SECOND AMENDMENT TO SERVICING AGREEMENT
THIS SECOND AMENDMENT TO SERVICING AGREEMENT, dated as of November 28, 2005
(this "Amendment"), is among:
(i) CONN FUNDING II, L.P., as the Issuer (the "Issuer");
(ii) CAI, L.P., as the Servicer (the "Servicer"); and
(iii) XXXXX FARGO BANK, NATIONAL ASSOCIATION (successor by merger to Xxxxx
Fargo Bank Minnesota, National Association), as the Trustee (the
"Trustee").
BACKGROUND
A. Reference is made to (i) the Servicing Agreement, dated as of
September 1, 2002, among the Issuer, the Servicer and the Trustee (as amended,
restated, supplemented or otherwise modified through the date hereof, the
"Agreement"), (ii) the Base Indenture, dated as of September 1, 2002, between
the Issuer and the Trustee (the "Base Indenture"), (iii) the Series 2002-A
Supplement, dated as of September 1, 2002, between the Issuer and the Trustee
(the "2002-A Supplement") and (iv) the Series 2002-B Supplement, dated as of
September 1, 2002, between the Issuer and the Trustee (the "2002-B Supplement")
(each of the Base Indenture, the 2002-A Supplement and the 2002-B Supplement, as
amended, restated, supplemented or otherwise modified through the date hereof,
and collectively, the "Indenture"). Capitalized terms used herein but not
otherwise defined herein have the meanings assigned thereto in the Agreement or
the Indenture.
B. As a result of (i) the displacement of the employees from the offices
of the Servicer caused by Hurricane Xxxx and the aftermath of such hurricane and
displacement and (ii) the unavailability of the auditors of the Servicer to
deliver certain reports within the time required under Section 2.02(e)(i) of the
Agreement, the Issuer, the Servicer, and the Trustee desire to amend the
Agreement as hereinafter set forth.
C. Pursuant to Section 7.01(b) of the Agreement, this Amendment requires
the consent of the Required Persons of each outstanding Series.
D. The Issuer and the Required Persons under the 2002-A Supplement have
determined that this Amendment is not material within the meaning of Section 7.3
of the Note Purchase Agreement, dated as of September 13, 2002, as amended,
restated, supplemented or otherwise modified through the date hereof, among the
Issuer, Conn Appliances, Inc., the Servicer, Three Pillars Funding LLC (f/k/a
Three Pillars Funding Corporation) and SunTrust Capital Markets, Inc.
("SunTrust").
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Amendment to the Agreement. The first sentence of Section
2.02(e)(i) of the Agreement is hereby amended by inserting the following
parenthetical immediately following the date "July 31" therein:
(but solely with respect to 2005, on or before December 15)
SECTION 2. Conditions to Effectiveness. This Amendment shall become
effective as of the date hereof upon the execution and delivery to the Trustee
of this Amendment by each of the parties hereto, SunTrust and the Required
Persons of each outstanding Series (whether by facsimile or otherwise).
SECTION 3. Representations and Warranties. Each of the Issuer and Servicer
represents and warrants upon and as of the effectiveness of this Amendment that:
(a) no event or condition has occurred and is continuing which would
constitute a Servicer Default or would constitute a Servicer Default but for the
requirement that notice be given or time elapsed or both; and
(b) after giving effect to this Amendment, its representations and
warranties set forth in the Agreement and the other Transaction Documents to
which it is a party are true and correct as of the date hereof, as though made
on and as of such date (except to the extent such representations and warranties
relate solely to an earlier date and then as of such earlier date), and such
representations and warranties shall continue to be true and correct (to such
extent) after giving effect to the transactions contemplated hereby.
SECTION 4. Effect of Amendment; Ratification. Except as specifically
amended hereby, the Agreement is hereby ratified and confirmed in all respects,
and all of its provisions shall remain in full force and effect. After this
Amendment becomes effective, all references in the Agreement (or in any other
Transaction Document) to "the Servicing Agreement", "this Agreement", "hereof",
"herein", or words of similar effect, in each case referring to the Agreement,
shall be deemed to be references to the Agreement as amended hereby. This
Amendment shall not be deemed to expressly or impliedly waive, amend, or
supplement any provision of the Agreement other than as specifically set forth
herein.
