EXHIBIT 10.13
CONN FUNDING II, L.P.,
as Issuer
and
WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as Trustee
SERIES 2002-B SUPPLEMENT
Dated as of September 1, 2002
to
BASE INDENTURE
Dated as of September 1, 2002
CONN FUNDING II, L.P.
SERIES 2002-B
4.469% Asset Backed Fixed Rate Notes, Class A
5.769% Asset Backed Fixed Rate Notes, Class B
8.180% Asset Backed Fixed Rate Notes, Class C
TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT..........................................................1
DESIGNATION....................................................................1
SECTION 1. Definitions........................................................1
SECTION 2. Article 3 of the Base Indenture...................................12
SECTION 3. Servicing Compensation............................................13
SECTION 4. Cleanup Call......................................................14
SECTION 5. Delivery and Payment for the Notes................................14
SECTION 6. Form of Delivery of the Notes; Depository; Denominations;
Transfer Provisions...............................................14
SECTION 7. Article 5 of Base Indenture.......................................22
SECTION 8. Article 6 of the Base Indenture...................................33
SECTION 9. Series 2002-B Pay Out Events......................................36
SECTION 10. Article 7 of the Base Indenture...................................39
SECTION 7.1 Representations and Warranties of the Issuer......................39
SECTION 7.2 Reaffirmation of Representations and Warranties by the Issuer.....43
SECTION 11. [Reserved]........................................................43
SECTION 12. [Reserved]........................................................43
SECTION 13. Counterparts......................................................43
SECTION 14. Governing Law.....................................................43
SECTION 15. Waiver of Trial by Jury...........................................44
i
SECTION 16. No Petition.......................................................44
SECTION 17. Rights of the Trustee.............................................44
EXHIBIT A-1 Form of Restricted Global Note
EXHIBIT A-2 Form of Temporary Regulation S Global Note
EXHIBIT A-3 Form of Permanent Regulation S Global Note
EXHIBIT B-1 Form of Restricted Global Note
EXHIBIT B-2 Form of Temporary Regulation S Global Note
EXHIBIT B-3 Form of Permanent Regulation S Global Note
EXHIBIT C-1 Form of Restricted Global Note
EXHIBIT C-2 Form of Temporary Regulation S Global Note
EXHIBIT C-3 Form of Permanent Regulation S Global Note
EXHIBIT D Form of Monthly Noteholders' Statement
EXHIBIT E-1 Form of Transfer Certificate
EXHIBIT E-2 Form of Certificate to be Delivered to Exchange Temporary
Regulation S Global Note for Permanent Regulation S Global
Note
EXHIBIT E-3 Form of Certificate to Transfer from Restricted Global Note to
Temporary Regulation S Global Note
EXHIBIT E-4 Form of Certificate to Transfer from Restricted Global Note to
Permanent Regulation S Global Note
EXHIBIT E-5 Form of Certificate to Transfer from Temporary Regulation S
Global Note to Restricted Global Note
SCHEDULE 1 List of Proceedings
SCHEDULE 2 List of Trade Names
ii
SERIES 2002-B SUPPLEMENT, dated as of September 1, 2002 (as amended,
modified, restated or supplemented from time to time in accordance with the
terms hereof, this "Series Supplement"), by and among CONN FUNDING II, L.P., a
special purpose limited partnership established under the laws of Texas, as
issuer ("Issuer"), and WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, a
banking association organized and existing under the laws of the United States
of America, as trustee (together with its successors in trust under the Base
Indenture referred to below, the "Trustee") to the Base Indenture, dated as of
September 1, 2002, between the Issuer and the Trustee (as amended, modified,
restated or supplemented from time to time, exclusive of Series Supplements, the
"Base Indenture").
Pursuant to this Series Supplement, the Issuer shall create a new
Series of Notes and shall specify the Principal Terms thereof.
PRELIMINARY STATEMENT
---------------------
WHEREAS, Section 2.2 of the Base Indenture provides, among other
things, that Issuer and the Trustee may at any time and from time to time enter
into a series supplement to the Base Indenture for the purpose of authorizing
the issuance of one or more Series of Notes.
NOW, THEREFORE, the parties hereto agree as follows:
DESIGNATION
-----------
(a) There is hereby created a Series of notes to be issued pursuant
to the Base Indenture and this Series Supplement and such Series of notes shall
be substantially in the form of Exhibits A, B and C hereto, executed by or on
behalf of the Issuer and authenticated by the Trustee and designated generally
4.469% Asset Backed Fixed Rate Notes, Class A, Series 2002-B (the "Class A
Notes"), 5.769% Asset Backed Fixed Rate Notes, Class B, Series 2002-B (the
"Class B Notes"), 8.180% Asset Backed Fixed Rate Notes, Class C, Series 2002-B
(the "Class C Notes", and together with the Class A Notes and the Class B Notes,
the "Notes"). The Notes shall be issued in minimum denominations of $500,000.
(b) Series 2002-B (as defined below) shall not be subordinated to any
other Series.
SECTION 1. Definitions. In the event that any term or provision contained
herein shall conflict with or be inconsistent with any provision contained in
the Base Indenture, the terms and provisions of this Series Supplement shall
govern. All Article, Section or subsection references herein mean Articles,
Sections or subsections of this Series Supplement, except as otherwise provided
herein. All capitalized terms not otherwise defined herein are defined in the
Base Indenture. Each capitalized term defined herein shall relate only to the
Notes and no other Series of Notes issued by the Issuer.
"Additional Cash Reserve Amount" means, on any date, if the Net
Portfolio Yield averaged over the three preceding Monthly Periods (i) exceeds
5.0%, $0, (ii) exceeds 4.0% but does not exceed 5.0%, 2.0% of the outstanding
principal amount of the Notes on such date, (iii) exceeds 3.0% but does not
exceed 4.0%, 3.0% of the outstanding principal amount of the Notes on such date,
(iv) is 3.0% or less, 4.0% of the outstanding principal amount of the Notes on
such date.
"Additional Interest" has the meaning specified in Section 5.12.
"Aggregate Investor Default Amount" means, with respect to any Monthly
Period, an amount equal to the product of (a) the aggregate Outstanding
Principal Balance of all Receivables that became Defaulted Receivables during
such Monthly Period (each respective Outstanding Principal Balance being
measured as of the date the relevant Receivable became a Defaulted Receivable)
minus any Deemed Collections deposited into the Collection Account during such
Monthly Period in respect of Receivables that have become Defaulted Receivables
before or during such Monthly Period and (b) the Floating Investor Percentage
with respect to such Monthly Period.
"Aggregate Net Investor Charge-Offs" means, on any date of
determination, the sum of the "Net Investor Charge-Offs" or similar amount for
each Series.
"Available Funds" means, with respect to any Monthly Period, an amount
equal to the Investor Percentage of Collections of Finance Charges, Recoveries
and Investment Earnings deposited in the Finance Charge Account for such Monthly
Period (or to be deposited in the Finance Charge Account on the related Series
Transfer Date with respect to the preceding Monthly Period pursuant to the third
paragraph of subsection 5.4(a) of the Base Indenture).
"Available Investor Principal Collections" means (A) with respect to
the Notes and any Monthly Period, an amount equal to (i) the Investor Principal
Collections for such Monthly Period, plus (ii) the amount of Shared Principal
Collections that are allocated to Series 2002-B in accordance with Section 5.19,
and (B) when used with respect to any other Series, has the meaning specified in
the applicable Series Supplement.
"Available Issuer Interest" has the meaning specified in the
definition of Coverage Test.
"CAI" means CAI, L.P.
"Cash Option" means a provision in any Contract which provides for the
application of interest payments theretofore made by the related Obligor against
the Outstanding Principal Balance of the related Receivable if such Obligor
shall pay the Outstanding Principal Balance (less the interest to be so
credited) on or prior to the end of the related Cash Option Period.
2
"Cash Option Amount" means, as of any Determination Date, with respect
to the outstanding Cash Option Receivables, the product of (i) the highest
Portfolio Yield during the past twelve months divided by twelve (during the
first year after the Initial Closing Date, this clause (i) shall, to the extent
necessary, be calculated based on information delivered to SunTrust Capital
Markets, Inc. in connection with the securitization transaction with the Initial
Seller that terminated on the Initial Closing Date), times (ii) the aggregate
Outstanding Principal Balance of such Cash Option Receivables, times (iii) the
weighted average Cash Option Period for such Cash Option Receivables (expressed
in months).
