Exhibit 4.10


 


NINTH
AMENDMENT AND CONSENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT


 


This NINTH
AMENDMENT AND CONSENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as
of February 8, 2006 (this “Amendment”), to the Existing Credit Agreement (as
hereinafter defined), by and among (i) CONN-SELMER, INC., f/k/a THE SELMER
COMPANY, INC., a Delaware corporation, and the surviving corporation of
the merger of United Musical Instruments USA, Inc. and United Instruments
Holdings, Inc. with and into Conn-Selmer, Inc. (“Conn-Selmer”), (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 Existing Credit Agreement (defined below) and
(v) GMAC COMMERCIAL FINANCE LLC (successor by merger to GMAC Commercial Credit,
LLC), a Delaware limited liability company, as administrative agent for the
Lenders hereunder (in such capacity, the “Administrative Agent”).


 


RECITALS


 


A.            The Borrowers, the 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
$85,000,000 revolving credit facility and a $22,500,000 term loan facility,
each of which is secured by certain accounts receivable, real estate, and other
collateral of Conn-Selmer and Steinway and guaranteed by the Guarantors.


 


B.            Steinway Musical Instruments, Inc. (“SMI”)
has requested that the Lenders consent: (i) to SMI’s issuance of $175,000,000 7.0%
Senior Notes due 2014 (the “New Senior Notes”) which will be guaranteed by the
Borrowers and the Guarantors and (ii) to SMI’s use of the proceeds of the
issuance of the New Senior Notes to repurchase or redeem all of SMI’s
outstanding 83⁄4% Senior Notes due 2011 (the “Old Notes”) and to pay all
outstanding accrued interest thereon and any premiums, penalties, fees and
expenses incurred in connection therewith (the issuance of the New Senior Notes
and the use of proceeds described in (i) and (ii) above are referred to herein
as the “Transaction”).


 


C.            The Lenders have agreed to consent
to the Transaction subject to the conditions described herein and the parties
hereto desire to amend certain provisions of the Existing Credit Agreement as
hereinafter provided to effectuate the same.


 


D.            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:


 


“Existing
Credit Agreement”: the Second Amended and Restated Credit Agreement, dated
as of


 

















 


September 14, 2000, among (i) Selmer, (ii)
Steinway, (iii) the Guarantors, (iv) the Lenders and (v) the Administrative
Agent as amended or otherwise modified from time to time prior to the effective
date of this Ninth Amendment.


 


“New Senior
Notes”: those certain Senior Notes issued by SMI in the aggregate principal
face amount not to exceed $175,000,000 pursuant to the New Senior Notes
Indenture.


 


“New Senior
Notes Holders”: the holders of the New Senior Notes.


 


“New Senior
Notes Indenture”: that certain Indenture relating to the New Senior Notes
to be entered into among the New Steinway Senior Notes Parties and the New
Senior Notes Trustee.


 


“ New
Senior Notes Trustee”: The Bank of New York, as trustee for the New Senior
Notes Holders pursuant to the New Senior Notes Indenture and any successors or
assigns of such trustee.


 


“New
Steinway Senior Notes Parties”: SMI, Conn-Selmer, The Steinway Piano
Company, Inc., Steinway, Inc., S&B Retail, Inc., Boston Piano Company and
The O.S. Kelly Company.


 


(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 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 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 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.


 


(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 contained in Article V
hereof have been satisfied.


 


(e)           Each of the Loan Documents is on the
date hereof in full force and effect.


 

















 


(f)            No Default or Event of Default has
occurred and is continuing.


 


(g)           It has not granted and will not grant
any Lien on any of its property or assets to the New Senior Notes Trustee or
any New Senior Notes Holder.


 


ARTICLE III


Amendments to Existing Credit Agreement


 


1.             Amendments to Section 1. Section
1.1 of the Existing Credit Agreement is hereby amended by deleting the following
definitions in their entirety and replacing them with the following:


 


“Senior Notes”:
those certain Senior Notes issued by SMI from time to time in the aggregate
principal face amount not to exceed $175,000,000 pursuant to the Senior Notes
Indenture, and any guarantees of the Senior Notes and any refinancing of the
same with senior notes or subordinated notes that are issued by SMI, and any
subsequent refinancings thereof that comply with the terms hereof, provided
that (i) such refinancing is on similar and customary terms and conditions that
are no less favorable in any material respect to the Loan Parties or the
Lenders than the terms governing the Senior Notes and (ii) the amount of such
refinancing is in a principal amount not to exceed (1) the principal amount of
indebtedness so refinanced plus (2) unpaid accrued interest on such
indebtedness being refinanced plus (3) premiums, penalties, fees and expenses
actually incurred by SMI or the Guarantors in connection with the repayment and
refinancing thereof.


