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 ROBINSON HUMPHREY, INC.
as the Administrator.
dated as of September 10, 2007
<PAGE>
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
-i-
<PAGE>
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
-ii-
<PAGE>
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
-iii-
<PAGE>
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 ROBINSON HUMPHREY, 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 Wells Fargo Bank,
National Association
(f/k/a Wells 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.
<PAGE>
"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.
2
<PAGE>
"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.
3
<PAGE>
"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 Jones 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
Jones 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
<PAGE>
"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
<PAGE>
(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
<PAGE>
"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 Robinson
Humphrey, 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
<PAGE>
"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
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"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 Robinson Humphrey, 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
<PAGE>
(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;
10
<PAGE>
(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).
11
<PAGE>
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.
12
<PAGE>
(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.
13
<PAGE>
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
<PAGE>
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, Rowe & Maw LLP, 190 South LaSalle
Street, Chicago,
Illinois 60603 (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 Mayer Brown LLP, 71
South
Wacker Drive, Chicago, Illinois 60606 (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
<PAGE>
(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 Ini
