AMENDMENT NO. 4 TO SECOND AMENDED AND RESTATED NOTE PURCHASE AGREEMENT
Exhibit
10.2
AMENDMENT
NO. 4 TO SECOND AMENDED AND RESTATED
This
AMENDMENT NO. 4 TO SECOND AMENDED AND RESTATED NOTE PURCHASE AGREEMENT (this
“Amendment”),
dated to be effective as of February 26, 2010 (the “Effective Date”) is
made among CONN FUNDING II, L.P. (the “Issuer”), CONN
APPLIANCES, INC. (“Conn Appliances”),
THREE PILLARS FUNDING LLC (f/k/a Three Pillars Funding Corporation), JPMORGAN
CHASE BANK, N.A., PARK AVENUE RECEIVABLES COMPANY, LLC and SUNTRUST XXXXXXXX
XXXXXXXX, INC. Capitalized terms used and not otherwise defined in
this Amendment are used as defined in that certain Base Indenture, dated as of
September 1, 2002, as amended from time to time, between the Issuer and the
Xxxxx Fargo Bank, National Association (as successor to Xxxxx Fargo Bank
Minnesota, National Association), as Trustee (the “Trustee”) or, if not
defined therein, in that certain Amended and Restated Series 2002-A Supplement,
dated as of September 10, 2007, as amended from time to time, between the
Issuer and the Trustee.
Background
A. The
parties hereto have entered into the Second Amended and Restated Note Purchase
Agreement, dated as of August 14, 2008, among the parties hereto (as
amended from time to time, the “Note Purchase
Agreement”) to finance the purchase of Receivables by the Issuer from
Conn Appliances, Inc.
B. The
parties hereto wish to amend the Note Purchase Agreement.
C. The
parties hereto are willing to agree to such an amendment, all as set out in this
Amendment.
Agreement
1. Amendments to the Note Purchase
Agreement. The Note Purchase Agreement is hereby amended as
follows:
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(a)
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Section 7.6(a)
of the Note Purchase Agreement is hereby amended by replacing the words
(i) “March 12, 2010” in each and every place where such words appear in
that Section with the words “April 12, 2010” and (ii) “February 28, 2010”
in each and every place where such words appears in that Section with the
words “March 31, 2010.”
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(b)
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Section 7.6(c)
of the Note Purchase Agreement is hereby amended and restated in its
entirety as follows:
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The
Issuer hereby agrees that it shall, and shall cause the Seller, the
Servicer, Xxxxx Fargo Bank, National Association (f/k/a Xxxxx Fargo Bank
Minnesota, National Association), as back-up servicer (the “Back-Up
Servicer”) and the Trustee, and shall obtain all other
consents necessary to, enter into amendments to one or more Transaction
Documents (including, without limitation, the Note Purchase Agreement, the
Series Supplement and, if necessary, the Back-Up Servicing Agreement) and
letter agreements (each such amendment and letter agreement, a “Restructuring
Amendment”, and collectively, the “Restructuring
Amendments”) on or prior to March 12, 2010, which shall provide
for, among other things, (i) the payment to or the agreement to pay to the
Administrator and the Funding Agent (or their designees) of structuring
and other fees by the Seller, as determined by the Administrator and the
Funding Agent, (ii) a reduction in each of the Commitment and the tenor of
the Notes and an increase in the interest rate applicable to the Notes,
each as required by the Administrator and the Funding Agent, (iii) the
addition or modification of financial covenants, (iv) the procurement
of a rating on the Notes at the request of the Administrator or the
Funding Agent, (v) the addition of certain independent manager
covenants, (vi) reports to be delivered by the Servicer regarding Obligor
address verification and the expected effect of reducing or eliminating
in-store payments by Obligors and (vii) such other terms as the
Administrator or the Funding Agent shall request, in each case in form and
substance satisfactory to the Administrator and the Funding Agent (it
being understood and agreed that none of the Administrator, the Funding
Agent, the Conduit Purchaser, the Committed Purchaser, Three Pillars nor
any Noteholder shall have any obligation whatsoever to enter into any
Restructuring Amendment). For the avoidance of doubt, each of
the parties hereto hereby acknowledges and agrees that any failure by any
party to execute (or, if required, consent to) the Restructuring
Amendments, in form and substance satisfactory to the Administrator and
the Funding Agent or any failure of such Restructuring Amendments to
become effective on or prior to March 12, 2010 shall constitute a “Series
2002-A Payout Event” as set forth in Section 9(a)(ii) of the Series
Supplement.
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2. Representations and Warranties; No
Default.
