EXHIBIT 10.12.4
AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED
NOTE PURCHASE AGREEMENT
This AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED NOTE PURCHASE
AGREEMENT, dated as of August 28, 2008 (this "Amendment") is made among CONN
FUNDING II, L.P. (the "Issuer"), CONN APPLIANCES, INC., THREE PILLARS FUNDING
LLC (f/k/a Three Pillars Funding Corporation), JPMORGAN CHASE BANK, N.A., PARK
AVENUE RECEIVABLES COMPANY, LLC and SUNTRUST ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, 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 ▇▇▇▇▇ Fargo Bank, National Association
(successor by merger to ▇▇▇▇▇ 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 of the Note Purchase Agreement.
(a) Section 1 of the Note Purchase Agreement is hereby amended by
amending and restating the following definition in its entirety:
"Fee Letters" means each of the following letter agreements:
(i) that certain Third Amended and Restated Fee Letter, dated as of
August 28, 2008, as amended from time to time, between the Issuer and
the Administrator setting forth certain fees payable by the Issuer in
connection with the purchase of Notes by the Administrator for the
benefit of Three Pillars and (ii) that certain Amended and Restated Fee
Letter, dated as of August 28, 2008, as amended from time to time,
between the Issuer and the Funding Agent setting forth certain fees
payable by the Issuer in connection with the purchase of Notes by the
Funding Agent for the benefit of PARCO.
(b) Section 1 of the Note Purchase Agreement is hereby amended by
amending and restating the following definition in its entirety:
"Tranche A Purchase Expiration Date" means the earlier of (i)
August 13, 2009 (as such date may be extended from time to time
pursuant to Section 2.4) and (ii) the date of the occurrence of an
Event of Default, Payout Event or Servicer Default.
(c) The first sentence of Section 7.8 of the Note Purchase Agreement is
hereby amended and restated in its entirety as follows:
The Issuer and the Seller hereby agree to promptly notify the
Administrator, Funding Agent and each Rating Agency then rating any
outstanding Series of the Issuer of any amendment or modification to
the transaction documents related to the ABL Facility.
(d) The Note Purchase Agreement is hereby amended by adding the
following section to the end of Article X thereof:
SECTION 10.15 Tax Disclosure. Notwithstanding any other express or
implied agreement to the contrary, the parties agree and acknowledge
that each of them and each of their employees, representatives, and
other agents may disclose to any and all persons, without limitation of
any kind, the tax treatment and tax structure of the transaction and
all materials of any kind (including opinions or other tax analyses)
that are provided to any of them relating to such tax treatment and tax
structure, except to the extent that confidentiality is reasonably
necessary to comply with U.S. federal or state securities laws. For
purposes of this paragraph, the terms "tax treatment" and "tax
structure" have the meanings specified in Treasury Regulation section
1.6011-4(c).
2. Binding Effect; Ratification. This Amendment shall become effective,
as of the date first set forth above, (i) upon receipt by the Funding Agent and
the Administrator of the Fees due and payable as of the date hereof pursuant to
the Fee Letters (as defined above) and (ii) when the Administrator shall have
received counterparts hereof and thereafter shall be binding on the parties
hereto and their respective successors and assigns.
(a) On and after the execution and delivery hereof, this Amendment
shall be a part of the Note Purchase Agreement 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.
(b) 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.
3. Miscellaneous. (a) 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.
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(b) Headings used herein are for convenience of reference only and
shall not affect the meaning of this Amendment.
(c) 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.
[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, as of the date
first above written.
CONN FUNDING II, L.P., as Issuer
By: Conn Funding II GP, L.L.C., its general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
CONN APPLIANCES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
S-1 Amendment No. 1 to
2nd A&R Note Purchase Agreement
THREE PILLARS FUNDING LLC,
as a Conduit Purchaser
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
SUNTRUST ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, INC.,
as Administrator
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
S-2 Amendment No. 1 to
2nd A&R Note Purchase Agreement
JPMORGAN CHASE BANK, N.A., as a Committed Purchaser
and Funding Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
PARK AVENUE RECEIVABLES COMPANY LLC, as a Conduit
Purchaser
By: JPMorgan Chase Bank, N.A.,
its attorney-in-fact
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
S-3 Amendment No. 1 to
2nd A&R Note Purchase Agreement