Exhibit 99.3
AMENDED AND RESTATED NOTE PURCHASE AGREEMENT
among
CONN FUNDING II, L.P.,
as Issuer,
CONN APPLIANCES, INC.,
as Seller,
THREE PILLARS FUNDING LLC,
as a Conduit Purchaser,
PARK AVENUE RECEIVABLES COMPANY, LLC,
as a Conduit Purchaser,
JPMORGAN CHASE BANK, N.A.,
as Funding Agent and as Committed Purchaser, and
SUNTRUST XXXXXXXX XXXXXXXX, INC.
as the Administrator.
dated as of September 10, 2007
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS...................................................1
SECTION 1.1 Certain Defined Terms...................................1
SECTION 1.2 Other Definitional Provisions...........................9
ARTICLE II. PURCHASE AND SALE............................................10
SECTION 2.1 Purchase and Sale of the Notes.........................10
SECTION 2.2 Initial Purchase Price.................................10
SECTION 2.3 Increases..............................................10
SECTION 2.4 Extension of Purchase Expiration Dates.................12
SECTION 2.5 Reduction of Maximum Principal Amount..................12
SECTION 2.6 Calculation of Monthly Interest........................12
SECTION 2.7 Benefits of Indenture..................................13
SECTION 2.8 Broken Funding.........................................13
SECTION 2.9 Illegality.............................................14
SECTION 2.10 Inability to Determine Eurodollar Rate (Reserve
Adjusted)..............................................14
SECTION 2.11 Fees...................................................15
ARTICLE III. CLOSING......................................................15
SECTION 3.1 Closing................................................15
SECTION 3.2 Transactions to be Effected at the Closing.............15
ARTICLE IV. CONDITIONS PRECEDENT.........................................15
SECTION 4.1 Conditions Precedent to Initial Purchase of the
Notes..................................................15
SECTION 4.2 Conditions Precedent to each Increase..................18
SECTION 4.3 Conditions Precedent to the Restatement................18
ARTICLE V. REPRESENTATIONS AND WARRANTIES OF THE ISSUER AND THE
SELLER.......................................................20
SECTION 5.1 Representations, Warranties and Covenants of the
Seller and the Issuer..................................20
SECTION 5.2 Reaffirmation of Representations and Warranties by
the Issuer.............................................25
ARTICLE VI. REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE
ADMINISTRATOR, THE FUNDING AGENT AND THE CONDUIT
PURCHASERS...................................................25
SECTION 6.1 Securities Laws; Transfer Restrictions.................25
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TABLE OF CONTENTS
(continued)
Page
ARTICLE VII. COVENANTS....................................................26
SECTION 7.1 Monthly Noteholders' Statement; Notice of Adverse
Effect.................................................26
SECTION 7.2 Further Assurances.....................................27
SECTION 7.3 Modifications to Transaction Documents.................27
SECTION 7.4 Expenses...............................................27
SECTION 7.5 Reorganizations and Transfers..........................27
SECTION 7.6 Financial Covenants....................................27
ARTICLE VIII. INDEMNIFICATION..............................................28
SECTION 8.1 Indemnification........................................28
SECTION 8.2 Increased Costs........................................29
SECTION 8.3 Indemnity for Taxes....................................30
SECTION 8.4 Other Costs, Expenses and Related Matters..............32
ARTICLE IX. THE ADMINISTRATOR AND THE FUNDING AGENT......................32
SECTION 9.1 Authorization and Action...............................33
SECTION 9.2 Administrator's and Funding Agent's Reliance, Etc......33
SECTION 9.3 Administrator, Funding Agent and their Respective
Affiliates.............................................34
SECTION 9.4 Purchase Decision......................................34
SECTION 9.5 Successor Administrator and Funding Agent..............34
ARTICLE X. MISCELLANEOUS................................................35
SECTION 10.1 Amendments.............................................35
SECTION 10.2 Notices................................................35
SECTION 10.3 No Waiver; Remedies....................................36
SECTION 10.4 Binding Effect; Assignability..........................37
SECTION 10.5 Confidentiality........................................38
SECTION 10.6 GOVERNING LAW; JURISDICTION............................38
SECTION 10.7 Wavier of Trial by Jury................................38
SECTION 10.8 No Proceedings.........................................38
SECTION 10.9 Execution in Counterparts..............................38
SECTION 10.10 No Recourse............................................38
SECTION 10.11 Survival...............................................39
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TABLE OF CONTENTS
(continued)
Page
SECTION 10.12 Recourse...............................................39
SECTION 10.13 No Fiduciary Duty......................................39
SCHEDULES AND EXHIBITS
EXHIBIT A Form Notice of Increase
Schedule I List of Proceedings
Schedule II List of Trade Names
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This AMENDED AND RESTATED NOTE PURCHASE AGREEMENT (this "Note
Purchase Agreement") is among CONN FUNDING II, L.P., as issuer (the "Issuer"),
CONN APPLIANCES, INC., as seller (the "Seller"), THREE PILLARS FUNDING LLC
(f/k/a Three Pillars Funding Corporation) ("Three Pillars"), as a conduit
purchaser (a "Conduit Purchaser"), PARK AVENUE RECEIVABLES COMPANY, LLC
("PARCO"), as a conduit purchaser (a "Conduit Purchaser", and together with
Three Pillars Funding LLC, the "Conduit Purchasers"), JPMORGAN CHASE BANK, N.A.
("JPMorgan"), as funding agent for PARCO (in such capacity, the "Funding Agent")
and as Committed Purchaser, and SUNTRUST XXXXXXXX XXXXXXXX, INC. (f/k/a SunTrust
Capital Markets, Inc.), as administrator (the "Administrator").
RECITALS
WHEREAS, the Issuer has issued and may continue to issue the
variable funding notes pursuant to a Base Indenture, dated as of September 1,
2002 (as amended, supplemented or otherwise modified from time to time, the
"Base Indenture"), between the Issuer and Xxxxx Fargo Bank, National Association
(f/k/a Xxxxx Fargo Bank Minnesota, National Association), as trustee (in such
capacity, together with its successors and assigns in such capacity, the
"Trustee"), as supplemented by the Amended and Restated Series Supplement
2002-A, dated as of September 10, 2007, between the Issuer and the Trustee (as
amended, supplemented or otherwise modified from time to time, the "Series
Supplement", and together with the Base Indenture, the "Indenture"); and
WHEREAS, the Issuer, the Seller (for itself and as successor by
merger to CAI, L.P.), Three Pillars Funding LLC and the Administrator are
parties to that certain Note Purchase Agreement, dated as of the Closing Date
(as amended prior to the date hereof, the "Original Note Purchase Agreement")
and such parties and the parties hereto desire to amend and restate the Original
Note Purchase Agreement.
WHEREAS, the Conduit Purchasers desire to acquire such variable
funding notes and to make advances from time to time hereunder and the Committed
Purchaser is committed to acquire certain variable funding notes and to make
advances from time to time hereunder.
NOW, THEREFORE, for full and fair consideration, the parties hereto
agree that the Original Note Purchase Agreement is hereby amended and restated
in its entirety as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1 Certain Defined Terms. Capitalized terms used herein
without definition shall have the meanings set forth in the Indenture.
Additionally, the following terms shall have the following meanings:
"Act" means the Securities Act of 1933, as amended.
"Administrator" has the meaning set forth in the Preamble.
"Affected Party" means each of the Conduit Purchasers, the Committed
Purchaser, any Liquidity Bank, any permitted assignee of any Conduit Purchaser
or any Liquidity Bank, any Support Provider and any holder of a participation
interest in the rights and obligations of any Liquidity Bank and any Credit Bank
under any Liquidity Agreement and/or any Credit Agreement, the Administrator,
the Funding Agent and any holding company of either Bank.
"Aggregate Purchaser Funded Amount" means, on any date of
determination an amount equal to (a) the Initial Purchase Price, plus (b) the
aggregate amount of all Increases made prior to such date of determination,
minus (c) the aggregate amount of principal payments (including, without
limitation, any Decreases) in respect of the Notes made to and received by or on
behalf of the Conduit Purchasers and the Committed Purchaser prior to such date.
"Alternate Reference Rate" means, on any date, a fluctuating rate of
interest per annum equal to the higher of:
(a) the rate of interest most recently announced by Bank at
its principal office in Atlanta, Georgia or New York, New York, as
applicable, as its prime rate (it being understood that at any one time
there shall exist only one such prime rate so announced), which rate is
not necessarily intended to be the lowest rate of interest determined by
such Bank in connection with extensions of credit; or
(b) the Federal Funds Rate (as defined below) most recently
determined by Bank plus 0.50% per annum.
"Applicable Margin" has the meaning set forth in the Fee Letters, as
applicable.
"Bank" means SunTrust Bank, a Georgia banking corporation or
JPMorgan, as applicable.
"Bank Rate" means, for any Interest Period, an interest rate per
annum equal to either (a) the sum of (i) 3.00% per annum, and (ii) the
Eurodollar Rate (Reserve Adjusted) for such Interest Period; provided, however,
that if (x) it shall become unlawful for any Liquidity Bank or any Credit Bank
to obtain funds in the London interbank eurodollar market in order to make, fund
or maintain any Funding Tranche hereunder, or if such funds shall not be
reasonably available to any Liquidity Bank or any Credit Bank, or (y) there
shall not be time prior to the commencement of an applicable Interest Period to
determine a Eurodollar Rate (Reserve Adjusted) in accordance with its terms or
the "Bank Rate" shall apply other than at the first day of the Interest Period,
then the "Bank Rate" shall be equal to the weighted average of the Alternate
Reference Rates in effect for each day during the remainder of such Interest
Period or (b) if requested by the Issuer, the weighted average of the Alternate
Reference Rates in effect during such Interest Period, plus 3.00%.
"Block Event" means an event or circumstance that, after the giving
of notice or lapse of time or both, would give rise to an Event of Default, Pay
Out Event or Servicer Default.
"Breakage Amounts" has the meaning specified in Section 2.8.
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"Closing" has the meaning specified in Section 3.1.
"Closing Date" has the meaning specified in Section 3.1.
"Commercial Paper Notes" means short-term promissory notes issued by
any Conduit Purchaser.
"Commercial Paper Rate" means, for any Interest Period for the
related Funding Tranche, a rate per annum equal to:
(a) in the case of a Conduit Purchaser using match funding, the sum
of (i) the rate or, if more than one rate, the weighted average of the rates,
determined by converting to an interest-bearing equivalent rate per annum the
discount rate (or rates) at which the applicable Commercial Paper Notes
outstanding during such Interest Period have been or may be sold by any
placement agent or commercial paper dealer selected by Administrator or the
Funding Agent, as applicable, plus (ii) the commissions and charges charged by
such placement agent or commercial paper dealer with respect to such Commercial
Paper Notes expressed as a percentage of the face amount thereof and converted
to an interest-bearing equivalent rate per annum (the "Match Funding Rate"); or
(b) in the case of a Conduit Purchaser using pool funding, the sum
of (i) the rate equivalent to the weighted average cost (as determined by the
agent under the applicable securitization facility and which shall include
incremental carrying costs incurred with respect to Commercial Paper Notes
maturing on dates other than those on which corresponding funds are received by
such Conduit Purchaser, other borrowings by such Conduit Purchaser (other than
under any Credit Agreement)), plus (ii) the commissions and charges charged by
such placement agent or commercial paper dealer with respect to such Commercial
Paper Notes expressed as a percentage of the face amount thereof and converted
to an interest-bearing equivalent rate per annum, plus (iii) any other costs
associated with the issuance of Commercial Paper Notes) of or related to the
issuance of Commercial Paper Notes that are allocated, in whole or in part, by
such Conduit Purchaser or the agent under the applicable securitization facility
to fund or maintain such portion of the aggregate principal amount of such
Conduit Purchaser's Note (and which may be also allocated in part to the funding
of other assets of such Conduit Purchaser); provided, however, that if the rate
(or rates) is a discount rate, then the rate (or if more than one rate, the
weighted average of the rates) shall be the rate resulting from converting such
discount rate (or rates) to an interest bearing equivalent rate per annum (the
"Pool Funding Rate").
"Commitment" means, (i) with respect to Three Pillars, as a Conduit
Purchaser, (a) commencing on the Restatement Date and ending on the Tranche C
Purchase Expiration Date, $300,000,000, (b) commencing on the day following the
Tranche C Purchase Expiration Date, and ending on the Tranche A Purchase
Expiration Date, $200,000,000 and (c) thereafter, $133,333,333.33 and (ii) with
respect to each of PARCO, as a Conduit Purchaser, and the Committed Purchaser,
(a) commencing on the Restatement Date and ending on the Tranche C Purchase
Expiration Date, $150,000,000, (b) commencing on the day following the Tranche C
Purchase Expiration Date, and ending on the Tranche A Purchase Expiration Date,
$100,000,000 and (c) thereafter, $66,666,666.67.
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"Committed Purchaser" means, JPMorgan Chase Bank, N.A. and each
of its successors and assigns.
"Conduit Purchasers" is defined in the Preamble.
"Covered Taxes" has the meaning specified in Section 8.3.
"Credit Advance" means a drawing under a letter of credit issued
pursuant to a Credit Agreement for the account of any Conduit Purchaser, a loan
to any Conduit Purchaser under a Credit Agreement or any other advance or
disbursement of funds to any Conduit Purchaser or for such Conduit Purchaser's
account pursuant to a Credit Agreement or any such letter of credit, in each
case to the extent such drawing, loan, advance or disbursement has not been
repaid or reimbursed to the applicable Credit Bank in accordance with the
related Credit Agreement.