"Cash Option Period" means, with respect to any Cash Option
Receivable, the period, not to exceed twelve months, from and including the
Initiation Date for such Cash Option Receivable and ending on the last day, as
set forth in the related Contract, that the related Obligor may exercise the
Cash Option.
"Cash Reserve Account" has the meaning specified in subsection
5.20(a).
"Cash Reserve Account Required Amount" means, as of any date, the
lesser of (a) $8,000,000 plus the Additional Cash Reserve Amount for such date
and (b) 10% of the outstanding principal amount of the Notes on such date.
"Cash Option Receivable" means any Purchased Receivable which includes
a Cash Option.
"Change in Control" shall mean means any of the following:
(a) the acquisition of ownership by any Person or group (other than
the Stephens Group and the senior management of Parent) of shares
representing more than 50% of the aggregate ordinary voting power
represented by the issued and outstanding capital stock of the Parent;
provided that no Change in Control shall have occurred if Parent sells its
common stock through an initial public offering and upon the completion of
such offering, the Stephens Group and the senior management of Parent
continued to own shares representing at least 33.33% of the aggregate
ordinary voting power represented by the then issued and outstanding
capital stock of Parent; or
(b) the creation or imposition of any Lien on any shares of capital
stock of Issuer; or
(c) the failure by the Parent to be the sole general partner of CAI
or, directly or indirectly, to be the sole equity holder of CAI; or
(d) the failure of CAI to be the sole equity holder of Conn Funding
II GP, L.L.C.; or
3
(e) the failure by CAI to be the sole limited partner of Issuer, or
the failure of Conn Funding II GP, L.L.C. to be the sole general partner of
the Issuer.
"Class A Carryover Amount" means, (i) with respect to the first
Payment Date occurring after the Controlled Amortization Period begins, $0 and
(ii) with respect to any other Payment Date during the Controlled Amortization
Period, the excess, if any, of (a) the Class A Controlled Distribution Amount
for the preceding Payment Date over (b) the actual amount distributed to the
Class A Noteholders with respect to principal of the Class A Notes on such
preceding Payment Date.
"Class A Controlled Distribution Amount" means, for any Payment Date,
an amount equal to the sum of $6,000,000 plus any Class A Carryover Amount.
"Class A Noteholder" means a Holder of a Class A Note.
"Class A Note Principal" means the outstanding principal amount of
Class A Notes.
"Class A Notes" is defined in the Designation.
"Class B Carryover Amount" means, (i) with respect to the first
Payment Date occurring after the Controlled Amortization Period begins, $0 and
(ii) with respect to any other Payment Date during the Controlled Amortization
Period, the excess, if any, of (a) the Class B Controlled Distribution Amount
for the preceding Payment Date over (b) the actual amount distributed to the
Class B Noteholders with respect to principal of the Class B Notes on such
preceding Payment Date.
"Class B Controlled Distribution Amount" means, for any Payment Date,
an amount equal to the sum of $2,888,900 plus any Class B Carryover Amount.
"Class B Noteholder" means a Holder of a Class B Note.
"Class B Note Principal" means the outstanding principal amount of
Class B Notes.
"Class B Notes" is defined in the Designation.
"Class C Carryover Amount" means, (i) with respect to the first
Payment Date occurring after the Controlled Amortization Period begins, $0 and
(ii) with respect to any other Payment Date during the Controlled Amortization
Period, the excess, if any, of (a) the Class C Controlled Distribution Amount
for the preceding Payment Date over (b) the actual amount distributed to the
Class C Noteholders with respect to principal of the Class C Notes on such
preceding Payment Date.
4
"Class C Controlled Distribution Amount" means, for any Payment Date,
an amount equal to the sum of $1,111,100 plus any Class C Carryover Amount.
"Class C Noteholder" means a Holder of a Class C Note.
"Class C Note Principal" means the outstanding principal amount of
Class C Notes. "Class C Notes" is defined in the Designation.
"Closing Date" means September 13, 2002.
"Contingent Liability" means any agreement, undertaking or arrangement
by which any Person guarantees, endorses or otherwise becomes or is contingently
liable upon (by direct or indirect agreement, contingent or otherwise, to
provide funds for payment, to supply funds to, or otherwise to invest in, a
debtor, or otherwise to assure a creditor against loss) the indebtedness,
obligation or any other liability of any other Person (other than by
endorsements of instruments in the course of collection), or guarantees the
payment of dividends or other distributions upon the shares of any other Person.
The amount of any Person's obligation under any Contingent Liability shall
(subject to any limitation set forth therein) be deemed to be the outstanding
principal amount (or maximum outstanding principal amount, if larger) of the
debt, obligation or other liability guaranteed thereby.
"Controlled Amortization Period" means the period commencing on the
Scheduled Pay Out Commencement Date and ending on the Rapid Pay Out Commencement
Date.
"Controlled Amortization Termination Date" means May 20, 2008.
"Controlled Distribution Amount" means, for any Payment Date, an
amount equal to the sum of (i) the Class A Controlled Distribution Amount, plus
(ii) the Class B Controlled Distribution Amount, plus (iii) the Class C
Controlled Distribution Amount.
"Coverage Test" means, on any date of determination, that (i) the
Issuer Interest as of such date exceeds the largest required "Minimum Issuer
Interest" of any outstanding Series (such excess being herein called the
"Available Issuer Interest") as of such date (determined by the Servicer taking
into account any increases, decreases and status changes of the Receivables and
any increases or decreases in the outstanding notes including those scheduled to
occur on such date) and (ii) the Aggregate Net Investor Charge-Offs is zero as
of such date.
"Cumulative Series Principal Shortfall" means the sum of the Series
Principal Shortfalls (as such term is defined in each of the related Series
Supplements) for each Series.
"Deficiency Amount" has the meaning specified in Section 5.12.
"DWAC" means the DTC Deposit/Withdrawal at Custodian system.
5
"Excess Funding Account" has the meaning specified in subsection
5.21(a).
"Excess Spread" means, with respect to any Series Transfer Date, the
amounts with respect to such Series Transfer Date, if any, specified pursuant to
paragraph 5.15(a)(vii).
"Exchange Date" has the meaning specified in paragraph 6(c)(ii).
"Finance Charge Collections" means (i) all Collections allocable to
Finance Charges, (ii) all Recoveries allocable to Finance Charges and (iii) any
net amounts payable to the Issuer under any Enhancement Agreement.
"Fitch" means Fitch, Inc.
"Fixed Investor Percentage" means, with respect to any Monthly Period,
the percentage equivalent of a fraction, the numerator of which is the Investor
Interest as of the close of business on the last day of the Revolving Period and
the denominator of which is the sum of the numerators used to calculate the
respective investor percentages used for allocations with respect to Principal
Receivables for all outstanding Series on such date of determination.
"Floating Investor Percentage" means, with respect to any Monthly
Period, the percentage equivalent of a fraction, the numerator of which is the
Modified Investor Interest for such Monthly Period and the denominator of which
is the sum of the numerators used to calculate the respective investor
percentages used for allocations with respect to Finance Charges, Recoveries,
Investment Earnings, Aggregate Investor Default Amounts, Principal Receivables,
Available Issuer Interest, Servicing Fee or Trustee and Back-up Servicer Fees
and Expenses, as applicable, for all outstanding Series on such date of
determination.
"Global Note" has the meaning specified in subsection 6(a).
"Gross Loss Rate"means, with respect to any Monthly Period, the ratio
(expressed as a percentage) computed as of the last day of such Monthly Period,
by dividing (i) the Outstanding Principal Balance of Charged-Off Receivables
which were deemed to be Charged-Off Receivables during such Monthly Period by
(ii) (A) the aggregate Outstanding Principal Balance of all Receivables as of
the last day of the previous Monthly Period plus (B) the aggregate Outstanding
Principal Balance of all Receivables as of such last day of such Monthly Period
divided by (C) two and multiplying the result by (iii) twelve.
"Initial Note Principal" means the aggregate initial principal amount
of the Notes, which is $200,000,000.
6
"Initiation Date" means, with respect to any Receivable, the date of
the transaction that gave rise to the original Outstanding Principal Balance of
such Receivable.
"Interest Period" means, with respect to any Payment Date, the period
from and including the Payment Date immediately preceding such Payment Date (or,
in the case of the first Payment Date, from and including the Closing Date) to
but excluding such Payment Date.
"Investor Charge-Offs" has the meaning specified in subsection
5.16(a).
