EXHIBIT 99.5
INTERCREDITOR AGREEMENT
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THIS INTERCREDITOR AGREEMENT, dated as of August 14, 2008 (such agreement
as amended, modified, waived, supplemented or restated from time to time, this
"Agreement"), is by and among:
(1) BANK OF AMERICA, N.A., as agent for the lenders under the ABL
Agreement (as defined below) (together with its successors and assigns in such
capacity, the "ABL Agent");
(2) XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Securitization Trustee
under the Securitization Documents (as defined below) (together with its
successors and assigns in such capacity, the "Securitization Trustee" and
together with the ABL Agent, the "Agents");
(3) CONN APPLIANCES, INC. (together with its successors and assigns,
"Conn"), as the Initial Servicer under the Securitization Documents and as the
initial servicer for the ABL Agent hereunder (the "Initial Servicer") and its
permitted successors (together with the Initial Servicer, the "Servicer") and as
a borrower;
(4) CONN CREDIT CORPORATION, INC., as a borrower;
(5) CONN CREDIT I, L.P., as a borrower; and
(6) BANK OF AMERICA, N.A., as collateral agent for the ABL Agent and the
Securitization Trustee hereunder (together with its successors and assigns, the
"Collateral Agent").
R E C I T A L S
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WHEREAS, Conn has entered into an asset-backed securitization transaction
pursuant to which Conn has and will from time to time sell and transfer certain
chattel paper, installment sales contracts, revolving charge account agreements,
accounts receivable, other assets and related security to Conn Funding II, L.P.
(the "Securitization SPV") pursuant to a Receivables Purchase Agreement, dated
as of September 1, 2002 (as amended, supplemented and as otherwise modified from
time to time, the "Securitization Sale Agreement"), and Securitization SPV has,
pursuant to the Indenture, dated as of September 1, 2002 (as supplemented from
time to time, the "Securitization Indenture"), in turn, granted a security
interest in such receivables, chattel paper, installment sales contracts,
revolving charge account agreements, accounts receivable, other assets and
related security to the Securitization Trustee, for the benefit of certain
secured parties provided therein ((i) the receivables, chattel paper,
installment sales contracts revolving charge account agreements, accounts
receivable, other assets and related security sold, conveyed or otherwise
transferred or pledged or purportedly sold, conveyed or otherwise transferred or
pledged to the Securitization SPV (including the Trust Estate as defined in the
Securitization Indenture), (ii) any Records (as defined in the Securitization
Indenture), (iii) all right, title and interest of Conn, the Borrowers, the
Securitization SPV and any of their affiliates, as applicable, in and to
returned, repossessed or foreclosed goods and/or merchandise the sale of which
gave rise to a receivable transferred or pledged or purportedly transferred or
pledged to the Securitization SPV pursuant to the Securitization Sale Agreement
(other than a receivable that has been paid in full and the Securitization
Trustee has received such payments) (the "Securitization Returned Goods"), (iv)
any claims or judgments against Conn, the Borrowers, the Securitization SPV and
any of their affiliates in favor of the Securitization Trustee arising out of
the transactions contemplated under the Securitization Documents and (v) the
Securitization Remittances (as defined below) are collectively referred to
herein as the "Securitization Assets"; and the Securitization Sale Agreement,
Securitization Indenture and other agreements, instruments or documents executed
in connection therewith, as any of the same may be amended, supplemented,
waived, modified or restated from time to time, are referred to collectively
herein as the "Securitization Documents");
WHEREAS, Conn Credit Corporation, Inc., Conn and Conn Credit I, L.P.
(collectively the "Borrowers"), the ABL Agent and the lenders party thereto (the
"Lenders") have entered into a loan transaction (the "ABL Transaction") pursuant
to a Loan and Security Agreement, dated as of August 14, 2008 (as amended,
supplemented and otherwise modified from time to time, the "ABL Agreement"; the
ABL Agreement and all other agreements, instruments or documents executed in
connection therewith, as any of the same may be amended, supplemented, waived,
modified and restated from time to time are referred to collectively herein as
the "ABL Documents" and together with the Securitization Documents, the "Credit
Documents"), pursuant to which the Borrowers have pledged all of their
respective assets (other than the Securitization Assets), including certain
receivables and related security, to the ABL Agent to secure advances made by
the Lenders (the specified receivables and related security, and all other
assets of Borrowers, including the limited partner interests in the
Securitization SPV but excluding any rights in or to the Securitization Assets
are referred to herein as the "ABL Assets");
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. Appointment of Collateral Agent.