"Credit Agreement" means and includes any program-wide agreement
entered into by any Credit Bank providing for the issuance of one or more
letters of credit for the account of any Conduit Purchaser, the issuance of one
or more surety bonds for which any Conduit Purchaser is obligated to reimburse
the applicable Credit Bank for any drawings thereunder, the sale by any Conduit
Purchaser to any Credit Bank of receivables or other financial assets purchased
by such Conduit Purchaser (or portions thereof) and/or the making of loans
and/or other extensions of credit to any Conduit Purchaser in connection with
its commercial paper program, together with any cash collateral agreement,
letter of credit, surety bond or other agreement or instrument executed and
delivered in connection therewith (but excluding the Liquidity Agreement of such
Conduit Purchaser, or similar agreement, or any voluntary advance agreement).
"Credit Bank" means and includes each Bank and any other or
additional bank or other Person (other than any customer of any Conduit
Purchaser or any liquidity provider as such) now or hereafter extending credit
or a purchase commitment to or for the account of a Conduit Purchaser or issuing
a letter of credit, surety bond or other instrument, in each case to support any
obligations arising under or in connection with such Conduit Purchaser's
commercial paper program.
"Decrease" has the meaning specified in the Series Supplement.
"Default Rate" has the meaning specified in the definition of Note
Rate.
"Dollar" or "$" means lawful currency of the United States of
America.
"Eurodollar Rate (Reserve Adjusted)" means, with respect to any
Funding Tranche, the rate per annum equal to the quotient of (i) the offered
rate for deposits in Dollars for a one-month period in an amount equal (as
nearly as possible) to the principal amount of the Funding Tranche which rate
appears on the pages 3750 or 3740, as applicable, of the Dow Xxxxx Market
Service as of 11:00 A.M. (London, England) time on the Rate Setting Day;
provided, that if at least two rates appear on pages 3750 or 3740, as
applicable, of the Dow Xxxxx Market Service on such Rate Setting Day, the rate
for such Interest Period shall be the arithmetic mean of such rates; provided
further, that if no such offered rates appear on such page, the rate used for
such Interest Period will be the arithmetic average (rounded upward, if
necessary, to the next higher 1/16th of 1%) of rates offered to Administrator by
not less than two major banks in London, England at approximately 10:00 A.M.
(Atlanta, Georgia time), two (2) Business Days prior to the first day of such
Interest Period for deposits in U.S. dollars in the London interbank market for
a one-month period in an amount comparable to the principal amount of the
Funding Tranche, divided by (ii) a number equal to 1.00 minus the Reserve
Percentage. The rate so determined in accordance herewith shall be rounded
upwards to the multiple of 1/100th of 1%
4
"Federal Bankruptcy Code" means the bankruptcy code of the United
States of America codified in Title 11 of the United States Code.
"Federal Funds Rate" means, for any period, the per annum rate set
forth in the weekly statistical release designated as H.15(519), or any
successor publication, published by the Federal Reserve Board (including any
such successor, "H.15(519)") for such day opposite the caption "Federal Funds
(Effective)." If on any relevant day such rate is not yet published in
H.15(519), the rate for such day will be the rate set forth in the daily
statistical release designated as the Composite 3:30 p.m. Quotations for U.S.
Government Securities, or any successor publications, published by the Federal
Reserve Bank of New York (including any such successor, the "Composite 3:30 p.m.
Quotations") for such day under the caption "Federal Funds Effective Rate." If
on any relevant day the appropriate rate for such previous day is not yet
published in either H.15(519) or the Composite 3:30 p.m. Quotations, the rate
for such day will be the arithmetic mean as determined by the related Bank of
the rates for the last transaction in overnight Federal funds arranged prior to
9:00 a.m. (New York time) on that day by each of three leading brokers of
Federal funds transactions in New York City selected by such Bank.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System, or any entity succeeding to any of its principal functions.
"Fee Letters" means each of the following letter agreements: (i)
that certain second amended and restated letter agreement, dated as of the date
hereof, 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 letter
agreement, dated as of the date hereof, 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.
"Fees" has the meaning set forth in Section 2.11.
"Final Purchase Expiration Date" means the latest to occur of (i)
the Tranche A Purchase Expiration Date, (ii) Tranche B Purchase Expiration Date
and (iii) the Tranche C Purchase Expiration Date (as such dates may be extended
from time to time pursuant to Section 2.4).
"Fixed Period" means, with respect to a Funding Tranche, a period
selected by the Administrator with respect to Three Pillars and the Funding
Agent with respect to PARCO, in each case in its sole discretion; provided, that
5
(i) any Fixed Period with respect to any Funding Tranche
not funded by the issuance of Commercial Paper Notes which
would otherwise end on a day which is not a Business Day shall
be extended to the next succeeding Business Day; provided,
however, if interest in respect of such Fixed Period is
computed by reference to the Eurodollar Rate (Reserve
Adjusted), and such Fixed Period would otherwise end on a day
which is not a Business Day, and there is no subsequent
Business Day in the same calendar month as such day, such
Fixed Period shall end on the next preceding Business Day;
(ii) any Fixed Period with respect to any Funding
Tranche not funded by the issuance of Commercial Paper Notes
will not be for a term of more than 40 days; and
(iii) any Fixed Period in respect of which interest is
computed by reference to the Commercial Paper Rate may be
terminated at the election of, and upon notice thereof to the
Issuer by, the Administrator or the Funding Agent, as
applicable, any time, in which case the Funding Tranche
allocated to such terminated Fixed Period shall be allocated
to a new Fixed Period and shall accrue interest at the
Alternate Reference Rate.
"Funding Agent" is defined in the Preamble.
"Funding Tranche" means one or more portions of the Aggregate
Purchaser Funded Amount used to fund or maintain the Notes that accrue interest
by reference to different interest rates.
"Governmental Actions" means any and all consents, approvals,
permits, orders, authorizations, waivers, exceptions, variances, exemptions or
licenses of, or registrations, declarations or filings with, any Governmental
Authority required under any Governmental Rules.
"Governmental Authority" means the United States of America, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government and having jurisdiction over the applicable Person.
"Governmental Rules" means any and all laws, statutes, codes, rules,
regulations, ordinances, orders, writs, decrees and injunctions, of any
Governmental Authority and any and all legally binding conditions, standards,
prohibitions, requirements and judgments of any Governmental Authority.
"Increase" has the meaning specified in the Series Supplement.
"Increase Amount" means the amount requested by the Issuer to be
funded by the Conduit Purchasers or the Committed Purchaser (on a pro rata basis
based on the Commitment) on an Increase Date.
6
"Increase Date" means the date on which each Increase occurs.
"Indemnified Party" has the meaning specified in Section 8.1.
"Initial Note Principal" means $28,080,192.
"Initial Purchase Price" has the meaning specified in Section 2.2.
"Issuer" is defined in the Preamble.
"Issuer Indemnified Amounts" has the meaning specified in subsection
8.1(a).
"JPMorgan" is defined in the Preamble.
"Liquidity Agreement" means and includes (a) the Liquidity Asset
Purchase Agreement (regarding Conn Funding II, L.P.), dated as of September 13,
2002, among Three Pillars, as borrower, SunTrust Bank, as liquidity agent for
the Liquidity Banks from time to time party thereto, and SunTrust Xxxxxxxx
Xxxxxxxx, Inc. (f/k/a SunTrust Equitable Securities Corporation), as
administrator for Three Pillars, and the Liquidity Banks from time to time party
thereto, (b) the Asset Purchase Agreement (regarding Conn Funding II, L.P.),
dated as of the date hereof among PARCO, JPMorgan, as funding agent for the
Liquidity Banks from time to time party thereto and the Liquidity Banks from
time to time party thereto, and (c) any other agreement hereafter entered into
by any Conduit Purchaser providing for the sale by such Conduit Purchaser of an
interest in the Notes (or portions thereof), or the making of loans or other
extensions of credit to such Conduit Purchaser secured by security interests in
the Notes (or portions thereof), to support all or part of such Conduit
Purchaser's payment obligations under its Commercial Paper Notes or to provide
an alternate means of funding such Conduit Purchaser's investments in accounts
receivable or other financial assets, in each case as amended, supplemented or
otherwise modified from time to time.
"Liquidity Bank" means and includes the applicable Bank and the
various financial institutions as are, or may become, parties to a Liquidity
Agreement, as purchasers thereunder.
"Match Funding Rate" has the meaning specified in clause (a) of the
definition of "Commercial Paper Rate" herein.
"Monthly Noteholders' Statement" has the meaning specified in
paragraph 2.3(b)(i).
"Note Rate" means, with respect to any Interest Period, the weighted
average of the rates applicable to all Funding Tranches outstanding during all
or part of such Interest Period (determined as of each day in such Interest
Period), each such rate being (a) to the extent any Conduit Purchaser is funding
such Funding Tranche during such period through the issuance of its Commercial
Paper Notes, the Commercial Paper Rate plus the Applicable Margin, and (b) to
the extent any Conduit Purchaser is funding such Funding Tranche during such
period pursuant to a Liquidity Agreement or, in the case of Three Pillars, the
Voluntary Advance Agreement, a rate per annum equal to the Bank Rate plus the
Applicable Margin, provided that on any day after the occurrence and continuance
of any Servicer Default, Pay Out Event or any other Event of Default, the rate
applicable to each such Funding Tranche (the "Default Rate") shall be 3% per
annum above the applicable Alternate Reference Rate in effect on such day plus
the Applicable Margin; provided, however, that interest for any Funding Tranche
shall not be considered paid by any distribution to the extent that all or a
portion of such distribution is rescinded or must otherwise be returned for any
reason.
7
"Notes" means the Variable Funding Asset Backed Notes Series 2002-A
in the maximum aggregate principal amount of $450,000,000 to be issued by the
Issuer pursuant to the Indenture.
"Notice of Increase" means a written notice of an Increase in the
form of Exhibit A hereto.
"Offering Memorandum 2002" means that certain offering memorandum,
dated as of September 10, 2002, prepared by the Issuer and the Seller in
connection with the issuance of the Series 2002-B Fixed Rate Notes.
"Original Note Purchase Agreement" is defined in the Recitals.
"PARCO" is defined in the Preamble.
"Participant" has the meaning specified in subsection 1.4(b).
"Pool Funding Rate" has the meaning specified in clause (b) of the
definition of "Commercial Paper Rate" herein.
"Program Documents" means, with respect to each Conduit Purchaser,
the related Liquidity Agreement, any related Credit Agreement, solely with
respect to Three Pillars, the Voluntary Advance Agreement, the documents under
which Administrator or the Funding Agent, as applicable, performs its
obligations and the other documents to be executed and delivered in connection
therewith, in each case as amended, supplemented or otherwise modified from time
to time.
"Purchase Expiration Date" means any of (i) the Tranche A Purchase
Expiration Date, (ii) Tranche B Purchase Expiration Date and (iii) the Tranche C
Purchase Expiration Date, as the context requires.
"Rate Setting Day" means, for any Interest Period, two (2) Business
Days prior to the commencement of such Interest Period. In the event such day is
not a Business Day, then the Rate Setting Day shall be the immediately preceding
Business Day.
"Reduction" has the meaning specified in Section 2.5.
"Restatement" has the meaning specified in Section 3.1.
"Restatement Date" has the meaning specified in Section 3.1.
8
"Seller" is defined in the Preamble (it being understood that any
reference to the Seller with respect to the Closing Date shall be deemed a
reference to the Seller and its predecessors).
"Support Provider" means and includes any entity now or hereafter
extending credit or liquidity support or having a commitment to extend credit or
liquidity support to or for the account of, or to make loans to or purchases
from, any Conduit Purchaser or issuing a letter of credit, surety bond or other
instrument to support any obligations arising under or in connection with the
commercial paper program of such Conduit Purchaser.
"Three Pillars" is defined in the Preamble.
"Tranche A Purchase Expiration Date" means July 29, 2008 (as such
date may be extended from time to time pursuant to Section 2.4).
"Tranche B Purchase Expiration Date" means September 10, 2012 (as
such date may be extended from time to time pursuant to Section 2.4).
"Tranche C Purchase Expiration Date" means the earlier to occur of
(i) July 29, 2008 and (ii) the closing date of a term securitization transaction
where the Issuer is the issuer (as such date may be extended from time to time
pursuant to Section 2.4).
"Transaction Documents" means (i) the Base Indenture, (ii) the
Series Supplement, (iii) this Note Purchase Agreement, (iv) the Fee Letters, (v)
the Liquidity Agreements, (vi) the Servicing Agreement and (vii) the Notes, in
each case in effect on the date hereof or as modified in accordance with the
terms of the Transaction Documents.
"Trust Assets" means all of the Issuer's right, title and interest
in and to all Receivables, Related Security, Contracts, Collections and all
proceeds relating to the foregoing and all of the other collateral which is part
of the Trust Estate or otherwise pledged to the Trustee for the benefit of the
Secured Parties pursuant to the Indenture.
"Voluntary Advance Agreement" means the Voluntary Advance Agreement,
dated as of March 11, 1999, among SunTrust Xxxxxxxx Xxxxxxxx, Inc. (f/k/a
SunTrust Equitable Securities Corporation), the Administrator and SunTrust Bank,
as it may be amended, supplemented or otherwise modified from time to time.
SECTION 1.2 Other Definitional Provisions. (1) All terms defined in
this Note Purchase Agreement shall have the meanings defined herein when used in
any certificate or other document made or delivered pursuant hereto unless
otherwise defined therein.
(b) As used herein and in any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined
in Section 1.1, and accounting terms partially defined in Section 1.1 to
the extent not defined, shall have the respective meanings given to them
under GAAP. To the extent that the definitions of accounting terms herein
are inconsistent with the meanings of such terms under generally accepted
accounting principles, the definitions contained herein shall control.
