a6181472ex10_2.htm


    
       

      Exhibit
10.2

       

      
        


        AMENDMENT
NO. 3 TO SECOND AMENDED AND RESTATED
NOTE
PURCHASE AGREEMENT

         

        


        This
AMENDMENT NO. 3 TO SECOND AMENDED AND RESTATED NOTE PURCHASE AGREEMENT (this
“Amendment”),
dated to be effective as of January 30, 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 ROBINSON
HUMPHREY, 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
Wells Fargo Bank, National Association (as successor to Wells 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.

         

        D. The
parties hereto have determined that the terms and provisions of this Amendment
are not material for purposes of Section 7.3(a) of the Note Purchase
Agreement.

         

        Agreement

         

        1. Amendments to the Note Purchase
Agreement.  The Note Purchase Agreement is hereby amended as
follows:

         

        a.           The
defined term “Leverage Ratio” in Section 1.1 of the
Note Purchase Agreement is hereby amended  and restated as
follows:

         

        “Leverage Ratio” has
the meaning specified in the ABL Agreement as amended by the First Amendment
thereto dated to be effective as of January 30, 2010  (without giving
effect to any future amendment, supplement or other modification to the ABL
Agreement).

         

        b.           The
defined term “Fixed Charge Coverage Ratio” is hereby added to Section 1.1 of the
Note Purchase Agreement:

         

        
          
            
            

          

          
            
            

            
              

            

          

          
            
            

          

        

         

        “Fixed Charge Coverage
Ratio” has the meaning specified in the ABL Agreement as amended by the
First Amendment thereto dated to be effective as of January 30, 2010 (without
giving effect to any future amendment, supplement or other modification to the
ABL Agreement).

         

        c.           The
term “Minimum Fixed Charge Coverage Ratio” in Section 1.1 of the
Note Purchase Agreement is hereby deleted in its entirety.

         

        d.           Section 7.6(a) of the
Note Purchase Agreement is hereby amended and restated in its entirety as
follows:

         

        Parent and Issuer shall cause
Consolidated Parent to, on a consolidated basis with its Subsidiaries, maintain
(i) a 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 and (ii) 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

                


        

        


         

        The Fixed
Charge Coverage Ratio and the Leverage Ratio for the month ending February 28,
2010, shall be calculated and reported to the Administrator and the Funding
Agent by March 12, 2010

         

        e.           Section 7.6 of the
Note Purchase Agreement is hereby amended by adding a new subsection (c) as
follows:

         

        The Issuer hereby agrees that it shall,
and shall cause the Seller, the Servicer, Wells Fargo Bank, National Association
(f/k/a Wells 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 the
Servicing Agreement, as applicable) and the Back-Up Servicing Agreement (as
defined in the Base Indenture) (each such amendment, a “Restructuring
Amendment”, and collectively, the “Restructuring
Amendments”) on or prior to March 5, 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 and (iii) 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 5, 2010 shall
constitute a “Series 2002-A Payout Event” as set forth in Section 9(a)(ii) of
the Series Supplement.

         

        
          
            
            

          

          
            2

            
              

            

          

          
            
            

          

        

         

        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.

        


        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.

         

        
          
            
            

          

          
            3

            
              

            

          

          
            
            

          

        

         

        4. 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.

         

        (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]

         

         

         

         

         

        
          
            
            

          

          
            4

            
              

            

          

          
            
            

          

        

         

        IN WITNESS
WHEREOF, the parties have caused this Amendment to be executed by their
respective officers thereunto duly authorized, as of the Effective
Date.

         

        
          
            
              	 
      	
                      CONN
      FUNDING II, L.P., as Issuer

                    
	 	 
	 
      	
                      By:  Conn
      Funding II GP, L.L.C., its general partner

                    
	 	 
	 
      	
                       

                    	 
      	 
      
	 
      	
                       

                    	
                      By:

                    	
                      /s/ David R. Atnip

                    
	 
      	 
      	
                      Name:

                    	
                      David
      R. Atnip

                    
	 
      	
                       

                    	
                      Title:

                    	
                      Treasurer

                    
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
                      CONN
      APPLIANCES, INC.

                    
	 	 
	 
      	 
      	 
      	 
      
	 
      	
                      By:

                    	
                      /s/ Michael J. Poppe

                    
	 
      	 
      	
                      Name:  Michael
      J. Poppe

                    
	 
      	 
      	
                      Title:  Chief
      Financial Officer

                    


            

            
               

               

               

               

               

              Amendment
No. 3 to

              2nd
A&R Note Purchase Agreement

            

            
              
                
                

              

              
                S-1

                
                  

                

              

              
                
                

              

            

             

            
              
                	 
      	
                        THREE
      PILLARS FUNDING LLC,

                      
	 
      	
                        as a
      Conduit Purchaser

                      
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
                        By:

                      	
                        /s/ Doris J. Hearn

                      
	 
      	
                        Name:

                      	
                        Doris
      J. Hearn

                      
	 
      	
                        Title:

                      	
                        Vice
      President

                      
	 
      	 
      	 
      	 
      
	 	 	 	 
	 
      	
                        SUNTRUST
      ROBINSON HUMPHREY, INC.,

                      
	 
      	
                        as
      Administrator

                      
	 	 
	 	 
	 
      	
                        By:

                      	
                        /s/ Joseph R. Franke

                      
	 
      	
                        Name:

                      	
                        Joseph
      R. Franke

                      
	 
      	
                        Title:

                      	
                        Director

                      


              

              
                 

                 

                 

                 

                 

                Amendment
No. 3 to

                2nd
A&R Note Purchase Agreement

              

              
                
                  
                  

                

                
                  S-2

                  
                    

                  

                

                
                  
                  

                

              

               

              
                	 
      	
                        JPMORGAN
      CHASE BANK, N.A., as Committed 

                        Purchaser
      and Funding Agent

                      
	 
      	 
      	 
      	 
      
	 
      	
                        By:

                      	
                        /s/ Scott Cornelis

                      
	 
      	
                        Name:

                      	
                        Scott
      Cornelis

                      
	 
      	
                        Title:

                      	
                        Vice
      President

                      
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
                        PARK
      AVENUE RECEIVABLES COMPANY LLC, 

                        as a
      Conduit Purchaser

                      
	 
      	 
      	 
      	 
      
	 
      	
                        By:
      JPMorgan Chase Bank, N.A.,

                      
	 
      	
                        its
      attorney-in-fact

                      
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
                        By:

                      	
                        /s/ Scott Cornelis

                      
	 
      	
                        Name:

                      	
                        Scott
      Cornelis

                      
	 
      	
                        Title:

                      	
                        Vice
      President

                      


              

            

          

        

      

       

       

       

       

       

      Amendment
No. 3 to

      2nd
A&R Note Purchase Agreement

      S-3