"Investor Interest" means, on any date of determination, an amount
equal to (a) the Initial Note Principal, minus (b) the aggregate amount of
principal payments made to Noteholders prior to such date, minus (c) the
aggregate amount of Investor Charge-Offs pursuant to subsection 5.16(a), plus
(d) the aggregate amount of Excess Spread and funds on deposit in the Excess
Funding Account applied on all prior Series Transfer Dates pursuant to
subsection 5.17(b) for the purpose of reimbursing amounts deducted pursuant to
the foregoing clause (c), plus (e) the Required Reserve Amount. Once all
principal and interest on the Notes and any other amounts payable to the
Noteholders pursuant to the Transaction Documents have been paid in full, the
Investor Interest shall be zero.
"Investor Percentage" means, for any Monthly Period, (a) with respect
to Finance Charges, Recoveries, Investment Earnings, Aggregate Investor Default
Amounts, Available Issuer Interest, Servicing Fee and Trustee and Back-Up
Servicer Fees and Expenses at any time and Principal Receivables during the
Revolving Period, the Floating Investor Percentage and (b) with respect to
Principal Receivables during the Controlled Amortization Period or the Rapid
Amortization Period, the Fixed Investor Percentage.
"Investor Principal Collections" means, with respect to any Monthly
Period, the sum of (a) the Investor Percentage of the aggregate amount deposited
into the Principal Account (less any Issuer Distributions) for such Monthly
Period pursuant to paragraph 5.11(a)(i), (b) the aggregate amount to be treated
as Investor Principal Collections for such Monthly Period pursuant to paragraph
5.15(a)(iii) and Section 5.17, and (c) in connection with the purchase or
redemption of Notes, the aggregate amount deposited in the Payment Account
pursuant to Section 4 hereof.
"Issuer" is defined in the preamble of this Series Supplement.
"Legal Final Payment Date" means May 21, 2012.
"Minimum Issuer Interest" means for any date of determination an
amount equal to (a) the Cash Option Amount as of such date plus (b) the
Outstanding Principal Balance of all Receivables that are not Eligible
Receivables as of such date.
7
"Modified Investor Interest" means for any Monthly Period, the average
daily Investor Interest for such Monthly Period (or, in the case of the first
Monthly Period, from and including the Closing Date to, and including the last
day of such first Monthly Period).
"Monthly Interest" has the meaning specified in Section 5.12.
"Monthly Period" has the meaning specified in the Base Indenture,
except that the first Monthly Period with respect to the Notes shall begin on
and include the Closing Date and shall end on and include September 30, 2002.
"Monthly Principal" has the meaning specified in Section 5.13.
"Net Investor Charge-Offs" means, on any date of determination, the
excess of (a) the amount described in clause (c) of the definition of Investor
Interest on such date over (b) the amount described in clause (d) of such
definition on such date.
"Net Portfolio Yield" for any Monthly Period (as determined as of the
last day of each Monthly Period) shall mean the annualized percentage equivalent
of a fraction, (a) the numerator of which is equal to the Net Yield Amount for
such Monthly Period and (b) the denominator of which is equal to the aggregate
Outstanding Principal Balance of all Receivables on such day. For purposes of
this definition, "Net Yield Amount" means for any Monthly Period an amount equal
to the excess of the sum of Collections of Finance Charges plus Recoveries
allocable to Finance Charges over the sum of (a) interest and fees accrued for
the current Monthly Period and overdue interest and fees with respect to the
Notes and "Enhancement" of all Series (together with, if applicable, interest on
such overdue interest and fees at the rate specified in the accompanying series
supplements), (b) accrued and unpaid Servicing Fees and Trustee and Back-Up
Servicer Fees and Expenses for such Monthly Period, (c) the aggregate
Outstanding Principal Balance of all Receivables that became Defaulted
Receivables during such Monthly Period (each respective Outstanding Principal
Balance being measured as of the date the relevant Receivable became a Defaulted
Receivable), and (d) any other costs, expenses, or liability of the Issuer of
any nature whatsoever incurred during such Monthly Period (except for the
obligations of the Issuer to pay any principal on the Notes outstanding at such
time or any Business Taxes and except for fee and indemnity expenses for which
cash other than such Monthly Period's Collections are available to the Issuer).
"Note Principal" means on any date of determination the then
outstanding principal amount of the Notes.
"Note Purchase Agreement" means any agreement by and among the initial
Class A Noteholder, Class B Noteholder or Class C Noteholder, CAI, Conn and the
Issuer, pursuant to which a purchaser agrees to purchase an interest in a Class
A Note, a Class B Note or a Class C Note, respectively from the Issuer, subject
to the terms and conditions set forth therein, or any successor agreement to
such effect among the Issuer and such Noteholder or its successors, as amended,
supplemented or otherwise modified from time to time.
8
"Note Rate" means, with respect to each Interest Period, a fixed rate
equal to 4.469% per annum with respect to the Class A Notes, 5.769% with respect
to the Class B Notes, and 8.180% with respect to the Class C Notes.
"Noteholder" means with respect to any Note, the holder of record of
such Note.
"Notes" has the meaning specified in paragraph (a) of the Designation.
"Notice Persons" means the applicable Rating Agency; provided that
with respect to any provision requiring the consent or approval of the Notice
Persons, such consent or approval shall be deemed to have been obtained if the
Rating Agency Condition is satisfied.
"Payment Account" means the account established as such for the
benefit of the Secured Parties of this Series 2002-B pursuant to subsection
5.3(c) of the Base Indenture.
"Payment Date" means October 21, 2002 and the twentieth day of each
calendar month thereafter, or if such twentieth day is not a Business Day, the
next succeeding Business Day.
"Payoff Date" means the date on which all principal and interest on
the Notes and any other amounts directly related to Series 2002-B payable to any
Noteholder under the Transaction Documents have been indefeasibly paid in full.
"Permanent Regulation S Global Note" has the meaning specified in
paragraph 6(a)(ii).
"Permissible Uses" means the amount of funds to be used by the Issuer
to pay (i) the Servicer Letter of Credit Bank any amounts payable thereto by the
Issuer under the reimbursement agreement for the Servicer Letter of Credit, (ii)
the Sellers for Subsequently Purchased Receivables (directly or through
repayment of any subordinated notes issued to the Sellers), (iii) its equity
owners, as a dividend distribution (so long as the Issuer has a net worth (in
accordance with GAAP) of at least 1% of the outstanding principal amount of the
Notes after giving effect thereto) and (iv) other expenses of the Issuer not
prohibited by the Transaction Documents.
"Portfolio Yield" means, with respect to Eligible Receivables for any
Monthly Period, the ratio (expressed as a percentage) computed as of the last
day of such Monthly Period by dividing (i) the amount of all Finance Charge
Collections (other than amounts described in clause (iii) of the definition
thereof) received during such Monthly Period, by (ii) (A) the aggregate
Outstanding Principal Balance of all Receivables as of the last day of the
previous Monthly Period plus (B) the aggregate Outstanding Principal Balance of
all Receivables as of such last day of such Monthly Period divided by (C) two
and multiplying the result by (iii) twelve.
9
"Potential Series 2002-B Pay Out Event" shall mean an event which upon
the lapse of time or the giving of notice, or both, would constitute a Series
2002-B Pay Out Event.
"Preference Amount" means any amount previously distributed to a
Noteholder on the Notes that is recoverable and sought to be recovered as a
voidable preference by a trustee in bankruptcy pursuant to the Bankruptcy Code,
in accordance with a final nonappealable order of a court having competent
jurisdiction.
"Principal Reallocation Amount" means the Investor Percentage
(determined with regard to only (and only to the extent of) those Series with
respect to which principal is being reallocated pursuant to a corresponding
provision at such time) of the Available Issuer Interest (after giving effect to
any reduction pursuant to Section 5.16 or the definition of Required Reserve
Amount on such day or pursuant to any comparable provisions of any other Series
Supplement of any other Series on such day) at such time.
"QIB" has the meaning specified in paragraph 6(a)(i).
"Rapid Amortization Period" means the Amortization Period commencing
on the Rapid Pay Out Commencement Date and ending on the Series 2002-B
Termination Date.
"Rapid Pay Out Commencement Date" means the earliest of (i) the
Controlled Amortization Termination Date, (ii) the date on which an Issuer Pay
Out Event is deemed to occur pursuant to Section 9.1 of the Base Indenture or
(iii) the date on which a Series 2002-B Pay Out Event is deemed to occur
pursuant to Section 9 of this Series Supplement.
"Rating Agencies" means Moody's and, with respect to the Class C
Notes, Fitch.
"Redemption Date" means the date on which the Notes are redeemed in
full pursuant to Section 4 hereof.