9
(c) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Note Purchase Agreement shall refer to
this Note Purchase Agreement as a whole and not to any particular
provision of this Note Purchase Agreement; and Section, subsection,
Schedule and Exhibit references contained in this Note Purchase Agreement
are references to Sections, subsections, the Schedules and Exhibits in or
to this Note Purchase Agreement unless otherwise specified.
ARTICLE II.
PURCHASE AND SALE
SECTION 2.1 Purchase and Sale of the Notes. On the terms and subject
to the conditions set forth in the Original Note Purchase Agreement, and in
reliance on the covenants, representations, warranties and agreements therein
set forth, the Issuer sold at the Closing to the Administrator, on behalf of
Three Pillars (as a Conduit Purchaser) the Notes then outstanding in an
aggregate initial outstanding principal amount equal to the Initial Note
Principal for the Initial Purchase Price. On the Restatement Date, the
Administrator, on behalf of Three Pillars, assigned a portion of the Notes to
the Funding Agent, on behalf of PARCO (as a Conduit Purchaser), and the
Committed Purchaser.
SECTION 2.2 Initial Purchase Price. The Notes were purchased at
Closing at a price (the "Initial Purchase Price") equal to 100% of the Initial
Note Principal.
SECTION 2.3 Increases.
(a) Subject to the terms and conditions of this Note Purchase
Agreement and the Series Supplement, from time to time prior to the Final
Purchase Expiration Date but not more frequently than twice per month
(unless the Administrator and the Funding Agent otherwise consent in their
sole discretion) upon receipt by the Administrator and the Funding Agent
of a Notice of Increase, the Administrator, on behalf of Three Pillars (as
a Conduit Purchaser), and the Funding Agent, on behalf of PARCO (as a
Conduit Purchaser) or the Committed Purchaser, as the case may be, shall
make Increases as provided in Section 2.3(c); provided, however, that no
Conduit Purchaser (or the Committed Purchaser, as the case may be) shall
be required to fund any Increase if, after giving effect thereto, its Note
Principal would exceed the Maximum Principal Amount; and provided,
further, that no Conduit Purchaser (or the Committed Purchaser, as the
case may be) shall be required to fund any Increase if, after giving
effect thereto, its Note Principal would exceed its Commitment.
(b) Each Increase hereunder shall be subject to the further
conditions precedent that:
(i) The Administrator and the Funding Agent will have
received copies of each of the monthly noteholders' statement,
the form of which is attached as Exhibit B to the Series
Supplement (the "Monthly Noteholders' Statement"), in each
case, most recently required to have been delivered under the
Indenture;
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(ii) Each of the representations and warranties of each
of the Seller, the Servicer and the Issuer made in the
Transaction Documents to which it is a party shall be true and
correct in all material respects as of the applicable Increase
Date (except to the extent they expressly relate to an earlier
or later time);
(iii) The Issuer, the Servicer and the Seller shall be
in compliance in all material respects with all of its
respective covenants contained in the Transaction Documents;
(iv) No Pay Out Event, Potential Pay Out Event, Default,
Event of Default, Servicer Default or Block Event shall have
occurred and be continuing;
(v) The Final Purchase Expiration Date shall not have
occurred; and
(vi) The Administrator and the Funding Agent shall have
received a completed Notice of Increase with respect to such
proposed Increase, not later than 12:00 p.m. (New York time)
one (1) Business Day prior to the proposed date of such
Increase.
(c) Three Pillars (as a Conduit Purchaser) shall make its
related pro rata portion of the proceeds of such requested Increase
available to the Administrator at its office in Atlanta, Georgia and PARCO
(as a Conduit Purchaser) may make its related pro rata portion of the
proceeds of such requested Increase available to the Funding Agent at its
office in New York, New York, in same day funds on the Increase Date, and
if PARCO (as a Conduit Purchaser) does not make available its full pro
rata portion of such Increase Amount, the Committed Purchaser shall make
any portion constituting a shortfall so available to the Funding Agent.
Upon receipt by Administrator and the Funding Agent of such funds, the
Administrator and the Funding Agent will make such funds available to
Issuer not later than 3:00 p.m. New York City time on the Increase Date by
wire transfer of immediately available funds to such account as may from
time to time be specified by the Issuer in a notice to the Administrator
and the Funding Agent.
(d) All conditions set forth in Section 3.1 of the Series
Supplement, to the extent applicable, shall have been satisfied at such
time. Each "Increase" with respect to all VFN Series shall be allocated to
each respective VFN Series as instructed by the Issuer; provided, that (i)
the Issuer shall not (unless necessary in order to comply with the
requirements of clause (ii) of this paragraph) disproportionately allocate
Increases to the same VFN Series for two or more consecutive Increases and
(ii) shall at all times use its reasonable best efforts to allocate
Increases to the respective VFN Series so that the aggregate of the
"Aggregate Purchaser Funded Amounts" under (and as defined in) each VFN
Series is at all times ratably allocated among each such VFN Series
according to their respective "Maximum Principal Amount" (as defined in
each such VFN Series).
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SECTION 2.4 Extension of Purchase Expiration Dates. The Issuer may
advise the Administrator and the Funding Agent in writing of its desire to
extend any of the Tranche A Expiration Date, Tranche B Expiration Date or the
Tranche C Expiration Date; provided such request is made not more than 90 days
prior to, and not less than 60 days prior to, the then current related Purchase
Expiration Date. The Administrator and the Funding Agent shall notify the Issuer
in writing, within 45 days after its receipt of such request by the Issuer,
whether the Conduit Purchasers and the Committed Purchaser are agreeable to such
extension (it being understood that each Conduit Purchaser may accept or decline
such a request in its sole discretion and on such terms as it may elect) and, to
the extent the Conduit Purchasers and the Committed Purchaser are agreeable, the
Issuer, the Administrator, the Funding Agent, the Committed Purchaser and the
Conduit Purchasers shall enter into such documents as the Conduit Purchasers and
the Committed Purchaser may deem necessary or appropriate to reflect such
extension, and all reasonable costs and expenses incurred by the Conduit
Purchasers, the Administrator, the Funding Agent and the Committed Purchaser in
connection therewith (including reasonable attorneys' costs) shall be paid by
the Issuer; it being understood, that the failure of the Administrator and the
Funding Agent to so notify the Issuer as set forth above shall not be deemed to
be a consent to such request for extension by any Conduit Purchaser or the
Committed Purchaser.
SECTION 2.5 Reduction of Maximum Principal Amount.
(a) On any Payment Date prior to the Rapid Pay Out
Commencement Date, upon the written request of the Issuer, the "Maximum
Principal Amount" (as defined in each VFN Series) may be permanently
reduced (a "Reduction"), on a ratable basis with respect to each VFN
Series and with respect to the Notes, by the Issuer; provided that the
Issuer shall have given each applicable "Administrator" and the Funding
Agent hereunder irrevocable written notice (effective upon receipt) of the
amount of such Reduction prior to 10:00 a.m., New York time on a Business
Day that is at least thirty (30) days prior to such Reduction; provided,
further, that any such Reduction shall be in an amount equal to
$25,000,000 in the aggregate for all VFN Series or integral multiples of
$10,000,000 in excess thereof; and provided, further, that no Reduction
may cause the aggregate of the "Maximum Principal Amounts" under all VFN
Series to be lower than $150,000,000. Each Reduction effected pursuant to
this Section 2.5 shall automatically and permanently, without any further
action on the part of any party, reduce the Commitment of each of (i)
Three Pillars, as a Conduit Purchaser, and (ii) PARCO, as a Conduit
Purchaser, and the Committed Purchaser on a pro rata basis, in the amount
of such Reduction.
(b) The Issuer shall pay to (i) the Administrator on behalf of
Three Pillars and (ii) the Funding Agent on behalf of PARCO or the
Committed Purchaser any accrued and unpaid fees and expenses with respect
to the reduction amount on the date of any such Reduction.
SECTION 2.6 Calculation of Monthly Interest.
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(a) On the Business Day prior to each Series Transfer Date,
the Administrator (with respect to Three Pillars) and the Funding Agent
(with respect to PARCO and the Committed Purchaser), as applicable, shall
calculate, for the applicable Interest Period, the aggregate Monthly
Interest for each Funding Tranche (such Monthly Interest to be calculated
using the Note Rate, if necessary, for the remaining days in such Interest
Period). Each of the Administrator and the Funding Agent may, in its sole
discretion, determine the Commercial Paper Rate for its related Conduit
Purchaser with respect to each Series Transfer Date using the Match
Funding Rate or the Pool Funding Rate; provided, however, that to the
extent that the related Conduit Purchaser may choose between the Match
Funding Rate or the Pool Funding Rate, the Issuer may request the
Administrator or the Funding Agent, as applicable, to use either the Match
Funding Rate or the Pool Funding Rate in determining the Commercial Paper
Rate for its related Conduit Purchaser with respect to such Series
Transfer Date (it being understood and agreed that the Administrator or
the Funding Agent, as applicable, shall have no obligation to follow any
such request by the Issuer).
(b) The Issuer agrees to pay, and the Issuer agrees to
instruct the Servicer and the Trustee to pay, all amounts payable by it
with respect to the Notes, this Note Purchase Agreement and the Series
Supplement to the accounts designated by the Administrator and the Funding
Agent. All such amounts shall be paid no later than noon, New York City
time, on the day when due as determined in accordance with this Note
Purchase Agreement, the Indenture and the other Transaction Documents, in
lawful money of the United States in immediately available funds. Amounts
received after that time shall be deemed to have been received on the next
Business Day and shall bear interest at the Default Rate, which interest
shall be payable on demand.
SECTION 2.7 Benefits of Indenture. The Issuer hereby acknowledges
and confirms that each representation, warranty, covenant and agreement made
pursuant to the Indenture by the Issuer to the Trustee is (unless such
representation, warranty, covenant or agreement specifically states otherwise),
also made herein, all for the benefit and security of each Conduit Purchaser,
the Committed Purchaser, the Funding Agent and the Administrator.
SECTION 2.8 Broken Funding. In the event of (i) the payment of any
principal of any Funding Tranche (other than a Funding Tranche on which the
interest is computed by reference to the Alternate Reference Rate) other than on
the last day of the Fixed Period applicable thereto (including as a result of
the occurrence of the Rapid Pay Out Commencement Date or an optional prepayment
of a Funding Tranche), or (ii) any failure to borrow or prepay any Funding
Tranche (other than a Funding Tranche on which the interest is computed by
reference to the Alternate Reference Rate) on the date specified in any notice
delivered pursuant hereto, then, in any such event, the Issuer shall compensate
the Affected Party for the loss, cost and expense attributable to such event.
Such loss, cost or expense to any such Affected Party shall be deemed to include
an amount (the "Breakage Amount") determined by such Affected Party (or the
Administrator with respect to Three Pillars or the Funding Agent with respect to
PARCO or the Committed Purchaser, as applicable) to be the excess, if any, of
(i) the amount of interest which would have accrued on the portion of the
principal amount of such Funding Tranche prepaid or to be borrowed or prepaid
had such event not occurred, at the interest rate that would have been
applicable to such Funding Tranche, for the period from the date of such event
to the last day of the Fixed Period (or, in the case of a failure to borrow for
the period that would have been the related Fixed Period), over (ii) the amount
of interest which would be obtainable upon redeployment or reinvestment of an
amount of funds equal to such portion of such Funding Tranche for such period. A
certificate of any Affected Party incurring any loss, cost or expense as a
result of any of the events specified in this Section 2.8 and setting forth any
amount or amounts that the Affected Party is entitled to receive pursuant to
this Section 2.8 and the reason(s) therefor shall be delivered to the Issuer by
the Administrator or the Funding Agent and shall include reasonably detailed
calculations and shall be conclusive absent manifest error. The Issuer shall pay
to the Administrator or the Funding Agent, as applicable, on behalf of such
Affected Party the amount shown as due on any such certificate on the first
Payment Date which is not less than three Business Days after receipt thereof.
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SECTION 2.9 Illegality. Notwithstanding anything in this Note
Purchase Agreement or any other Transaction Document to the contrary, if, after
the Closing Date, the adoption of any Law or bank regulatory guideline or any
amendment or change in the interpretation of any existing or future Law or bank
regulatory guideline by any Official Body charged with the administration,
interpretation or application thereof, or the compliance with any directive of
any Official Body (in the case of any bank regulatory guideline, whether or not
having the force of Law), shall make it unlawful for any Affected Party to
acquire or maintain a Funding Tranche by reference to the Eurodollar Rate
(Reserve Adjusted) as contemplated by this Note Purchase Agreement or any
Program Document, (i) the Administrator or the Funding Agent, as applicable, on
behalf of such Affected Party shall, within forty-five (45) days after receiving
actual knowledge thereof, deliver a certificate to the Issuer (with a copy to
the Administrator or the Funding Agent, as applicable) setting forth the basis
for such illegality, which certificate shall be conclusive absent manifest
error, and (ii) such Affected Party's portion of any Funding Tranche maintained
by reference to the Eurodollar Rate (Reserve Adjusted) then outstanding shall be
converted automatically to a Funding Tranche maintained by reference to the
Alternate Reference Rate.