(a) Each of the Agents hereby appoints and designates Bank of America,
N.A. as Collateral Agent with respect to the Master Collection Accounts (as
defined below) and the Remittances (as defined below) on deposit therein, to act
as agent for each Agent for the purpose, among others, of perfection of each
Agent's security interest in the Master Collection Accounts and the Remittances
on deposit therein and authorizes the Collateral Agent to take such action on
behalf of each Agent with respect to the Master Collection Accounts and to
exercise such powers and perform such duties as are hereby expressly delegated
to the Collateral Agent with respect to the Master Collection Accounts by the
terms of this Agreement, together with such powers as are reasonably incidental
thereto.
(b) The Collateral Agent hereby accepts such appointment and agrees to
hold, maintain, and administer, for the exclusive benefit of the Agents, the
Remittances on deposit therein. The Collateral Agent acknowledges and agrees
that the Collateral Agent is acting and will act with respect to the Master
Collection Accounts and the Remittances on deposit therein, for the exclusive
benefit of the Agents and shall not be subject with respect to the Master
Collection Accounts in any manner or to any extent to the direction of the
Initial Servicer, the Borrowers or any of affiliates, except as expressly
permitted hereunder.
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Section 2. Liens and Interests.
(a) The ABL Agent and the Lenders shall not have or assert, and hereby
disclaim, any right, title or interest in (including a security interest or
lien) or to any Securitization Assets existing on the date hereof and from time
to time thereafter, including the proceeds of any inventory that is subject to a
security interest or lien in favor of the ABL Agent or any Lender pursuant to
the ABL Documents or otherwise if such proceeds are Securitization Assets;
provided, however, that the ABL Agent and the Lenders do not disclaim their
rights as a beneficiary of the security interest in the Master Collection
Accounts.
(b) The Securitization Trustee shall not have or assert, and hereby
disclaims, any right, title or interest in or to any ABL Assets; provided,
however, that (i) the Securitization Trustee does not disclaim its rights as a
beneficiary of the security interest in the Master Collection Accounts and (ii)
the Securitization Trustee does not disclaim its right to enforce its claims
against Conn, the Borrowers, or any of their affiliates or their property
arising out of the transactions contemplated under the Securitization Documents.
(c) Conn has not and will not, and has not permitted and will not permit
any Borrower to, grant, sell, convey, assign, transfer, mortgage or pledge (i)
the Securitization Assets to any Person (as defined in the Securitization
Indenture) other than the Securitization SPV and the Securitization Trustee
pursuant to and in accordance with the Securitization Documents, and (ii) the
ABL Assets to any Person other than the ABL Agent pursuant to and in accordance
with the ABL Documents other than the Master Collection Accounts. Conn
represents that it employs a billing process and record keeping process that
clearly distinguishes between the ABL Assets and the Securitization Assets and
collections and other remittances (including checks, drafts, credit card
payments, instruments and cash) with respect thereto (collectively, the
"Remittances"). Without limiting the requirements set forth in the Credit
Documents, the Initial Servicer and the Borrowers shall cause all Remittances on
the Securitization Assets ("Securitization Remittances") and all Remittances on
the ABL Assets ("ABL Remittances") to be directly deposited into the Collection
Account (as defined in the Securitization Indenture and solely in the case of
Securitization Remittances) or the Master Collection Accounts listed on Schedule
I attached hereto; provided, however, upon the occurrence of a Daily Payment
Event (as defined in the Securitization Indenture) or a Dominion Trigger Period
(as defined in the ABL Agreement), the Servicer and the Borrowers shall cause
all (i) ABL Remittances to be directly deposited into a deposit account
dedicated solely to the ABL Assets and such ABL Remittances shall no longer be
commingled with the Securitization Remittances in the Master Collection Accounts
and (ii) Securitization Remittances to be deposited directly into a segregated
non-commingled account(s) in accordance with the terms of the Securitization
Documents; provided, further, that, notwithstanding the foregoing, if a single
Credit Card Remittance (as defined below) containing both ABL Remittances and
Securitization Remittances is deposited into a Master Collection Account such
Remittances shall then immediately be transferred to the applicable
non-commingled accounts.