"Reference Banks" means four major banks in the London interbank
market selected by the Trustee.
"Regulation S" has the meaning specified in specified in paragraph
6(a)(ii).
"Required Amount" has the meaning specified in subsection 5.14(a).
"Required Class A Principal Distribution" has the meaning specified in
paragraph 5.15(e)(i).
"Required Class B Principal Distribution" has the meaning specified in
paragraph 5.15(e)(ii).
10
"Required Class C Principal Distribution" has the meaning specified in
paragraph 5.15(e)(iii).
"Required Interest Distribution" has the meaning specified in
paragraph 5.15(a)(i).
"Required Persons" means Holders of Notes voting together without
regard to class representing at least 66-2/3% of the aggregate Note Principal of
all Notes.
"Required Reserve Amount" shall mean, at any time, the sum of (a) an
amount equal to (i) the Note Principal at such time, multiplied by (ii)(A) the
Required Reserve Percentage at such time, divided by (B) 100% minus the Required
Reserve Percentage at such time plus (b) the Series 2002-B Concentration Amount,
if any, at such time; provided, however, that the Required Reserve Amount shall
be fixed during the Controlled Amortization Period and the Rapid Amortization
Period as of the earlier of (i) the Scheduled Pay Out Commencement Date and (ii)
the Rapid Pay Out Commencement Date; provided, further, that the Required
Reserve Amount may only increase from time to time to the extent of the Investor
Percentage (determined with regard to only (and only to the extent of) those
Series with respect to which the "Required Reserve Amount" is increasing at such
time) of the Available Issuer Interest (after giving effect to any reductions
pursuant to Section 5.16, but prior to any reductions with respect to Principal
Reallocation Amounts on such day, or pursuant to any comparable provisions of
any other Series Supplement for any Series on such day) at such time.
"Required Reserve Percentage" means 10%.
"Restricted Global Note" has the meaning specified in paragraph
6(a)(i).
"Restricted Period" has the meaning specified in paragraph 6(c)(ii).
"Revolving Period" means the period from and including the Closing
Date to, but not including, the earlier of (i) the Scheduled Pay Out
Commencement Date and (ii) the Rapid Pay Out Commencement Date.
"Rule 144A" has the meaning specified in paragraph 6(a)(i).
"Scheduled Pay Out Commencement Date" means the Payment Date on
October 20, 2006.
"Series 2002-B" means the Series of the Asset Backed Fixed Rate Notes
represented by the Notes.
11
"Series 2002-B Concentration Amount" means, at any time, the Investor
Percentage at such time of the sum of (a) the excess, if any, of (i) the
aggregate Outstanding Principal Balance of all Eligible Installment Contract
Receivables the final maturity date of which has been extended over (ii) 15% of
the Outstanding Principal Balance of all Eligible Receivables, plus (b) the
excess, if any, of (i) the aggregate Outstanding Principal Balance of all
Eligible Revolving Charge Receivables that provide for a minimum monthly payment
of less than 1/30 of the highest outstanding balance since the last date on
which such outstanding balance was zero or the final maturity date of which has
been otherwise extended over (ii) the excess, if any, of (A) 15% of the
Outstanding Principal Balance of all Eligible Receivables over (B) the aggregate
Outstanding Principal Balance of all Eligible Installment Contract Receivables
the final maturity date of which has been extended, in each case as of the end
of the preceding Monthly Period.
"Series 2002-B Pay Out Event" has the meaning specified in Section 9.
"Series 2002-B Termination Date" means the earliest to occur of (a)
the Payment Date on which the Notes, plus all other amounts due and owing to the
Noteholders, are paid in full, (b) the Legal Final Payment Date and (c) the
Indenture Termination Date.
"Series Principal Shortfall" means with respect to the Notes and any
Series Transfer Date that falls during the Rapid Amortization Period, the
excess, if any, of (a) the Investor Interest (but not less than the Note
Principal) over (b) the Investor Principal Collections for such Series Transfer
Date.
"Shared Principal Collections" means, with respect to any Series
Transfer Date, either (a) the amount allocated to the Notes which may be applied
to the "Series Principal Shortfall" with respect to other outstanding Series or
(b) the amounts allocated to the notes of other Series which the applicable
Series Supplements for such Series specify are to be treated as "Shared
Principal Collections" and which may be applied to cover the Series Principal
Shortfall with respect to the Notes.
"Solvent" means with respect to any Person that as of the date of
determination both (A)(i) the then fair saleable value of the property of such
Person is (y) greater than the total amount of liabilities (including Contingent
Liabilities) of such Person and (z) not less than the amount that will be
required to pay the probable liabilities on such Person's then existing debts as
they become absolute and matured considering all financing alternatives and
potential asset sales reasonably available to such Person; (ii) such Person's
capital is not unreasonably small in relation to its business or any
contemplated or undertaken transaction; and (iii) such Person does not intend to
incur, or believe (nor should it reasonably believe) that it will incur, debts
beyond its ability to pay such debts as they become due; and (B) such Person is
"solvent" within the meaning given that term and similar terms under applicable
laws relating to fraudulent transfers and conveyances. For purposes of this
definition, the amount of any contingent liability at any time shall be computed
as the amount that, in light of all of the facts and circumstances existing at
such
12
time, represents the amount that can reasonably be expected to become an actual
or matured liability.
"Temporary Regulation S Global Note" has the meaning specified in
paragraph 6(a)(ii).
"U.S. Person" has the meaning specified in Regulation S.
SECTION 2. Article 3 of the Base Indenture. Article 3 shall be read in
its entirety as follows and shall be applicable only to the Notes:
ARTICLE 3
INITIAL ISSUANCE OF NOTES
-------------------------
SECTION 3.1 Initial Issuance.
(a) Subject to satisfaction of the conditions precedent set forth
in subsection (b) of this Section 3.1, on the Closing Date, the Issuer will
issue the Notes in accordance with Section 2.2 of the Base Indenture and Section
6 hereof in the aggregate initial principal amount equal to the Initial Note
Principal.
(b) The Notes will be issued on the Closing Date pursuant to
subsection (a) above, only upon satisfaction of each of the following conditions
with respect to such initial issuance:
(i) The amount of each Note shall be equal to or greater
than $500,000;
(ii) The Coverage Test is satisfied;
(iii) Such issuance and the application of the proceeds
thereof shall not result in the occurrence of (1) a Pay Out Event for
any Series, Servicer Default or an Event of Default, or (2) an event
or occurrence, which, with the passing of time or the giving of notice
thereof, or both, would become a Pay Out Event for any Series,
Servicer Default or an Event of Default; and
(iv) All required consents have been obtained and all other
conditions precedent to the purchase of the Notes under the Note
Purchase Agreement shall have been satisfied.
(c) Upon receipt of the proceeds of such issuance by or on behalf
of the Issuer, the Trustee shall, or shall cause the Transfer Agent and
Registrar to, indicate in the Note Register the amount thereof.
13
(d) The Issuer shall not issue additional Notes of this Series.
SECTION 3. Servicing Compensation. The share of the Servicing Fee
allocable to Series 2002-B with respect to any Series Transfer Date shall be
equal to the Investor Percentage of the Servicing Fee for the relevant Monthly
Period. The Servicing Fee shall be paid by the cash flows from the Trust Estate
allocated to the Noteholders or the noteholders of other Series (as provided in
the related series supplements) and in no event shall the Issuer, the Trustee or
the Noteholders be liable therefor. The Servicing Fee allocable to Series 2002-B
shall be payable to the Servicer solely to the extent amounts are available for
distribution in respect thereof pursuant to paragraph 5.15(a)(ii) and subsection
5.17(a).
SECTION 4. Cleanup Call.
(a) The Notes shall be subject to purchase by the initial
Servicer, at its option, in accordance with the terms specified in subsection
12.4(a) of the Base Indenture, on any Payment Date on or after the Payment Date
on which the Investor Interest is reduced to an amount less than or equal to 10%
of the Initial Note Principal.
(b) The deposit to the Payment Account required in connection
with any such purchase will be equal to the sum of (a) the Note Principal, plus
(b) accrued and unpaid interest on the Notes through the day preceding the
Payment Date on which the purchase occurs, plus (c) any other amounts payable to
the Noteholders pursuant to the Note Purchase Agreement, minus (d) the amounts,
if any, on deposit at such Payment Date in the Payment Account for the payment
of the foregoing amounts.
SECTION 5. Delivery and Payment for the Notes. The Trustee shall execute,
authenticate and deliver the Notes in accordance with Section 2.4 of the Base
Indenture and Section 6 below.
