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EXHIBIT 10.25
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WAIVER AND SEVENTH AMENDMENT TO CREDIT AGREEMENT
THIS WAIVER AND SEVENTH AMENDMENT TO CREDIT AGREEMENT ("Seventh Amendment")
dated as of December 3, 1999 is by and among XXXXXXX PIANO & ORGAN COMPANY, a
Delaware corporation, (hereinafter, together with its successors in title and
assigns called "Borrower" or "Xxxxxxx"), FIFTH THIRD BANK, an Ohio banking
corporation, as Agent (in such capacity, the "Agent"), FIFTH THIRD BANK ("Fifth
Third"), as a Lender, and BANK ONE, INDIANA, N.A., formerly known as NBD BANK,
N.A., a national banking association, ("Bank One") as a Lender, (Fifth Third and
Bank One are hereinafter collectively the "Lenders" and each individually a
"Lender").
PRELIMINARY STATEMENT
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WHEREAS, Borrower, Agent and Lenders have entered into a Credit Agreement
dated as of October 16, 1997, as amended by a First Amendment dated as of
October 16, 1997, a Second Amendment dated as of April 27, 1998, a Third
Amendment dated June 19, 1998, a Fourth Amendment dated September 21, 1998, a
Fifth Amendment dated January 29, 1999, and a Sixth Amendment dated July 15,
1999 (collectively, the "Credit Agreement"); and
WHEREAS, Borrower has requested Agent and Lenders to make various revisions
to the Credit Agreement as set forth herein; and
WHEREAS, Borrower, Agent and Lenders now wish to amend the Credit Agreement
in accordance with the terms and provisions hereof;
NOW, THEREFORE, the parties hereto agree to supplement and amend the Credit
Agreement upon such terms and conditions as follows:
1. CAPITALIZED TERMS. All capitalized terms used herein shall have the
meanings assigned to them in the Credit Agreement unless the context hereof
requires otherwise. Any definitions as capitalized terms set forth herein shall
be deemed incorporated into the Credit Agreement as amended by this Seventh
Amendment.
2. DEFINITIONS. The following definition contained in Section 1.2 of the
Credit Agreement is hereby amended and restated in its entirety as follows:
"INTEREST RATE" means the rate of interest per annum equal to the Prime
Rate.
3. WAIVER. (a) The Agent and the Lenders hereby consent to waive the
application of Section 10.3(a)(iv) of the Credit Agreement solely as it relates
to the four quarter period ending September 30, 1999; PROVIDED, HOWEVER, that
this waiver shall expire on the earlier of (i) the date Lenders shall have
received satisfactory evidence, in form and substance satisfactory to Lenders,
of the sale by Borrower of all of the stock of Keyboard Acceptance Corporation
(f/k/a BPO Finance
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Corporation), a Delaware corporation and a subsidiary of Borrower, pursuant to
that certain Stock Purchase Agreement dated as of December 8, 1999 between
Borrower and Deutsche Financial Services Corporation (the "Purchase Agreement"),
(ii) the failure of Borrower to consummate the transactions contemplated by the
Purchase Agreement, and (iii) February 28, 2000.
(b) The Agent and the Lenders hereby consent to waive the application of
Section 10.3(a)(iv) of the Credit Agreement solely as it relates to the four
quarter period ending December 31, 1999; PROVIDED, HOWEVER, that this waiver
shall expire on the earlier of (i) the date Lenders shall have received
satisfactory evidence, in form and substance satisfactory to Lenders, of the
sale by Borrower of all of the stock of Keyboard Acceptance Corporation (f/k/a
BPO Finance Corporation), a Delaware corporation and a subsidiary of Borrower,
pursuant to that certain Stock Purchase Agreement dated as of December 8, 1999
between Borrower and Deutsche Financial Services Corporation (the "Purchase
Agreement"), (ii) the failure of Borrower to consummate the transactions
contemplated by the Purchase Agreement, and (iii) February 28, 2000.
