a6036523ex10_125.htm


    Exhibit
10.12.5

     

    
      AMENDMENT NO. 2 TO SECOND AMENDED AND
RESTATED

      NOTE
PURCHASE AGREEMENT

       

      


      This
AMENDMENT NO. 2 TO SECOND AMENDED AND RESTATED NOTE PURCHASE AGREEMENT, dated as
of August 10, 2009 (this “Amendment”) 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 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.

       

      D. 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.

       

      (a)       Section 1.1 of the
Note Purchase Agreement is hereby amended by amending and restating the
following definition in its entirety:

       

      “Tranche B Purchase
Expiration Date” means the earlier of (i) August 9, 2010 (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.

       

      (b)       The
second sentence of Section 2.4 of the
Note Purchase Agreement is hereby amended by inserting the clause “on or prior
to the third Business Day prior to the then current Purchase Expiration Date”
immediately following the phrase “shall enter into such documents”
therein.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      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)           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 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), 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
they own 100% of the Notes.

      


      3. Effectiveness; Binding Effect;
Ratification. This Amendment shall become effective, as of the date first
set forth above upon receipt by the Administrator of executed counterparts
hereof from each of the parties hereto, and thereafter this Amendment 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.

       

      4. Waivers.

       

      (a)      
The parties hereto hereby waive the requirement that the Administrator and
Funding Agent provide a written response to the Issuer’s request to extend the
Purchase Expiration Date within 45 days after their receipt of such request
solely with respect to the extension request from the Issuer dated June 1, 2009
(the “Extension
Request Letter”).

       

      (b)      
The Issuer hereby revokes its instruction set forth in the Extension Request
Letter that Three Pillars or the Committed Purchaser, as applicable, establish a
Term Account and make any applicable Term Deposit into such Term Account on
August 13, 2009.

       

      5. 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.

       

      
        
          
          

        

        
          2

          
            

          

        

        
          
          

        

      

       

      (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.

       

      [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.

       

      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    
                                      
                                        
                                          
                                            
                                              
                                                
                                                  
                                                    
                                                      
                                                        
                                                          
                                                            
                                                              
                                                                
                                                                  
                                                                    
                                                                      
                                                                        
                                                                          
                                                                            
                                                                              
                                                                                
                                                                                  
                                                                                    
                                                                                      
                                                                                        
                                                                                          
                                                                                            
                                                                                              
                                                                                                
                                                                                                  
                                                                                                    
                                                                                                      
                                                                                                        
                                                                                                          
                                                                                                            
                                                                                                              
                                                                                                                
                                                                                                                  
                                                                                                                    
                                                                                                                      
                                                                                                                        
                                                                                                                          
                                                                                                                            
                                                                                                                              
                                                                                                                                
                                                                                                                                  
                                                                                                                                    
                                                                                                                                      
                                                                                                                                        
                                                                                                                                          
                                                                                                                                            
                                                                                                                                              
                                                                                                                                                
                                                                                                                                                  
                                                                                                                                                    
                                                                                                                                                      
                                                                                                                                                        
                                                                                                                                                          
                                                                                                                                                            
                                                                                                                                                              
                                                                                                                                                                
                                                                                                                                                                  
                                                                                                                                                                    
                                                                                                                                                                      
                                                                                                                                                                        
                                                                                                                                                                          
                                                                                                                                                                            
                                                                                                                                                                              
                                                                                                                                                                                
                                                                                                                                                                                  
                                                                                                                                                                                    
                                                                                                                                                                                      
                                                                                                                                                                                        
                                                                                                                                                                                          
                                                                                                                                                                                            
                                                                                                                                                                                              
                                                                                                                                                                                                
                                                                                                                                                                                                  
                                                                                                                                                                                                    
                                                                                                                                                                                                      
                                                                                                                                                                                                        
                                                                                                                                                                                                          
                                                                                                                                                                                                            
                                                                                                                                                                                                              
                                                                                                                                                                                                                
                                                                                                                                                                                                                  
                                                                                                                                                                                                                    
                                                                                                                                                                                                                      
                                                                                                                                                                                                                        
                                                                                                                                                                                                                          
                                                                                                                                                                                                                            
                                                                                                                                                                                                                              
                                                                                                                                                                                                                                
                                                                                                                                                                                                                                  
                                                                                                                                                                                                                                    
                                                                                                                                                                                                                                      	 	
                                                                                                                                                                                                                                              CONN
      FUNDING II, L.P., as Issuer

                                                                                                                                                                                                                                            
	 	 	 
	 	
                                                                                                                                                                                                                                              By:

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

                                                                                                                                                                                                                                            
	 	 
      	 
      
	 	 	 
	 	
                                                                                                                                                                                                                                              By:

                                                                                                                                                                                                                                            	
                                                                                                                                                                                                                                              /s/ David R. Atnip

                                                                                                                                                                                                                                            
	 	 
      	
                                                                                                                                                                                                                                              David
      R. Atnip

                                                                                                                                                                                                                                            
	 	 
      	
                                                                                                                                                                                                                                              Treasurer

                                                                                                                                                                                                                                            
	 	 	 
	 	 	 
	 	 	 
	 	
                                                                                                                                                                                                                                              CONN
      APPLIANCES, INC.

                                                                                                                                                                                                                                            
	 	 
      	 
      
	 	 	 
	 	
                                                                                                                                                                                                                                              By:

                                                                                                                                                                                                                                            	
                                                                                                                                                                                                                                              /s/ Michael J. Poppe

                                                                                                                                                                                                                                            
	 	 
      	
                                                                                                                                                                                                                                              Michael
      J. Poppe

                                                                                                                                                                                                                                            
	 	 
      	
                                                                                                                                                                                                                                              Chief
      Financial
Officer

                                                                                                                                                                                                                                            


                                                                                                                                                                                                                                    

                                                                                                                                                                                                                                  

                                                                                                                                                                                                                                

                                                                     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                                                                      	 	THREE
      PILLARS FUNDING LLC,
	 	
                                                                              as a
      Conduit Purchaser

                                                                            
	 	 
      	 
      
	 	 	 
	 	
                                                                              By:

                                                                            	
                                                                              /s/ Doris J. Hearn

                                                                            
	 	 
      	
                                                                              Doris
      J. Hearn

                                                                            
	 	 
      	
                                                                              Vice
      President

                                                                            
	 	 
      	 
      
	 	 	 
	 	 	 
	 	
                                                                              SUNTRUST
      ROBINSON HUMPHREY, INC.,

                                                                            
	 	
                                                                              as
      Administrator

                                                                            
	 	 	 
	 	 	 
	 	
                                                                              By:

                                                                            	
                                                                              /s/ Joseph R. Franke

                                                                            
	 	 
      	
                                                                              Joseph
      R. Franke

                                                                            
	 	 
      	
                                                                              Director

                                                                            


                                                                    

                                                                  

                                                                

                                                              

                                                            

                                                          

                                                        

                                                      

                                                    

                                                  

                                                

                                              

                                            

                                          

                                        

                                      

                                    

                                  

                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

    

     

     

     

    
      
        
        

      

      
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                                              JPMORGAN
      CHASE BANK, N.A., as Committed

                                            
	 	
                                              Purchaser
      and Funding Agent

                                            
	 	 	 
	 	 	 
	 	
                                              By:

                                            	
                                              /s/ Scott Cornelis

                                            
	 	 
      	
                                              Scott
      Cornelis

                                            
	 	 
      	
                                              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

                                            
	 	 
      	
                                              Scott
      Cornelis

                                            
	 	 
      	
                                              Vice
      President

                                            


                                    

                                  

                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

    

     

     

     

     

    S-3