SECTION 6. Form of Delivery of the Notes; Depository; Denominations;
Transfer Provisions.
(a) The Notes shall be delivered as Registered Notes representing
Book-Entry Notes as provided in this subsection (a). For purposes of this Series
Supplement, the term "Global Notes" refers to the Restricted Global Note, the
Temporary Regulation S Global Note and the Permanent Regulation S Global Note,
all as defined below.
(i) Restricted Global Note. The Notes to be sold in the
United States will be issued in book-entry form and represented by a
permanent global Note in fully registered form without interest
coupons (the "Restricted Global Note"), substantially in the form set
forth as Exhibit A-1, B-1 or C-1 hereto, as applicable, and will be
sold, only in the United States (1) by the Issuer to an institutional
"accredited investor" within the meaning of Regulation D under the
Securities Act in reliance on
14
an exemption from the registration requirements of the Securities Act
and (2) thereafter offered and sold to qualified institutional buyers
("QIBs") within the meaning of, and in reliance on, Rule 144A under
the Securities Act ("Rule 144A") and shall be deposited with a
custodian for, and registered in the name of a nominee of DTC, duly
executed by the Issuer and authenticated by the Trustee as provided in
the Base Indenture for credit to the accounts of the subscribers at
DTC. The initial principal amount of the Restricted Global Note may
from time to time be increased or decreased by adjustments made on the
records of the custodian for DTC, DTC or its nominee, as the case may
be, as hereinafter provided. Interests in the Restricted Global Note
will be exchangeable for Definitive Notes only in accordance with the
provisions of Section 2.18 of the Base Indenture.
(ii) Temporary Regulation S Global Note; Permanent
Regulation S Global Note. The Notes to be offered and sold to Non-U.S.
Persons outside of the United States and in reliance on Regulation S
("Regulation S") under the Securities Act, shall initially be issued
in the form of a temporary global Note in fully registered form
without interest coupons (the "Temporary Regulation S Global Note")
substantially in the form attached hereto as Exhibit A-2, B-2 or C-2,
as applicable, which shall be deposited with a custodian for, and
registered in the name of a nominee of DTC, duly executed by the
Issuer and authenticated by the Trustee as provided in the Base
Indenture, for the credit to the subscribers' accounts at Clearstream
and Euroclear. Interests in a Temporary Regulation S Global Note will
be exchangeable, in whole or in part, for interests in a corresponding
permanent global Note in fully registered form without interest
coupons (the "Permanent Regulation S Global Note"), representing the
Notes, substantially in the form attached hereto as Exhibit A-3, B-3
or C-3, as applicable, in accordance with the provisions of the
Temporary Regulation S Global Note and this Series Supplement. Until
the Exchange Date, interests in the Temporary Regulation S Global Note
may only be held through Euroclear or Clearstream (as indirect
participants in DTC). The initial principal amount of the Temporary
Regulation S Global Note and the Permanent Regulation S Global Note
may from time to time be increased or decreased by adjustments made on
the records of the custodian for DTC, DTC or its nominee, as the case
may be, as hereinafter provided. Interests in the Permanent Regulation
S Global Note will be exchangeable for Definitive Notes only in
accordance with the provisions of Section 2.18 of the Base Indenture.
(b) The Notes will be issuable in minimum denominations of
$500,000.
(c) The Global Notes may be transferred, in whole and not in
part, only to another nominee of DTC or to a successor of DTC or its nominee.
Beneficial interests in the Global Notes may not be exchanged for Definitive
Notes except in the limited circumstances described in Section 2.18 of the Base
Indenture; provided, however, that notwithstanding anything in the
15
Indenture to the contrary, Definitive Notes shall not be issued in respect of
any Temporary Regulation S Global Note unless the Restricted Period has expired
and then only with respect to beneficial interests therein as to which the
Trustee has received from Euroclear or Clearstream, as applicable, a certificate
substantially in the form of Exhibit E-2 hereto. Beneficial interests in the
Global Notes may be transferred only (x) to a Person the transferor reasonably
believes is a QIB in a transaction meeting the requirements of Rule 144A and
whom the transferor has notified that it may be relying on the exemption from
the registration requirements of the Securities Act provided by Rule 144A, (y)
outside the United States to non-U.S. Persons in a transaction in compliance
with Regulation S or (z) in a transaction otherwise exempt from the registration
requirements of the Securities Act (and based on an opinion of counsel to such
effect if the Issuer or the Transfer Agent and Registrar so requests), in each
case in compliance with the Indenture and all applicable securities laws of any
State of the United States or any other applicable jurisdiction. Each transferee
of a beneficial interest in a Global Note shall be deemed to have made the
acknowledgments, representations and agreements set forth in subsection (d)
hereof. Any such transfer shall also be made in accordance with the following
provisions:
(i) Transfer of Interests Within a Global Note. Beneficial
interests in a Global Note may be transferred to Persons who take
delivery thereof in the form of a beneficial interest in the same
Global Note in accordance with the transfer restrictions set forth in
the foregoing paragraph of this subsection 6(c) and the transferee
shall be deemed to have made the representations contained in
subsection 6(d). Notwithstanding the foregoing, if such transferor is
relying on an exemption from the registration requirements of the
Securities Act other than Rule 144A or Regulation S, such transferor
shall provide the Issuer and the Transfer Agent and Registrar with a
certificate substantially in the form of Exhibit E-1 and, if requested
by the Issuer or the Trustee, an opinion of counsel in form and
substance acceptable to the Issuer and to the Transfer Agent and
Registrar to the effect that such transfer is in compliance with the
Securities Act.
(ii) Temporary Regulation S Global Note to Permanent
Regulation S Global Note. Interests in the Temporary Regulation S
Global Note will be exchanged for interests in the Permanent
Regulation S Global Note, on and after the first day following the
40-day period (the "Restricted Period") beginning on the later of the
commencement of the offering of the Notes or the Closing Date on which
the Trustee has received a certificate substantially in the form of
Exhibit E-2 (the "Exchange Date"). To effect such exchange the Issuer
shall execute and the Trustee shall authenticate a Permanent
Regulation S Global Note, representing the principal amount of
interests in the Temporary Regulation S Global Note initially
exchanged for interests in the Permanent Regulation S Global Note.
Such Permanent Regulation S Global Note shall be deposited with a
custodian for, and registered in the name of, a nominee of DTC. Upon
any exchange of interests in the Temporary Regulation S Global Note
for interests in the Permanent Regulation S Global Note, the Transfer
16
Agent and Registrar shall endorse the Temporary Regulation S Global
Note to reflect the reduction in the principal amount represented
thereby by the amount so exchanged and shall endorse the Permanent
Regulation S Global Note to reflect the corresponding increase in the
amount represented thereby. The Temporary Regulation S Global Note or
the Permanent Regulation S Global Note shall also be endorsed upon any
cancellation of principal amounts upon surrender of interests in such
Notes purchased by the Issuer or upon any repayment of the principal
amount represented thereby in respect of such Notes.
(iii) Restricted Global Note to Temporary Regulation S
Global Note During the Restricted Period. If, prior to the Exchange
Date, a holder of a beneficial interest in the Restricted Global Note
wishes at any time to exchange its interest in the Restricted Global
Note for an interest in the Temporary Regulation S Global Note, or to
transfer its interest in the Restricted Global Note to a Non-U.S.
Person, in a transaction in compliance with Regulation S who wishes to
take delivery thereof in the form of an interest in the Temporary
Regulation S Global Note, such holder may, subject to this subsection
6(c) and the rules and procedures of DTC, exchange or cause the
exchange or transfer of such interest for an equivalent beneficial
interest in the Temporary Regulation S Global Note. Upon receipt by
the Transfer Agent and Registrar of (1) instructions given in
accordance with DTC's procedures from an agent member directing the
Transfer Agent and Registrar to credit or cause to be credited a
beneficial interest in the Temporary Regulation S Global Note in an
amount equal to the beneficial interest in the Restricted Global Note
to be exchanged or transferred, (2) a written order given in
accordance with DTC's procedures containing information regarding the
Euroclear or Clearstream account to be credited with such increase and
the name of such account, and (3) a certificate in the form of Exhibit
E-3 attached hereto given by the holder of such beneficial interest
stating that the exchange or transfer of such interest has been made
in compliance with the transfer restrictions applicable to the Notes
and pursuant to and in accordance with Regulation S, the Transfer
Agent and Registrar shall instruct DTC to reduce the Restricted Global
Note by the aggregate principal amount of the beneficial interest in
the Restricted Global Note to be so exchanged or transferred and the
Transfer Agent and Registrar shall instruct DTC, concurrently with
such reduction, to increase the principal amount of the Temporary
Regulation S Global Note by the aggregate principal amount of the
beneficial interest in the Restricted Global Note to be so exchanged
or transferred, and to credit or cause to be credited to the account
of the Person specified in such instructions (who shall be the agent
member of Euroclear or Clearstream, or both, as the case may be) a
beneficial interest in the Temporary Regulation S Global Note equal to
the reduction in the principal amount of the Restricted Global Note.