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(d) In exercising any of its rights or remedies under the ABL Documents or
the Securitization Documents, as applicable, with respect to any right, title
and interest of Conn as lessee, licensee, owner or otherwise in and to any
records (including, without limitation, Records as defined in the Securitization
Indenture) and other files (including electronic files), documentation, computer
hardware and software and related intellectual property, each of the ABL Agent,
the Lenders and the Securitization Trustee agrees that it shall not take any
action that would materially impair the rights or ability of any other agent to
use such property or the facilities where the same are located in connection
with the transactions contemplated under the ABL Documents or the Securitization
Documents, as applicable. The parties acknowledge that such property may be
necessary to or useful in the servicing, administration and collection of the
ABL Assets and the Securitization Assets and agree to cooperate in good faith
such that the respective interests of the ABL Agent and the Securitization
Trustee therein and with respect thereto shall be protected and preserved.
(e) The Securitization Trustee hereby agrees that it will not challenge
the validity and perfection of the ABL Agent's security interest in the ABL
Assets. The ABL Agent hereby agrees that it will not challenge the validity and
perfection of the Securitization Trustee's security interest in the
Securitization Assets.
Section 3. Separation of Collateral.
(a) Subject to Section 4, the ABL Agent and each Lender hereby agrees
promptly to transfer and return to, or in accordance with the written direction
of, the Securitization Trustee, at such account or other place as the
Securitization Trustee may so instruct, any funds or other property that are
received by the ABL Agent or a Lender and that are identified to the ABL Agent
by the Servicer or the Securitization Trustee in writing as constituting
Securitization Assets. For purposes of maintaining and protecting the
Securitization Trustee's interest therein, the Securitization Trustee hereby
appoints the ABL Agent as its agent in respect of such funds or other property;
provided, that the ABL Agent's sole duty as such agent shall be to hold such
funds and other property in trust for the benefit of the Securitization Trustee,
to perfect any ownership or security interest of Securitization Trustee therein,
and to transfer such funds or other property to or at the written direction of
the Securitization Trustee as aforesaid.
(b) Subject to Section 4 and solely to the extent of available funds on
deposit in the Collection Account (as defined in the Securitization Indenture),
the Securitization Trustee hereby agrees promptly to transfer and return to, or
in accordance with the written direction of, the ABL Agent, such account or
other place as the ABL Agent may so instruct, any funds or other property that
are received by the Securitization Trustee and that are identified by the
Servicer or the ABL Agent to the Securitization Trustee in writing as
constituting ABL Assets. For purposes of maintaining and protecting the ABL
Agent's interest therein, the ABL Agent hereby appoints the Securitization
Trustee as its agent in respect of such funds and other property; provided, that
the Securitization Trustee's sole duty as such agent shall be to hold such funds
or other property in trust for the benefit of the ABL Agent, to perfect any
ownership or security interest of ABL Agent therein, and to transfer such funds
or other property to or at the direction of the ABL Agent as aforesaid.
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(c) The ABL Agent, the Lenders, the Securitization Trustee, and Conn each
hereby acknowledges that certain related records and other files (including
electronic files), documentation, computer hardware, software, intellectual
property and similar assets may comprise a portion of the ABL Assets and the
Securitization Assets. Each of the parties hereto agrees to cooperate in good
faith such that the respective interests of the ABL Agent, the Lenders and the
Securitization Trustee (or further assignees of either) in such assets shall be
protected and preserved, and, without limiting the obligations of Conn, the
Borrowers or Securitization SPV (as applicable) under the Securitization
Documents or the ABL Documents, the ABL Agent, the Lenders and the
Securitization Trustee agree to permit each other reasonable access to such
assets and the premises of Conn and its affiliates where the same may be located
(in each case, to the extent they shall be in the possession or control of such
party) as shall be necessary or desirable to manage and realize on the ABL
Assets and the Securitization Assets, as the case may be. Except as otherwise
provided in the immediately preceding sentence, in the event that any of the ABL
Assets or the Securitization Assets become commingled, then each of the ABL
Agent and the Securitization Trustee shall, in good faith, cooperate with each
other to separate the ABL Assets and the Securitization Assets. If the ABL Agent
shall have in its possession or control any of Conn's assets including any
records, computer hardware, software and intellectual property related to or
necessary or desirable for the servicing of the Securitization Assets, the ABL
Agent shall provide the Securitization Trustee and its agents access to such
assets and the premises of Conn and its affiliates where the same may be located
and such access shall be without condition or charge.