(a) Each
of the Issuer and Conn Appliances, as Seller and as Servicer, hereby represents
and warrants as of the effectiveness of this Amendment that:
(i) as
of the Effective Date and as of the date of this Amendment is executed, no event
or condition has occurred and is continuing which would constitute a Event of
Default, Pay Out Event, Servicer Default or Block Event; and
(ii) its
representations and warranties set forth in the Note Purchase Agreement (as
amended hereby) and the other Transaction Documents are true and correct as of
the Effective Date and as of the date this Amendment is executed, 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.
(b) The
Administrator, on behalf of Three Pillars, and the Funding Agent, on behalf of
PARCO and the Committed Purchaser, hereby represent and warrant that together
that they own 100% of the Notes.
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3. Effectiveness; Binding Effect;
Ratification.
(a) This
Amendment shall become effective as of the Effective Date and binding on the
parties hereto and their respective successors and assigns upon receipt by the
Administrator and the Funding Agent of (i) executed counterparts hereof from
each of the parties hereto and (ii) the fees and reasonable expenses of the
Administrator and the Funding Agent (including fees of counsel) incurred in
connection with the negotiation, execution and delivery of this
Amendment.
(b) On
and after the execution and delivery hereof, this Amendment shall be a part of
the Note Purchase Agreement as of the Effective Date and each reference in the
Note Purchase Agreement to “this Note Purchase Agreement” or “hereof”,
“hereunder” or words of like import, and each reference in any other Transaction
Document to the Note Purchase Agreement shall mean and be a reference to such
Note Purchase Agreement as amended hereby.
(c) Except
as expressly amended hereby, the Note Purchase Agreement shall remain in full
force and effect and is hereby ratified and confirmed by the parties
hereto.
4. Miscellaneous. i) THIS
AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS. EACH OF THE PARTIES TO THIS AMENDMENT AGREES TO THE
NON-EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK AND ANY APPELLATE COURT HAVING JURISDICTION TO REVIEW THE
JUDGMENTS THEREOF. EACH OF THE PARTIES HERETO HEREBY WAIVES ANY
OBJECTION BASED ON FORUM NON
CONVENIENS AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER
IN ANY OF THE AFOREMENTIONED COURTS AND CONSENTS TO THE GRANTING OF SUCH LEGAL
OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT.
(b) All
reasonable costs and expenses incurred by the Conduit Purchasers, the
Administrator, the Funding Agent and the Committed Purchaser in connection with
this Amendment (including reasonable attorneys’ costs) shall be paid by the
Issuer.
(c) Headings
used herein are for convenience of reference only and shall not affect the
meaning of this Amendment.
(d) This
Amendment may be executed in any number of counterparts, and by the parties
hereto on separate counterparts, each of which shall be an original and all of
which taken together shall constitute one and the same agreement.
(e) In
case any provision in this Amendment shall be held by a court of competent
jurisdiction to be invalid, illegal or unenforceable, this Amendment shall be
and shall be deemed to be void ab initio and unenforceable
in its entirety.
[Signature Page
Follows]
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IN
WITNESS WHEREOF, the parties have caused this Amendment to be executed by their
respective officers thereunto duly authorized this 5th day of March,
2010.
CONN
FUNDING II, L.P., as Issuer
By: Conn
Funding II GP, L.L.C., its general partner
By:
/s/ Xxxxx
X.
Xxxxx
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Name:
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Xxxxx
X. Xxxxx
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Title:
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Treasurer
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CONN
APPLIANCES, INC.
By:
/s/ Xxxxxxx X.
Xxxxx
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Name:
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Xxxxxxx
X. Xxxxx
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Title:
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Chief
Financial Officer
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S-1
THREE
PILLARS FUNDING LLC,
as a
Conduit Purchaser
By: /s/ Xxxxx X.
Xxxxx
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Name:
Xxxxx X. Xxxxx
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Title:
Vice President
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SUNTRUST
XXXXXXXX XXXXXXXX, INC.,
as
Administrator
By: /s/ Xxxxxx X.
Xxxxxx
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Name:
Xxxxxx X. Xxxxxx
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Title:
Director
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JPMORGAN
CHASE BANK, N.A., as Committed
Purchaser
and Funding Agent
By: /s/ Xxxxx
Xxxxxxxx
Name
Xxxxx Xxxxxxxx
Title
Vice President
PARK
AVENUE RECEIVABLES COMPANY LLC,
as a
Conduit Purchaser
By:
JPMorgan Chase Bank, N.A.,
its
attorney-in-fact
By: /s/ Xxxxx
Xxxxxxxx
Name
Xxxxx Xxxxxxxx
Title
Vice President
S-3