17
(iv) Restricted Global Note to Permanent Regulation S Global
Note After the Exchange Date. If, after the Exchange Date, a holder of
a beneficial interest in the Restricted Global Note registered in the
name of DTC or its nominee wishes at any time to exchange its interest
in such Restricted Global Note for an interest in the Permanent
Regulation S Global Note, or to transfer its interest in such
Restricted Global Note to a Non-U.S. Person, in a transaction in
compliance with Regulation S, who wishes to take delivery thereof in
the form of an interest in the Permanent Regulation S Global Note,
such holder may, subject to this subsection 6(c) and the rules and
procedures of DTC, exchange or cause the exchange or transfer of such
interest for an equivalent beneficial interest in the Permanent
Regulation S Global Note. Upon receipt by the Transfer Agent and
Registrar of (1) instructions given in accordance with DTC's
procedures from an agent member directing the Transfer Agent and
Registrar to credit or cause to be credited a beneficial interest in
the Permanent Regulation S Global Note in an amount equal to the
beneficial interest in the Restricted Global Note to be exchanged or
transferred, (2) a written order given in accordance with DTC's
procedures containing information regarding the account to be credited
with such increase and (3) a certificate in the form of Exhibit E-4
attached hereto given by the holder of such beneficial interest
stating that the exchange or transfer of such interest has been made
in compliance with the transfer restrictions applicable to the Notes
and pursuant to and in accordance with Regulation S, the Transfer
Agent and Registrar shall instruct DTC to reduce the Restricted Global
Note by the aggregate principal amount of the beneficial interest in
the Restricted Global Note to be so exchanged or transferred and the
Transfer Agent and Registrar shall instruct DTC, concurrently with
such reduction, to increase the principal amount of the Permanent
Regulation S Global Note by the aggregate principal amount of the
beneficial interest in the Restricted Global Note to be so exchanged
or transferred, and to credit or cause to be credited to the account
of the Person specified in such instructions a beneficial interest in
the Permanent Regulation S Global Note equal to the reduction in the
principal amount of the Restricted Global Note.
(v) Temporary Regulation S Global Note to Restricted Global
Note. If a holder of a beneficial interest in the Temporary Regulation
S Global Note registered in the name of DTC or its nominee wishes at
any time to exchange its interest in such Temporary Regulation S
Global Note for an interest in the Restricted Global Note, or to
transfer its interest in such Temporary Regulation S Global Note to a
Person who wishes to take delivery thereof in the form of an interest
in the Restricted Global Note, such holder may, subject to this
subsection 6(c) and the rules and procedures of Euroclear or
Clearstream and DTC, as the case may be, exchange or cause the
exchange or transfer of such interest for an equivalent beneficial
interest in the Restricted Global Note. Upon receipt by the Transfer
Agent and Registrar of (1) instructions from Euroclear or Clearstream
or DTC, as the case maybe, directing the
18
Transfer Agent and Registrar to credit or cause to be credited a
beneficial interest in the Restricted Global Note equal to the
beneficial interest in the Temporary Regulation S Global Note to be
exchanged or transferred, such instructions to contain information
regarding the agent member's account with DTC to be credited with such
increase, and, with respect to an exchange or transfer of an interest
in the Temporary Regulation S Global Note after the Exchange Date,
information regarding the agent member's account with DTC to be
debited with such decrease, and (2) with respect to an exchange or
transfer of an interest in the Temporary Regulation S Global Note for
an interest in the Restricted Global Note prior to the Exchange Date,
a certificate in the form of Exhibit E-5 attached hereto given by the
holder of such beneficial interest and stating that the Person
transferring such interest in the Temporary Regulation S Global Note
reasonably believes that the Person acquiring such interest in the
Restricted Global Note is a QIB and is obtaining such beneficial
interest in a transaction meeting the requirements of Rule 144A,
Euroclear or Clearstream or the Transfer Agent and Registrar, as the
case may be, shall instruct DTC to reduce the Temporary Regulation S
Global Note by the aggregate principal amount of the beneficial
interest in the Temporary Regulation S Global Note to be exchanged or
transferred, and the Transfer Agent and Registrar shall instruct DTC,
concurrently with such reduction, to increase the principal amount of
the Restricted Global Note by the aggregate principal amount of the
beneficial interest in the Temporary Regulation S Global Note to be so
exchanged or transferred, and to credit or cause to be credited to the
account of the Person specified in such instructions a beneficial
interest in the Restricted Global Note equal to the reduction in the
principal amount of the Temporary Regulation S Global Note.
(vi) Transfers of Interests in Permanent Regulation S Global
Note. The Transfer Agent and Registrar shall register any transfer of
interests in a Permanent Regulation S Global Note in accordance with
Section 2.6 of the Base Indenture to U.S. Persons without requiring
any additional certification; provided, however, that all other
transfer restrictions set forth in this Section 6 shall remain in full
force and effect and each such transferee shall be deemed to have made
the representations and warranties set forth in subsection (d) below
(but excluding the certification and opinion of counsel provisions of
paragraph (1) thereof).
(d) Each transferee of a beneficial interest in a Global Note
shall be deemed to have represented and agreed that:
(1) it either (A) (i) is a QIB, (ii) is aware that the sale to
it is being made in reliance on Rule 144A and (iii) is acquiring the Notes
for its own account or for the account of a QIB or (B) is a Non-U.S. Person
and is not acquiring the Notes for the account or benefit of a U.S. Person
and is purchasing the Notes in an offshore transaction within the meaning
of Regulation S or (C) is acquiring the Notes pursuant to another exemption
from the
19
registration requirements of the Securities Act and has furnished the
Issuer and the Transfer Agent and Registrar any required certification
and/or an opinion of counsel as to such exemption in form and substance
satisfactory to Transfer Agent and Registrar;
(2) it understands and agrees that the Notes have not been and
will not be registered under the Securities Act, and that, if in the future
it decides to offer, resell, pledge or otherwise transfer such Notes, such
Notes may be offered, sold, pledged or otherwise transferred only (a) to a
Person who the transferor reasonably believes is a QIB in a transaction
meeting the requirements of Rule 144A and whom the transferor has notified
that it may be relying on the exemption from the registration requirements
of the Securities Act provided by Rule 144A, (b) outside the United States
to a Non-U.S. Person in a transaction meeting the requirements of Rule 903
or 904 of Regulation S, or (c) in a transaction otherwise exempt from the
registration requirements of the Securities Act (based on an opinion of
counsel if the Issuer or the Transfer Agent and Registrar so requests in
form and substance satisfactory to Transfer Agent and Registrar) and, in
each case, in accordance with any applicable securities laws of any state
of the United States or any other jurisdiction and in accordance with the
restrictions set forth in the Series Supplement and the Notes;
(3) it will, and each subsequent holder is required to, notify
any purchaser of Notes from it of the resale restrictions referred to
above, if then applicable;
(4) it understands that the following legend will be placed on
the Notes unless the Issuer determines otherwise in compliance with
applicable law:
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES LAWS OF ANY OTHER JURISDICTION. THIS NOTE MAY BE
RESOLD, PLEDGED OR TRANSFERRED ONLY (1) TO A PERSON THE
TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"))
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2)
OUTSIDE THE UNITED STATES TO A NON U.S. PERSON (AS SUCH TERM IS
DEFINED IN REGULATION S UNDER THE SECURITIES ACT) IN A
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES
ACT, (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OR (4) IN A TRANSACTION OTHERWISE EXEMPT FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND
ANY OTHER JURISDICTION AND BASED ON AN OPINION OF
20
COUNSEL IF THE ISSUER OR TRANSFER AGENT AND REGISTRAR SO REQUEST,
IN EACH SUCH CASE, IN COMPLIANCE WITH THE INDENTURE AND ALL
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR
ANY OTHER JURISDICTION. THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY TRANSFEREE FROM IT OF THE
RESALE RESTRICTIONS SET FORTH ABOVE.