SECTION 2.10 Inability to Determine Eurodollar Rate (Reserve
Adjusted). If, prior to the first day of any Interest Period relating to any
Funding Tranche maintained by reference to the Eurodollar Rate (Reserve
Adjusted):
(1) the Administrator or the Funding Agent shall have
determined (which determination in the absence of manifest
error shall be conclusive and binding upon the Issuer)
that, by reason of circumstances affecting the relevant
market, adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate (Reserve Adjusted) for
such Interest Period; or
(2) the Administrator or the Funding Agent shall have
received notice from an Affected Party that the Eurodollar
Rate (Reserve Adjusted) determined or to be determined for
such Interest Period will not adequately and fairly reflect
the cost to such Affected Party (as conclusively certified
by such Person) of purchasing or maintaining their affected
portions of such Funding Tranches during such Interest
Period;
14
then, in either such event, the Administrator or the Funding Agent
shall give telecopy or telephonic notice thereof (confirmed in writing) to the
Issuer and the Administrator or Funding Agent, as applicable as soon as
practicable (but, in any event, within thirty (30) days after such determination
or notice, as applicable) thereafter. Until such notice has been withdrawn by
the Administrator or the Funding Agent, as applicable, no further Funding
Tranches by the related Conduit Purchaser shall be funded or maintained at the
Eurodollar Rate (Reserve Adjusted). The Administrator and the Funding Agent, as
applicable, agrees to withdraw any such notice as soon as reasonably practicable
after such Person is notified of a change in circumstances which makes such
notice inapplicable.
SECTION 2.11 Fees. The Issuer shall pay to the Administrator or the
Funding Agent, as applicable, for the benefit of the applicable Affected Party
as and when due and in accordance with the provisions for payment set forth in
Article 5 of the Series Supplement, each of the applicable fees set forth in the
Fee Letters (the "Fees").
ARTICLE III.
CLOSING
SECTION 3.1 Closing. The closing (the "Closing") of the purchase and
sale of the Notes in connection with the Original Note Purchase Agreement was
held at 9:00 a.m., Chicago, Illinois time, on or about September 13, 2002, at
the offices of Mayer, Brown, Xxxx & Maw LLP, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000 (the date of the Closing being referred to herein as the "Closing
Date"). The closing of the transactions contemplated by this Note Purchase
Agreement (the "Restatement") will be held at 9:00 a.m., Chicago, Illinois time,
on or about September 10, 2007, at the offices of Xxxxx Xxxxx LLP, 00 Xxxxx
Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000 (such date being referred to herein as the
"Restatement Date").
SECTION 3.2 Transactions to be Effected at the Closing. At the
Closing (a) the Administrator delivered to the Issuer funds in an amount equal
to the sum of the Initial Purchase Price; and (b) the Issuer delivered one Note
to the Administrator in satisfaction of the Issuer's obligation to the
Administrator hereunder. On the Restatement Date the Issuer shall deliver the
then outstanding Notes to the Trustee for cancellation and shall deliver newly
issued Notes to the Administrator and the Funding Agent in the form attached to
the Series Supplement.
ARTICLE IV.
CONDITIONS PRECEDENT
SECTION 4.1 Conditions Precedent to Initial Purchase of the Notes.
In addition to the conditions set forth in Section 3.1 of the Series Supplement,
the purchase by the Administrator on behalf of the Conduit Purchaser of the
Notes was subject to the satisfaction at the time of the Closing of the
following conditions, each of which was satisfied or waived on or prior to the
Closing:
(a) The Administrator shall have received on the Closing Date
from each of the Seller and the Issuer, a certificate, dated the Closing
Date and signed by an executive officer of the Seller and an executive
officer of the Issuer, as the case may be, to the effect that, and the
Administrator shall be satisfied that, (i) the representations and
warranties of the Seller and the Issuer in this Note Purchase Agreement,
the Indenture and the other Transaction Documents are true and correct on
and as of the Closing Date as if made on and as of such date, (ii) the
Issuer and the Seller have complied with all the agreements and satisfied
all the conditions on their part to be performed or satisfied in this Note
Purchase Agreement, the Indenture and the other Transaction Documents, as
applicable, at or prior to the Closing Date, and (iii) there has not
occurred any change or any development that is likely to result in a
change in the condition, financial or otherwise, or in the earnings,
business, operations or prospects of the Issuer or the Seller, and their
respective Affiliates, taken as a whole, from that set forth in the
Offering Memorandum 2002 that has had or could reasonably be expected to
have a Material Adverse Effect.
15
(b) The Administrator shall have received a certificate, dated
the Closing Date, signed by an executive officer of Trustee to the effect
that each of the Trust Accounts have been established.
(c) The Administrator shall have received, on the Closing
Date, opinions delivered to the Administrator and the Conduit Purchaser
(and the other addressees reasonably requested by the Initial Purchaser),
in each case, dated the Closing Date, covering such matters as the
Administrator shall reasonably request.
(d) The Issuer, the Trustee, the Seller and the other parties
to the Transaction Documents shall have executed and delivered the
Transaction Documents to which they are parties in the same form and
substance as previously presented to and approved by the Administrator.
(e) Prior to the Closing Date, the Issuer and the Seller shall
have furnished to the Administrator such further information, certificates
and documents as the Administrator may reasonably request.
(f) Prior to the Closing Date, the Administrator shall have
received certified copies of resolutions of the Board of Directors of the
Issuer, the Servicer and the Seller (or, in each case, of its general
partner or sole member, if applicable) authorizing or ratifying the
execution, delivery and performance, respectively, of the Transaction
Documents to which it is a party, together with a certified copy of its
articles or certificate of incorporation or certificate of limited
partnership, as applicable, and a copy of its limited partnership
agreement or by-laws, as applicable.
(g) Prior to the Closing Date, the Administrator shall have
received certified copies of all documents evidencing any necessary
corporate action, consents and governmental approvals (if any) with
respect to the Transaction Documents.
(h) Prior to the Closing Date, the Administrator shall have
received a certificate of the secretary or an assistant secretary of each
of the Issuer, the Servicer Letter of Credit Bank and the Seller (or, in
each case, of its general partner, if applicable) certifying the names of
its officer or officers authorized to sign the Transaction Documents to
which it is a party.
16
(i) Prior to the Closing Date, the Administrator shall have
received good standing certificates for the Issuer, the Servicer and the
Seller issued as of a recent date acceptable to Administrator by (a) the
Secretary of State of the jurisdiction of such Person's incorporation or
organization, and (b) the Secretary of State of the jurisdiction where
such Person's chief executive office and principal place of business are
located.
(j) Prior to the Closing Date, the Administrator shall have
received (i) acknowledgment copies of proper financing statements (Form
UCC-1), filed on or prior to the Closing Date, naming Issuer as debtor and
Trustee (for the benefit of the Secured Parties) as the secured party as
may be necessary or, in the opinion of Administrator, desirable under the
UCC to perfect Trustee's (for the benefit of the Secured Parties) security
interest in the Trust Estate, (ii) acknowledgment copies of proper
financing statements, filed on or prior to the Closing Date, naming the
Seller (and its predecessors) as seller/debtor, the Issuer as
purchaser/secured party and the Trustee as assignee as may be necessary
or, in the opinion of Administrator, desirable under the UCC to perfect
Trustee's ownership interest in the Receivables and the proceeds thereof,
and (iii) executed copies of proper UCC-3 financing statements necessary
to release all liens and other Adverse Claims of any Person in the Trust
Estate, the Receivables or the Purchased Receivables, as applicable,
granted by the Issuer or the Seller or its predecessors.
(k) Prior to the Closing Date, the Administrator shall have
received a written search report by a search service acceptable to
Administrator listing all effective financing statements that name the
Issuer or the Seller and its predecessors as a debtor or assignor and that
are filed in the jurisdictions in which filings were made pursuant to
subsection 4.1(j) above and in such other jurisdictions that Administrator
shall have reasonably requested, together with copies of such financing
statements (none of which shall cover any of the Trust Estate), and tax
and judgment lien search reports from a Person satisfactory to
Administrator showing no evidence of such lien filed against the Issuer or
the Seller and its predecessors.
(l) Prior to the Closing Date, the Administrator shall have
received all outstanding Fees payable pursuant to the Fee Letter,
including all accrued attorneys' fees and expenses.
(m) No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any
Governmental Authority that would, as of the Closing Date, prevent the
issuance or sale of the Notes; and no injunction or order of any Federal,
state or foreign court shall have been issued that would, as of the
Closing Date, prevent the issuance or sale of the Notes.
(n) All Governmental Actions of all Governmental Authorities
required with respect to the transactions contemplated by the Transaction
Documents and the other documents related thereto shall have been obtained
or made.
17
(o) To the extent required by Three Pillars' commercial paper
program, a letter from each rating agency rating Three Pillars' Commercial
Paper Notes confirming its rating of such Commercial Paper Notes or that
such rating will not be withdrawn or downgraded after giving effect to the
Original Note Purchase Agreement and the transactions contemplated
thereby.
(p) No Pay Out Event, Potential Pay Out Event, Event of
Default, Servicer Default or Block Event has occurred and is continuing.
(q) The representations and warranties of the Issuer, the
Servicer and the Seller set forth in the Original Note Purchase Agreement
and the other Transaction Documents are true and correct as of the Closing
Date.
SECTION 4.2 Conditions Precedent to each Increase. In addition to
the conditions set forth in Section 3.1 of the Series Supplement, the obligation
of the Conduit Purchasers and the Committed Purchaser to fund any Increase on
the related Increase Date is subject to the condition that there exist no Pay
Out Event, Potential Pay Out Event, Event of Default, Servicer Default or Block
Event which has occurred and is continuing.
SECTION 4.3 Conditions Precedent to the Restatement. In addition to
the conditions set forth in Section 3.1 of the Series Supplement, the purchase
by the Administrator and the Funding Agent on behalf of the respective Conduit
Purchasers of the Notes on the Restatement Date is subject to the satisfaction
at the time of the Restatement of the following conditions:
(a) The Administrator and the Funding Agent shall have
received on the Restatement Date from each of the Seller and the Issuer, a
certificate signed by an executive officer of such Person, dated the
Restatement Date, to the effect that (i) the representations and
warranties of the Seller and the Issuer in this Note Purchase Agreement,
the Indenture and the other Transaction Documents are true and correct on
and as of the Restatement Date as if made on and as of such date, (ii) the
Issuer and the Seller have complied with all the agreements and satisfied
all the conditions on their part to be performed or satisfied in this Note
Purchase Agreement, the Indenture and the other Transaction Documents, as
applicable, at or prior to the Restatement Date, and (iii) there has not
occurred any change or any development that is likely to result in a
change in the condition, financial or otherwise, or in the earnings,
business, operations or prospects of the Issuer or the Seller, and their
respective Affiliates, taken as a whole, from that set forth in the
Seller's most recent form 10-K filed with the Securities and Exchange
Commission that has had or could reasonably be expected to have a Material
Adverse Effect and the Administrator and the Funding Agent shall be
satisfied that such conditions are true.
(b) The Funding Agent shall have received, on the Restatement
Date, reliance letters with respect to such opinions delivered to the
Administrator and Three Pillars prior to the Restatement Date as may be
requested by the Funding Agent.
18
(c) The Administrator and the Funding Agent shall have
received on the Restatement Date opinion letters and/or bring-down letters
of opinions delivered to the Administrator and Three Pillars prior to the
Restatement Date from counsel to the Issuer, the Seller and the Trustee,
in each case in form and substance satisfactory to the Administrator and
the Funding Agent.
(d) (i) The Issuer, the Trustee, the Seller and the other
parties to the Transaction Documents shall have executed and delivered to
the Administrator and the Funding Agent this Note Purchase Agreement and
each other Transaction Document to be executed as of the Restatement Date
and (ii) the Issuer shall have delivered to the Funding Agent all
previously executed Transaction Documents and documents related to the
Transaction Documents, including all amendments thereto, to which they are
parties in the same form and substance as previously delivered to the
Administrator.
(e) Prior to the Restatement Date, the Issuer and the Seller
shall have furnished to the Administrator and the Funding Agent such
further information, certificates and documents as the Administrator or
the Funding Agent may reasonably request.
(f) Prior to the Restatement Date, the Administrator and the
Funding Agent shall have received certified copies of all documents
evidencing any necessary corporate action, consents and governmental
approvals (if any) with respect to the Transaction Documents.
(g) Prior to the Restatement Date, the Administrator and the
Funding Agent shall have received good standing certificates for the
Issuer, the Servicer and the Seller issued as of a recent date acceptable
to Administrator and the Funding Agent by (a) the Secretary of State of
the jurisdiction of such Person's incorporation or organization, and (b)
the Secretary of State of the jurisdiction where such Person's chief
executive office and principal place of business are located.
(h) Prior to the Restatement Date, the Funding Agent shall
have received, in form and substance to its reasonable satisfaction (i)
acknowledgment copies of properly filed financing statements (Form UCC-1),
filed on or prior to September 13, 2002, naming Issuer as debtor and
Trustee (for the benefit of the Secured Parties) as the secured party
perfecting Trustee's (for the benefit of the Secured Parties) security
interest in the Trust Estate, (ii) acknowledgment copies of properly filed
financing statements, filed on or prior to September 13, 2002, naming the
Seller (and its predecessors) as seller/debtor, the Issuer as
purchaser/secured party and the Trustee as assignee perfecting Trustee's
ownership interest in the Receivables and the proceeds thereof, (iii)
acknowledgment copies of properly filed UCC-3 financing statements
reflecting releases of all liens and other Adverse Claims of any Person in
the Trust Estate, the Receivables or the Purchased Receivables, as
applicable, granted by the Issuer or the Seller or its predecessors and
(iv) acknowledgment copies of properly filed UCC-3 financing statements
reflecting the continuation of the financing statements referenced in
clauses (i) and (ii) above.
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(i) Prior to the Restatement Date, each of the Administrator
and the Funding Agent shall have received all outstanding Fees due and
payable to it pursuant to its related Fee Letter, including all accrued
attorneys' fees and expenses.