(d) The out-of-pocket costs and expenses incurred by the parties hereto to
effect any separation and/or sharing (including, without limitation, reasonable
fees and expenses of auditors and attorneys) required by this Section 3 shall be
borne by Conn and payable upon receipt by Conn of an invoice or other
documentation. If Conn does not or is unable to pay such amounts, such amounts
shall be paid pro rata (based on Remittances) by the ABL Agent and
Securitization Trustee. Neither the ABL Agent nor the Securitization Trustee
shall be required by this Section 3 to take any action that it believes, in good
faith, may prejudice its ability to realize the value of, or to otherwise
protect, its interests (and the interests of the parties for which it acts) in
the ABL Assets or the Securitization Assets, respectively; provided, that
nothing in this sentence shall relieve any of Conn, the Borrowers or
Securitization SPV of its obligations hereunder or under the ABL Documents or
the Securitization Documents, as applicable, with respect to the ABL Assets or
the Securitization Assets.
(e) The proceeds of any Securitization Returned Goods shall be treated as
Securitization Remittances; provided, however, that if any ABL Assets that
consist of inventory as defined under Section 9-102 of the Uniform Commercial
Code of the State of New York have been commingled with any Securitization
Returned Goods and the Securitization Returned Goods cannot be properly
identified by the Servicer, the proceeds (whether Remittances or otherwise)
related to such inventory shall be applied first, to the Securitization Assets,
an amount equal to the fair market value of such Securitization Returned Goods
as determined pursuant to the Securitization Documents and as reported by the
Securitization Trustee and second, any remaining proceeds, to the ABL Agent.
(f) Payments made by a credit card issuer or processor or other xxxx
payment service ("Credit Card Remittances") on account of (i) any Securitization
Assets shall be treated as Securitization Remittances and (ii) any ABL Assets
shall be treated as ABL Remittances; provided, however, that if a single Credit
Card Remittance contains both ABL Remittances and Securitization Remittances and
the Securitization Remittances cannot be properly identified by the Servicer,
such funds shall be deemed to be, first, Securitization Remittances in an amount
equal to the aggregate receivable balance of any outstanding receivables that
are Securitization Assets paid by credit cards issued by such credit card issuer
or processor and second, ABL Remittances.
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Section 4. Remittances.
(a) The parties hereto acknowledge that Conn has established (i) post
office boxes listed on Schedule I and dedicated solely to the Securitization
Remittances and subject to the control of the Securitization Trustee and (ii)
post office boxes listed on Schedule I and dedicated solely to ABL Remittances
and subject to the control of the ABL Agent. The parties hereto acknowledge that
Conn has established deposit accounts listed on Schedule I hereto into which
Remittances are initially deposited upon collection, each of which is subject to
the control of the Collateral Agent on behalf of the Agents (notwithstanding
that any control agreements with respect to such accounts indicate that the
Collateral Agent is acting in any other capacity or its individual capacity)
(collectively and including any other deposit accounts into which Remittances
are deposited but excluding the Collection Account, Finance Charge Account,
Principal Account, Payment Accounts, Series Accounts and any other Trust
Accounts established under and as defined in the Securitization Documents, the
"Master Collection Accounts"). Schedule I may be amended from time to time with
the prior written consent of the Agents.
(b) Subject to the rights and limitations of the Securitization Trustee
under the Securitization Documents and until any Agent has delivered a Control
Notice substantially in the form of Exhibit B (the "Control Notice") to the
Collateral Agent, the Initial Servicer will have access to the Master Collection
Accounts. After the receipt of a Control Notice by the Collateral Agent from the
Securitization Trustee, the Collateral Agent shall instruct the account bank
related to each Master Collection Account to prohibit the Initial Servicer and
any other Person other than the Collateral Agent from having access to the
Master Collection Accounts.
(c) The Servicer shall (within two (2) business day of receipt of the
associated Remittances by Servicer, Conn, any Borrower, or any other of their
affiliates) determine and identify (or cause its agents to determine and
identify) which Remittances received in the Master Collection Accounts represent
ABL Remittances or Securitization Remittances. In addition, the Servicer shall
determine whether any amounts in the Master Collection Accounts do not
constitute ABL Remittances or Securitization Remittances, but have nonetheless
been paid or deposited thereto in error ("Misdirected Payments").
(d) Subject to this clause (d), the Servicer shall have authority to
deliver the written disbursement instructions identifying Remittances held in
the Master Collection Accounts as ABL Remittances or Securitization Remittances.
The Servicer shall, or the Collateral Agent shall after the delivery of a
Control Notice, wire Remittances representing collected funds from the Master
Collection Accounts within two (2) business days of receipt to (i) the account
or accounts specified in the written instructions received by the Servicer from
the ABL Agent with respect to the ABL Remittances, and (ii) the account or
accounts specified in the written instructions received by the Servicer from the
Securitization Trustee with respect to the Securitization Remittances. The
Initial Servicer agrees to cooperate with any successor Servicer, ABL Agent and
Securitization Trustee in effecting the termination of its rights under this
Agreement, including providing any successor Servicer, the ABL Agent and the
Securitization Trustee, or other party, as the case may be, with such records
and reports as are required to determine the disposition of Remittances.