BY ACQUIRING THIS NOTE, EACH PURCHASER WILL BE DEEMED TO HAVE
REPRESENTED, WARRANTED AND COVENANTED EITHER THAT (A) IT IS NOT
AN "EMPLOYEE BENEFIT PLAN" SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), A "PLAN"
DESCRIBED IN SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED, AN ENTITY DEEMED TO HOLD "PLAN ASSETS" OF ANY
OF THE FOREGOING BY REASON OF INVESTMENT BY AN "EMPLOYEE BENEFIT
PLAN" OR "PLAN" IN SUCH ENTITY, OR A GOVERNMENTAL PLAN SUBJECT TO
APPLICABLE LAW THAT IS SUBSTANTIALLY SIMILAR TO THE FIDUCIARY
RESPONSIBILITY PROVISIONS OF ERISA OR SECTION 4975 OF THE CODE OR
(B) ITS PURCHASE AND HOLDING OF THIS NOTE WILL NOT RESULT IN A
NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF
THE CODE (OR, IN THE CASE OF A GOVERNMENTAL PLAN, ANY
SUBSTANTIALLY SIMILAR APPLICABLE LAW).
(5) it acknowledges that the Notes will be evidenced by Global
Notes and that the foregoing restrictions apply to holders of beneficial
interests in the Notes as well as to Holders of the Notes;
(6) it acknowledges that the Trustee, the Issuer, the initial
purchasers or placement agents for the Notes and their Affiliates and
others will rely upon the truth and accuracy of the foregoing
acknowledgments, representations and agreements and agrees that if any of
the acknowledgments, representations or agreements deemed to have been made
by its purchase of such Notes is no longer accurate, it will promptly
notify the Issuer and the initial purchasers or placement agents for the
Notes in writing. If it is acquiring any Notes for one or more investor
accounts, it represents that it has sole investment discretion with respect
to each such account and that it has full power to make the foregoing
acknowledgments, representations and agreements on behalf of each such
account; and
(7) it acknowledges that either (i) no part of the assets used
by it to acquire the Notes constitutes assets of any employee benefit plan
subject to ERISA, Section
21
4975 of the Code or any entity deemed to hold plan assets of any of the
foregoing by reason of investment by an employee benefit plan or plan in
the entity or (ii) its purchase and holding of the Notes will not,
throughout the term of holding, constitute a non-exempt "prohibited
transaction" under Section 406 of ERISA or Section 4975 of the Code by
reason of the application of one or more statutory or administrative
exemptions from such prohibited transaction rules or otherwise.
In addition, such transferee shall be responsible for providing
additional information or certification, as shall be reasonably requested by the
Trustee or Issuer, to support the truth and accuracy of the foregoing
acknowledgments, representations and agreements, it being understood that such
additional information is not intended to create additional restrictions on the
transfer of the Notes.
(e) Other Transfers or Exchanges. In the event that a Global Note
is exchanged for Notes in definitive registered form without interest coupons,
pursuant to Section 2.18 of the Base Indenture, such Definitive Notes may be
exchanged or transferred for one another only in accordance with such procedures
as are substantially consistent with Section 2.18 of the Base Indenture and the
provisions of Section 6 of this Series Supplement above (including the
certification requirements intended to insure that such exchanges or transfers
comply with Rule 144A or Regulation S, as the case may be) and as may be from
time to time adopted by the Issuer and the Trustee, and such holder shall
provide the Issuer and the Transfer Agent and Registrar with a certification to
that effect (in substantially the form of Exhibit E-1 hereto) and, if requested
by the Issuer or the Trustee, an opinion of counsel in form and substance
acceptable to the Issuer and to the Transfer Agent and Registrar to the effect
that such transfer is in compliance with the Securities Act, and the transferee
of any such Note shall be deemed to have made the representations set forth in
subsection (d) above other than the representation contained in paragraph (5)
thereof.
SECTION 7. Article 5 of Base Indenture. Sections 5.1, 5.2, 5.3, 5.4,
5.5, 5.6, 5.7, 5.8, 5.9 and 5.10 of the Base Indenture shall be read in their
entirety as provided in the Base Indenture. The following provisions, however,
shall constitute part of Article 5 of the Indenture solely for purposes of
Series 2002-B and shall be applicable only to the Notes (except as otherwise
provided in the following provisions or in another Series Supplement):
ARTICLE 5
ALLOCATION AND APPLICATION OF COLLECTIONS
SECTION 5.11 Allocations.
(a) Allocations of Collections. On each day any Collections are
deposited in the Collection Account, the Servicer shall, prior to the close of
business on such day, make the following deposits from the Collection Account:
22
(i) Deposit into the Principal Account all Collections
received in respect of Principal Receivables on such date (such
deposit to be applied in accordance with the Indenture and subsection
5.15(b)); and
(ii) Deposit into the Finance Charge Account all Collections
received in respect of Finance Charges, Recoveries, Investment
Earnings or otherwise (but not in respect of Principal Receivables) on
such date (such deposit to be applied in accordance with the Indenture
and subsection 5.15(a)).
(b) Excess Funding Collections. Any Collections deposited into
the Excess Funding Account pursuant to Section 5.15 or 5.20(e) shall be held in
the Excess Funding Account and, prior to the commencement of the Rapid
Amortization Period, shall be first applied in accordance with Section 5.17 and
then paid, first, to the Servicer Letter of Credit Bank to the extent of any
amounts payable thereto by the Issuer under the reimbursement agreement for the
Servicer Letter of Credit and, second, to the Issuer, in each case, on any date
(so long as the Coverage Test remains satisfied (or will be satisfied on such
date through the use of such Collections to pay for Subsequently Purchased
Receivables from one or more Sellers) and such payment and the application
thereof shall not result in the occurrence of (1) a Pay Out Event for any
Series, a Servicer Default or an Event of Default, or (2) in the case of
Permissible Uses of the type described in clauses (ii) and (iii) of the
definition thereof, an event or occurrence, which, with the passing of time or
the giving of notice thereof, or both, would become a Pay Out Event for any
Series, Servicer Default or an Event of Default) to the extent of (and to be
used solely for) Permissible Uses on such date as determined by the Servicer;
provided, however, that if an Accumulation Period or an Amortization Period
commences with respect to any Series, any funds on deposit in the Excess Funding
Account shall be first applied in accordance with Section 5.17 and then released
from the Excess Funding Account, deposited in the Principal Account and treated
as Shared Principal Collections to the extent needed to cover principal payments
due to such Series; provided, however, that $10,000 shall remain on deposit in
the Excess Funding Account for use to pay expenses of the Issuer not prohibited
by the Transaction Documents, as determined by the Servicer.
SECTION 5.12 Determination of Monthly Interest. The amount of monthly
interest payable on the Notes shall be determined as of each Determination Date
and shall be an amount equal to the product of (i)(A) a fraction, the numerator
of which is the actual number of days in the related Interest Period and the
denominator of which is 360, times (B) the weighted average Note Rate in effect
with respect to the related Interest Period, and (ii) the average daily
outstanding principal balance of the Notes during such Interest Period (the
"Monthly Interest"); provided, however, that in addition to Monthly Interest, an
amount equal to the sum of (i) the amount of any unpaid Deficiency Amount, as
defined below and (ii) an amount equal to the product (such product being herein
called the "Additional Interest") of (A) a fraction, the numerator of which is
the actual number of days in the related Interest Period and the denominator of
which is 360, times (B) a rate equal to 2% per annum over the Note Rate in
effect with respect to the related Interest Period, times
23
(C) any Deficiency Amount, as defined below (or the portion thereof which has
not theretofore been paid to Noteholders) shall also be payable to the
Noteholders. The "Deficiency Amount" for any Determination Date shall be equal
to the excess, if any, of (x) the sum of the Monthly Interest, the Additional
Interest and the Deficiency Amount as determined pursuant to the preceding
sentence for the Interest Period ended immediately prior to the preceding
Payment Date, over (y) the amount actually paid in respect thereof on the
preceding Payment Date; provided, that the Deficiency Amount on the initial
Determination Date shall be zero.
SECTION 5.13. Determination of Monthly Principal. The amount on deposit in
the Principal Account allocable to the repayment of principal of the Notes shall
be determined as of each Series Transfer Date ("Monthly Principal"), beginning
with the first Series Transfer Date occurring after the Controlled Amortization
Period or the Rapid Amortization Period begins, and shall be equal to the lesser
of (i) the Available Investor Principal Collections on deposit in the Principal
Account on such Series Transfer Date, (ii) the Investor Interest (after taking
into account any adjustments to be made on such Series Transfer Date pursuant to
Section 5.16) on such Series Transfer Date and (iii) during the Controlled
Amortization Period, the Controlled Distribution Amount.
