1
EXHIBIT 10.11
INTERCREDITOR AGREEMENT
INTERCREDITOR AGREEMENT ("Agreement") dated as of March 24, 2000, by
and among DEUTSCHE FINANCIAL SERVICES CORPORATION, a Nevada corporation ("DFS"),
GENERAL ELECTRIC CAPITAL CORPORATION, a New York corporation ("GE Capital"), in
its capacity as agent for and on behalf of the Lenders ("Lenders") under and as
defined in the Credit Agreement (as defined below) (in such capacity, "Agent"),
and XXXXXXX PIANO & ORGAN COMPANY, a Delaware corporation ("Xxxxxxx").
RECITALS
WHEREAS, Xxxxxxx and DFS have entered into an Inventory Purchase and
Consignment Agreement bearing an effective date of June 30, 1998 (as amended
from time to time, the "DFS Consignment Agreement") pursuant to which (i) DFS
has agreed to purchase from, and consign back to, Xxxxxxx inventory consisting
of musical instruments, including, without limitation, acoustic pianos and grand
pianos, which Xxxxxxx has or will in the future loan to certain colleges and
universities and to certain concert halls for use by musical artists (the "DFS
Consignment Inventory"), and (ii) Xxxxxxx has granted a first priority security
interest to DFS in the DFS Consignment Inventory;
WHEREAS, Xxxxxxx, DFS and Keyboard Acceptance Corporation, a Delaware
corporation and a wholly owned subsidiary of DFS ("KAC") have entered into an
Accounts Receivable Purchase Agreement and Promissory Note dated as of March 10,
2000 (as amended from time to time, the "DFS Accounts Receivable Purchase
Agreement") pursuant to which, among other things, (i) Xxxxxxx has agreed to
purchase from KAC all Accounts (as hereinafter defined) of KAC which exceed 120
days past due and are existing as of the Closing Date (as defined in such
Agreement) or arise thereafter until the first two years after the Closing Date
(the "KAC Accounts"), (ii) Xxxxxxx has agreed to purchase the Merchandise (as
hereinafter defined) of KAC that was repossessed prior to the Closing Date (the
"KAC Repossessed Merchandise"), (iii) DFS has agreed to finance such purchases
on the terms set forth therein, and (iv) Xxxxxxx has agreed to secure such
financing by, among other things, granting to DFS a first priority security
interest in the KAC Accounts and KAC Repossessed Merchandise;
WHEREAS, pursuant to the Credit Agreement dated as of the date hereof
among Borrower, the other credit parties signatory thereto, the lenders party
thereto and GE Capital, as Agent for and on behalf of the lenders signatory
thereto (as amended from time to time, the "Credit Agreement"), and the Security
Agreement and other Collateral Documents (each as defined in the Credit
Agreement and, together with each other document executed in connection with the
Credit Agreement, as amended from time to time, collectively, the "Loan
Documents"), Xxxxxxx, Xxxxxxx Piano and Organ Company (Canada) Limited ("Xxxxxxx
Canada") and certain other subsidiaries of Xxxxxxx have granted Agent a security
interest in all their respective assets,
1
2
including, without limitation, KAC Accounts and KAC Repossessed Merchandise
(collectively, the "Collateral"; all Collateral other than the DFS Assets, as
defined below, is hereafter referred to as the "Agent Collateral");
WHEREAS, DFS is unwilling to purchase any DFS Consignment Inventory
from Xxxxxxx or finance Xxxxxxx'x purchase of KAC Accounts and KAC Repossessed
Merchandise unless Agent acknowledges DFS's title in, and subordinates its
security interest in, the DFS Consignment Inventory, KAC Accounts and KAC
Repossessed Merchandise and all Cash and Non-Cash Proceeds thereof in accordance
with the terms provided herein; and
WHEREAS, Agent and Lenders are unwilling to enter into the Credit
Agreement and the other Loan Documents unless DFS enters into this Intercreditor
Agreement defining DFS' and Agent's rights with respect to certain Collateral.