(j) No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any
Governmental Authority that would, as of the Restatement Date, prevent the
issuance or sale of the Notes; and no injunction or order of any Federal,
state or foreign court shall have been issued that would, as of the
Restatement Date, prevent the issuance or sale of the Notes.
(k) No Pay Out Event, Potential Pay Out Event, Event of
Default, Servicer Default or Block Event has occurred and is continuing.
(l) The representations and warranties of the Issuer, the
Servicer and the Seller set forth in this Note Purchase Agreement and the
other Transaction Documents are true and correct as of the Restatement
Date (except to the extent they relate to an earlier date or later time,
and then as of such earlier date or later time).
(m) All fees due and payable to each Conduit Purchaser, the
Administrator, the Funding Agent and the Committed Purchaser on or prior
to the Restatement Date shall have been paid in full.
(n) To the extent required by any Conduit Purchaser's
commercial paper program, a letter from each rating agency rating such
Conduit Purchaser's Commercial Paper Notes confirming its rating of such
Commercial Paper Notes or that such rating will not be withdrawn or
downgraded after giving effect to this Note Purchase Agreement and the
transactions contemplated hereby.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF THE ISSUER AND THE SELLER
SECTION 5.1 Representations, Warranties and Covenants of the Seller
and the Issuer. The Issuer severally represents and warrants and the Seller,
jointly and severally with the Issuer, represent and warrant to the Conduit
Purchasers, the Funding Agent, the Committed Purchaser and the Administrator,
that:
(a) Organization and Good Standing. Each of the Seller and the
Issuer has been duly organized and is validly existing and in good
standing under the laws of the state of organization, with full power and
authority to own its properties and conduct its business as presently
conducted. Each of the Issuer and the Seller is duly qualified to do
business and is in good standing as a foreign entity (or is exempt from
such requirements), and has obtained all necessary licenses and approvals,
in each jurisdiction in which failure to so qualify or to obtain such
licenses and approvals would be reasonably likely to have a Material
Adverse Effect.
(b) Power and Authority; Due Authorization. Each of the Seller
and the Issuer has (a) all necessary power, authority and legal right to
(i) execute, deliver and perform its obligations under this Note Purchase
Agreement and each of the other Transaction Documents to which it is a
party and (b) duly authorized, by all necessary action, the execution,
delivery and performance of this Note Purchase Agreement and the other
Transaction Documents to which it is a party, the transactions
contemplated herein and the borrowing, and the granting of security
therefor, on the terms and conditions provided in the Indenture.
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(c) No Violation. The consummation of the transactions
contemplated by this Note Purchase Agreement and the other Transaction
Documents and the fulfillment of the terms hereof will not (i) conflict
with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time or both) a default
under, (A) the organizational documents of the Issuer or the Seller or (B)
any indenture, loan agreement, pooling and servicing agreement,
receivables purchase agreement, mortgage, deed of trust, or other
agreement or instrument to which the Issuer or the Seller is a party or by
which the Issuer or the Seller or any of the Issuer's or the Seller's
properties is bound, (ii) result in or require the creation or imposition
of any Adverse Claim upon its properties pursuant to the terms of any such
indenture, loan agreement, pooling and servicing agreement, receivables
purchase agreement, mortgage, deed of trust, or other agreement or
instrument, other than pursuant to the terms of the Transaction Documents,
or (iii) violate any law or any order, rule, or regulation applicable to
the Issuer or the Seller or of any court or of any federal, state or
foreign regulatory body, administrative agency, or other governmental
instrumentality having jurisdiction over, the Issuer or the Seller or any
of its respective properties.
(d) Validity and Binding Nature. This Note Purchase Agreement
is, and the other Transaction Documents to which the Issuer or the Seller
is a party when duly executed and delivered by the Issuer or the Seller
and the other parties thereto will be, the legal, valid and binding
obligation of the Issuer or the Seller, as applicable, enforceable in
accordance with their respective terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar law affecting creditors' rights generally and by general
principles of equity.
(e) Government Approvals. No authorization or approval or
other action by, and no notice to or filing with, any governmental
authority or regulatory body required for the due execution, delivery or
performance by the Issuer or the Seller of any Transaction Document to
which it is a party remains unobtained or unfiled, except for the filing
of the UCC financing statements referred to in Section 15.4 of the Base
Indenture.
(f) Bulk Sales. No transaction contemplated hereby or by the
other Transaction Documents requires compliance with any "bulk sales" act
or similar law.
(g) Margin Regulations. Neither the Seller nor the Issuer is
engaged in the business of extending credit for the purpose of purchasing
or carrying margin stock, and no proceeds from the transactions
contemplated hereby, directly or indirectly, will be used for a purpose
that violates, or would be inconsistent with, Regulations T, U and X
promulgated by the Federal Reserve Board from time to time.
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(h) Perfection. (a) On the Closing Date and the date of each
Increase, the Issuer shall be the owner of all of the Receivables and
Related Security and Collections and proceeds with respect thereto, free
and clear of all Adverse Claims. On or prior to the Closing Date and the
date of each Increase and each recomputation of the Investor Interest, all
financing statements and other documents required to be recorded or filed
in order to perfect and protect the Trust Estate against all creditors
(other than Secured Parties) of, and purchasers (other than Secured
Parties) from, the Issuer and each Seller will have been (or will have
been within ten (10) days of the Closing Date) duly filed in each filing
office necessary for such purpose, and all filing fees and taxes, if any,
payable in connection with such filings shall have been (or will have been
within ten (10) days of the Closing Date) paid in full;
(ii) the Indenture constitutes a valid grant of a
security interest to the Trustee for the benefit of the
Conduit Purchasers and the other Secured Parties in all right,
title and interest of the Issuer in the Receivables, the
Related Security and Collections and proceeds with respect
thereto and all other assets of the Trust Estate, now existing
or hereafter created or acquired. Accordingly, to the extent
the UCC applies with respect to the perfection of such
security interest, upon the filing of any financing statements
described in Article 8 of the Indenture, and, solely with
respect to the Related Security, to the extent required for
perfection under the relevant UCC, the delivery of possession
of all instruments, if any, included in such Related Security
to the Servicer), the Trustee shall have a first priority
perfected security interest in such property and the proceeds
thereof (to the extent provided in Section 9-315), subject to
Permitted Encumbrances and, to the extent the UCC does not
apply to the perfection of such security interest, all notices
filings and other actions required by all applicable law have
been taken to perfect and protect such security interest or
lien against and prior to all Adverse Claims with respect to
the relevant Receivables, Related Security and Collections and
proceeds with respect thereto and all other assets of the
Trust Estate. Except as otherwise specifically provided in the
Transaction Documents, neither the Issuer nor any Person
claiming through or under the Issuer has any claim to or
interest in the Collection Account; and
(iii) immediately prior to, and after giving effect to,
the initial purchase of the Notes and each Increase hereunder,
the Issuer will be Solvent.
(i) Offices. The principal place of business and chief
executive office of the Issuer is located at the address referred to in
Section 15.4 of the Base Indenture (or at such other locations, notified
to the Trustee in jurisdictions where all action required thereby has been
taken and completed).
(j) Tax Status. Each of the Issuer and the Seller has filed
all tax returns (Federal, State and local) required to be filed by it and
has paid or made adequate provision for the payment of all taxes,
assessments and other governmental charges then due and payable (including
for such purposes, the setting aside of appropriate reserves for taxes,
assessments and other governmental charges being contested in good faith).
22
(k) Compliance with Applicable Laws; Licenses, etc.
(i) Each of the Issuer and the Seller is in compliance
with the requirements of all applicable laws, rules,
regulations, and orders of all governmental authorities, a
breach of any of which, individually or in the aggregate,
would be reasonably likely to have a Material Adverse Effect.
(ii) Neither of the Issuer nor the Seller has failed to
obtain any licenses, permits, franchises or other governmental
authorizations necessary to the ownership of its properties or
to the conduct of its business, which violation or failure to
obtain would be reasonably likely to have a Material Adverse
Effect.
(l) No Proceedings. Except as described in Schedule I,
(i) there is no order, judgment, decree, injunction,
stipulation or consent order of or with any court or other
government authority to which the Issuer or the Seller is
subject, and there is no action, suit, arbitration, regulatory
proceeding or investigation pending, or, to the knowledge of
the Issuer or the Seller, threatened, before or by any court,
regulatory body, administrative agency or other tribunal or
governmental instrumentality, against the Issuer that,
individually or in the aggregate, is reasonably likely to have
a Material Adverse Effect; and
(ii) there is no action, suit, proceeding, arbitration,
regulatory or governmental investigation, pending or, to the
knowledge of the Issuer or the Seller, threatened, before or
by any court, regulatory body, administrative agency, or other
tribunal or governmental instrumentality (A) asserting the
invalidity of this Note Purchase Agreement, the Indenture, the
Notes or any other Transaction Document, (B) seeking to
prevent the issuance of the Notes pursuant to the Indenture or
the consummation of any of the other transactions contemplated
by this Indenture or any other Transaction Document or (C)
seeking to adversely affect the federal income tax attributes
of the Issuer.
(m) Investment Company Act, Etc. None of the Seller or the
Issuer is, or after applying the proceeds of this offering will be, an
"investment company" within the meaning of the Investment Company Act of
1940, as amended.
(n) Eligible Receivables. Each Receivable included in the
Trust Estate on the date of any Monthly Servicer Report shall be an
Eligible Receivable on such date. Each Receivable, including Subsequently
Purchased Receivables, purchased by the Issuer on any Purchase Date shall
be an Eligible Receivable as of such Purchase Date.
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(o) Receivables Schedule. The Receivable File is a true and
correct schedule of the Receivables included in the Trust Estate.
(p) ERISA. (i) Each of the Seller, the Issuer and its
respective ERISA Affiliates is in compliance in all material respects with
ERISA unless any failure to so comply could not reasonably be expected to
have a Material Adverse Effect and (ii) no Lien exists in favor of the
Pension Benefit Guaranty Corporation on any of the Receivables. No ERISA
Event has occurred with respect to Title IV Plans of the Issuer. No ERISA
Event has occurred with respect to Title IV plans of the Seller's or the
Issuer's ERISA Affiliates that have an aggregate Unfunded Pension
Liability equal to or greater than $1,000,000. No ERISA Event has occurred
with respect to a Multiemployer Plan (as defined in the Base Indenture) of
the Issuer or its ERISA Affiliates.
(q) Accuracy of Information. All information heretofore
furnished by, or on behalf of, the Seller or the Issuer to the Trustee or
any of the Noteholders in connection with any Transaction Document, or any
transaction contemplated thereby, is true and accurate in every material
respect (without omission of any information necessary to prevent such
information from being materially misleading).
(r) No Material Adverse Change. Since the date of the Seller's
most recent form 10-K filed with the Securities and Exchange Commission,
there has been no material adverse change in the collectibility of the
Receivables or the Issuer's (i) financial condition, business, operations
or prospects or (ii) ability to perform its obligations under any
Transaction Document.
(s) Trade Names and Subsidiaries. Set forth on Schedule II
hereto is a complete list of trade names of the Seller for the six year
period preceding the Closing Date. The Issuer has no Subsidiaries and does
not own or hold, directly or indirectly, any equity interest in any
Person.
(t) Notes. The Notes have been duly and validly authorized,
and, when executed and authenticated in accordance with the terms of the
Indenture, and delivered to and paid for in accordance with this Note
Purchase Agreement, will be duly and validly issued and outstanding and
will be entitled to the benefits of the Indenture.
(u) Sales by Seller. (a) Each sale of Receivables by the
Seller to the Issuer shall have been effected under, and in accordance
with the terms of, the Purchase Agreement, including the payment by the
Issuer to the Seller of an amount equal to the purchase price therefor as
described in the Purchase Agreement, and each such sale shall have been
made for "reasonably equivalent value" (as such term is used under Section
548 of the Federal Bankruptcy Code) and not for or on account of
"antecedent debt" (as such term is used under Section 547 of the Federal
Bankruptcy Code) owed by the Issuer to the Seller.
(v) Use of Proceeds. No proceeds of any Notes will be used by
the Issuer to acquire any security in any transaction which is subject to
Section 13 or 14 of the Securities Exchange Act of 1934, as amended.
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(w) Reaffirmation of Representations and Warranties by the
Issuer. On the Closing Date and on each Business Day, the Issuer shall be
deemed to have certified that all representations and warranties described
in Section 7.1 of the Indenture are true and correct on and as of such day
as though made on and as of such day (except to the extent they relate to
an earlier date or later time, and then as of such earlier date or later
time).
SECTION 5.2 Reaffirmation of Representations and Warranties by the
Issuer. On the Closing Date, the Restatement Date, on each Business Day and on
each day that an Increase is made hereunder, the Issuer, by accepting the
proceeds thereof, shall be deemed to have certified that all representations and
warranties described in Section 5.1 hereof and Section 7.1 of the Indenture are
true and correct on and as of such day as though made on and as of such day
(except to the extent they relate to an earlier date or later time, and then as
of such earlier date or later time).
