Exhibit 4.9


 


 


GMAC COMMERCIAL FINANCE LLC - STEINWAY MUSICAL

INSTRUMENTS, INC.


 


 


EIGHTH AMENDMENT TO THE SECOND AMENDED AND

RESTATED CREDIT AGREEMENT


 


 


AUGUST 11, 2004


 





















 


EIGHTH AMENDMENT TO


SECOND AMENDED AND RESTATED CREDIT


AGREEMENT


 


This
EIGHTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of August 11,
2004 (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 Musical 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 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, a
$22,500,000 term loan facility and a $45,000,000 term loan facility, each of
which are 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., one of the Guarantors listed on Schedule I
referred to above (“SMI”), has entered into an Asset Purchase Agreement,
dated July 22, 2004 (the “Purchase Agreement”), with G. Leblanc
Corporation (“Leblanc”), pursuant to which SMI is purchasing
substantially all of the assets (the “Purchased Assets”) of Leblanc (the
“Transaction”).


 


C.                                     In
accordance with the terms of the Existing Credit Agreement, the Borrowers and
the Guarantors have requested the consent of the Lenders to the Transaction
(the “Consent”), and the Lenders are willing to provide such Consent, subject
to the terms and conditions of this Amendment.


 


D.                                    In
connection with the Consent, the parties desire to amend certain provisions of
the Existing Credit Agreement as hereinafter provided.


 


E.                                      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 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 Agents as amended or
otherwise modified from time to time prior to the Eighth 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 contained in Article V hereof have been satisfied.


 


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(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.


 


ARTICLE III


Consent and Acknowledgement


 


1.                                       The
Lenders hereby consent to the Transaction as described in the Purchase
Agreement, provided, however, that this Consent is conditioned upon the
consummation of the Transaction substantially on the terms and conditions set
forth in the Purchase Agreement, and any material change in such terms and conditions
shall require another consent by the Lenders, which the Lenders may give or
withhold in their sole discretion.


 


2.                                       The
Borrowers acknowledge and agree that the Purchased Assets shall be deemed
Ineligible Collateral until such time as a field examination of such Purchased
Assets is performed, and, thereafter, all or any portion of the Purchased
Assets may be deemed Eligible Collateral in accordance with the applicable
provisions of the Existing Credit Agreement.


 


ARTICLE IV

Amendments to Existing Credit Agreement


 


1.                                       Additional
Negative Covenants.  In addition to
the negative covenants set forth in the Existing Credit Agreement, the
Borrowers and the Guarantors covenant and agree that, so long as the Existing
Credit Agreement remains in effect, no mortgages, liens or encumbrances of any
nature whatsoever will be placed on any of the Purchased Assets consisting of
Real Property (as defined in the Purchase Agreement) without the consent of the
Lenders, which consent may be given or withheld in the Lenders’ sole
discretion.


 


2.                                       Additional
Affirmative Covenants and Acknowledgements. 
SMI has informed the Lenders that, simultaneously with or, immediately
after, the consummation of the Transaction, SMI will assign all of the
Purchased Assets to a new company which will be incorporated under the name “Leblanc”
or some variation thereof (“New Leblanc”).  In connection therewith, and in addition to
the Affirmative Covenants already set forth in the Existing Credit Agreement,
the Borrowers and the Guarantors covenant and agree as follows:


 


A.                                   Immediately
after the formation of New Leblanc, the Borrowers and the Guarantors will cause
New Leblanc to execute and deliver to the Administrative Agent a Guaranty
substantially similar to the guaranties executed by the Guarantors, and will
take or cause to be taken any other actions necessary to cause New Leblanc to
become a Guarantor under, and a party to, the Existing Credit Agreement.


 


B.                                     Immediately
after the formation of New Leblanc, the Borrowers and the Guarantors will cause
New Leblanc to execute and deliver to the Administrative Agent a Security
Agreement, UCC Financing Statement, and any other documents or instruments
requested by the Administrative Agent in form and substance acceptable to the
Administrative Agent, to grant to the Administrative Agent, on behalf of the
Lenders, a


 


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first
priority lien and security interest in all of New Leblanc’s assets, including
the Purchased Assets.


 


C.                                     Immediately
after the formation of New Leblanc, the Borrowers and the Guarantors will cause
New Leblanc to execute and deliver to the Administrative Agent a Collateral
Assignment of Proprietary Rights and Security Agreement, in form and substance
acceptable to the Administrative Agent, with respect to those Proprietary
Rights listed on Schedule 4.11 of the Purchase Agreement as specified by
the Administrative Agent and will cause New Leblanc to execute and deliver such
other documents or instruments requested by the Administrative Agent to grant
to the Administrative Agent, on behalf of the Lenders, a collateral assignment
of, and a first priority lien and security interest in, such Proprietary
Rights.


 


D.                                    At
any time after the closing of the Transaction, upon the request of the Administrative
Agent, the Borrowers and the Guarantors will cause New Leblanc to execute and
deliver to the Administrative Agent mortgages with respect to the Real
Property, as defined in the Purchase Agreement, in a form acceptable to the
Administrative Agent, and will execute and deliver to the Administrative Agent
such other documents or instruments requested by the Administrative Agent to
grant to the Administrative Agent, on behalf of the Lenders, a first priority
mortgage, lien and security interest in each parcel of such Real Property.


 


E.                                      In
the event that the Purchased Assets are not assigned to New Leblanc as
contemplated above, immediately upon consummation of the Transaction, the
Borrowers and the Guarantors will cause all of the above actions to be taken by
the record title holder of such Purchased Assets (whether such record title
holder is SMI or some other entity), so as to provide to the Administrative
Agent, on behalf of the Lenders, first priority liens, mortgages and/or
security interests in all of such Purchased Assets.