NOW, THEREFORE, in order to induce DFS to purchase inventory from
Xxxxxxx from time to time and to finance Xxxxxxx'x purchase of KAC Accounts and
KAC Repossessed Merchandise, and to induce Agent and Lenders to enter into the
Credit Agreement and the other Loan Documents, Agent and DFS hereby agree as
follows:
1. For purposes hereof, the following terms shall have the following
meanings:
"Accounts" means all accounts, accounts receivable, other receivables,
contract rights, general intangibles, chattel paper, financial
instruments, documents, insurance proceeds and agreements of KAC,
whether now owned or hereafter acquired by KAC, wherever located,
arising out of the sale of Merchandise by Xxxxxxx, and/or Eligible
Dealers, together with all of the instruments and account documentation
evidencing the same, and all rights as to any Merchandise, goods, or
other property which is represented thereby or is security or
collateral therefor, and all guaranties, claims, security interests or
other security held by or granted to KAC to secure payment by any
Person with respect thereto, including, without limitation, deferred
payment contracts, rental/purchase agreements, retail installment
contracts, security agreements, purchase money chattel mortgages,
conditional sales contracts, chattel paper, and other consumer accounts
receivable granted as collateral to secure such payments.
"Cash and Non-Cash Proceeds" means and includes, (i) all returns,
repossessions, exchanges, substitutions, replacements, attachments,
parts, accessories, (ii) all accessions to, and all contract rights,
chattel paper, security agreements, instruments, reserves, documents,
and (iii) and all products and proceeds of sale, lease, rental,
foreclosure, liquidation or other disposition of any tangible or
intangible assets of Xxxxxxx, including without limitation, the DFS
Consignment Inventory, KAC Accounts, KAC Repossessed Merchandise, as
applicable, including, without limitation, all accounts, deposit
accounts and other general intangibles realized upon such sale, lease,
rental, foreclosure, liquidation or other disposition and all insurance
proceeds and all claims against third parties for loss or damage to or
destruction of any or all such assets of Xxxxxxx.
"Eligible Dealers" means dealers that KAC does business with for which
Accounts are
2
3
generated, irrespective of whether such dealership is owned by Xxxxxxx.
"Merchandise" means those new goods, including, but not limited to,
pianos, electronic pianos, organs, electronic organs, musical
instruments, and accessories sold in conjunction therewith, and
delivery and set-up services sold in connection therewith, which goods
are customarily manufactured or assembled by or for Xxxxxxx and/or sold
at retail by Xxxxxxx or Eligible Dealers to the general public,
including religious and other organizations and public authorities.
Merchandise shall include (i) items taken as trade-ins in connection
with the sale of Merchandise, (ii) items sold in connection with
Accounts, repossessed by Xxxxxxx, KAC or Eligible Dealers and
subsequently offered for resale to retail buyers, and (iii) items
manufactured by Persons other than Xxxxxxx but which are sold at retail
by Xxxxxxx, or Eligible Dealers to the general public.
2. Agent agrees that, as between Agent and DFS, DFS has title in and to
all current and future DFS Consignment Inventory that DFS now or hereafter
purchases from Xxxxxxx under the terms of the DFS Consignment Agreement (except
to the extent that DFS later sells such DFS Consignment Inventory back to
Xxxxxxx or to any other party), and, to the extent segregated and not commingled
with the Agent Collateral, all Cash and Non-Cash Proceeds therefrom
(collectively "Purchased Consignment Assets"). Agent also hereby unconditionally
subordinates to DFS all right, title and security interest which Agent may
presently have or which it may hereafter acquire under the Loan Documents in and
to the Purchased Consignment Assets, whether now or hereafter owned, acquired,
existing or arising, in each case provided that the Cash and Non-Cash Proceeds
therefrom are segregated and not commingled with the Agent Collateral.
3. Agent agrees that, if segregated and not commingled with the Agent
Collateral, DFS has a first priority security interest in and to all current and
future KAC Accounts that Xxxxxxx now or hereafter purchases from DFS or KAC
under the terms of the DFS Accounts Receivable Purchase Agreement, and all Cash
and Non-Cash Proceeds therefrom (collectively "KAC Account Assets"). Agent also
hereby unconditionally subordinates to DFS all right, title and security
interest which Agent may presently have or which it may hereafter acquire under
the Loan Documents in and to the KAC Account Assets, whether now or hereafter
owned, acquired, existing or arising, in each case provided such KAC Account
Assets are segregated and not commingled with the Agent Collateral.
