EXHIBIT 10.2
Execution
Copy
THIRD AMENDMENT TO
THIRD AMENDED AND RESTATED CREDIT
AGREEMENT
THIRD AMENDMENT AND WAIVER TO THIRD
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of July 10,
2009 (this “ Amendment ”), to the Existing
Credit Agreement (as hereinafter defined), by and among
(i) CONN-SELMER, INC., a Delaware corporation, and
(ii) STEINWAY, INC., a Delaware corporation (“
Steinway ” and together with Conn-Selmer, the “
Borrowers ”), (iii) those signatories hereto and
identified on Schedule I (as may be amended from time to time) as
Guarantors (the “ Guarantors ”), (iv) the
lenders (the “ Lenders ”) from time to time
party to the Agreement (defined below) and (v) GMAC COMMERCIAL
FINANCE LLC, a Delaware limited liability company (the “
Administrative Agent ”), as administrative agent for
the Lenders hereunder.
RECITALS
A.
The Borrowers, Guarantors, the Administrative Agent and the Lenders
have entered into the Existing Credit Agreement, pursuant to which
the Lenders are providing to the Borrowers an $110,000,000
revolving credit facility, which is secured by certain accounts
receivable, and other collateral of the Borrowers and guaranteed by
the Guarantors.
B.
Borrowers have requested certain amendments to the Existing Credit
Agreement in order to increase the amount of the Senior Notes that
SMI may redeem.
C.
This Amendment memorializes certain amendments agreed to by the
Borrowers and the Lenders.
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
”: the Existing Credit Agreement as amended,
supplemented or otherwise modified from time to time up to and
including this Amendment.
“ Existing Credit
Agreement ”: the Third Amended and Restated Credit
Agreement, dated as of September 29, 2006, among
(i) Conn-Selmer, (ii) Steinway, (iii) the
Guarantors, (iv) the Lenders and
(v) the Administrative Agents, as amended or otherwise
modified from time to time prior to the Third 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
Requirement of Law 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 each jurisdiction where 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
