**Exhibit4.5**

 

**FOURTH AMENDMENT**

**TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT**

 

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

 

 

RECITALS

 

The Borrowers, Guarantors, the Administrative Agentand the Lenders have entered into the Existing Credit Agreement, pursuant towhich the Lenders are providing to the Borrowers an $85,000,000 revolvingcredit facility, a $22,500,000 term loan facility, and a $45,000,000 term loanfacility, each of which are secured by certain accounts receivable, realestate, and other collateral of Selmer, Steinway and UMI and guaranteed by theGuarantors.  The parties desire to amendcertain provisions of the Existing Credit Agreement as hereinafter provided.

 

In consideration of the foregoing and of the mutualcovenants and undertakings herein contained, the parties hereto hereby agreethat 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 therecitals to this Amendment, the following definitions shall apply hereto:

 

“Agreement” the Existing Credit Agreement as amended, supplemented or otherwisemodified from time to time up to and including this Amendment.

 

“Existing Credit Agreement”:  the Second Amended and Restated CreditAgreement, dated as of September 14, 2000, among (i) Selmer, (ii) Steinway,(iii) UMI, (iv) the Guarantors, (v) the Lenders, and (vi) the AdministrativeAgent as amended or otherwise modified from time to time prior to the FourthAmendment Effective Date.

 

(b)           Unless otherwise indicated,capitalized terms that are used but not defined herein shall have the meaningsascribed 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 asfollows:

 

(a)           It has full power, authority andlegal right to enter into this Amendment and perform all of its respectiveobligations hereunder.  The execution,delivery and performance hereof is within its powers and has been dulyauthorized, is not in contravention of any Requirement of Law which might havea material adverse effect upon it, the Collateral, its operations, financialcondition or prospects, or in contravention of the terms of its by-laws,certificate of incorporation, declaration of trust or other documents relatingto its formation, as applicable, or by which it is bound, and will not conflictwith or result in any breach of any of the provisions of, or constitute adefault under, or result in the creation of any Lien upon any of its assetsunder, the provisions of any agreement, charter, instrument, by-law,declaration of trust or other instrument to which it is a party or by which itor its assets may be bound.

 

(b)           It is duly organized and in goodstanding under the laws of its respective state of organization and it isqualified to do business and is in good standing in each jurisdiction wherequalification and good standing are necessary for it to conduct its businessesand own its properties and where the failure to so qualify would have aMaterial Adverse Effect.

 

(c)           This Amendment has been duly executedand delivered on its behalf and this Amendment constitutes its legal, valid andbinding obligation, enforceable against it in accordance with its terms, exceptas enforceability may be limited by applicable bankruptcy, insolvency,reorganization, moratorium or similar laws affecting the enforcement ofcreditors’ rights generally and by general equitable principles (whetherenforcement is sought by proceedings in equity or at law).

 

(d)           The conditions contained in ArticleIV hereof have been satisfied.

 

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

 

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

 

 

ARTICLE III

Amendments to ExistingCredit Agreement

 

 

1.             Amendments to Section 1.  (a) Section 1.1 of the Existing CreditAgreement 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 CreditAgreement is hereby deleted in its entirety and replaced with the following:

 

(i)            This subsection intentionallydeleted.

 

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

 

8.18         Thissection intentionally deleted.

 

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

 

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

 

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

 

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

 

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

 

Section 9.12           This section intentionally deleted.

 

ARTICLE IV

Conditions ofEffectiveness

 

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

 

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

 

2.             Each of the representations and warranties made by theBorrowers and Guarantors in or pursuant to the Loan Documents shall be true andcorrect in all material respects on and as of the Fourth Amendment EffectiveDate as if made on and as of such date (except to the extent the same relate toanother, earlier date, in which case they shall be true and correct in allmaterial respects as of such earlier date).

 

3.             No Default or Event of Default shall have occurred andbe continuing.

 

4.             All corporate and other proceedings, and all documents,instruments, and other legal matters in connection with the transactionscontemplated by the Existing Credit Agreement and this Amendment shall bereasonably satisfactory in form and substance to the Administrative Agent, andthe

 

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Administrative Agent shall have received such other documents inrespect of any aspect or consequence of the transactions contemplated hereby orthereby 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 theAdministrative Agent for all of its reasonably costs and expenses incurred inconnection with this Amendment, including, without limitation, the reasonablecosts and expenses of counsel to the Administrative Agent and expresslyacknowledge that their obligations hereunder constitute “Obligations” withinthe meaning of the Existing Credit Agreement.

 

2.             No Other Amendments; Confirmation.  Except as expressly amended, modified andsupplemented hereby and by the documents related hereto, the provisions of theExisting Credit Agreement and the other Loan Documents shall remain in fullforce and effect.

 

3.             Affirmation by Loan Parties.  Each Loan Party hereby reaffirms itsobligations under the Loan Documents executed by such Loan Party.

 

4.             Governing Law; Counterparts.  (a) This Amendment and the rights andobligations of the parties hereto shall be governed by, and construed andinterpreted in accordance with, the laws of the State of New York.

 

(b)           This Amendment may be executed by oneor more of the parties hereto on any number of separate counterparts, and allof said counterparts take together shall be deemed parties hereto shall begoverned by, and construed and interpreted in accordance with, the laws of theState of New York.

 

(b)           This Amendment may be executed by oneor more of the parties hereto on any number of separate counterparts, and allof said counterparts take together shall be deemed to constitute one and thesame instrument.  A set of the copies ofthis Amendment signed by all the parties shall be lodged with each of theBorrowers and the Administrative Agent, as the Administrative Agent.  This Amendment may be delivered by facsimiletransmission of the relevant signature pages hereof.

 

IN WITNESS WHEREOF, the parties hereto have causedthis Amendment to be duly executed and delivered as of the day and year firstabove 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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