4. Section 3.1 of the Credit Agreement is hereby amended to read in its
entirety as follows:
"Section 3.1. TOTAL CREDIT FACILITY. In consideration of Xxxxxxx'x
payment and performance of its Obligations and subject to the terms and
conditions contained in this Credit Agreement, the Lenders agree to
provide, and Xxxxxxx agrees to accept, an aggregate credit facility of up
to Thirty-Five Million and 00/100 Dollars ($35,000,000.00) (the "TOTAL
CREDIT"), subject to the terms and conditions hereof (the "CREDIT
FACILITY"). No Loans need be made by the Lenders if Xxxxxxx is in Default
or if there exists any Unmatured Default. This is an agreement regarding
the extension of credit, and not the provision of goods or services."
5. ELIGIBLE ACCOUNTS AND ELIGIBLE INVENTORY. Section 3.2(a)(i) and Section
3.2(a)(ii) of the Credit Agreement are hereby amended to in their entirety to
read as follows:
"(i) ELIGIBLE ACCOUNTS. On receipt of each Borrowing Base Certificate,
in the form of Exhibit C, together with such supporting information as
Agent may require from time to time (the "BORROWING BASE CERTIFICATE"),
Agent will credit Xxxxxxx with the lesser of: (i) eighty-five percent (85%)
of the net amount of the Eligible Accounts which are, absent error or other
discrepancy, listed in such Borrowing Base Certificate ("ELIGIBLE ACCOUNT
AVAILABILITY"); and (ii) Fifteen Million and 00/100 Dollars
($15,000,000.00). For purposes hereof, the net amount of Eligible Accounts
at any time shall be the face amount of such Eligible Accounts LESS any and
all returns, discounts (which may, at Agent's option, be calculated on
shortest terms), credits, rebates, allowances, or excise taxes of any
nature at any time issued, owing, claimed by Account Debtors, granted,
outstanding, or payable in connection with such Accounts at such time.
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(ii) ELIGIBLE INVENTORY. On receipt of each Borrowing Base
Certificate, Agent will credit Xxxxxxx with the lesser of: (i)
seventy-five percent (75%) of the Value of Eligible Inventory which
is, absent error or other discrepancy, listed in such Borrowing Base
Certificate, and (ii) Thirty Million Dollars and 00/100 Dollars
($30,000,000.00)."
6. SALE OR TRANSFER OF ASSETS. Section 10.2(b) of the Term Loan Agreement
is hereby amended in its entirety to read as follows:
(b) SALE OR TRANSFER OF ASSETS. Except in the ordinary course of
business or except as consented to in writing by Agent, or except for sales
to a Lender or any affiliate thereof or except for sales to and by KAC as
contemplated by the Permitted Securitization Documents, or except for sales
to Deutsche Financial Services Corporation of finished inventory pursuant
to the Amended and Restated Inventory Purchase and Consignment Agreement
entered into by and between Borrower and Deutsche Financial Services
Corporation as of June 30, 1998, as amended on January 13, 2000 which such
agreement shall be in form and substance satisfactory to Agent, provided
that, after giving effect to such sale, Deutsche Financial Services
Corporation does not own Retail Consigned Goods (as defined therein)
purchased from Borrower pursuant to this subsection with an aggregate value
greater than $5,000,000 or Consigned Goods (as defined therein) purchased
from Borrower pursuant to this subsection with an aggregate value greater
than $20,000,000, Xxxxxxx and the Subsidiaries will not sell, transfer,
lease (including sale-leaseback) or otherwise dispose of all or any
substantial part of their assets; provided, however, that any sales of Sold
Accounts by Xxxxxxx to KAC under the Permitted Securitization
Documentation, and sales, contributions or other transfers of Sold Accounts
under the Permitted Securitization Documentation by KAC, shall be
permitted. This provision will not apply to any sale if the proceeds of
such sale pay the Obligations in full.
7. REAFFIRMATION OF COVENANTS, WARRANTIES AND REPRESENTATIONS. Borrower
hereby agrees and covenants that all representations and warranties in the
Credit Agreement, including without limitation all of those warranties and
representations set forth in Article 9, are true and accurate as of the date
hereof. Borrower further reaffirms all covenants in the Credit Agreement, and
reaffirm each of the affirmative covenants set forth in Section 10.1, the
negative covenants set forth in Section 10.2 and the financial covenants set
forth in Section 10.3 thereof, as if fully set forth herein, except to the
extent modified by this Seventh Amendment.