SECTION 5. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties on separate counterparts, and each
counterpart shall be deemed to be an original, and all such counterparts shall
together constitute but one and the same agreement.
SECTION 6. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the internal laws of the State of New York without
regard to any otherwise applicable conflict of laws principles (other than
Section 5-1401 of the New York General Obligations Law).
SECTION 7. Successors and Assigns. This Amendment shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns.
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SECTION 8. Section Headings. The various headings of this Amendment are
inserted for convenience only and shall not affect the meaning or interpretation
of this Amendment or the Agreement or any provision hereof or thereof.
[REMAINDER OF PAGE INTENTIONALLY BLANK; SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first written above.
CONN FUNDING II, L.P., as Issuer
By: Conn Funding II GP, L.L.C.,
its general partner
By:/s/ Xxxxx X. Xxxxx
---------------------------------------------
Name:
Title:
CAI, L.P., as Servicer
By: Conn Appliances, Inc.,
its general partner
By:/s/ Xxxxx X. Xxxxx
---------------------------------------------
Name:
Title:
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, not in its individual
capacity, but solely as Trustee
By:/s/ Xxxxxxxx Xxxxxxxx
---------------------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Vice President
ACCEPTED AND AGREED:
SUNTRUST CAPITAL MARKETS, INC.
By:/s/ Xxxxxxx Xxxx
---------------------------------------------
Name: Xxxxxxx Xxxx
Title: Managing Director
ACCEPTED AND AGREED:
THREE PILLARS FUNDING LLC, as a Series
2002-A Noteholder
By:/s/ Xxxxx X. Xxxxx
---------------------------------------------
Title: Vice President
ACCEPTED AND AGREED:
SunAmerica Life Insurance Company,
----------------------------------
as a Series 2002-B, Class A Noteholder
By: AIG Global Investment Corp.,
Invest adviser
By:/s/ Xxxxxx Xxxxxxx
---------------------------------------------
Title: Managing Director
outstanding principal amount of
Note:$25,000,000
ACCEPTED AND AGREED:
AIG SunAmerica Life Assurance Company
-------------------------------------
(f/k/a & d/b/a Anchor National Life Insurance
---------------------------------------------
Company),
---------
as a Series 2002-B, Class A Noteholder
By: AIG Global Investment Corp.,
Invest adviser
By:/s/ Xxxxxx Xxxxxxx
---------------------------------------------
Title: Managing Director
outstanding principal amount of
Note:$20,000,000
ACCEPTED AND AGREED:
First SunAmerica Life Insurance Company,
----------------------------------------
as a Series 2002-B, Class A Noteholder
By: AIG Global Investment Corp.,
Invest adviser
By:/s/ Xxxxxx Xxxxxxx
---------------------------------------------
Title: Managing Director
outstanding principal amount of
Note:$20,000,000
ACCEPTED AND AGREED:
ING Life Insurance and Annuity Company,
---------------------------------------
as a Series 2002-B, Class A Noteholder
By ING Investment Management LLC,
As Agent
By: /s/Xxxxx Xxxxx
---------------------------------------------
Title: Senior Vice President
outstanding principal amount of
Note:$11,000,000
ACCEPTED AND AGREED:
ING USA Annuity and Life Insurance Company,
-------------------------------------------
as a Series 2002-B, Class A Noteholder
By: ING Investment Management LLC,
As Agent
By: /s/ Xxxxx Xxxxx
---------------------------------------------
Title: Senior Vice President
outstanding principal amount of
Note:$17,000,000
ACCEPTED AND AGREED:
New York Life Insurance Company,
--------------------------------
as a Series 2002-B, Class A Noteholder
By:/s/ Xxxxxxxx X. Xxxx
---------------------------------------------
Title: Investment Vice President
outstanding principal amount of
Note:$2,857,143
ACCEPTED AND AGREED:
New York Life Insurance and Annuity Corporation
-----------------------------------------------
By: New York Life Investment Management LLC,