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES
WITH RESPECT TO THE ADMINISTRATOR,
THE FUNDING AGENT AND THE CONDUIT PURCHASERS
SECTION 6.1 Securities Laws; Transfer Restrictions. Each of the
Administrator, the Funding Agent and each Conduit Purchaser represents and
warrants to the Issuer, for itself, as of the date hereof (or as of a subsequent
date on which a successor or assign of any Purchaser shall become a party
hereto), and agrees that:
(a) it has (i) reviewed the Indenture (including the schedule
and exhibits thereto) and all other documents which have been provided by
the Issuer to it with respect to the transactions contemplated by the
Indenture, (ii) participated in due diligence sessions with the Servicer
and (iii) had an opportunity to discuss the Issuer's and the Seller's
businesses, management and financial affairs, and the terms and conditions
of the proposed purchase with the Issuer and the Servicer and their
respective representatives;
(b) it is an "accredited investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act and
has sufficient knowledge and experience in financial and business matters
to be capable of evaluating the merits and risks of investing in, and it
is able and prepared to bear the economic risk of investing in, the Notes;
(c) it is purchasing the Notes for its own account, or for the
account of one or more "accredited investors" within the meaning of Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act that
meet the criteria described in subsection (b) and for which it is acting
with complete investment discretion, for investment purposes only and not
with a view to distribution;
25
(d) it understands that (i) the Notes have not been and will
not be registered or qualified under the Securities Act or any applicable
state securities laws or the securities laws of any other jurisdiction and
is being offered only in a transaction not involving any public offering
within the meaning of the Securities Act, (ii) the Issuer is not required
to so register or qualify the Notes, and (iii) the Notes may be resold,
pledged or otherwise transferred only (A) to the Issuer, (B) to a
"qualified institutional buyer" (as defined in Rule 144A under the
Securities Act) in a transaction meeting the requirements of Rule 144A
under the Securities Act, or (C) in a transaction otherwise exempt from
the registration requirements of the Securities Act, in each case in
accordance with the provisions of the Indenture and any applicable
securities laws of any state of the United States or any other
jurisdiction;
(e) it understands that upon original issuance thereof, and
until such time as the same may no longer be required under the applicable
requirements of the Securities Act, the certificate evidencing the Notes
(and all securities issued in exchange therefor or substitution thereof)
shall bear a legend substantially in the form set forth in the form of
Notes included as an exhibit to the Series Supplement;
(f) it understands that the Registrar and Transfer Agent for
the Notes will not be required to accept for registration of transfer the
Notes acquired by it, except upon presentation of, if applicable, the
certificate and, if applicable, the opinion described in the Series
Supplement; and
(g) it will obtain from any transferee of the Notes (or any
interest therein) substantially the same representations, warranties and
agreements contained in this Section 6.1.
ARTICLE VII.
COVENANTS
SECTION 7.1 Monthly Noteholders' Statement; Notice of Adverse
Effect. (3) The Issuer will cause each Monthly Noteholders' Statement pertaining
to the Series Supplement to be delivered to each Conduit Purchaser and the
Committed Purchaser, contemporaneously with the delivery thereof to the Trustee.
(b) As soon as possible, and in any event within one (1) day
after the occurrence thereof, the Issuer shall (or shall cause the
Servicer to) give each Conduit Purchaser and the Committed Purchaser
written notice of each Pay Out Event, Potential Pay Out Event, Event of
Default, Servicer Default or Block Event.
SECTION 7.2 Further Assurances. The Issuer agrees to take any and
all acts and to create any and all further instruments necessary or reasonably
requested by the Administrator and the Funding Agent to fully effect the
purposes of this Note Purchase Agreement.
SECTION 7.3 Modifications to Transaction Documents. (4)
Notwithstanding anything in the Indenture to the contrary, no provision of this
Note Purchase Agreement, the Indenture, the Servicing Agreement or the Purchase
Agreement may be amended, waived or otherwise modified without (i) the prior
written consent of the Issuer and the Required Persons and (ii) if such
amendment is material, without satisfying the Rating Agency Condition; provided
that the consent of all of the Noteholders shall be required for (i) any
amendment, waiver, modification or supplement of any such document described
above relating to (i) the definitions of "Eligible Receivables," "Purchase
Expiration Date," "Final Purchase Expiration Date," "Tranche A Expiration Date,"
"Tranche B Expiration Date," "Tranche C Expiration Date," "Required Persons,"
"Required Reserve Amount," "Coverage Test" and "Maximum Principal Amount" and
any defined terms incorporated therein, (ii) the reduction or postponement of
the time for payment of any fee or other amount payable to or on behalf of such
Noteholders or (iii) this Section 7.3.
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(b) The Issuer shall (or shall cause the Servicer to) give the
Administrator, the Funding Agent, the Committed Purchaser and the Conduit
Purchasers written notice of any proposed amendment, modification or
waiver of any provision of the Transaction Documents.
SECTION 7.4 Expenses. Whether or not the Closing takes place, except
as otherwise expressly provided herein or in the Fee Letter, all reasonable
costs and expenses incurred in connection with this Note Purchase Agreement and
the transactions contemplated hereby shall be paid by the Issuer.
SECTION 7.5 Reorganizations and Transfers. The Issuer shall not
enter into any transaction described in subsection 8.3(c) of the Indenture
unless the Trustee and the Required Persons shall have given their prior written
consent thereto.
SECTION 7.6 Financial Covenants. (5) The Seller will not permit the
ratio of (i) Consolidated EBITDA plus Consolidated Rent Expense minus
Consolidated Capital Expenditures divided by (ii) Consolidated Cash Interest
Expense (exclusive of any fees paid in respect of the undrawn face amounts of
the Collection Account Letters of Credit) plus Consolidated Rent Expense, as
determined as of the last day of each fiscal quarter for the twelve-month period
ending on such day, to be less than 2.00 to 1.00.
(b) The Seller will not permit 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 as of the last day of each fiscal quarter for the
twelve-month period ending on such day, to be greater than 3.00 to 1.00.
(c) Notwithstanding anything set forth in Section 2.04(e) of
the Servicing Agreement, the Seller will not permit, at any time,
Consolidated Net Worth to be less than the sum of (i) $109,541,000 plus
(ii) 75% of positive Net Income generated after January 31, 2005 plus
(iii) 100% of any capital stock or other ownership or profit interest or
any securities convertible into or exchangeable for capital stock or other
ownership or profit interest or any warrants, rights or options to acquire
the same, issued after January 31, 2005. Any gains attributable to the
effects of Statements of Financial Accounting Standards Nos. 125/140
and/or 133, or their successors, and any losses attributable thereto,
shall be excluded in determining Consolidated Net Worth for purposes of
this Section.
27
All capitalized terms used in this Section 7.6 (other than "Seller" and
"Servicing Agreement") and all defined terms incorporated therein by reference
or usage shall have the meanings set forth in that certain Credit Agreement,
dated as of October 31, 2005, among the Seller, the lenders party thereto,
JPMorgan Chase Bank, National Association, as administrative agent, Bank of
America, N.A., as syndication agent and SunTrust Bank, as documentation agent
(the "Credit Facility"), solely as such Credit Facility has been amended through
the date hereof and without giving effect to any further amendment, restatement,
amendment and restatement, modification or supplement thereto (it being
understood and agreed that all such terms shall still apply in full force as
used in this Note Purchase Agreement notwithstanding any termination,
restructuring or other modification of the Credit Facility). For the avoidance
of doubt, the parties hereto hereby agree that each covenant set forth in this
Section 7.6 shall be tested by the Seller quarterly.
ARTICLE VIII.
INDEMNIFICATION
SECTION 8.1 Indemnification. The Seller and the Issuer, jointly and
severally, agree to indemnify and hold harmless the Administrator, the Funding
Agent, the Committed Purchaser, each Conduit Purchaser, each Liquidity Bank,
each Credit Bank, each Bank, each of such Banks' Affiliates and each of their
respective successors, transferees, participants and assigns and all officers,
directors, shareholders, controlling persons, employees and agents of any of the
foregoing (each of the foregoing Persons being individually called an
"Indemnified Party"), forthwith on demand, from and against any and all damages,
losses, claims, liabilities and related costs and expenses, including reasonable
attorneys' fees and disbursements (all of the foregoing being collectively
called "Indemnified Amounts") awarded against or incurred by any of them arising
out of or relating to any Transaction Document or the transactions contemplated
thereby, any commingling of funds (whether or not permitted hereunder), or the
use of proceeds therefrom by the Issuer, including (without limitation) in
respect of the Initial Purchase Price or any Increases or in respect of any
Receivable; excluding, however, (a) Indemnified Amounts to the extent determined
by a court of competent jurisdiction to have resulted from gross negligence or
willful misconduct on the part of any Indemnified Party or its agent or
subcontractor (BUT EXPRESSLY EXCLUDING FROM THIS CLAUSE (a), AND EXPRESSLY
INCLUDING IN THE INDEMNITY SET FORTH IN THIS SECTION 8.1, INDEMNIFIED AMOUNTS
ATTRIBUTABLE TO THE ORDINARY, SOLE OR CONTRIBUTORY NEGLIGENCE OF SUCH
INDEMNIFIED PARTY, IT BEING THE INTENT OF THE PARTIES THAT, TO THE EXTENT
PROVIDED IN THIS SECTION 8.1, INDEMNIFIED PARTIES SHALL BE INDEMNIFIED FOR THEIR
OWN ORDINARY, SOLE OR CONTRIBUTORY NEGLIGENCE NOT CONSTITUTING GROSS NEGLIGENCE
OR WILLFUL MISCONDUCT), and (b) any tax upon or measured by net income (except
those described in Section 8.1) on any Indemnified Party.
SECTION 8.2 Increased Costs.
28
(a) If after the date hereof, the adoption of any law or bank
regulatory guideline or any amendment or change in the interpretation of
any existing or future law or bank regulatory guideline by any Official
Body charged with the administration, interpretation or application
thereof, or the compliance with any directive of any Official Body (in the
case of any bank regulatory guideline, whether or not having the force of
law), other than laws, interpretations, guidelines or directives relating
to Taxes:
(i) shall impose, modify or deem applicable any reserve,
special deposit or similar requirement (including, without
limitation, any such requirement imposed by the Board of
Governors of the Federal Reserve System) against assets of,
deposits with or for the account of, or credit extended by, an
Affected Party or shall impose on any Affected Party or on the
United States market for certificates of deposit or the London
interbank market any other condition affecting this Note
Purchase Agreement, the other Transaction Documents, the
ownership, maintenance or financing of the Notes, the
Receivables, any other assets of the Trust Estate or payments
of amounts due hereunder or its obligation to advance funds
hereunder or under the other Transaction Documents; or
(ii) imposes upon any Affected Party any other expense
deemed by such Affected Party to be material (including,
without limitation, reasonable attorneys' fees and expenses,
and expenses of litigation or preparation therefor in
contesting any of the foregoing) with respect to this Note
Purchase Agreement, the other Transaction Documents, the
ownership, maintenance or financing of the Notes, the
Receivables, any other assets of the Trust Estate, or payments
of amounts due hereunder or its obligation to advance funds
hereunder or otherwise in respect of this Note Purchase
Agreement or the other Transaction Documents,
and the result of any of the foregoing is to increase the cost to such Affected
Party with respect to this Note Purchase Agreement, the other Transaction
Documents, the ownership, maintenance or financing of the Notes, the
Receivables, any other assets of the Trust Estate, the obligations hereunder,
the funding of any Increases hereunder or under the other Transaction Documents,
by an amount reasonably deemed by such Affected Party to be material, then, on
the first Payment Date which is not less than three Business Days after demand
by such Affected Party through the Administrator or the Funding Agent, as
applicable, the Issuer shall pay to such Affected Party such additional amount
or amounts as will compensate such Affected Party for such increased cost or
reduction. In making demand hereunder, the applicable Affected Party shall
submit to the Issuer a certificate as to such increased costs incurred which
shall provide in detail the basis for such claim which certificate shall be
conclusive and binding for all purposes absent manifest error; provided,
however, that no such Affected Party shall be required to disclose any
confidential or tax planning information in any such certificate.
(b) If any Affected Party shall have determined that after the
Closing Date, the adoption of any applicable law or bank regulatory
guideline regarding capital adequacy, or any change therein, or any change
in the interpretation thereof by any Official Body, or any directive
regarding capital adequacy (in the case of any bank regulatory guideline,
whether or not having the force of law) of any such Official Body, has or
would have, due to an increase in the amount of capital required to be
maintained by such Affected Party, the effect of reducing the rate of
return on capital of such Affected Party as a consequence of such Affected
Party's obligations hereunder or with respect hereto to a level below that
which such Affected Party could have achieved but for such adoption,
change, request or directive (taking into consideration its policies with
respect to capital adequacy) by an amount reasonably deemed by such
Affected Party to be material, then from time to time, on the first
Payment Date which is not less than ten (10) Business Days after demand by
such Affected Party through the Administrator or the Funding Agent, as
applicable, the Issuer shall pay to such Affected Party such additional
amount or amounts as will compensate such Affected Party for such
reduction. In making demand hereunder, the applicable Affected Party shall
submit to the Issuer a certificate as to such increased costs incurred
which shall provide in detail the basis for such claim which certificate
shall be conclusive and binding for all purposes absent manifest error;
provided, however, that no such Affected Party shall be required to
disclose any confidential or tax planning information in any such
certificate.
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SECTION 8.3 Indemnity for Taxes. All payments made by the Issuer to
the Administrator or the Funding Agent for the benefit of any related Conduit
Purchaser or the Committed Purchaser under this Note Purchase Agreement or any
other Transaction Document shall be made free and clear of, and without
deduction or withholding for or on account of, any present or future stamp or
similar taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or assessed
by any Official Body, excluding (i) taxes that would not have been imposed if
the Affected Party had timely complied with the requirements of subsection
8.3(b) hereof, and (ii) taxes imposed on the net income of the Administrator,
the Funding Agent or any other Affected Party, in each case imposed by any
jurisdiction under the laws of which the Administrator, the Funding Agent or
such Affected Party is organized or any political subdivision or taxing
authority thereof or therein (all such nonexcluded taxes, levies, imposts,
duties, charges, fees, deductions or withholdings, collectively or individually,
"Taxes"). If any such Taxes are required to be withheld from any amounts payable
to the Administrator, the Funding Agent or any Affected Party hereunder, the
amounts so payable to the Administrator, the Funding Agent or such Affected
Party shall be increased to the extent necessary to yield to the Administrator,
the Funding Agent or such Affected Party (after payment of all Taxes) all
amounts payable hereunder at the rates or in the amounts specified in this Note
Purchase Agreement and the other Transaction Documents. The Issuer shall
indemnify the Administrator, the Funding Agent and any such Affected Party for
the full amount of any such Taxes on the first Payment Date which is not less
than ten (10) days after the date of written demand therefor by the
Administrator or the Funding Agent, as applicable.