 


“Senior Notes
Indenture”: that certain Indenture, dated as of April 19, 2001, among the
Steinway Senior Notes Parties and the Senior Notes Trustee, as amended,
supplemented or otherwise modified from time to time, including any Indenture
executed in connection with a refinancing of the Senior Notes issued
thereunder.


 


2.             Amendment to Section 6.17. Section
6.17 of the Existing Credit Agreement is hereby amended by inserting in the
eleventh line thereof after the words “immediately set forth above,” the words “refinancings
permitted under Section 9.2(e) and Section 9.2(f) of this Agreement or
otherwise permitted pursuant the definition of Senior Notes,”.


 


3.             Amendment to Section 9.4(a).
Section 9.4(a) of the Existing Credit Agreement is hereby amended by inserting
in the second line thereof after the words “Senior Subordinated Notes” the
words “and Senior Notes,”.


 


3.             Amendment to Section 9.20. Section
9.20 of the Existing Credit Agreement is hereby amended by inserting in the
fourth line thereof after the words “or other Basic Documents” the words “,
except in accordance with the refinancing of Senior Subordinated Notes or the
Senior Notes in accordance with Section 9.2(e) or Section 9.2(f), respectively,
or otherwise in accordance with the definition of Senior Notes”.


 


4.             Amendment to Section 9.21(a).
Section 9.21(a) of the Existing Credit Agreement is hereby amended by inserting
in the third line thereof after the words “activity incident thereto” the words
“, (ii) incurring and refinancing Indebtedness permitted pursuant to the terms
hereof,” and replacing the words “and (ii)” with the words “and (iii)”.


 

















 


5.             Amendment to Section 9.21(b).
Section 9.21(b) of the Existing Credit Agreement is hereby amended by inserting
in the second line thereof after the words “activity incident thereto” the
words “, (ii) incurring and refinancing Indebtedness permitted pursuant to the
terms hereof,” and replacing the words “and (ii)” with the words “and (iii)”.


 


ARTICLE IV


Consent and Agreement


 


1.             The Administrative Agent and the
Lenders hereby  consent to the execution
and delivery of the New Senior Notes Indenture (including the guarantees set
forth therein), the issuance of the New Senior Notes and the use of the
proceeds thereof to repurchase or redeem the Old Notes (including the payment
of any unpaid accrued interest thereon plus any premiums, penalties, fees and
expenses actually incurred by SMI or the Guarantors in connection with such
redemption) (notwithstanding any Lien that the Administrative Agent and the Lenders
may have in such proceeds).


 


ARTICLE V


Conditions to Effectiveness


 


This
Amendment, and the modifications to the Existing Credit Agreement provided for
herein, shall become effective on the date (the “Ninth Amendment Effective Date”)
on which all of the following conditions have been (or are concurrently being)
satisfied:


 


1.             This Amendment shall have been duly
executed and delivered by each party thereto.


 


2.             No Default or Event of Default
shall have occurred and be continuing.


 


3.             All corporate and other
proceedings, and all documents, instruments and other legal matters in
connection with the transactions contemplated by the Existing Credit Agreement
and this Amendment shall be reasonably satisfactory in form and substance to
the Administrative Agent, and the Administrative Agent 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.


 


ARTICLE VI


Miscellaneous


 


1.             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 Loan Documents shall remain in full force and effect.


 


2.             Affirmation by Loan Parties.
Each Loan Party hereby reaffirms its obligations under the Loan Documents
executed by such Loan Party.


 


3.             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 Administrative
Agent, as the Administrative Agent. This Amendment may be delivered by
facsimile transmission of the relevant signature pages hereof.


 

















 


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.