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Each of the parties hereto hereby acknowledges that from time to time the
Master Collection Accounts may contain amounts that are not readily identifiable
as Securitization Assets or ABL Assets (such amounts, the "Unallocated
Amounts"). All amounts constituting Unallocated Amounts for sixty (60) days or
more as of the last day of the preceding calendar month shall be deemed to be
Securitization Assets. If the Securitization Trustee shall receive any funds
distributed in accordance with this clause (d) that is later identified as
property of the ABL Agent ("Diverted Funds"), such Diverted Funds shall be
repaid to the ABL Agent by reducing the subsequent allocation of funds to the
Securitization Trustee by an amount equal to such Diverted Funds and by
allocating such Diverted Funds to the ABL Agent.
If any payments are received by the parties hereto with respect to an
obligor that contains receivables that are both Securitization Assets and ABL
Assets and the obligor does not designate which receivable to apply such payment
against, such payment shall be applied against the oldest receivable that is a
Securitization Asset.
In the event that the Servicer receives a notice from the ABL Agent or the
Securitization Trustee challenging the correctness of any disbursements or
related Remittances (the "Disputed Amounts"), the Servicer shall maintain an
amount equal to the Disputed Amounts in the related Master Collection Account
and require such disputing party to resolve such dispute by obtaining the
written agreement of the other disputing parties as to the proper allocation of
the Disputed Amounts from both the ABL Agent and the Securitization Trustee. In
the event the disputing parties cannot resolve such dispute amongst themselves
by written agreement, the Servicer shall select an independent public accounting
firm (who may also render other services to the ABL Agent or the Securitization
Trustee) to determine the proper allocation of the Disputed Amounts. Upon the
resolution of a dispute the amount equal to the Disputed Amounts shall be
released from the applicable Master Collection Account in accordance with the
terms herein. The expenses of such independent public accounting firm shall be
paid in accordance with Section 3(d).
Section 5. Security Interest in Master Collection Accounts.
Conn and the Borrowers hereby grant a security interest in all of its
right, title and interest (if any) in, to and under the Master Collection
Accounts and the Securitization Remittances on deposit in the Master Collection
Accounts in favor of the Collateral Agent on behalf of the Securitization
Trustee in order to secure the Issuer Obligations (as defined in the
Securitization Indenture). Conn and the Borrowers acknowledge they have granted
a security interest to the ABL Agent pursuant to the ABL Agreement in all of
their rights, title and interest in, to and under the Master Collection Accounts
in order to secure the Obligations (as defined in the ABL Agreement). The ABL
Agent hereby appoints the Collateral Agent to act on behalf of the ABL Agent in
order to perfect its security interest and the Collateral Agent acknowledges it
is acting in such capacity.
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Section 6. Preservation of Bankruptcy Remoteness.
Notwithstanding anything to the contrary in this Agreement or any other
ABL Documents, each of the ABL Agent and each Lender hereby agrees that it shall
not:
(a) institute or join any Person in instituting against the Securitization
SPV, any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding or other proceedings under any federal or state bankruptcy or similar
law,
(b) contest or challenge, or join any other Person in contesting or
challenging, the transfers of the Securitization Assets from Conn to the
Securitization SPV contemplated by the Securitization Sale Agreement or any
other documents or instruments related thereto, whether on the grounds that such
transfers were disguised financings, preferential transfers, fraudulent
conveyances or otherwise or a transfer other than a "true sale" or a "true
contribution",
(c) (i) assert that any Person and the Securitization SPV should be
substantively consolidated or that the Securitization SPV is not or was not a
limited partnership separate and distinct from Conn or any other Person, or (ii)
challenge the valuation of any Securitization Assets,
(d) transfer any of its interest in the Securitization SPV or any interest
therein, unless the assignee of such interest shall have agreed in writing to be
bound by the terms of this Agreement, to any Person,
(e) exercise any voting rights under the Securitization SPV's limited
partnership agreement,
(f) attempt to prohibit or restrict any sale or other transfer of the
Securitization Assets or interfere in any manner with the transactions
contemplated under the Securitization Documents,
(g) alter or cause the alteration of the independent partner provisions of
the Securitization SPV's limited partnership agreement or attempt to remove or
replace any serving independent director of Conn Funding II GP, LLC, or
(h) take any action that would cause or constitute a Pay Out Event or
Event of Default (as defined in the Securitization Indenture),
in any case, for one year and a day after the date on which all amounts payable
to the Secured Parties (as defined in the Securitization Indenture) pursuant to
the Securitization Documents shall have been paid in full and any commitments to
advance funds to the Securitization SPV under any Securitization Document have
terminated. The agreements contained in this paragraph shall survive termination
of this Agreement or any documents related hereto or thereto. The ABL Agent and
the Lenders hereby acknowledge and agree that the Securitization SPV has no
fiduciary duty to the ABL Agent or any Lender based on the pledge of the limited
partner interest of the Securitization SPV under the ABL Documents.
