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Exhibit 10.39
FIRST AMENDMENT TO
RETAIL ACCOUNTS RECEIVABLE PURCHASE AGREEMENT
THIS FIRST AMENDMENT ("Amendment") dated as of October 24, 1997 by and
among XXXXXXX PIANO & ORGAN COMPANY, a Delaware corporation, hereinafter
referred to as "Xxxxxxx," THE WURLITZER COMPANY, a Delaware corporation,
hereinafter referred to as "Wurlitzer," and KEYBOARD ACCEPTANCE CORPORATION
formerly known as BPO Finance Corporation, a Delaware corporation, hereinafter
referred to as "Finance" or "KAC," to that Retail Accounts Receivable Purchase
Agreement dated as of October 1, 1990 (the "Agreement").
WHEREAS, the parties have agreed to amend the Agreement, as provided
for herein.
NOW, THEREFORE, intending to be legally bound, the parties hereto agree
as follows:
A. Capitalized terms used and not otherwise defined herein are used
with the meaning set forth in the Agreement. All of the parties hereby
acknowledge that Wurlitzer no longer holds any Accounts or sells Accounts
pursuant to the Agreement and is only signing this Amendment as a matter of
convenience and expediency for Xxxxxxx and KAC.
B. Section 9 of the Agreement is hereby amended and restated in its
entirety as follows:
Section 9. Services and Undertakings of Xxxxxxx.
9.1 Until otherwise notified in writing by KAC, Xxxxxxx agrees to:
(a) Accept and hold for the benefit of KAC all remittances and
collections received by Xxxxxxx in payment of Accounts acquired by KAC
under this Agreement and deposit all remittances and collections as
required of KAC under the Purchase and Administration Agreement;
(b) Unless otherwise instructed or permitted by KAC, not
compromise or settle any Account, extend the time for payment for any
Account or renew the obligations represented by any Account;
(c) Stamp or xxxx all retail installment contracts with Retail
Account Debtors, including any such contracts to be retained by Retail
Account Debtors, with an appropriate legend to indicate that the
Account Debtors, with an appropriate legend to indicate that the
Accounts have been or will be transferred to KAC, and deliver same
(except retail installment contracts to be retained by Retail Account
Debtors), to KAC upon its request; provided, however, that while said
documents are in custody of Xxxxxxx, Xxxxxxx is authorized to hold same
for the benefit of KAC;
(d) Permit KAC's agents to examine its books, records, and
files relating to the Accounts at any and at all reasonable times, for
the purposes of ascertaining, inspecting, and
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verifying any and all transactions in connection therewith, and the
status and condition thereof, and the collection of any sums thereon,
and any other matter pertaining to this Agreement;
(e) Make available employees of Xxxxxxx for purposes of
servicing the Accounts and make available reasonably adequate office
space and facilities at its headquarters in Loveland, Ohio for office
personnel and records of KAC maintained to carry out the purposes of
this Agreement;
(f) Furnish all necessary postage, stationery, forms,
supplies, equipment, light, heat, telephone and telegraph services, and
other materials and equipment at Xxxxxxx'x headquarters; and
(g) Purchase from KAC all Merchandise repossessed by KAC with
respect to Accounts in default, at a price equal to the depreciated
value at which such Merchandise is consigned and/or sold to an Eligible
Dealer of, if the Merchandise is placed in a retail store operated by
Xxxxxxx, at a price equal to the depreciated value assigned to such
Merchandise by Xxxxxxx under its normal accounting practices consistent
with those currently in effect.
9.2 If Xxxxxxx fails to perform any obligation contained herein, KAC or
its designee may itself perform such obligation.
9.3 Notwithstanding anything to the contrary contained herein, (a)
Xxxxxxx shall remain liable under any contracts and agreements with any
Retail Account Debtor to perform all of its duties and obligations
thereunder, (b) the exercise by KAC of any of its rights under this
Agreement shall not release Xxxxxxx from any of its duties or
obligations pursuant to any contract or agreement relating to any
Account, and (c) KAC shall not have any obligation or liability with
respect to any Account or Retail Account Debtor by reason of this
Agreement or be obligated to perform any of the obligations or duties
of Xxxxxxx thereunder.
C. Except as expressly modified hereby, the Agreement remains unaltered
and in full force and effect. Each party acknowledges that the other parties
have made no oral representations to it with respect to the Agreement and this
Amendment thereto and that all prior understandings between the parties are
merged into the Agreement as amended by this writing.
D. This Amendment shall be considered an integral part of the
Agreement, and all references to the Agreement in the Agreement itself or any
document referring thereto shall, on and after the date of execution of this
Amendment, be deemed to be references to the Agreement as amended by this
Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed in duplicate by their duly authorized officers on the day and year
first above written.
XXXXXXX PIANO & ORGAN COMPANY
By: /s/ Xxxxx X. Xxxxxxxx
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Its: Executive Vice President
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THE WURLITZER COMPANY
By: /s/ Xxxxx X. Xxxxxxxx
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Its: Executive Vice President
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KEYBOARD ACCEPTANCE CORPORATION
fka BPO Finance Corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Its: President
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