 


 


	
  CONN-SELMER,
  INC.,

  
	
  Borrower

  
	
   

  
	
   

  
	
  By: 

  	
  /s/ Dennis
  M. Hanson

  	
   

  
	
    Title:
  Senior Executive Vice President

  
	
   

  
	
   

  
	
  STEINWAY,
  INC.,

  
	
  Borrower

  
	
   

  
	
   

  
	
  By: 

  	
  /s/ Dennis
  M. Hanson

  	
   

  
	
    Title:
  Senior Executive Vice President and Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  GMAC
  COMMERCIAL FINANCE LLC

  
	
  (successor
  by merger to GMAC Commercial Credit, LLC),

  
	
  as Administrative
  Agent

  
	
   

  
	
   

  
	
  By: 

  	
  /s/ Harvey
  Winter

  	
   

  
	
    Title:
  Senior Vice President

  
	
   

  
	
  GMAC
  COMMERCIAL FINANCE LLC

  
	
  (successor
  by merger to GMAC Commercial Credit, LLC),

  
	
  as Lender

  
	
   

  
	
   

  
	
  By: 

  	
  /s/ Harvey
  Winter

  	
   

  
	
    Title:
  Senior Vice President

  



 

















 


	
  FLEET
  CAPITAL CORPORATION,

  
	
  as Lender

  
	
   

  
	
   

  
	
  By:

  	
  /s/
  Christopher M. O’Halloran

  	
   

  
	
    Title:
  Vice President

  
	
   

  
	
   

  
	
  THE BANK
  OF NEW YORK,

  
	
  as Lender

  
	
   

  
	
   

  
	
  By: 

  	
  /s/ John M.
  Foley, Jr.

  	
   

  
	
   Title:
  Vice President

  
	
   

  
	
  BANKNORTH,
  N.A.,

  
	
   as
  Lender

  
	
   

  
	
   

  
	
   By:

  	
  N/A

  	
   

  
	
    Title:

  
	
   

  
	
  LASALLE
  BUSINESS CREDIT, LLC,

  
	
   as
  Lender

  
	
   

  
	
   

  
	
   By:

  	
  /s/ Daniel
  K. Clancy

  	
   

  
	
    Title:
  First Vice President

  
	
   

  
	
  ISRAEL
  DISCOUNT BANK OF NEW YORK,

  
	
   as
  Lender

  
	
   

  
	
   

  
	
   By:

  	
  N/A

  	
   

  
	
    Title:

  



 

















 


SCHEDULE I


 


GUARANTORS


 


Steinway
Musical Instruments, Inc.,


Guarantor


 


 


	
  By: 

  	
     /s/
  Dennis M. Hanson

  	
   

  
	
  Title:
  Senior Executive Vice President and Chief Financial Officer

  
	
   

  
	
  800 South
  Street

  
	
  Suite 425

  
	
  Waltham, MA
  02453

  
	
   

  
	
   

  
	
  The
  Steinway Piano Company, Inc.,

  
	
  Guarantor

  
	
   

  
	
  By: 

  	
     /s/
  Dennis M. Hanson

  	
   

  
	
  Title:
  Senior Executive Vice President and Chief Financial Officer

  
	
   

  
	
  600
  Industrial Parkway

  
	
  Elkhart, IN
  46516

  
	
   

  
	
   

  
	
  S&B
  Retail, Inc.,

  
	
  Guarantor

  
	
   

  
	
   

  
	
  By: 

  	
     /s/
  Dennis M. Hanson

  	
   

  
	
  Title:
  Senior Executive Vice President and Chief Financial Officer

  
	
   

  
	
  455 Route 17
  South

  
	
  Paramus, New
  Jersey 07652

  



 

















 


	
  Boston
  Piano Company, Inc.,

  
	
  Guarantor

  
	
   

  
	
   

  
	
  By:

  	
     /s/
  Dennis M. Hanson

  	
   

  
	
  Title:
  Senior Executive Vice President and Chief Financial Officer

  
	
   

  
	
  37-11 19th
  Avenue

  
	
  Long Island
  City, NY 11105

  
	
   

  
	
   

  
	
  The O.S.
  Kelly Corporation,

  
	
  Guarantor

  
	
   

  
	
  By:

  	
     /s/
  Dennis M. Hanson

  	
   

  
	
  Title:
  Senior Executive Vice President

  
	
   

  
	
  P.O. Box
  1267

  
	
  318 E. North
  Spring Street

  
	
  Springfield,
  OH 45503