(a) Each Affected Party that is a Non-United States Person
shall:
(i) deliver to the Issuer and the Administrator or the
Funding Agent, as applicable, two duly completed copies of IRS
Form W-8 BEN or Form W-8 ECI, or successor applicable form, as
the case may be;
30
(ii) deliver to the Issuer and the Administrator or the
Funding Agent, as applicable, two (2) further copies of any
such form or certification on or before the date that any such
form or certification expires or becomes obsolete and after
the occurrence of any event requiring a change in the most
recent form previously delivered by it to the Issuer; and
(iii) obtain such extensions of time for filing and
complete such forms or certifications as may reasonably be
requested by the Issuer, the Administrator or the Funding
Agent;
unless, in any such case, an event (including, without limitation, any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which, regardless of the identity of the
Affected Party, renders all such forms inapplicable or which, regardless of the
identity of the Affected Party, would prevent such Affected Party from duly
completing and delivering any such form with respect to it, and such Affected
Party so advises the Issuer and the Administrator or the Funding Agent, as
applicable. Each such Affected Party so organized shall certify in the case of
an IRS Form W-8 BEN or IRS Form W-8 ECI (or successor applicable form), that it
is entitled to receive payments under this Note Purchase Agreement and the other
Transaction Documents without deduction or withholding of any United States
federal income taxes. Each Affected Party which is a Non-United States Person
represents and warrants to the Issuer and the Administrator or the Funding
Agent, as applicable, that, as of the date of this Note Purchase Agreement (or
the date such Person otherwise becomes an Affected Party, as the case may be),
(i) it is entitled to receive all payments hereunder without deduction or
withholding for or on account of any United States federal Taxes and (ii) it is
permitted to take the actions described in the preceding sentence under the laws
and any applicable double taxation treaties of the jurisdiction of its head
office or any booking office used in connection with this Note Purchase
Agreement. Each Affected Party which is a Non-United States Person further
agrees that, to the extent any form claiming complete or partial exemption from
withholding and deduction of United States federal Taxes delivered under this
clause (b) is found to be incomplete or incorrect in any material respect, such
Affected Party shall (to the extent it is permitted to do so under the laws and
any double taxation treaties of the United States, the jurisdiction of its
organization and the jurisdictions in which its relevant booking offices are
located) execute and deliver to each of the Administrator or the Funding Agent,
as applicable, and the Issuer a complete and correct replacement form.
(b) Limitations. Each Affected Party agrees to use reasonable
efforts to mitigate the imposition of any Taxes referred to in this
Section 8.3, including changing the office of such Affected Party from
which any Funding Tranche (or portion thereof) funded or maintained by
such Affected Party or this Note Purchase Agreement is booked; provided
that such reasonable efforts would not be disadvantageous to such Affected
Party or result in the imposition of any additional Taxes upon such
Affected Party or cause such Affected Party, in its good faith judgment,
to violate one or more of its policies in order to avoid such imposition
of Taxes.
SECTION 8.4 Other Costs, Expenses and Related Matters.
31
(a) The Issuer agrees, upon receipt of a written invoice, to
pay or cause to be paid, and to save the Affected Parties harmless against
liability for the payment of, all reasonable out-of-pocket expenses
(including, without limitation, reasonable attorneys', accountants' and
other third parties' fees and expenses, any filing fees and expenses
incurred by officers or employees of any of the Affected Parties) or
intangible, documentary or recording taxes incurred by or on behalf of the
Affected Parties (i) in connection with the negotiation, execution,
delivery and preparation of this Note Purchase Agreement, the other
Transaction Documents and any documents or instruments delivered pursuant
hereto and thereto and the transactions contemplated hereby or thereby
(including, without limitation, the perfection or protection of the
Affected Parties' interest in the Trust Estate) and (ii) (A) relating to
any amendments, waivers or consents under this Note Purchase Agreement,
any Program Documents and the other Transaction Documents, (B) arising in
connection with any of the Affected Parties' enforcement or preservation
of rights (including, without limitation, the perfection and protection of
the Affected Parties' interest in the Trust Estate), or (C) arising in
connection with any audit, dispute, disagreement, litigation or
preparation for litigation involving this Note Purchase Agreement or any
of the other Transaction Documents.
(b) The Administrator or the Funding Agent will notify the
Issuer and the Servicer in writing of any event occurring after the date
hereof which will entitle an Indemnified Party or Affected Party to
compensation pursuant to this Article VIII. Any notice by the
Administrator or the Funding Agent claiming compensation under this
Article VIII and setting forth the additional amount or amounts to be paid
to it hereunder shall be conclusive in the absence of manifest error. In
determining such amount, the Administrator or the Funding Agent, as
applicable, or any applicable Indemnified Party or Affected Party may use
any reasonable averaging and attributing methods.
(c) If the Issuer is required to pay any additional amount to
any Conduit Purchaser pursuant to Section 8.2 or 8.3, then such Conduit
Purchaser shall use reasonable efforts (which shall not require such
Conduit Purchaser to incur an unreimbursed loss or unreimbursed cost or
expense or otherwise take any action inconsistent with its internal
policies or legal or regulatory restrictions or suffer any disadvantage or
burden reasonably deemed by it to be significant) to assign its rights and
delegate and transfer its obligations hereunder to another of its offices,
branches or Affiliates, if such filing or assignment would reduce amounts
payable pursuant to Section 8.2 or 8.3, as the case may be, in the future.
ARTICLE IX.
THE ADMINISTRATOR AND THE FUNDING AGENT
32
SECTION 9.1 Authorization and Action. Three Pillars, as a Conduit
Purchaser, hereby appoints SunTrust Xxxxxxxx Xxxxxxxx, Inc. as its Administrator
for purposes of the Transaction Documents and authorizes the Administrator to
take such action as agent on its behalf and to exercise such powers as are
delegated to the Administrator, by the terms hereof, together with such powers
as are reasonably incidental thereto. PARCO, as a Conduit Purchaser, and the
Committed Purchaser, hereby appoint JPMorgan Chase Bank, N.A. as its Funding
Agent for purposes of the Transaction Documents and authorizes the Funding Agent
to take such action as agent on their behalf and to exercise such powers as are
delegated to the Funding Agent, by the terms hereof, together with such powers
as are reasonably incidental thereto. Three Pillars, as a Conduit Purchaser,
hereby authorizes the Administrator, in its sole discretion, to take any actions
and exercise any rights or remedies under this Note Purchase Agreement and any
permitted related agreements and documents. PARCO, as a Conduit Purchaser, and
the Committed Purchaser hereby authorize the Funding Agent, in its sole
discretion, to take any actions and exercise any rights or remedies under this
Note Purchase Agreement and any permitted related agreements and documents.
Except for actions which the Administrator or the Funding Agent is expressly
required to take pursuant to this Note Purchase Agreement or the applicable
Program Documents, neither the Administrator nor the Funding Agent shall be
required to take any action which exposes the Administrator or the Funding Agent
to personal liability or which is contrary to applicable law unless the
Administrator or the Funding Agent, as applicable, shall receive further
assurances to its satisfaction from the related Conduit Purchaser, of the
indemnification obligations under Section 9.4 hereof against any and all
liability and expense which may be incurred in taking or continuing to take such
action. The Administrator agrees to give to Three Pillars prompt notice of each
notice and determination given to it by the Issuer, the Servicer or the Trustee,
pursuant to the terms of this Note Purchase Agreement or the Indenture. The
Funding Agent agrees to give to PARCO and the Committed Purchaser prompt notice
of each notice and determination given to it by the Issuer, the Servicer or the
Trustee, pursuant to the terms of this Note Purchase Agreement or the Indenture.
Subject to Section 9.5 hereof, the appointment and authority of each of the
Administrator and the Funding Agent hereunder shall terminate upon the later of
(i) the payment to (a) each Conduit Purchaser and the Committed Purchaser of all
amounts owing to such Person hereunder and (b) the Administrator and the Funding
Agent of all amounts due hereunder and (ii) the Series 2002-A Termination Date.
SECTION 9.2 Administrator's and Funding Agent's Reliance, Etc.
Neither the Administrator, the Funding Agent nor any of its respective
directors, officers, agents who are natural persons or employees shall be liable
for any action taken or omitted to be taken by it or them as Administrator or
Funding Agent under or in connection with this Note Purchase Agreement or any
related agreement or document, except for its or their own gross negligence or
willful misconduct. Without limiting the foregoing, the Administrator and the
Funding Agent: (i) may consult with legal counsel, independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts; (ii) makes no warranty or
representation to the Conduit Purchasers, the Funding Agent or the Committed
Purchaser and shall not be responsible to the Conduit Purchasers, the Funding
Agent or the Committed Purchaser for any statements, warranties or
representations made by any other Person in connection with any Transaction
Document; (iii) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of any
Transaction Document on the part of any Person or to inspect the property
(including the books and records) of any Person; (iv) shall not be responsible
to the Conduit Purchasers, the Funding Agent or the Committed Purchaser for the
due execution, legality, validity, enforceability, genuineness, sufficiency or
value of any Transaction Document or any other instrument or document furnished
pursuant hereto or thereto; and (v) shall incur no liability under or in respect
of any Transaction Document by acting upon any notice (including notice by
telephone), consent, certificate or other instrument or writing (which may be by
telex) believed by it in good faith to be genuine and signed or sent by the
proper party or parties.
33
SECTION 9.3 Administrator, Funding Agent and their Respective
Affiliates. Each of the Administrator, the Funding Agent and any of their
respective Affiliates may generally engage in any kind of business with the
Issuer, the Seller, any Bank, Servicer, any Obligor, any insurer, any of their
respective Affiliates and any Person who may do business with or own securities
of the Issuer, the Seller, any Bank, Servicer, any Obligor or any of their
respective Affiliates, all as if such entities were not the Administrator or the
Funding Agent, as applicable, and without any duty to account therefor to the
Conduit Purchasers, the Funding Agent and the Committed Purchaser, as
applicable.
SECTION 9.4 Purchase Decision. Each of the Conduit Purchasers and
the Committed Purchaser acknowledges that it has, independently and without
reliance upon the Administrator or the Funding Agent, and based on such
documents and information as it has deemed appropriate, made its own evaluation
and decision to enter into this Note Purchase Agreement and to purchase an
interest in the Notes. Each of the Conduit Purchasers and the Committed
Purchaser also acknowledges that it will, independently and without reliance
upon the Administrator or the Funding Agent or any of their respective
Affiliates, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own decisions in taking or not
taking action under this Note Purchase Agreement or any related agreement,
instrument or other document.
SECTION 9.5 Successor Administrator and Funding Agent.
(a) The Administrator may resign at any time by giving five days'
written notice thereof to each of the parties hereto and the Trustee. Upon
any such resignation of the Administrator, Three Pillars, as a Conduit
Purchaser, shall have the right to appoint a successor Administrator. If
no successor Administrator shall have been so appointed and shall have
accepted such appointment, within five days after the retiring
Administrator's giving of notice of resignation, then the retiring
Administrator may, on behalf of Three Pillars, as a Conduit Purchaser,
appoint a successor Administrator. Upon the acceptance of any appointment
as Administrator hereunder by a successor Administrator, such successor
Administrator shall thereupon succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring Administrator, and
the retiring Administrator shall be discharged from its duties and
obligations under this Note Purchase Agreement and the other Transaction
Documents (other than obligations arising or to have been performed prior
to such retirement). After any retiring Administrator's resignation
hereunder as Administrator, the provisions of this Article IX shall inure
to its benefit as to any actions taken or omitted to be taken by it while
it was an Administrator under this Note Purchase Agreement and the other
Transaction Documents.
(b) The Funding Agent may resign at any time by giving five days'
written notice thereof to each of the parties hereto and the Trustee. Upon
any such resignation of the Funding Agent, PARCO, as a Conduit Purchaser,
and the Committed Purchaser shall have the right to appoint a successor
Funding Agent. If no successor Funding Agent shall have been so appointed
and shall have accepted such appointment, within five days after the
retiring Funding Agent's giving of notice of resignation, then the
retiring Funding Agent may, on behalf of the PARCO, as a Conduit
Purchaser, and the Committed Purchaser, appoint a successor Funding Agent.
Upon the acceptance of any appointment as Funding Agent hereunder by a
successor Funding Agent, such successor Funding Agent shall thereupon
succeed to and become vested with all of the rights, powers, privileges
and duties of the retiring Funding Agent, and the retiring Funding Agent
shall be discharged from its duties and obligations under this Note
Purchase Agreement and the other Transaction Documents (other than
obligations arising or to have been performed prior to such retirement).
After any retiring Funding Agent's resignation hereunder as Funding Agent,
the provisions of this Article IX shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was an Funding Agent
under this Note Purchase Agreement and the other Transaction Documents.
34
ARTICLE X.
MISCELLANEOUS
SECTION 10.1 Amendments. No amendment or waiver of any provision of
this Note Purchase Agreement shall in any event be effective unless the same
shall be made in accordance with the requirements set forth in Section 7.3, and
then such amendment, waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
SECTION 10.2 Notices. All communications hereunder, except as herein
otherwise specifically provided, shall be in writing and, if to the Conduit
Purchasers, shall be mailed, delivered or telegraphed and confirmed to such
Persons at the following addresses:
Three Pillars Funding LLC
c/o AMACAR Group, L.L.C.
