Exhibit
4.5


 


FOURTH AMENDMENT


TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT


 


FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT, dated as of July 17, 2002 (this “Amendment”), to the Existing
Credit Agreement (as hereinafter defined), by and among (i) THE SELMER COMPANY,
INC., a Delaware corporation (“Selmer”), (ii) STEINWAY, INC., a Delaware
corporation (“Steinway”), (iii) UNITED MUSICAL INSTRUMENTS USA, INC., an
Indiana corporation (“UMI” and together with Selmer and Steinway, the “Borrowers”),
(iv) those signatories hereto and identified on Schedule 1(as may be amended
from time to time) as Guarantors (the “Guarantors”), (v) the lenders
(the “Lenders”) from time to time party to the Agreement (defined
below), and (vi) GMAC COMMERCIAL CREDIT, LLC, a New York limited liability
company (the “Administrative Agent”), as administrative agent for the
Lenders hereunder.


 


 


RECITALS


 


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 $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 Selmer, Steinway and UMI and guaranteed by the
Guarantors.  The parties desire to amend
certain provisions of the Existing Credit Agreement as hereinafter provided.


 


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) UMI, (iv) the Guarantors, (v) the Lenders, and (vi) the Administrative
Agent as amended or otherwise modified from time to time prior to the Fourth
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.


 


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ARTICLE II


Representations


 


1.             Representations. 
Each of the Borrower 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 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
IV 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.


 


 


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 deleting the following defined terms:


 


“Selmer Revolving Interest Note”


“SMIT Revolving Interest Notes”


“Steinway Revolving Interest Note”


 


2.             Amendment to Section 8.2(i).  Section 8.2(i) of the Existing Credit
Agreement is hereby deleted in its entirety and replaced with the following:


 


(i)            This subsection intentionally
deleted.


 


3.             Amendment to Section 8.18.  Section 8.18 of the Existing Credit
Agreement is hereby deleted in its entirety and replaced with the following:


 


8.18         This
section intentionally deleted.


 


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4.             Amendment to Section 9.4.  Section 9.4(a) of the Existing Credit
Agreement is hereby amended by adding the following:


 


“9.4(a)    Be or become liable in respect of any
Guarantee Obligation except (i) Guarantee Obligations in connection with the
Senior Subordinated Notes, (ii) ITT Guarantees from time to time outstanding
having a maximum liability at any one time outstanding not to exceed
$2,000,000, and (iii) other Guarantee Obligations (A) that could otherwise have
been incurred in the ordinary course of business but for the provisions of this
Section 9.4(a), and (B) for which written consent from the Administrative Agent
has been obtained, which consent will not be unreasonably withheld.”


 


5.             Amendment to Section 9.9.  Section 9.9 of the Existing Credit Agreement
is hereby amended by inserting in the first line after the heading “Limitations
on Investments” the word (a) and by adding the following section 9.9(b):


 


“(b)         Notwithstanding anything in the
contrary in Section 9.9(a) above, Investments not to exceed $250,000 annually
to fund Borrowers’ Supplemental Executive Retirement Plan (SERP) shall be
permitted provided (i) prior written consent of the Administrative Agent is
obtained, which consent shall not be unreasonably withheld, and (ii) no such Investment
shall occur or be permitted during the continuance of any Event of Default”


 


6.             Amendment to Section 9.12.  Section 9.12 of the Existing Credit
Agreement is hereby deleted in its entirety and replaced with the following:


 


Section 9.12           This section intentionally deleted.


 


ARTICLE IV


Conditions of
Effectiveness


 


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


 


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


 


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 Fourth 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


 


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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 V


Miscellaneous


 


1.             Payment of Expenses.  Without limiting its obligations under Section 12.8 of the Agreement,
the Borrowers jointly and severally agree to pay or reimburse the
Administrative Agent for all of its reasonably costs and expenses incurred in
connection with this Amendment, including, without limitation, the reasonable
costs and expenses of counsel to the Administrative Agent 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 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 take together shall be deemed 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 take 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.