--------------------------------------------
Its investment manager,
-------------------------------
as a Series 2002-B, Class A Noteholder
By:/s/ Xxxxxxxx X. Xxxx
---------------------------------------------
Title: Director
outstanding principal amount of
Note:$7,142,857
ACCEPTED AND AGREED:
LaSalle Bank, N.A. as Trustee for
------------------------------------------------
ACA ABS 220-1, Ltd. ,
------------------------------------------------
as a Series 2002-B, Class B Noteholder
By:/s/Xxxxxxx Xxxxxx
---------------------------------------------
Title: Assistant Vice President
outstanding principal amount of
Note:$3,000,000
ACCEPTED AND AGREED:
SunAmerica Life Insurance Company,
----------------------------------
as a Series 2002-B, Class B Noteholder
By: AIG Global Investment Corp.,
Invest adviser
By:/s/ Xxxxxx Xxxxxxx
---------------------------------------------
Title: Managing Director
outstanding principal amount of
Note:$10,000,000
ACCEPTED AND AGREED:
ING Life Insurance and Annuity Company,
---------------------------------------
as a Series 2002-B, Class B Noteholder
By: ING Investment Management LLC,
As Agent
By: /s/Xxxxx Xxxxx
---------------------------------------------
Title: Senior Vice President
outstanding principal amount of
Note:$5,000,000
ACCEPTED AND AGREED:
ING USA Annuity and Life Insurance Company,
-------------------------------------------
as a Series 2002-B, Class B Noteholder
By: ING Investment Management LLC,
As Agent
By: /s/Xxxxx Xxxxx
---------------------------------------------
Title: Senior Vice President
outstanding principal amount of
Note:$7,000,000
ACCEPTED AND AGREED:
United of Omaha Life Insurance Company,
---------------------------------------
as a Series 2002-B, Class B Noteholder
By:/s/ Xxxxx X. Xxxxx
---------------------------------------------
Title: Vice President
outstanding principal amount of
Note:$18,000,000
ACCEPTED AND AGREED:
Companion Life Insurance Company,
---------------------------------
as a Series 2002-B, Class B Noteholder
By:/s/ Xxxxx X. Xxxxx
---------------------------------------------
Title: Vice President
outstanding principal amount of
Note:$2,778,000
ACCEPTED AND AGREED:
New York Life Insurance Company,
--------------------------------
as a Series 2002-B, Class B Noteholder
By:/s/ Xxxxxxxx X. Xxxx
---------------------------------------------
Title: Investment Vice President
outstanding principal amount of
Note:$2,571,429
ACCEPTED AND AGREED:
New York Life Insurance and Annuity Corporation
------------------------------------------------
By: New York Life Investment Management, LLC,
------------------------------------------------
Its investment manager,
--------------------------------
as a Series 2002-B, Class B Noteholder
By:/s/ Xxxxxxxx X. Xxxx
---------------------------------------------
Title: Director
outstanding principal amount of
Note:$6,428,571
ACCEPTED AND AGREED:
New York Life Insurance Company,
--------------------------------
as a Series 2002-B, Class C Noteholder
By:/s/ Xxxxxxxx X. Xxxx
---------------------------------------------
Title: Investment Vice President
outstanding principal amount of
Note:$571,428
ACCEPTED AND AGREED:
New York Life Insurance and Annuity Corporation
------------------------------------------------
By: New York Life Investment Management, LLC,
------------------------------------------------
Its investment manager,
--------------------------------
as a Series 2002-B, Class C Noteholder
By:/s/ Xxxxxxxx X. Xxxx
---------------------------------------------
Title: Director
outstanding principal amount of
Note:$1,428,572
ACCEPTED AND AGREED:
NYLIM Stratford CDO 2001-1
--------------------------
By: New York Life Investment Management LLC,
--------------------------------------------
In its capacity as Collateral Manager
-------------------------------------
as a Series 2002-B, Class C Noteholder
By:/s/ Xxxxxx Xxxxxxxxxx
---------------------------------------------
Title: Managing Director
outstanding principal amount of
Note:$4,000,000
