSON MUSICAL INSTRUMENTS, INC., a Delaware corporation ("EMERSON"),
(viii) THE STEINWAY PIANO COMPANY, INC., a Delaware corporation ("SPC"; and
together with the foregoing parties, the "CREDIT PARTIES") and (ix) BNY
FINANCIAL CORPORATION, a New York corporation (the "LENDER").
RECITALS
The Borrowers and the other Credit Parties and Lender have entered
into the Existing Credit Agreement, pursuant to which the Lender is providing to
the Borrowers a $60,000,000.00 revolving credit and term loan facility and a
$22,500,000 term loan facility, which are secured by certain accounts receivable
and other collateral of the Borrowers and guaranteed by the other Credit
Parties. The Credit Parties have requested that the Lender: (i) permit them to
use net cash balances to prepay amounts owing to SMIT under the SMIT Notes (as
defined below) and from time to time reborrow any amounts so repaid; (ii)
consent to the DM 3.100.000 loan by SMIT to Boston Piano GmbH; and (iii) waive
certain provisions of the Existing Credit Agreement and the other Credit
Documents which would otherwise prohibit the consummation of some or all of the
Transactions (as defined below). Subject to the terms and conditions hereof, the
Lender is willing to permit such prepayments and reborrowings, permit such loan
and to waive such provisions of the Existing Credit Agreement and the other
Credit Documents.
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" shall mean the Amended and Restated Revolving Credit, Term
Loan and Security Agreement, dated as of May 25, 1995, by and among Selmer,
Steinway, SMI, SMP, Boston Piano Co. and the Lender, as amended, supplemented or
otherwise modified from time to time up to and including this Amendment.
"BOSTON PIANO LOAN" shall mean that certain DM 3.100.000 loan from
SMIT to Boston Piano GmbH, as evidenced by that certain Promissory Note, dated
May 21, 1999 from Boston Piano GmbH to SMIT.
"CURRENT INTEREST NOTES" shall mean (i) that certain Demand Promissory
Note of Selmer to SMIT dated December 16, 1998 in an aggregate principal amount
of $12,836,076, (ii) that certain Demand Promissory Note of Steinway to SMIT
dated March 24, 1999 in an aggregate principal amount
of $2,933,000 and (iii) that certain Demand Promissory Note of Steinway to SMIT
dated March 29, 1999 in an aggregate principal amount of $621,000.
"EXISTING CREDIT AGREEMENT" shall mean the Amended and Restated
Revolving Credit, Term Loan and Security Agreement, dated as of May 25, 1995, by
and among Selmer, Steinway, SMI, SMP, Boston Piano Co. and the Lender, as
amended by: (i) the First Amendment, Consent, Waiver and Agreement, dated as of
December 31, 1996, to the Existing Credit Agreement (as defined therein) by and
among Selmer, Steinway, SMI, SMP, Boston Piano Co., SMIT, S&B Retail and the
Lender; (ii) the Second Amendment, dated as of January 1, 1997, to the Existing
Credit Agreement (as defined therein), by and among Selmer, Steinway, SMI,
Boston Piano Co., SMIT, S&B Retail and the Lender; (iii) the Third Amendment,
Consent, Waiver And Agreement, dated as of January 31, 1997, to the Existing
Credit Agreement (as defined therein), by and among the Credit Parties and the
Lender and (iv) the Fourth Amendment and Agreement, dated as of April 1, 1999,
to the Existing Credit Agreement (as defined therein), by and among the Credit
Parties and the Lender as amended, supplemented or otherwise modified from time
to time prior to the Fifth Amendment Effective Date.
"FIFTH AMENDMENT DOCUMENTS" shall mean this Amendment, and all other
agreements, instruments and documents, if any, executed or delivered pursuant to
or in connection with this Amendment and the transactions contemplated hereby
and thereby.
"SELMER NOTE" shall mean that certain Promissory Note of Selmer to
SMIT dated September 4, 1996, in an aggregate principal amount of
$62,305,000.00, a copy of which is attached hereto as Exhibit I.
"SELMER REVOLVING INTEREST NOTE" shall mean that certain Revolving
Promissory Note dated May 21, 1999, in an aggregate principal amount not to
exceed $30,000,000 by Selmer to SMIT.