0000 Xxxxxxxx Xxxxxxxxx,
Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Facsimile: (000) 000-0000
and
Park Avenue Receivables Company, LLC
00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Facsimile: (000) 000-0000
if to the Administrator, shall be mailed, delivered or
telegraphed and confirmed to the Administrator at the following address:
35
SunTrust Xxxxxxxx Xxxxxxxx, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxx
Facsimile: (000) 000-0000
if to the Funding Agent or the Committed Purchaser, shall be mailed,
delivered or telegraphed and confirmed to such Person at the following address:
JPMorgan Chase Bank, N.A.
00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Facsimile: (000) 000-0000
if to the Seller, shall be mailed, delivered or telegraphed and
confirmed to the Seller at the following address:
Conn Appliances, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxx
Telephone: 409-832-1696 ext. 3270
Facsimile: 000-000-0000
if to the Issuer, shall be mailed, delivered or telegraphed and
confirmed to the Issuer at the following address:
Conn Funding II, L.P.
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxx
Telephone: 409-832-1696 ext. 3270
Facsimile: 000-000-0000
SECTION 10.3 No Waiver; Remedies. No failure on the part of any
party hereto to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof or the exercise
of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 10.4 Binding Effect; Assignability. (6) This Note Purchase
Agreement shall be binding on the parties hereto and their respective successors
and assigns; provided, however, that the Issuer may not assign any of its rights
or delegate any of its duties hereunder or under any of the other Transaction
Documents to which it is a party without the prior written consent of the
Administrator and the Funding Agent. No provision of this Note Purchase
Agreement or any other Transaction Document shall in any manner restrict the
ability of any Affected Party to assign, participate, grant security interests
in, or otherwise transfer any portion of its interest in the Notes (and its
rights to receive any payments in respect thereof, including in connection with
any collateral securing payment with respect to such Notes); provided, that any
such transfer, participation or assignment shall only be made in compliance with
the transfer restrictions set forth in the Indenture; provided, further, that
unless otherwise consented to by the Issuer, such transferee, participant or
assignee shall have executed and delivered to the Issuer, the Trustee, the
Funding Agent and the Administrator, a transfer certificate, the form of which
is attached as Exhibit C to the Series Supplement, with such changes as shall be
reasonably acceptable to the Issuer. Without limiting the foregoing, any Conduit
Purchaser may, in one or a series of transactions, transfer all or any portion
of its interest in the Trust Estate and the Notes, and its rights and
obligations under the Transaction Documents to any Bank, any Liquidity Bank (or
any successor of any thereof by merger, consolidation or otherwise), any
Affiliate of any Bank or any Liquidity Bank in connection with a draw under a
Liquidity Agreement or a Credit Advance (which may then assign all or any
portion thereof so assigned or any interest therein to such party or parties as
it may choose).
36
(b) Any Conduit Purchaser or any assignee permitted pursuant
to subsection (a) above may, in the ordinary course of its business and in
accordance with applicable law, at any time sell to one or more Persons
(each, a "Participant") participating interests in all or a portion of its
rights and obligations under this Note Purchase Agreements; provided, that
any such transfer, participation or assignment shall only be made in
compliance with the transfer restrictions set forth in the Indenture;
provided, further, that the Administrator shall have consented to any such
participation by Three Pillars, as a Conduit Purchaser and the Funding
Agent shall have consented to any such participation by PARCO, as a
Conduit Purchaser, or the Committed Purchaser. Notwithstanding any such
sale by such Conduit Purchaser or assignee of participating interests to a
Participant, such Conduit Purchaser or assignee rights and obligations
under this Note Purchase Agreement shall remain unchanged, such Conduit
Purchaser or assignee shall remain solely responsible for the performance
thereof, and the other parties hereto shall continue to deal solely and
directly with such Conduit Purchaser or assignee in connection with such
Conduit Purchaser or assignee's rights and obligations under this Note
Purchase Agreement. Each Conduit Purchaser or assignee shall be entitled
to the benefits of Article IX hereof; provided, however, that all amounts
payable to any such Participant shall be limited to the amounts which
would have been payable to such Conduit Purchaser or assignee selling such
participating interest had such interest not been sold.
(c) This Note Purchase Agreement shall create and constitute
the continuing obligation of the parties hereto in accordance with its
terms, and shall remain in full force and effect until such time as all
amounts payable with respect to the Notes shall have been paid in full.
SECTION 10.5 Confidentiality. Unless otherwise consented to by the
Administrator and the Funding Agent, each of the Issuer and the Seller hereby
agrees that it will not disclose the contents of any Transaction Document, or
any other confidential or proprietary information furnished by the
Administrator, the Funding Agent, the Committed Purchaser or any Conduit
Purchaser to any Person other than its Affiliates (which Affiliates shall have
executed an agreement satisfactory in form and in substance to the Administrator
and the Funding Agent to be bound by this Section 10.5) auditors and attorneys
or as required by applicable law.
37
SECTION 10.6 GOVERNING LAW; JURISDICTION. THIS NOTE PURCHASE
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS
(OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
EACH OF THE PARTIES TO THIS NOTE PURCHASE AGREEMENT HEREBY 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 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.
SECTION 10.7 Wavier of Trial by Jury. To the extent permitted by
applicable law, each of the parties hereto irrevocably waives all right of trial
by jury in any action, proceeding or counterclaim arising out of or in
connection with this Note Purchase Agreement or any matter arising hereunder.
SECTION 10.8 No Proceedings. The Issuer agrees that so long as any
indebtedness of any Conduit Purchaser shall be outstanding or there shall not
have elapsed one year plus one day since the last day on which any indebtedness
of such Conduit Purchaser shall have been outstanding, it shall not file, or
join in the filing of, a petition against such Conduit Purchaser under the
Federal Bankruptcy Code, or join in the commencement of any bankruptcy,
reorganization, arrangement, insolvency, liquidation or other similar proceeding
against such Conduit Purchaser.
SECTION 10.9 Execution in Counterparts. This Note Purchase Agreement
may be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the same
agreement.
SECTION 10.10 No Recourse. Notwithstanding anything to the contrary
contained herein, the obligations of the Conduit Purchasers under this Note
Purchase Agreement are solely the corporate obligations of such Conduit
Purchaser and, in the case of obligations of any Conduit Purchaser other than
its respective Commercial Paper Notes, shall be payable at such time as funds
are actually received by, or are available to, such Conduit Purchaser in excess
of funds necessary to pay in full all of its respective outstanding Commercial
Paper Notes and, to the extent funds are not available to pay such obligations,
the claims relating thereto shall not constitute a claim against such Conduit
Purchaser but shall continue to accrue. Each party hereto agrees that the
payment of any claim (as defined in Section 101 of the Bankruptcy Code) of any
such party shall be subordinated to the payment in full of all Commercial Paper
Notes.
38
No recourse under any obligation, covenant or agreement of any
Conduit Purchaser contained in this Note Purchase Agreement shall be had against
any incorporator, stockholder, officer, director, member, manager, employee or
agent of such Conduit Purchaser (solely by virtue of such capacity) by the
enforcement of any assessment or by any legal or equitable proceeding, by virtue
of any statute or otherwise; it being expressly agreed and understood that this
Note Purchase Agreement is solely a corporate obligation of each Conduit
Purchaser, and that no personal liability whatever shall attach to or be
incurred by any incorporator, stockholder, officer, director, member, manager,
employee or agent of any Conduit Purchaser (solely by virtue of such capacity)
or any of them under or by reason of any of the obligations, covenants or
agreements of such Conduit Purchaser contained in this Note Purchase Agreement,
or implied therefrom, and that any and all personal liability for breaches by
such Conduit Purchaser of any of such obligations, covenants or agreements,
either at common law or at equity, or by statute, rule or regulation, of every
such incorporator, stockholder, officer, director, member, manager, employee or
agent is hereby expressly waived as a condition of and in consideration for the
execution of this Note Purchase Agreement; provided that the foregoing shall not
relieve any such Person from any liability it might otherwise have as a result
of fraudulent actions taken or fraudulent omissions made by them.
SECTION 10.11 Survival. All representations, warranties, covenants,
guaranties and indemnifications contained in this Note Purchase Agreement
(including, without limitation, in Sections 10.8 and 10.10), and in any
document, certificate or statement delivered pursuant hereto or in connection
herewith shall survive the sale, transfer or repayment of the Notes.
SECTION 10.12 Recourse. The obligations of the Issuer under this
Note Purchase Agreement and the Notes are full-recourse obligations of the
Issuer.
SECTION 10.13 No Fiduciary Duty. Each of the Issuer and the Seller
acknowledges that each of the Administrator and the Funding Agent is acting
solely in the capacity of arm's-length contractual counterparties to the Issuer
and the Seller with respect to the offering of Notes contemplated hereby
(including in connection with determining the terms of the offering) and not as
a financial advisor or a fiduciary to, or an agent of the Issuer, the Seller or
any other Person. Additionally, neither the Administrator nor the Funding Agent
is advising the Issuer, the Seller or any other Person as to any legal, tax,
investment, accounting or regulatory matters in any jurisdiction. The Issuer and
the Seller shall consult with their own advisors concerning such matters and
shall be responsible for making their own independent investigation and
appraisal of the transactions contemplated hereby, and neither the Administrator
nor the Funding Agent shall have any responsibility or liability to the Issuer
or the Seller with respect thereto. Any review by the Administrator or the
Funding Agent of the Issuer, the Seller, the transactions contemplated hereby or
other matters relating to such transactions will be performed solely for the
benefit of the Administrator or the Funding Agent, as applicable, and shall not
be on behalf of the Issuer, the Seller or any other party.
[Remainder of page intentionally left blank -- signature pages follow.]
39
IN WITNESS WHEREOF, the parties have caused this Note Purchase
Agreement 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:_______________________________________
Name
Title
CONN APPLIANCES, INC., as Seller
By:_______________________________________
Name
Title
THREE PILLARS FUNDING LLC,
as a Conduit Purchaser
By:_______________________________________
Name
Title
PARK AVENUE RECEIVABLES COMPANY LLC, as a
Conduit Purchaser
By: JPMorgan Chase Bank, N.A.,
its attorney-in-fact
By:_______________________________________
Name
Title
S-1
JPMORGAN CHASE BANK, N.A., as Funding
Agent
By:_______________________________________
Name
Title
JPMORGAN CHASE BANK, N.A. as Committed
Purchaser
By:_______________________________________
Name
Title
SUNTRUST XXXXXXXX XXXXXXXX, INC.,
as Administrator
By:_______________________________________
Name
Title
S-2
EXHIBIT A
Form of Notice of Increase
1. Proposed Increase Date: ___________
2. Amount of requested Increase (lesser of $__________
minimum amount of $__________ or the then
unfunded portion of Three Pillars Funding
LLC's Commitment) (with respect to Three
Pillars Funding LLC)
3. Purchase Price (Three Pillars Funding LLC) $__________
4. Amount of requested Increase (lesser of $__________
minimum amount of $__________ or the then
unfunded portion of the Commitment of Park
Avenue Receivables Company, LLC and JPMorgan
Chase Bank, N.A., as Committed Purchaser)
(with respect to Park Avenue Receivables
Company, LLC and JPMorgan Chase Bank, N.A., as
Committed Purchaser)
5. Purchase Price (Park Avenue Receivables $__________
Company, LLC)
6. Remaining Maximum Principal Amount (after $__________ giving effect to
the aggregate requested
Increase)
7. Certifications:
(a) The representations and warranties of Conn Funding II, L.P. (the
"Issuer"), Conn Appliances, Inc., as seller, in the Base Indenture
dated as of September 1, 2002 (as amended) between the Issuer and
Xxxxx Fargo Bank, National Association (f/k/a Xxxxx Fargo Bank
Minnesota, National Association), as trustee (the "Trustee"); the
Amended and Restated Series 2002-A Supplement, dated as of
September 10, 2007, between the Issuer and the Trustee; and the
Amended and Restated Note Purchase Agreement dated as of September
10, 2007 (the "Note Purchase Agreement"), among the Issuer, the
Seller, the Conduit Purchasers party thereto, JPMorgan Chase Bank,
N.A. and SunTrust Xxxxxxxx Xxxxxxxx, Inc., are true and correct in
all material respects on the date hereof (except to the extent
they expressly relate to an earlier or later time and then as of
such earlier or later time).
(b) The conditions to the Increase specified in Section 2.3 of the
Note Purchase Agreement have been satisfied and will be satisfied
as of the applicable Increase Date.
Exhibit A-1
The Issuer understands and agrees that no Conduit Purchaser (or the
Committed Purchaser, as the case may be) shall be required to fund any Increase
if, after giving effect thereto, its Note Principal would exceed its Commitment.
Capitalized terms used herein shall have the meanings set forth in the
Note Purchase Agreement.
CONN FUNDING II, L.P., as the Issuer
By: Conn Funding II GP, L.L.C.,
Its general partner
By:_______________________________________
Name
Title
Date of Notice: __________
Exhibit A-2
SCHEDULE I
LIST OF PROCEEDINGS
None.
Schedule I-1
SCHEDULE II
LIST OF TRADE NAMES
Conn Appliances, Inc.:
"Appliance Parts & Service"
"Conn"
"Conn Appliances"
"Conn Rental"
"Conn Service"
"Conns"
"Conn's"
"Conn's Rental"
"Conn's Service"
Conn Funding II, L.P.:
None.
Schedule II-1