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Section 7. Partial Release of Confidential Information.
Notwithstanding anything contained in the ABL Documents to the contrary,
the Initial Servicer, Conn, and the Borrowers hereby agree that the ABL Agent,
the Lenders, the Securitization Trustee and any noteholders party to the
Securitization Documents may share any information with respect to the
Securitization Assets and the ABL Assets with such other Person, including any
audits or inspection of the books and records of Conn, the Initial Servicer, the
Borrowers and their affiliates.
Section 8. Successor Servicer.
Any successor servicer appointed under the Securitization Documents shall
be the successor Servicer hereunder.
Section 9. Lenders/Borrowers/Limitation on Amendments to ABL Agent.
(a) The ABL Agent hereby represents to the Securitization Trustee that it
has the power and authority to bind the Lenders by, and the Lenders are bound
by, the terms of this Agreement and that pursuant to Section 12.1.1 of the ABL
Agreement, the Lenders have agreed to the terms of this Agreement. Conn, the
Borrowers and the ABL Agent hereby agree not to amend such Section 12.1.1 of the
ABL Agreement without the consent of the Securitization Trustee.
(b) Conn, the Borrowers, and the ABL Agent hereby agree that no additional
parties shall be added as "borrowers" to the ABL Documents if such additional
borrowers are not a party to the agreement by joinder and agree to be bound by
the terms herein as a "Borrower."
(c) Conn, the Borrower and the ABL Agent hereby agree not to directly or
indirectly amend the last paragraph of Section 7.1 of the ABL Agreement, or the
substance thereof, without the written consent of the Securitization Trustee.
Section 10. Notice Matters.
All notices and other communications hereunder or in connection herewith
shall be in writing (including facsimile communication) and shall be personally
delivered or sent by certified mail, postage prepaid, by facsimile or by
overnight delivery service, to the intended party at the address or facsimile
number of such party set forth on Exhibit A hereto or at such other address or
facsimile number as shall be designated by such party in a written notice to the
other parties hereto given in accordance with this paragraph. All notices and
communications hereunder or in connection herewith shall be effective only upon
receipt. Facsimile transmissions shall be deemed received upon receipt of verbal
confirmation of the receipt of such facsimile.
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Section 11. Authorization; Binding Effect; Survival.
Each of the parties hereto confirms that it is authorized to execute,
deliver and perform this Agreement. The obligations of the parties hereunder are
enforceable and binding in, and are subject in all events to any laws, rules,
court orders or regulations applicable to the assets of Conn, the Securitization
SPV, and the Borrowers, or applicable to actions of creditors with respect
thereto in connection with any bankruptcy, receivership, reorganization or
similar action by or against Conn, the Securitization SPV and the Borrowers.
This Agreement shall be binding on and inure to the benefit of the parties
hereto and their respective successors and assigns. The provisions of this
Agreement may not be relied upon by any third party for any purpose (except any
participants, lenders and secured parties under the ABL Documents or the
Securitization Documents, who shall be deemed to be third party beneficiaries
with respect to this Agreement). The holders of any Notes (as defined in the
Securitization Indenture) shall be third-party beneficiaries of this Agreement.
Section 12. Integration.
This Agreement embodies the entire agreement and understanding between the
parties hereto and supersedes all prior or contemporaneous agreement and
understandings of the parties hereto relating to the subject matter of this
Agreement.
Section 13. Amendments.
No amendment or supplement to or modification of this Agreement and no
waiver of or consent to departure from any of the provisions of this Agreement
shall be effective unless such amendment, modification, waiver or consent is in
writing and signed by all of the parties hereto and any waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given.