"SELMER PREPAYMENTS/REBORROWINGS" shall mean Selmer's use of net cash
balances in excess of $500,000.00 from time to time to prepay amounts owing to
SMIT under the Selmer Note and Selmer's reborrowing from time to time of any
amounts so repaid.
"SMIT REVOLVING INTEREST NOTES" shall mean the Selmer Revolving
Interest Note and the Steinway Revolving Interest Note.
"SMIT NOTES" shall mean the Selmer Note, the Steinway Note, and the
SMIT Revolving Interest Notes.
"STEINWAY NOTE" shall mean that certain Promissory Note of Steinway
Musical Properties, Inc. to the Selmer Company, Inc., dated May 25, 1995, in an
aggregate principal amount of $80,000,000.00 a copy of which is attached hereto
as Exhibit II.
"STEINWAY REVOLVING INTEREST NOTE" shall mean that certain
Revolving Promissory Note, dated May 21, 1999, in an aggregate principal
amount not to exceed $30,000,000 by Steinway to SMIT.
"STEINWAY PREPAYMENTS/REBORROWINGS" shall mean Steinway's use of
net cash balances in excess of $500,000.00 from time to time to prepay
amounts owing to SMIT under the Steinway Note and Steinway's reborrowing from
time to time of any amounts so repaid.
"TRANSACTIONS" shall mean the collective reference to (i) the
Selmer Prepayments/Reborrowings; (ii) the Steinway Prepayments/Reborrowings
and (iii) the Boston Piano Loan, in each instance to the extent and as more
fully described in this Amendment.
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(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 Credit Parties hereby represents and
warrants as follows:
(a) It has full power, authority and legal right, to enter into this
Amendment and each of the other Fifth Amendment Documents to which it is a party
and perform all of its respective obligations hereunder and thereunder. The
execution, delivery and performance hereof and thereof 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.
(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 the states listed on SCHEDULE 5.2 of the Existing 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.
(c) This Amendment and each of the other Fifth Amendment Documents to
which it is a party have been duly executed and delivered on its behalf and this
Amendment and each of the other Fifth Amendment Documents to which it is a party
constitute 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 VI hereof have been satisfied.
(e) Each of the Credit 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 the following new definitions therein
in the appropriate alphabetical order:
"BLOCKED ACCOUNT AGREEMENT" shall mean that certain Blocked
Account Agreement, dated as of the date hereof, by and among SMIT,
BNYFC and The Bank of New York, as the same may be amended,
supplemented or modified from time to time.
"BOSTON PIANO LOAN" shall mean that certain DM 3.100.000
loan from SMIT to Boston Piano GmbH, as evidenced by that certain
Promissory Note, dated May 21, 1999 from Boston Piano GmbH to SMIT.
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"FIFTH AMENDMENT" shall mean the Fifth Amendment,
dated as of May 21, 1999, to the Existing Credit Agreement (as defined
therein), by and among Selmer, Steinway, SMI, Boston Piano Co., SMIT,
S&B Retail, Emerson, SPC and the Lender.
"FIFTH AMENDMENT DOCUMENTS" shall mean the Fifth Amendment,
the Blocked Account Agreement, the First Amendment to Pledge
Agreement, dated as of May 21, 1999 by and between SMIT and the
Lender, and all other agreements, instruments and documents, if any,
executed or delivered pursuant to or in connection with the Fifth
Amendment and the transactions contemplated thereby.
"FIFTH AMENDMENT EFFECTIVE DATE" shall mean the date on
which all of the conditions precedent to the effectiveness of the
Fifth Amendment set forth in Article VI of the Fifth Amendment are
first satisfied or waived.
"SELMER REVOLVING INTEREST NOTE" shall mean that certain
Revolving Promissory Note dated May 21, 1999, in an aggregate
principal amount not to exceed $30,000,000.00 by Selmer to SMIT.
"SELMER PREPAYMENTS/REBORROWINGS" shall mean Selmer's
use of net cash balances in excess of $500,000.00 from time to time to
prepay amounts owing to SMIT under the Selmer Note and Selmer's
reborrowing from time to time of any amounts so repaid.
"SMIT REVOLVING INTEREST NOTES" shall mean the Selmer
Revolving Interest Note and the Steinway Revolving Interest Note.
