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EXHIBIT 10.12
AMENDMENT TO AMENDED AND RESTATED
INVENTORY PURCHASE AND CONSIGNMENT AGREEMENT
THIS AMENDMENT TO AMENDED AND RESTATED INVENTORY PURCHASE AND
CONSIGNMENT AGREEMENT (this "AMENDMENT") is dated as of March 23, 2000 and
entered into by and between XXXXXXX PIANO AND ORGAN COMPANY, a Delaware
corporation ("XXXXXXX"), and DEUTSCHE FINANCIAL SERVICES CORPORATION, a Nevada
corporation ("DFS"). Capitalized terms used herein but not defined shall have
the meanings ascribed to them in the Inventory Purchase and Consignment
Agreement (as defined below).
RECITALS
WHEREAS, Xxxxxxx and DFS are parties to that certain Amended
and Restated Inventory Purchase and Consignment Agreement dated as of October
28, 1998, as amended by Amendments dated April 26, 1999 and January 13, 2000,
respectively (the "INVENTORY PURCHASE AND CONSIGNMENT AGREEMENT");
WHEREAS, pursuant to the Inventory Purchase and Consignment
Agreement, DFS has agreed, among other things, to purchase from Xxxxxxx under
the terms and conditions specified therein, and Xxxxxxx has agreed to sell to
DFS under the terms and conditions specified therein, the Retail Consigned
Goods;
WHEREAS, DFS no longer wishes to purchase from Xxxxxxx, and
Xxxxxxx no longer wishes to sell to DFS, the Retail Consigned Goods and each of
DFS and Xxxxxxx wish to amend the Inventory Purchase and Consignment Agreement
accordingly;
WHEREAS, DFS and Xxxxxxx are willing to make such amendments,
but only on the terms set forth herein:
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Xxxxxxx and DFS agree as follows:
1. The second sentence of the Recitals is hereby deleted in
its entirety and restated as follows:
"Xxxxxxx also wishes to maintain a stock of pianos for use in
concert halls by musical artists ("CONCERT DEMO PROGRAM"). At
the request of Xxxxxxx, DFS is willing to purchase the pianos
which Xxxxxxx has loaned or in the future intends to loan to
the colleges and universities (each a "UNIVERSITY") under the
University Demo Program ("UNIVERSITY CONSIGNED GOODS") and
certain concert halls and/or musical artists under the Concert
Demo Program ("CONCERT CONSIGNED GOODS") and consign such
goods back to Xxxxxxx (University Consigned Goods and Concert
Consigned Goods being collectively referred to as "CONSIGNED
GOODS").
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2. Section 1.1 of the Inventory Purchase and Consignment
Agreement, General Terms, is hereby deleted in its entirety and restated as
follows:
"Subject to the terms of this Agreement, DFS will purchase
from Xxxxxxx: (a) University Consigned Goods for the wholesale
price at which Xxxxxxx sells similar goods to its retail
dealers in the ordinary course of business; and (b) Concert
Consigned Goods for one hundred percent (100%) of the
wholesale price at which Xxxxxxx sells similar goods to its
retail dealers in the ordinary course of business ((a) and (b)
each the "INVOICE PRICE") after receipt of an invoice to DFS
listing the Consigned Goods that Xxxxxxx is selling to DFS
("INVOICE"), and consign such Consigned Goods back to Xxxxxxx;
provided, however, that the aggregate Invoice Price of all
Consigned Goods for which DFS has not received payment from
Xxxxxxx pursuant to Section 10 will at no time exceed the sum
of Fifteen Million Dollars ($15,000,000.00) ("CONSIGNMENT
LIMIT"). Title to any particular item of Consigned Goods will
transfer from Xxxxxxx to DFS and thereafter remain in DFS and
will not pass back to Xxxxxxx, unless Xxxxxxx purchases such
Consigned Goods from DFS as provided in this Section 10. DFS
may, at any time, elect not to purchase Consigned Goods from
Xxxxxxx and consign such Consigned Goods back to Xxxxxxx if
Xxxxxxx is in default of its obligations to DFS. Xxxxxxx
acknowledges that neither the execution of this Agreement nor
the consignment of any goods by DFS to Xxxxxxx hereunder will
in any way bind or obligate DFS to purchase or consign further
goods to Xxxxxxx, and it will be in DFS' sole discretion
whether or not to purchase or consign any goods to Xxxxxxx."
3. Subsection 1.3(e) of the Inventory Purchase and Consignment
Agreement is hereby deleted in its entirety and restated as follows:
"Xxxxxxx'x Invoice to DFS for the Consigned Goods will include
DFS' approval number for such Consigned Goods, the name and
address of the University to which University Consigned Goods
were shipped, the name and address of the concert hall or
retail dealer to which Concert Consigned Goods were shipped
and (except with respect to University Consigned Goods placed
with a University prior to the date of this Agreement and
identified on Exhibit A attached hereto and Concert Consigned
Goods placed with a concert hall or retail dealer under the
Concert Demo Program prior to October 31, 1998 and identified
on Exhibit A-1 attached hereto) the date on which the
Consigned Goods were delivered. Xxxxxxx will deliver such
Invoice to DFS within ten (10) days of the date of the
delivery of the Consigned Goods to a University under the
University Demo Program, to a concert hall or retail dealer
under the Concert Demo Program or to a retail outlet directly
or indirectly owned or managed by Xxxxxxx."
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4. Xxxxxxx agrees that, as a condition to the effectiveness of
this Amendment, it will immediately pay to DFS all amounts currently due and
owing under the Inventory Purchase and Consignment Agreement in respect of the
Retail Consigned Goods which amount is equal to $2,689,361.
5. DFS hereby releases, assigns, transfers and delivers to
Xxxxxxx all right, title and interest that is has in the Retail Consigned Goods
and terminates and releases each security interest and lien granted under the
Inventory Purchase and Consignment Agreement with respect to such Retail
Consigned Goods. DFS further agrees to sign and remit to Xxxxxxx any and all
documents confirming or evidencing all releases of DFS' security interest in the
Retail Consigned Goods pursuant hereto reasonably requested by Xxxxxxx,
including[, upon reasonable request by Xxxxxxx,] all documents necessary or
useful to partially release any financing statement or other filing with respect
to any security interest granted to DFS with respect to the Retail Consigned
Goods under the terms and conditions of the Inventory Purchase and Consignment
Agreement in respect of the Retail Consigned Goods.
All other terms as they appear in the Inventory Purchase and
Consignment Agreement, to the extent not inconsistent with the foregoing
Amendment, are ratified and remain unchanged and in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered as of the date first written above.
XXXXXXX PIANO & ORGAN COMPANY
/s/ XXXXX XXXXXX
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Xxxxx Xxxxxx
Executive Vice President and Chief Executive
Officer
DEUTSCHE FINANCIAL SERVICES CORPORATION
/s/ XXXXXXX XXXXXXX
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Xxxxxxx Xxxxxxx
Credit Manager
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