Section 14. Governing Law/Subjection to Jurisdiction.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES. THE PARTIES HERETO HEREBY SUBMIT TO THE NONEXCLUSIVE JURISDICTION OF
ANY UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF
ANY NEW YORK STATE COURT SITTING IN NEW YORK, NEW YORK FOR PURPOSES OF ALL LEGAL
PROCEEDINGS ARISING OUT OF, OR RELATING TO, THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY. THE PARTIES HERETO HEREBY IRREVOCABLY WAIVE, TO THE FULLEST
EXTENT POSSIBLE, ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY
SUCH PROCEEDING AND ANY CLAIM THAT ANY SUCH PROCEEDING HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF THE AGENTS
TO BRING ANY ACTION OR PROCEEDING AGAINST THE CONN, OR ANY OF ITS AFFILIATES OR
THEIR PROPERTY IN THE COURTS OF OTHER JURISDICTIONS.
10
Section 15. Waiver of Jury Trial.
EACH PARTY HEREBY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY
ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT,
ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE PERFORMANCE OF SUCH RIGHTS AND
OBLIGATIONS. EACH PARTY FURTHER (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT EACH OTHER PARTY HAS BEEN INDUCED TO ENTER INTO
THIS AGREEMENT BY, AMONG OTHER THINGS, THE WAIVER AND CERTIFICATIONS CONTAINED
IN THIS SECTION 15.
Section 16. Headings.
Captions and section headings are used in this Agreement for convenience
of reference only and shall not affect the meaning or interpretation of any
provision hereof.
Section 17. Counterparts.
This Agreement may be executed in any number of counterparts (including by
facsimile) and by the different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which when
taken together shall constitute one and the same agreement.
Section 18. Termination/Assignment.
In the event that all obligations secured by the ABL Assets shall have
been paid in full and liens created with respect thereto shall have been
terminated or released, then the ABL Agent shall promptly notify the other
parties hereto, and the ABL Agent thereafter shall no longer have any rights or
obligations hereunder. In the event that all obligations secured by the
Securitization Assets shall have been paid in full and the Securitization
Documents and liens created thereunder shall have been terminated or released,
then the Securitization Trustee shall promptly notify the other parties hereto,
and the Securitization Trustee shall no longer have any rights or obligations
hereunder. Except as set forth above in this Section 18, the ABL Agent, the
Lenders and the Collateral Agent may not terminate its rights and obligations
under this Agreement without the prior consent of the Securitization Trustee and
the Securitization Trustee may not terminate its rights and obligations under
this Agreement without the prior written consent of the ABL Agent, provided
nothing herein shall prevent the Securitization Trustee from resigning or being
removed pursuant to the terms of the Securitization Documents (and any successor
thereto shall be entitled to the benefit of, and be bound by this Agreement).
The Initial Servicer and the Borrowers may not terminate its rights and
obligations under this Agreement except with the written consent of the ABL
Agent and the Securitization Trustee and upon 60 days' prior written notice to
the other parties hereto. Any successor Servicer may terminate its rights and
obligations under this Agreement in accordance with the terms of the
Securitization Documents.
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The Collateral Agent and the ABL Agent shall not assign their rights and
obligations under this Agreement to any Person without the written consent of
the Securitization Trustee.
Section 19. Indemnification.
Conn hereby agrees to indemnify and hold harmless any Successor Servicer,
the ABL Agent, the Lenders, the Securitization Trustee, the Securitization SPV
and the holders of any Notes (as defined in the Securitization Indenture), and
each director, officer, employee, agent and affiliate thereof (collectively, the
"Indemnified Parties") from and against any and all losses, liabilities
(including liabilities for penalties), claims, demands, actions, suits,
judgments, out-of-pocket costs and expenses (including legal fees and expenses)
(collectively, the "Indemnified Amounts") arising out of or resulting from the
execution, performance and enforcement of this Agreement, except for Indemnified
Amounts arising out of or resulting from the gross negligence, willful
misconduct or bad faith of the applicable Indemnified Party. The obligations of
Conn under this Section 19 shall survive the termination of this Agreement
and/or the earlier termination or resignation of an Indemnified Party.
Section 20. No Constraints; Securitization Documents Amendment; ABL
Documents Amendments; No Modifications.