"SMIT NOTES" shall mean the Selmer Note, the Steinway
Note, and the SMIT Revolving Interest Notes.
"SMIT BLOCKED ACCOUNT" shall mean that certain Account No.
_____________ at The Bank of New York.
"STEINWAY REVOLVING INTEREST NOTE" shall mean that certain
revolving Promissory Note, dated May 21, 1999, in an aggregate
principal amount not to exceed $30,000,000.00 by Steinway to SMIT.
"STEINWAY PREPAYMENTS/REBORROWINGS" shall mean
Steinway's use of net cash balances in excess of $500,000.00 from time
to time to prepay amounts owing to SMIT under the Steinway Note and
Steinway's reborrowing from time to time of any amounts so repaid.
(b) Section 1.1 of the Existing Credit Agreement is hereby amended by
deleting the definition of "Credit Documents" in its entirety and replacing it
with the following:
"CREDIT DOCUMENTS" shall be the collective reference to this
Agreement, the First Amendment, the Second Amendment, the Third
Amendment, the Fourth Amendment, the Fifth Amendment, the Term Note
(if any), the Guarantees, the Letter of Credit Documents and the
Security Documents.
2. AMENDMENT TO SECTION 4.15(h). Section 4.15(h) is hereby amended by
inserting the words "including, but not limited to, the SMIT Blocked Account"
after the words " or other blocked accounts" into the fifth line of said
section.
3. AMENDMENTS TO SECTION 7. (a) Section 7.15 of the Existing
Credit Agreement is hereby amended by (i) deleting the word "or" between
"terminated," and "(iii) the exchange" in the second sentence thereof and (ii)
incorporating at the end of the second sentence thereof the following:
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", or (iv) the Selmer Prepayments/Reborrowings and the Steinway
Prepayments/Reborrowings, PROVIDED that (A) BNYFC must receive oral notice of
any such prepayment or reborrowing, to be immediately followed by a writing from
the Borrower making such prepayment or reborrowing in the form attached hereto
as EXHIBIT 7.15; (B) the amount of any such prepayment or reborrowing shall not
exceed the difference between (I) the net cash balance available for any such
prepayment or reborrowing MINUS (II) any Advances outstanding under this
Agreement, (C) at the time such prepayment or reborrowing is requested no
Default or Event of Default shall have occurred and be continuing; (D) any such
prepayment or reborrowing shall be subject to BNYFC's prior written approval, in
its sole and absolute discretion; and (E) from and after the date hereof, all
payments and/or prepayments of principal and/or interest made by Selmer or
Steinway under the SMIT Notes shall be made to the SMIT Blocked Account which
shall at all times be subject to a Blocked Account Agreement."
(b) Section 7 is hereby amended by incorporating at the end thereof
the following section:
"7.21. INTEREST NOTES. At any time permit either of the Selmer
Revolving Interest Note or the Steinway Revolving Interest Note to have a
balance in excess of $30,000,000."
4. AMENDMENT TO EXHIBIT 7.15. Exhibit 7.15 shall read as set forth on
Exhibit 7.15 attached hereto.
ARTICLE IV
Waivers
The Lender hereby waives, pursuant to Section 14.14 of the Existing
Credit Agreement, any Default or Event of Default arising as a result of the
failure by either of the Borrowers or any other Credit Party, as applicable, to
comply with or to satisfy the requirements of:
1. Section 7.5 of the Agreement, but only with respect to the Boston
Piano Loan; and
2. Section 4.3 of the Agreement, but only with respect to the Boston
Piano Loan.
ARTICLE V
Consents
The Lender hereby consents to the Transactions.
ARTICLE VI
Conditions to Effectiveness
This Amendment, and the modifications to the Credit Agreement provided
for herein, shall become effective on the date (the "FIFTH AMENDMENT EFFECTIVE
DATE") on which all of the following conditions have been (or are concurrently
being) satisfied:
1. The following documents shall have been duly executed and delivered
by each party thereto:
(i) this Amendment; and
(ii) the other Fifth Amendment Documents.
2. Each of the representations and warranties made by the Credit
Parties in or pursuant to the Credit Documents shall be true and correct in all
material respects on and as of the Fifth
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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. The Lender shall have received each additional document,
instrument, legal opinion or item of information reasonably requested by the
Lender, including, without limitation, a copy of any debt instrument, security
agreement or other material contract to which a Credit Party may be a party.
