SECOND AMENDMENT TO CREDIT AGREEMENT
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THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is made
and entered into effective as of March 26, 2008 by and among CONN APPLIANCES,
INC., a Texas corporation ("CAI") and CAI CREDIT INSURANCE AGENCY, INC., a
Louisiana corporation ("Louisiana Insurance Company") (CAI and Louisiana
Insurance Company being herein collectively called "Borrowers"); each of the
Lenders which is or may from time to time become a party to the Credit Agreement
(as defined below) (individually, a "Lender" and, collectively, the "Lenders"),
and JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, acting as administrative agent
for the Lenders (in such capacity, together with its successors in such
capacity, the "Administrative Agent").
RECITALS
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A. The Borrowers, the Lenders and the Administrative Agent executed and
delivered that certain Credit Agreement dated as of October 31, 2005, as amended
by instrument dated as of August 28, 2006. Said Credit Agreement, as amended,
supplemented and restated, is herein called the "Credit Agreement". Any
capitalized term used in this Amendment and not otherwise defined shall have the
meaning ascribed to it in the Credit Agreement.
B. The Borrowers, the Lenders and the Administrative Agent desire to
amend the Credit Agreement in certain respects.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements, representations and warranties herein set forth, and further good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Borrowers, the Lenders and the Administrative Agent do hereby
agree as follows:
SECTION 1. Amendments to Credit Agreement.
(a) The definition of "Base Rate Margin" set forth in Section 1.01 of
the Credit Agreement is hereby amended to read in its entirety as follows:
"Base Rate Margin" means, with respect to any ABR Loan, the
applicable margin set forth below under the caption "Base Rate Margin,"
based upon the ratio of (i) the sum of (x) Consolidated Total Debt
(exclusive of the undrawn face amounts of the Collection Account
Letters of Credit, the undrawn face amounts of the Bank of America
Letters of Credit and the undrawn face amounts of the Letters of Credit
issued under this Agreement) plus (y) eight times Consolidated Rent
Expense divided by (ii) Consolidated EBITDA plus Consolidated Rent
Expense, as determined quarterly on a rolling four quarter basis
Ratio Base Rate Margin
----- ----------------
x => 2.75 0.75%
2.25 => x < 2.75 0.50%
x < 2.25 0.25%
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For purposes of the foregoing, each change in the Base Rate Margin
resulting from a change in the above described ratio shall be effective
during the period commencing on and including the date of delivery to
the Administrative Agent of the consolidated financial statements
indicating such change and ending on the date immediately preceding the
effective date of the next such change.
(b) The definition of "Commitment Fee Rate" set forth in Section 1.01
of the Credit Agreement is hereby amended to read in its entirety as follows:
"Commitment Fee Rate" means, with respect to the commitment
fees payable hereunder, the applicable fee rate as set forth below
under the caption "Commitment Fee," based upon the ratio of (i) the sum
of (x) Consolidated Total Debt (exclusive of the undrawn face amounts
of the Collection Account Letters of Credit, the undrawn face amounts
of the Bank of America Letters of Credit and the undrawn face amounts
of the Letters of Credit issued under this Agreement) plus (y) eight
times Consolidated Rent Expense divided by (ii) Consolidated EBITDA
plus Consolidated Rent Expense, as determined quarterly on a rolling
four quarter basis
Ratio Commitment Fee Rate
----- -------------------
x => 2.75 0.375%
2.25 => x < 2.75 0.300%
1.75 => x < 2.25 0.250%
1.25 => x < 1.75 0.225%
x < 1.25 0.200%
For purposes of the foregoing, each change in the Commitment Fee Rate
resulting from a change in the above described ratio shall be effective
during the period commencing on and including the date of delivery to
the Administrative Agent of the consolidated financial statements
indicating such change and ending on the date immediately preceding the
effective date of the next such change.
(c) The definition of "LIBOR Margin" set forth in Section 1.01 of the
Credit Agreement is hereby amended to read in its entirety as follows:
"LIBOR Margin" means, with respect to any Eurodollar Loan, the
applicable margin set forth below under the caption "LIBOR Margin,"
based upon the ratio of (i) the sum of (x) Consolidated Total Debt
(exclusive of the undrawn face amounts of the Collection Account
Letters of Credit, the undrawn face amounts of the Bank of America
Letters of Credit and the undrawn face amounts of the Letters of Credit
issued under this Agreement) plus (y) eight times Consolidated Rent
Expense divided by (ii) Consolidated EBITDA plus Consolidated Rent
Expense, as determined quarterly on a rolling four quarter basis
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Ratio LIBOR Margin
----- ------------
x => 2.75 2.00%
2.25 => x < 2.75 1.75%
1.75 => x < 2.25 1.50%
1.25 => x < 1.75 1.25%
x < 1.25 1.00%
For purposes of the foregoing, each change in the LIBOR Margin
resulting from a change in the above described ratio shall be effective
during the period commencing on and including the date of delivery to
the Administrative Agent of the consolidated financial statements
indicating such change and ending on the date immediately preceding the
effective date of the next such change.
(d) Schedule 2.02 of the Credit Agreement is hereby amended to be
identical to Schedule 2.02 attached hereto.