 


	
   

  	
  THE
  SELMER COMPANY, INC.,

  
	
   

  	
  Borrower

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Dennis M. Hanson

  	
   

  
	
   

  	
  Title:

  	
    Executive Vice President

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  STEINWAY,
  INC.,

  	
   

  
	
   

  	
  Borrower

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Dennis M. Hanson

  	
   

  
	
   

  	
  Title:

  	
  Executive Vice
  President

  	
   

  
								



 


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  UNITED
  MUSICAL INSTRUMENTS

  USA, INC.,

  
	
   

  	
  Borrower

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Dennis M. Hanson

  	
   

  
	
   

  	
     Title:

  	
  Executive Vice President

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GMAC
  COMMERCIAL CREDIT, LLC,

  
	
   

  	
  as Administrative Agent

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Robert Richardson

  	
   

  
	
   

  	
     Title:

  	
  Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
  GMAC
  COMMERCIAL CREDIT, LLC,

  
	
   

  	
  as Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert Richardson

  	
   

  
	
   

  	
     Title: 

  	
  Vice President

  	
   

  
										



 


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  FLEET
  CAPITAL CORPORATION,

  
	
   

  	
  as Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mark Schafer

  	
   

  
	
   

  	
      Title:

  	
  Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
  GUARANTY
  BUSINESS CREDIT

  CORPORATION,

  
	
   

  	
  as Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ James
  E. Casper

  	
   

  
	
   

  	
      Title: 

  	
  Senior Vice President

  	
   

  
								



 


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SCHEDULE I


 


GUARANTORS


 


	
  Steinway
  Musical Instruments, Inc.,

  
	
  Guarantor

  
	
   

  
	
  By:

  	
  /s/ Dennis M. Hanson

  	
   

  
	
  Title:

  	
  Senior Executive Vice President

  	
   

  
	
   

  
	
  800 South Street

  
	
  Suite 425

  
	
  Waltham, MA 
  02453

  
	
   

  
	
  Emerson
  Musical Instruments, Inc.,

  
	
  Guarantor

  
	
   

  
	
  By:

  	
  /s/ Dennis M. Hanson

  	
   

  
	
  Title:

  	
  Executive Vice President

  	
   

  
	
   

  
	
  28135 West Hively Avenue

  
	
  Elkhart, IN 
  46517

  
	
   

  
	
  The
  Steinway Piano Company, Inc.,

  
	
  Guarantor

  
	
   

  
	
  By:

  	
   /s/ Dennis
  M. Hanson

  	
   

  
	
  Title:

  	
  Executive Vice President

  	
   

  
	
   

  
	
  600 Industrial Parkway

  
	
  Elkhart, IN 
  46516

  
	
   

  
	
  The
  SMI Trust,

  
	
  Guarantor

  
	
   

  
	
  By:

  	
  /s/ Dennis M. Hanson

  	
   

  
	
  Title:

  	
  Trustee

  	
   

  
	
   

  
	
  800 South Street

  
	
  Suite 245

  
	
  Waltham, MA 
  02453

  
				



 


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  S&B
  Retail, Inc.,

  
	
  Guarantor

  
	
   

  
	
  By:

  	
  /s/ Dennis M. Hanson

  	
   

  
	
  Title:

  	
  Executive Vice President

  	
   

  
	
   

  
	
  455 Route 17 South

  
	
  Paramus, NJ 
  07652

  
	
  Boston
  Piano Company, Inc.,

  
	
  Guarantor

  
	
   

  
	
  By:

  	
  /s/ Dennis M. Hanson

  	
   

  
	
  Title:

  	
  Executive Vice President

  	
   

  
	
   

  
	
  37-11 19th Avenue

  
	
  Long Island City, NY  11105

  
	
   

  
	
  The
  O.S. Kelly Corporation,

  
	
  Guarantor

  
	
   

  
	
  By:

  	
  Dennis M. Hanson

  	
   

  
	
  Title:

  	
  Executive Vice President

  	
   

  
	
   

  
	
  P.O. Box 1267

  
	
  318 E. North Spring Street

  
	
  Springfield, OH 
  45503

  
	
   

  
	
  United
  Musical Instruments Holdings, Inc.,

  
	
  Guarantor

  
	
   

  
	
  By:

  	
  Dennis M. Hanson

  	
   

  
	
  Title:

  	
  Executive Vice President

  	
   

  
	
   

  
	
  100 Industrial Parkway

  
	
  Elkhart, IN 
  46516

  
				



 


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