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Exhibit 10.38
FIRST AMENDMENT
FIRST AMENDMENT (the "First Amendment") dated as of October 31, 1997 to
Guaranty Agreement dated as of October 1, 1990 (the "First Agreement") among
Retailer Funding Corporation (the "Company"), Keyboard Acceptance Corporation
(formerly BPO Finance Corporation) ("KAC"), Xxxxxxx Piano & Organ Company
("Xxxxxxx") and General Electric Capital Corporation (the "Guarantor"). Except
as otherwise defined herein, capitalized terms used herein and defined, either
directly or by reference in the Purchase and Administration Agreement shall be
used herein as so defined.
W I T N E S S E T H :
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WHEREAS, the Company, KAC, Xxxxxxx and the Guarantor have entered into
the Guaranty Agreement and now desire to amend certain of the provisions
thereof:
NOW, THEREFORE, it is agreed:
Section 8 of the Guaranty Agreement is hereby amended by
adding a new paragraph at the end thereof which reads as follows:
"In order to provide the Guarantor with assurance as to the
performance by Xxxxxxx and KAC of their reimbursement
obligations hereunder, Xxxxxxx shall deliver to Guarantor on
or prior to October 31, 1997, and cause to be maintained in
effect from time to time thereafter, an irrevocable letter of
credit (the "Guaranty Reimbursement Letter of Credit") naming
the Guarantor as beneficiary and permitting the Guarantor to
make drawings thereunder from time to time, in an aggregate
principal amount not less than 2% of the Outstanding Principal
Receivables as of the earlier of (x) the Settlement Date in
the calendar month preceding the date of the related payment
under the Guaranty and (y) the Wind- Down Date, for amounts
required to be reimbursed to the Guarantor under this Guaranty
Agreement that are not so reimbursed on or prior to the tenth
day following the due date therefor. Such Guaranty
Reimbursement Letter of Credit shall be in form and substance
satisfactory to the Guarantor and shall be issued by The Fifth
Third Bank, NBD Bank, N.A. or another banking institution
approved by Guarantor."
This First Amendment is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provision of the Guaranty
Agreement.
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This First Amendment shall become effective (the "Amendment Effective
Date") on the date on which the Company, KAC, Xxxxxxx and GECC shall have
each executed and delivered to the other a counterpart of this First
Amendment.
From and after the Amendment Effective Date, all references to the
Guaranty Agreement in the Guaranty Agreement, each of the other Company
Documents and each of the Seller Documents shall be deemed to be
references to the Purchase and Administration Agreement as amended hereby.
This First Amendment may be executed on separate counterparts by the
parties hereto, each of which when so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument.
This First Amendment and the rights and obligations hereunder shall be
construed in accordance with and governed by the laws of the State of New
York.
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this First Amendment to be duly executed and delivered as of the date
first above written.
RETAILER FUNDING CORPORATION
By /s/ Xxxx X. Xxxxxxx
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Title: Secretary
KEYBOARD ACCEPTANCE CORPORATION
(formerly BPO Finance Corporation)
By /s/ Xxxxxx X. Xxxxxxx
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Title: President
XXXXXXX PIANO & ORGAN COMPANY
By /s/ Xxxxx X. Xxxxxxxx
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Title: Executive Vice President
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GENERAL ELECTRIC CAPITAL
CORPORATION
By /s/ Xxxxxx Xxxxx
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Title: Attorney-in-fact
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