5. All corporate and other proceedings, and all documents, instruments
and other legal matters in connection with the transactions contemplated by the
Existing Credit Agreement, the Credit Agreement, this Amendment and the other
Fifth Amendment Documents shall be reasonably satisfactory in form and substance
to the Lender, and the Lender 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.
6. The replacement of the Current Interest Notes with the SMIT
Revolving Interest Notes.
ARTICLE VII
Miscellaneous
1. PAYMENT OF EXPENSES. Without limiting its obligations under Section
14.13 of the Agreement, the Borrowers jointly and severally agree to pay or
reimburse the Lender for all of its reasonable costs and expenses incurred in
connection with this Amendment and the other Fifth Amendment Documents,
including, without limitation, the reasonable costs and expenses of Cadwalader,
Wickersham & Taft, counsel to the Lender and expressly acknowledge that their
obligations hereunder constitute "Obligations" within the meaning of the
Existing Credit Agreement.
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 Credit Documents shall
remain in full force and effect.
3. AFFIRMATION BY CREDIT PARTIES. Each Credit Party hereby consents to
the execution and delivery of this Amendment and each of the other Fifth
Amendment Documents to which such Credit Party is a party and reaffirms its
obligations under the Credit Documents executed by such Credit 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 the Lender. This Amendment may be delivered by
facsimile transmission of the relevant signature pages hereof.
[ SIGNATURE PAGES FOLLOW ]
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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/ Dennis M. Hanson
---------------------------------------------
Name: Dennis M. Hanson
Title: Vice President
STEINWAY, INC.
By /s/ Dennis M. Hanson
---------------------------------------------
Name: Dennis M. Hanson
Title: Vice President
STEINWAY MUSICAL INSTRUMENTS, INC.
By /s/ Dennis M. Hanson
---------------------------------------------
Name: Dennis M. Hanson
Title: Vice President
BOSTON PIANO COMPANY, INC.
By /s/ Dennis M. Hanson
---------------------------------------------
Name: Dennis M. Hanson
Title: Vice President
THE SMI TRUST
By /s/ Dennis M. Hanson
---------------------------------------------
Name: Dennis M. Hanson
Title: Trustee
[SIGNATURE BLOCKS CONTINUED ON NEXT PAGE]
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S&B RETAIL, INC.
By /s/ Dennis M. Hanson
---------------------------------------------
Name: Dennis M. Hanson
Title: Vice President
EMERSON MUSICAL INSTRUMENTS, INC.
By /s/ Dennis M. Hanson
---------------------------------------------
Name: Dennis M. Hanson
Title: Vice President
THE STEINWAY PIANO COMPANY
By /s/ Dennis M. Hanson
---------------------------------------------
Name: Dennis M. Hanson
Title: Vice President
BNY FINANCIAL CORPORATION
By /s/ James Belanger
---------------------------------------------
Name: James Belanger
Title: Vice President
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EXHIBIT 7.15
[Selmer Company, Inc.]
[Steinway, Inc.]
800 South Street
Suite 425
Waltham, Massachusetts 02154-4139
BNY Financial Corporation
4201 Wilshire Boulevard
Room 450
Los Angeles, California 90010
As discussed in our phone conversation of ___________________,
and as permitted under the provision of Section 7.15 of the Amended and Restated
Revolving Credit, Term Loan and Security Agreement, dated as of May 25, 1995, by
and among Selmer, Steinway, SMI, SMP, Boston Piano Co. and the Lender, as
amended, supplemented or otherwise modified from time to time (the "AGREEMENT"),
the undersigned requests that the Lender effect a [prepayment] [reborrowing]
under the [Selmer] [Steinway] Note in the amount of $__________. After giving
effect to such [prepayment] [reborrowing], the following are the outstanding
balances of the SMIT Notes
Selmer Note:
Selmer Revolving Interest Note:
Steinway Note:
Steinway Revolving Interest Note:
All capitalized terms used herein shall have the meaning
ascribed to them in the Agreement.
[THE SELMER COMPANY, INC.]
[STEINWAY, INC.]
By
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Name:
Title: