a6181472ex10_1.htm


     

    Exhibit
10.1

     

    
      FIRST
AMENDMENT TO LOAN AND SECURITY AGREEMENT

       

      This FIRST
AMENDMENT TO LOAN AND SECURITY AGREEMENT, dated to be effective as of January
30, 2010 (this “Amendment”) is made
among CONN’S, INC., a Delaware corporation (the “Parent”), CONN
APPLIANCES, INC., a Texas corporation (“CAI”), CONN CREDIT I,
LP, a Texas limited partnership (“CCI”), CONN CREDIT
CORPORATION, INC., a Texas corporation (“CCCI”, together with
CAI and CCI, collectively, “Borrowers”), BANK OF
AMERICA, N.A., a national banking association, individually as a Lender (“BOA”) and as the
administrative agent for the Lenders party to the Loan Agreement (as defined
below) (in such latter capacity, together with any other Person who becomes
Administrative Agent pursuant to Section 12.8 thereof,
the “Agent”)
and the banks and other financial institutions listed on the signature pages
hereof under the caption “Lenders” (together
with BOA, collectively, the “Lenders”).

       

      Background

       

      A.           The
Parent, the Borrowers, the Agent and the Lenders have entered into a Loan and
Security Agreement, dated as of August 14, 2008, (as amended, modified or
supplemented from time to time, the “Loan
Agreement”).  All capitalized terms used and not otherwise
defined in this Amendment are used as defined in the Loan
Agreement.

       

      B.           The
parties hereto wish to amend the certain terms of the Loan
Agreement.

       

      NOW
THEREFORE, in consideration of the premises and the mutual agreements,
representations and warranties herein set forth and for other good and valuable
consideration, the Parent, the Borrowers, the Agent and the Lenders hereto
hereby agree as follows:

       

      Agreement

       

      1. Amendment to the Loan
Agreement.

       

      (a) The term
“EBITDAR” as defined in Section 1.1 of the Loan Agreement is hereby deleted in
its entirety and the following is substituted therefor:

       

      “EBITDAR: determined
on a consolidated basis for Parent and its Subsidiaries for any date of
determination on a trailing 12 month basis, net income, calculated before
interest expense, provision for income taxes, depreciation and amortization
expense, stock based compensation, book rent expense, gains or losses arising
from the sale of capital assets, any extraordinary gains or losses (in each
case, to the extent included in determining net income), and any fair value
adjustments, and reduced on a Fiscal Quarter basis or such other determination
date to
the extent the Borrowers’ recorded loss reserve measured as of the end of any
Fiscal Quarter or such other determination date is less than the EBITDAR Loss
Reserve measured as of the end of the same Fiscal Quarter or such other
determination date.”

       

      (b) The term
“Fixed Charge Coverage Ratio” as defined in Section 1.1 of the Loan Agreement is
hereby deleted in its entirety and the following is substituted
therefor:

       

      
        
          
          

        

        
          1

          
            

          

        

        
          
          

        

      

       

      “Fixed Charge Coverage
Ratio: the ratio, determined on a consolidated basis for Parent and its
Subsidiaries for the most recent four Fiscal Quarters (except with respect to
the first determination for the purpose of calculating the covenant set forth in
Section 10.3.1, which
shall be determined on a trailing twelve month basis as of February 28, 2010),
of (a) EBITDAR minus unfinanced Net
Capital Expenditures, to (b) Fixed Charges.”

       

      (c) The term
“Leverage Ratio” as defined in Section 1.1 of the Loan Agreement is hereby
deleted in its entirety and the following is substituted therefor:

       

      “Leverage Ratio: the
ratio, determined as of the end of any Fiscal Quarter for the Parent and its
Subsidiaries, (except with respect to the first determination, which shall be
determined as of February 28, 2010), of (a) the sum of (i) Borrowed Money (other
than Contingent Obligations) as of the last day of such quarter or such other
determination date, and (ii) the product of 8 multiplied by the
trailing 12 month book rent expense for such Fiscal Quarter or such other
determination date, to (b) EBITDAR for such Fiscal Quarter or such other
determination date.”

       

      (d) Section
10.3.1 of the Loan Agreement is hereby deleted in its entirety and the following
is substituted therefor:

       

      10.3.1           Minimum Fixed Charge
Coverage Ratio.  Maintain Fixed Charge Coverage Ratio at least
equal to 1.30:1.00 measured monthly on the last day of the month for the month
ending February 28, 2010 and thereafter measured quarterly as of the last day of
each Fiscal Quarter, in each case on a trailing twelve month basis.

       

      (e) Section
10.3.2 of the Loan Agreement is hereby deleted in its entirety and the following
is substituted therefor:

       

      10.3.2
Maximum Leverage
Ratio.  Maintain a Leverage Ratio not greater than the ratio
set forth below for each Fiscal Quarter or month, as applicable, during the
specified period, measured as of the last day of each Fiscal Quarter, or month,
as applicable:

       

      
        	
                Period

              	
                Ratio

                 

              
	
                Month
      ending February 28, 2010

              	
                4.00:1.00

              
	
                Fiscal
      Quarter ending April 30, 2010 

                and
      each Fiscal Quarter thereafter

              	
                4.00:1.00

              


      

       

      2. Representations and Warranties; No
Default.  Each of the Parent and the Borrowers, hereby
represents and warrants as of the effectiveness of this Amendment
that:

       

      (i) no Default
or Event of Default exists; and

       

      (ii) its
representations and warranties set forth in Section 9 of the Loan Agreement (as
amended hereby) 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).

       

      
        
          
          

        

        
          2

          
            

          

        

        
          
          

        

      

       

      3. Effectiveness; Binding Effect;
Ratification.  This Amendment shall become effective, as of the
date first set forth above upon receipt by the Agent of executed counterparts
hereof from the Borrowers and each of the  Lenders whose consent is
necessary to amend the Loan Agreement as set forth in this Amendment, and
thereafter this Amendment shall be binding on the Agent, Borrowers and Lenders
and their respective successors and assigns.

       

      (a) On and
after the execution and delivery hereof, this Amendment shall be a part of the
Loan Agreement and each reference in the Loan Agreement to “this Loan Agreement”
or “hereof”, “hereunder” or words of like import, and each reference in any
other Loan Document to the Loan Agreement shall mean and be a reference to such
Loan Agreement as amended hereby.

       

      (b) Except as
expressly amended hereby, the Loan Agreement shall remain in full force and
effect and is hereby ratified and confirmed by the parties hereto.

       

      4. Miscellaneous.  (a)  THIS
AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS.  EACH
OF THE PARTIES TO THIS AMENDMENT AGREES TO THE NON-EXCLUSIVE JURISDICTION OF ANY
FEDERAL OR STATE COURT SITTING IN OR WITH JURISDICTION OVER LOS ANGELES COUNTY,
CALIFORNIA IN ANY PROCEEDING OR DISPUTE RELATING IN ANY WAY TO THIS AMENDMENT OR
ANY LOAN DOCUMENT AND AGREES THAT ANY SUCH PROCEEDING SHALL BE BROUGHT BY IT
SOLELY IN ANY SUCH COURT.  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 Agent in connection with this
Amendment (including reasonable attorneys’ costs) shall be paid by the
Borrowers.

       

      (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.

       

      [Signature
Page Follows]

       

    

     

     

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

    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.

     

    
      
        
          	 
      	
                  PARENT:

                
	 
      	 
      	 
      
	 
      	
                  CONN’S,
      INC.,

                
	 
      	
                  a
      Delaware corporation

                
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                  By:

                	
                  /s/ Michael J. Poppe

                
	 
      	
                  Name:

                	
                  Michael J. Poppe

                
	 
      	
                  Title:

                	
                  Chief Financial Officer

                
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                  BORROWERS:

                
	 
      	 
      	 
      
	 
      	
                  CONN APPLIANCES,
      INC.,

                
	 
      	
                  a
      Texas corporation

                
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                  By:

                	
                  /s/ Michael J. Poppe

                
	 
      	
                  Name:

                	
                  Michael J. Poppe

                
	 
      	
                  Title:

                	
                  Chief Financial Officer

                
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                  CONN
      CREDIT I, LP,

                
	 
      	
                  a
      Texas limited partnership

                
	 
      	 
      	 
      
	 
      	
                  By:

                	
                  Conn
      Credit Corporation, Inc.,

                
	 
      	 
      	
                  a
      Texas corporation,

                
	 
      	 
      	
                  its
      sole general partner

                
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                  By:

                	
                  /s/ Michael J. Poppe

                
	 
      	
                  Name:

                	
                  Michael J. Poppe

                
	 
      	
                  Title:

                	
                  Chief Financial
  Officer

                


        

         

        
          
            
            

          

          
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                  CONN CREDIT CORPORATION,
      INC.,

                
	 
      	
                  a
      Texas corporation

                
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                  By:

                	
                  /s/ Michael J. Poppe

                
	 
      	
                  Name:

                	
                  Michael J. Poppe

                
	 
      	
                  Title:

                	
                  Chief Financial
  Officer

                


           

          
            
              
              

            

            
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                    AGENT AND
      LENDERS:

                  
	 
      	 
      	 
      
	 
      	
                    BANK OF AMERICA,
      N.A.,

                  
	 
      	
                    as
      Agent and Lender

                  
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                    By:

                  	
                    /s/ John Tolle

                  
	 
      	
                    Name:

                  	
                    John Tolle

                  
	 
      	
                    Title:

                  	
                    Vice
President

                  


             

            
              
                
                

              

              
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                      JPMORGAN
      CHASE BANK, NATIONAL ASSOCIATION

                    
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                      By:

                    	
                      /s/ T. C. Wilde

                    
	 
      	
                      Name:

                    	
                      T. C. Wilde

                    
	 
      	
                      Title:

                    	
                      Vice
President

                    


               

              
                
                  
                  

                

                
                  S-4

                  
                    

                  

                

                
                  
                  

                

              

               

              
                	 
      	
                        CAPITAL
      ONE, N.A.

                      
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                        By:

                      	
                        /s/ Lori S. Mitchell

                      
	 
      	
                        Name:

                      	
                        Lori S. Mitchell

                      
	 
      	
                        Title:

                      	
                        Executive Vice
  President

                      


                 

                
                  
                    
                    

                  

                  
                    S-5

                    
                      

                    

                  

                  
                    
                    

                  

                

                 

                
                  	 
      	
                          UNION
      BANK, N.A., formerly known as 

                          UNION
      BANK OF CALIFORNIA, N.A.

                        
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                          By:

                        	
                          /s/ Peter Ehlmger

                        
	 
      	
                          Name:

                        	
                          Peter Ehlmger

                        
	 
      	
                          Title:

                        	
                          Vice
President

                        


                   

                  
                    
                      
                      

                    

                    
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                            COMPASS
      BANK

                          
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                            By:

                          	
                            /s/ Stuart Murray

                          
	 
      	
                            Name:

                          	
                            Stuart Murray

                          
	 
      	
                            Title:

                          	
                            Senior Vice President

                          
	 
      	 
      	 
      
	 
      	 
      	 
      


                  

                

              

            

          

        

      

    

     

     

     

    S-7