8. CONDITIONS PRECEDENT TO CLOSING OF SEVENTH AMENDMENT. On or prior to the
closing of the Seventh Amendment (hereinafter the "Seventh Amendment Closing
Date"), each of the following conditions precedent shall have been satisfied:
(a) PROOF OF CORPORATE AUTHORITY. Agent shall have received from
Borrower copies, certified by a duly authorized officer to be true and
complete on and as of the Seventh Amendment Closing Date, of records of all
action taken by Borrower to authorize (i) the
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execution and delivery of this Seventh Amendment and all other
certificates, documents and instruments to which it is or is to become a
party as contemplated or required by this Seventh Amendment, and (ii) its
performance of all of its obligations under each of such documents.
(b) DOCUMENTS. Each of the documents to be executed and delivered at
the Seventh Amendment Closing and all other certificates, documents and
instruments to be executed in connection herewith shall have been duly and
properly authorized, executed and delivered by Borrower and shall be in
full force and effect on and as of the Seventh Amendment Closing Date.
(c) LEGALITY OF TRANSACTIONS. No change in applicable law shall have
occurred as a consequence of which it shall have become and continue to be
unlawful (i) for Agent and each Lender to perform any of its agreements or
obligations under any of the Loan Documents, or (ii) for Borrower to
perform any of its agreements or obligations under any of the Loan
Documents.
(d) PERFORMANCE, ETC. Except as set forth herein, Borrower shall have
duly and properly performed, complied with and observed each of its
covenants, agreements and obligations contained in each of the Loan
Documents. Except as set forth herein, no event shall have occurred on or
prior to the Seventh Amendment Closing Date, and no condition shall exist
on the Seventh Amendment Closing Date, which constitutes a Default or an
Event of Default.
(e) CHANGES; NONE ADVERSE. Since the date of the most recent balance
sheets of Borrower delivered to Agent, no changes shall have occurred in
the assets, liabilities, financial condition, business, operations or
prospects of Borrower which, individually or in the aggregate, are material
to Borrower, and Agent shall have completed such review of the status of
all current and pending legal issues as Agent shall deem necessary or
appropriate.
9. MISCELLANEOUS. (a) Borrower shall reimburse Agent for all fees and
disbursements of legal counsel to Agent which shall have been incurred by Agent
in connection with the preparation, negotiation, review, execution and delivery
of this Seventh Amendment and the handling of any other matters incidental
hereto.
(b) All of the terms, conditions and provisions of the Agreement not
herein modified shall remain in full force and effect. In the event a term,
condition or provision of the Agreement conflicts with a term, condition or
provision of this Seventh Amendment, the latter shall govern.
(c) This Seventh Amendment shall be governed by and shall be construed
and interpreted in accordance with the laws of the State of Ohio.
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(d) This Seventh Amendment shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, successors and
assigns.
(e) This Seventh Amendment may be executed in several counterparts,
each of which shall constitute an original, but all which together shall
constitute one and the same agreement.
[Remainder of page intentionally left blank. Signature page follows.]
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IN WITNESS WHEREOF, this Seventh Amendment has been duly executed and
delivered by or on behalf of each of the parties as of the day and in the year
first above written.
XXXXXXX PIANO & ORGAN COMPANY,
Borrower
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
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Title: Executive VP, CFO and Secretary
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FIFTH THIRD BANK, Agent
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
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Title: Vice President
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FIFTH THIRD BANK, Lender
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
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Title: Vice President
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BANK ONE, INDIANA, N. A., Lender
By: /s/Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
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Title: First Vice President
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The undersigned, guarantors of the obligations of Xxxxxxx Piano & Organ Company
under the Credit Agreement, hereby acknowledge and accept the above Seventh
Amendment and the terms and conditions therein.
SIGNATURE LEASING COMPANY
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
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Title: Executive Vice President, CFO and Secretary
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XXXXXXX TRADING COMPANY
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
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Title: Executive Vice President, CFO and Secretary
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XXXXXXX PIANO COMPANY (CANADA) LIMITED
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
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Title: Executive Vice President, CFO and Secretary
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THE WURLITZER COMPANY
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
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Title: Executive Vice President, CFO and Secretary
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