4. Agent agrees that, if segregated and not commingled with the Agent
Collateral, DFS has a first priority security interest in and to all current and
future KAC Repossessed Merchandise that Xxxxxxx now or hereafter purchases from
DFS or KAC under the terms of the DFS Accounts Receivable Purchase Agreement,
and all Cash and Non-Cash Proceeds therefrom (collectively "KAC Repossessed
Merchandise Assets", and, together with the Purchased Consignment Assets, and
the KAC Account Assets, the "DFS Assets"). Agent also hereby unconditionally
subordinates to DFS all right, title and security interest which Agent may
presently have or which it may hereafter acquire under the Loan Documents in and
to the KAC Repossessed Merchandise Assets, whether now or hereafter owned,
acquired, existing or arising, in each case provided such KAC Account Assets are
segregated and not commingled with the Agent Collateral.
3
4
5. DFS agrees that Agent has a superior right and security interest in
and to, among other things, all accounts, inventory, contract rights, chattel
paper, security agreements, instruments, deposit accounts, reserves, documents,
general intangibles and all other Agent Collateral of Xxxxxxx, whether now owned
or hereafter acquired, and Cash and Non-Cash proceeds therefrom, except, and
specifically excluding therefrom, the DFS Assets which are segregated and not
commingled with any Agent Collateral. If any DFS Assets or proceeds thereof are
commingled with any Agent Collateral, DFS agrees that, until all obligations
under the Loan Documents are indefeasibly paid and satisfied in full, DFS shall
not take or initiate any enforcement, foreclosure or other collection action
with respect to such commingled assets.
6. Xxxxxxx agrees that no later than thirty (30) days after the date
hereof, Xxxxxxx shall establish separate deposit accounts at one or more banks
reasonably acceptable to DFS (the "Deposit Accounts") into which Xxxxxxx shall
thereafter deposit any and all Cash and Non-Cash Proceeds consisting of cash
proceeds received by Xxxxxxx arising out of or related to the DFS Consignment
Inventory, KAC Accounts and KAC Repossessed Merchandise, it being understood and
agreed that, with respect to the cash proceeds arising out of or relating to the
KAC Accounts, Xxxxxxx shall be deemed to have complied with the provisions of
this Section 6 to the extent DFS and/or KAC continue to act as collection agent
for such KAC Accounts pursuant to the terms of the DFS Accounts Receivable
Purchase Agreement.
7. This Agreement shall constitute a continuing agreement of
subordination. The priority granted to any party hereunder is enforceable
regardless of the time or order of attachment or perfection of security
interests.
8. This Agreement shall be binding on, and shall inure to the benefit
of, the successors and assigns of DFS and Agent. Agent hereby represents and
warrants to DFS that Agent has not heretofore assigned, transferred,
subordinated or terminated any of Agent's right, title or security interest in
or to any of the DFS Assets. This Agreement may not be amended or modified
except in a writing signed by DFS and Agent. This Agreement is not intended, nor
shall it be deemed, to directly or indirectly benefit any person or entity that
is not a party hereto. This Agreement shall be governed by the laws of the State
of New York without regard to principles of conflicts of laws.
4
5
IN WITNESS WHEREOF, the duly authorized representatives of Agent, DFS and
Xxxxxxx have executed this Agreement as of the date set forth above.
GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent
By: /s/ XXXXXXX XXXXXX
--------------------------------
Xxxxxxx Xxxxxx
Its Duly Authorized Signatory
DEUTSCHE FINANCIAL SERVICES
CORPORATION
By: /s/ XXXXXXX XXXXXXXX
--------------------------------
Print Name: Xxxxxxx Xxxxxxxx
Title: Vice President
XXXXXXX PIANO & ORGAN COMPANY
By: /s/ XXXXX XXXXXX
--------------------------------
Print Name: Xxxxx Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
5