SECTION 2. Conditions. No part of this Amendment shall become effective
until the Borrowers shall have delivered (or shall have caused to be delivered)
to the Administrative Agent each of the following:
(i) certificates dated as of the date hereof of the Secretary or any
Assistant Secretary of each of the Borrowers authorizing the execution, delivery
and performance of this Amendment and each other applicable Loan Document and
certifying to the current organizational documents for the Borrowers, and such
other related documents and information as the Administrative Agent may
reasonably request;
(ii) an opinion of counsel for the Borrowers covering such matters
related to this Amendment and the other Loan Documents as the Administrative
Agent may reasonably request;
(iii) payment to the Lenders of amendment fees equal to 0.125% of the
amount (if any) by which each Lender's allocated Revolving Loan Commitment is
increased by reason of this Amendment; and
(iv) new Revolving Notes evidencing the Revolving Loan Commitments,
duly executed by the Borrowers.
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SECTION 3. Ratification. Except as expressly amended by this Amendment,
the Credit Agreement and the other Loan Documents shall remain in full force and
effect. None of the rights, title and interests existing and to exist under the
Credit Agreement are hereby released, diminished or impaired, and the Borrowers
hereby reaffirm all covenants, representations and warranties in the Credit
Agreement.
SECTION 4. Expenses. The Borrowers shall pay to the Administrative
Agent all reasonable fees and expenses of Administrative Agent's legal counsel
incurred in connection with the execution of this Amendment.
SECTION 5. Certifications. The Borrowers hereby certify that (a) no
event or condition has occurred or arisen since the Effective Date which has had
a Material Adverse Effect and (b) no Default or Event of Default has occurred
and is continuing or will occur as a result of this Amendment.
SECTION 6. Miscellaneous. This Amendment (a) shall be binding upon and
inure to the benefit of the Borrowers, the Lenders and the Administrative Agent
and their respective successors, assigns, receivers and trustees; (b) may be
modified or amended only by a writing signed by the required parties; (c) shall
be governed by and construed in accordance with the laws of the State of Texas
and the United States of America; (d) may be executed in several counterparts by
the parties hereto on separate counterparts, and each counterpart, when so
executed and delivered either in original form or by telecopy, shall constitute
an original agreement, and all such separate counterparts shall constitute but
one and the same agreement and (e) together with the other Loan Documents,
embodies the entire agreement and understanding between the parties with respect
to the subject matter hereof and supersedes all prior agreements, consents and
understandings relating to such subject matter. The headings herein shall be
accorded no significance in interpreting this Amendment.
NOTICE PURSUANT TO TEX. BUS. & COMM. CODE ss.26.02
THE CREDIT AGREEMENT, AS AMENDED BY THIS AMENDMENT, AND ALL OTHER LOAN
DOCUMENTS EXECUTED BY ANY OF THE PARTIES PRIOR HERETO OR SUBSTANTIALLY
CONCURRENTLY HEREWITH CONSTITUTE A WRITTEN LOAN AGREEMENT WHICH REPRESENTS THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE
NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
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IN WITNESS WHEREOF, the Borrowers, the Lenders and the Administrative
Agent have caused this Amendment to be signed by their respective duly
authorized officers, effective as of the date first above written.
CONN APPLIANCES, INC.,
a Texas corporation
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
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Title: Treasurer
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CAI CREDIT INSURANCE AGENCY, INC.,
a Louisiana corporation
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
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Title: President
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[signature page for Second Amendment to Credit Agreement]
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION, as Administrative Agent and as a
Lender
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Vice-President
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[signature page for Second Amendment to Credit Agreement]
SUNTRUST BANK,
as Documentation Agent and as a Lender
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
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Title: Vice-President
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[signature page for Second Amendment to Credit Agreement]
CAPITAL ONE, N.A.
By: /s/ Xxxxxxx Xxx
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Name: Xxxxxxx Xxx
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Title: President Southeast Texas
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[signature page for Second Amendment to Credit Agreement]
GUARANTY BANK
By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
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Title: Sr. Vice-President
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[signature page for Second Amendment to Credit Agreement]
BANK OF AMERICA, N.A.,
as Syndication Agent and as a Lender
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Sr. Vice-President
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[signature page for Second Amendment to Credit Agreement]
The undersigned Guarantors hereby join in this Amendment to evidence
their consent to execution by Borrower of this Amendment, to confirm that each
Loan Document now or previously executed by the undersigned applies and shall
continue to apply to the Credit Agreement, as amended hereby, to acknowledge
that without such consent and confirmation, Lender would not execute this
Amendment and to join in the notice pursuant to Tex. Bus. & Comm. Code ss.26.02
set forth above.
"GUARANTORS"
CAI HOLDING CO., a Delaware corporation, CONN
APPLIANCES, L.L.C., a Delaware limited
liability company
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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Title: Chief Executive Officer
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CONN'S, INC, a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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Title: Chief Executive Officer
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[signature page for Second Amendment to Credit Agreement]
SCHEDULE 2.02
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REVOLVING COMMITMENTS
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JPMorgan Chase Bank, National Association $22,000,000
SunTrust Bank $20,000,000
Capital One, N.A. $20,000,000
Guaranty Bank $20,000,000
Bank of America, N.A. $18,000,000
TOTAL $100,000,000