Nothing contained in this Agreement shall preclude the ABL Agent or the
Securitization Trustee from discontinuing its extension of credit to Conn,
Securitization SPV, any other Borrower, or any affiliate thereof. Nothing
contained in this Agreement shall preclude the ABL Agent or the Securitization
Trustee from taking (without notice to any parties hereunder) any other action
in respect of Conn, the Securitization SPV, any Borrower, or any affiliate
thereof that such person is entitled to take under its applicable Credit
Documents so long as such action does not conflict with this Agreement. Among
the actions which the ABL Agent or the Securitization Trustee may take are: (a)
renewing, extending, and increasing the amount of the debt owing under its
applicable Credit Documents; (b) otherwise changing the terms of the applicable
Credit Documents; (c) settling, releasing, compromising, and collecting on the
related collateral, making (and refraining from making) other secured and
unsecured loans and advances to Conn, the Securitization SPV, any Borrower, or
any affiliate thereof; and (d) all other actions that such person deems
advisable under the applicable Credit Documents. Nothing contained herein shall
limit the obligations of the Securitization SPV or the Initial Servicer under
the Securitization Documents.
Section 21. Back-up Servicer.
Xxxxx Fargo Bank, National Association, as back-up servicer (the "Back-up
Servicer") pursuant to the Back-Up Servicing Agreement, dated as of September 1,
2002, as amended, supplemented and as otherwise modified from time to time,
hereby agrees that if appointed as the successor servicer pursuant to the
Securitization Documents, it shall be bound by the terms hereof as the
"Servicer" hereunder; provided, however, that the ABL Agent and the Collateral
Agent hereby acknowledge and agree that in the event that the Back-up Servicer
serves as the Servicer hereunder, the back-up Servicer will not be acting as
agent or fiduciary for or on behalf of the ABL Agent, the Collateral Agent or
any Lender, but will be acting solely for the Securitization Trustee, and, by
its agreement to be bound by the terms of this Agreement, is undertaking no
responsibility to act, with respect to the ABL Remittances, with a level of care
greater than successor servicers in like transactions that have not entered into
agreement with third parties whose funds may be commingled with funds of a
Person as to which it owes a duty to service.
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Section 22. Securitization Trustee's Capacity.
It is expressly understood and agreed by the parties hereto that insofar
as this Agreement is executed by the Securitization Trustee (i) this Agreement
is executed and delivered by Xxxxx Fargo Bank, National Association, not in its
individual capacity but solely as Securitization Trustee pursuant to the
Securitization Documents in the exercise of the powers and authority conferred
and vested in it thereunder and pursuant to instruction set forth in the
Securitization Indenture, (ii) each of the representations, undertakings and
agreements herein made on behalf of the trust is made and intended not as a
personal representation, undertaking or agreement of the Securitization Trustee,
(iii) nothing contained herein shall be construed as creating any liability of
Xxxxx Fargo Bank, National Association, individually or personally, to perform
any covenant either express or implied contained herein, all such liability, if
any, being expressly waived by the parties hereto and by any person claiming by,
through or under the parties hereto, and (iv) under no circumstances xxxx Xxxxx
Fargo Bank, National Association, in its individual capacity be personally
liable for the breach or failure of any obligation, representation, warranty or
covenant made or undertaken under this Agreement.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
BANK OF AMERICA, N.A.,
as ABL Agent on behalf of itself and the
Lenders and the Collateral Agent
By: /s/ Xxxx Xxxxx
---------------------------------------
Name: Xxxx Xxxxx
---------------------------------------
Title: Vice President
---------------------------------------
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Securitization Trustee
By: /s/ Xxxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
-------------------------------------
Title: Vice President
---------------------------------------
CONN CREDIT CORPORATION, INC.,
as a Borrower
By: /s/ Xxxxx X. Xxxxx
---------------------------------------
Name: Xxxxx X. Xxxxx
---------------------------------------
Title: Treasurer
------------------------------------
S-1 Intercreditor Agreement
CONN CREDIT I, L.P.,
as a Borrower
By: Conn Credit Corporation, Inc.,
general partner
By: /s/ Xxxxx X. Xxxxx
---------------------------------------
Name: Xxxxx X. Xxxxx
---------------------------------------
Title: Treasurer
------------------------------------
CONN APPLIANCES, INC.,
as the Initial Servicer and a Borrower
By: /s/ Xxxxx X. Xxxxx
---------------------------------------
Name: Xxxxx X. Xxxxx
---------------------------------------
Title: Treasurer
------------------------------------
S-2 Intercreditor Agreement
Acknowledged and
Agreed to with respect to Section 21
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Back-Up Servicer
By: /s/ Xxxxxxxx X. Xxxxxxxx
------------------------
Name: Xxxxxxxx X. Xxxxxxxx
---------------------
Title: Vice President
---------------------
S-3 Intercreditor Agreement