 


3.                                       Additional
Events of Default.  In addition to
the Events of Default in the Existing Credit Agreement, failure of any Borrower
or any Guarantor to comply with one or more of the negative or affirmative
covenants set forth in subsections 1 and 2 above shall be an Event of Default
and shall entitle the Lenders and/or the Administrative Agent, on behalf of the
Lenders, to all rights and remedies provided under the Agreement and applicable
law.


 


ARTICLE V


Conditions to Effectiveness


 


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


 


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


 


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2.                                       Each
of the representations and warranties made by the Borrowers and Guarantors in
or pursuant to the Loan Documents shall be true and correct in all material
respects on and as of the Eighth 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.                                       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.                                       Amendment
Fee.  In consideration of the Lenders’
consent to the Transaction and the Lenders’ agreement to the amendments to the
Existing Credit Agreement set forth in this Eighth Amendment, the Borrowers
will pay to the Lenders a fee of $50,000, which fee will be split pro rata
among the Lenders in accordance with their percent participation in the credit
facilities provided pursuant to the 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 Loan Documents shall remain in full force and effect.


 


3.                                       Affirmation
by Loan Parties.  Each Loan Party
hereby reaffirms its obligations under the Loan Documents executed by such Loan
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
Administrative Agent, as the Administrative Agent for the Lenders.  This Amendment may be delivered by facsimile
transmission of the relevant signature pages hereof.


 


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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.


 


	
   

  	
  CONN-SELMER,
  INC.,

  
	
   

  	
   

  	
  Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Dennis M. Hanson

  
	
   

  	
   

  	
  Title: Executive Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  STEINWAY,
  INC.,

  
	
   

  	
   

  	
  Borrower

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Dennis M. Hanson

  
	
   

  	
   

  	
  Title: Executive Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GMAC
  COMMERCIAL FINANCE LLC,

  (successor by merger to GMAC Commercial

  Credit LLC), as Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Harvey Winter

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GMAC
  COMMERCIAL FINANCE LLC

  (successor by merger to GMAC Commercial

  Credit, LLC), as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Harvey Winter

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  FLEET
  CAPITAL CORPORATION,

  as Lender

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Daniel P. Corcoran

  
	
   

  	
   

  	
  Title: Senior Vice President

  
				



 


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  THE
  BANK OF NEW YORK,

  as Lender

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  John M. Foley, Jr.

  
	
   

  	
   

  	
  Title: Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BANKNORTH,
  N.A.,

  as Lender

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Mark M. Evitts

  
	
   

  	
   

  	
  Title: Senior
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LASALLE
  BUSINESS CREDIT, LLC

  as Lender

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Daniel K. Clancy

  
	
   

  	
   

  	
  Title: First
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ISRAEL
  DISCOUNT BANK OF NEW YORK,

  as Lender

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Andy Ballta

  
	
   

  	
   

  	
  Title: Vice
  President

  
	
   

  	
   

  
	
   

  	
  ISRAEL
  DISCOUNT BANK OF NEW YORK,

  as Lender

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Ronald Bongiovanni

  
	
   

  	
   

  	
  Title: Senior
  Vice President

  



 


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SCHEDULE I


 


 


GUARANTORS


 


 


	
  Steinway
  Musical Instruments, Inc.,

  	
   

  
	
  Guarantor

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Dennis M. Hanson

  	
   

  	
   

  
	
  Title: Sr.
  Executive V.P. and C.F.O.

  	
   

  
	
   

  	
   

  
	
  800 South Street

  	
   

  
	
  Suite 505

  	
   

  
	
  Waltham, MA
  02453

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  The
  Steinway Piano Company, Inc.,

  	
   

  
	
  Guarantor

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Dennis M. Hanson

  	
   

  	
   

  
	
  Title: Executive
  V.P.

  	
   

  
	
   

  	
   

  
	
  600 Industrial
  Parkway

  	
   

  
	
  Elkhart, IN
  46516

  	
   

  
	
   

  	
   

  
	
  The SMI
  Trust,

  	
   

  
	
  Guarantor

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Dennis M. Hanson

  	
   

  	
   

  
	
  Title: Trustee

  	
   

  
	
   

  	
   

  
	
  800 South Street

  	
   

  
	
  Suite 425

  	
   

  
	
  Waltham, MA
  02453

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  S&B
  Retail, Inc.,

  	
   

  
	
  Guarantor

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Dennis M. Hanson

  	
   

  	
   

  
	
  Title: Executive
  V.P.

  	
   

  
	
   

  	
   

  
	
  455 Route 17
  South

  	
   

  
	
  Paramus, New
  Jersey 07652

  	
   

  



 


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  Boston
  Piano Company, Inc.,

  	
   

  
	
  Guarantor

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Dennis M. Hanson

  	
   

  	
   

  
	
  Title: Executive
  V.P.

  	
   

  
	
   

  	
   

  
	
  37-11 19th
  Avenue

  	
   

  
	
  Long Island
  City, NY 11105

  	
   

  
	
   

  	
   

  
	
  The
  O.S. Kelly Company,

  	
   

  
	
  Guarantor

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Dennis M. Hanson

  	
   

  	
   

  
	
  Title: Executive
  V.P.

  	
   

  
	
   

  	
   

  
	
  P.O. Box 1267

  	
   

  
	
  318 E. North
  Spring Street

  	
   

  
	
  Springfield, OH
  45503

  	
   

  



 


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