SECTION 5.14. Coverage of Required Amount.
(a) On or before each Series Transfer Date, the Servicer shall
determine the amount (the "Required Amount"), if any, by which an amount equal
to the sum of (i) the Monthly Interest for such Series Transfer Date, plus (ii)
the Deficiency Amount, if any, for such Series Transfer Date, plus (iii) the
Additional Interest, if any, for such Series Transfer Date, plus (iv) the
Investor Percentage of the Trustee and Back-Up Servicer Fees and Expenses for
such Series Transfer Date, plus (v) the Investor Percentage of the Servicing Fee
for the prior Monthly Period, plus (vi) any amounts described in clauses (iv)
and (v) above that were due but not paid on any prior Series Transfer Date, plus
(vii) the Aggregate Investor Default Amount, if any, for the prior Monthly
Period exceeds the Available Funds for the related Monthly Period.
(b) In the event that the Required Amount for such Series
Transfer Date is greater than zero, (i) the Servicer shall give written notice
to the Trustee of such positive Required Amount on or before such Series
Transfer Date, and (ii) to the extent available in each case, the Required
Amount shall be paid first from the Finance Charge Account, and second from the
Excess Funding Account on such Series Transfer Date pursuant to subsection
5.17(a).
SECTION 5.15. Monthly Payments. On or before each Series Transfer Date,
the Servicer shall instruct the Trustee in writing (which writing shall be
substantially in the form of the Monthly Servicer Report attached as Exhibit A
to the Servicing Agreement) to withdraw, and the Trustee, acting in accordance
with such instructions, shall withdraw on such Series Transfer Date or the
related Payment Date, as applicable, to the extent of the funds credited to the
relevant accounts, the amounts in respect of the Notes required to be withdrawn
from the Finance Charge Account, the Principal Account, the Payment Account and
the Cash Reserve Account as follows:
24
(a) An amount equal to the Available Funds deposited into the
Finance Charge Account for the related Monthly Period shall be distributed on
each Series Transfer Date in the following priority:
(i) first, an amount equal to the Investor Percentage of
the Trustee and Back-Up Servicer Fees and Expenses for such Series
Transfer Date (plus the Investor Percentage of any Trustee and Back-Up
Servicer Fees and Expenses due but not paid to the Trustee on any
prior Series Transfer Date) shall be paid to the Trustee and, second,
an amount equal to Monthly Interest for such Series Transfer Date,
plus the amount of any Deficiency Amount for such Series Transfer
Date, plus the amount of any Additional Interest for such Series
Transfer Date shall be deposited by the Trustee into the Payment
Account for distribution to the Class A Noteholders, Class B
Noteholders and Class C Noteholders (based on the amounts payable
thereto determined in accordance with the respective Note Rates and
distributed on a pari passu basis) on the related Payment Date (the
"Required Interest Distribution");
(ii) an amount equal to the Investor Percentage of the
Servicing Fee for such Series Transfer Date (plus the Investor
Percentage of any Servicing Fee due but not paid to the Servicer on
any prior Series Transfer Date) shall be paid to the Servicer;
(iii) an amount equal to the Aggregate Investor Default
Amount, if any, for the preceding Monthly Period shall be treated as a
portion of Investor Principal Collections and deposited into the
Principal Account on such Series Transfer Date;
(iv) an amount equal to the excess, if any, of the Cash
Reserve Account Required Amount over the amount already on deposit in
the Cash Reserve Account shall be deposited into the Cash Reserve
Account;
(v) to the extent the Available Issuer Interest is greater
than zero (after giving effect to all other reductions thereof on such
date and the payment pursuant to this clause (v) and the corresponding
provision of each other Series Supplement), an amount equal to the
Investor Percentage of any amounts payable to the Servicer Letter of
Credit Bank by the Issuer under the reimbursement agreement for the
Servicer Letter of Credit shall be paid to the Servicer Letter of
Credit Bank;
(vi) to the extent the Available Issuer Interest is greater
than zero (after giving effect to all other reductions thereof on such
date and the payment pursuant to this clause (vi) and the
corresponding provision of each other Series Supplement), an amount
equal to the Investor Percentage of any unreimbursed expenses of the
Trustee shall be paid to the Trustee; and
25
(vii) the balance, if any, shall constitute Excess Spread
and shall be allocated and distributed as set forth in Section 5.17.
(b) During the Revolving Period (unless the next Business Day
after such Series Transfer Date is the Scheduled Pay Out Commencement Date), an
amount equal to the Available Investor Principal Collections deposited into the
Principal Account for the related Monthly Period shall be distributed on each
Series Transfer Date in the following priority:
(i) an amount, not in excess of the Principal Reallocation
Amount, to pay or deposit any amounts described in clauses (a)(i),
(ii), (iv), (v) and (vi) above (in such order) that remain unpaid or
undeposited after giving effect to the application of funds, pursuant
to clause (a) above;
(ii) an amount equal to the lesser of (A) the product of
(1) a fraction, the numerator of which is equal to the Available
Investor Principal Collections remaining after the application
specified in paragraph 5.15(b)(i) above and the denominator of which
is equal to the sum of the portion of the "Available Investor
Principal Collections" for each Series that are available for sharing
as specified in the related Series Supplement and (2) the Cumulative
Series Principal Shortfall, if any, and (B) Available Investor
Principal Collections remaining after the application specified in
paragraph 5.15(b)(i) above, shall remain in the Principal Account to
be treated as Shared Principal Collections and applied to Series other
than this Series 2002-B; and
(iii) the balance, if any, shall be deposited into the
Excess Funding Account.
(c)(A) During the Controlled Amortization Period (or if the next
Business Day after such Series Transfer Date is the Scheduled Pay Out
Commencement Date), an amount equal to the Available Investor Principal
Collections deposited into the Principal Account for the related Monthly Period
shall be distributed on each Series Transfer Date in the following priority:
(i) an amount equal to the Monthly Principal for such
Series Transfer Date shall be deposited into the Payment Account;
(ii) an amount, not in excess of the Principal Reallocation
Amount, to pay or deposit any amounts described in clauses(a)(i),
(ii), (iv) and (v) above (in such order) that remain unpaid or
undeposited after giving effect to the application of funds, pursuant
to clause (a) above;
(iii) an amount equal to the lesser of (A) the product of
(1) a fraction, the numerator of which is equal to the Available
Investor Principal Collections remaining
26
after the application specified in paragraphs 5.15(c)(A)(i) and (ii)
above and the denominator of which is equal to the sum of the
"Available Investor Principal Collections" for each Series that are
available for sharing as specified in the related Series Supplement
and (2) the Cumulative Series Principal Shortfall, if any, and (B) the
Available Investor Principal Collections remaining after the
application specified in paragraphs 5.15(c)(A)(i) and (ii) above,
shall remain in the Principal Account to be treated as Shared
Principal Collections and applied to Series other than this Series
2002-B; and
(iv) the balance, if any, shall be deposited into the
Excess Funding Account.
(B) During the Rapid Amortization Period, an amount equal to the
Available Investor Principal Collections deposited into the Principal Account
for the related Monthly Period shall be distributed on each Series Transfer Date
in the following priority:
(i) an amount equal to the Monthly Principal for such
Series Transfer Date shall be deposited into the Payment Account;
(ii) an amount, not in excess of the Principal Reallocation
Amount, to pay or deposit any amounts described in clauses(a)(i),
(ii), (iv) and (v) above (in such order) that remain unpaid or
undeposited after giving effect to the application of funds, pursuant
to clause (a) above;
(iii) an amount equal to the lesser of (A) the product of
(1) a fraction, the numerator of which is equal to the Available
Investor Principal Collections remaining after the application
specified in paragraphs 5.15(c)(B)(i) and (ii) above and the
denominator of which is equal to the sum of the "Available Investor
Principal Collections" for each Series that are available for sharing
as specified in the related Series Supplement and (2) the Cumulative
Series Principal Shortfall, if any, and (B) the Available Investor
Principal Collections remaining after the application specified in
paragraphs 5.15(c)(B)(i) and (ii) above, shall remain in the Principal
Account to be treated as Shared Principal Collections and applied to
Series other than this Series 2002-B; and
(iv) the balance, if any, shall be deposited into the
Excess Funding Account.
(d) On each Payment Date, the Trustee, acting in accordance with
instructions from the Servicer, shall pay to the Noteholders (based on the
amounts payable thereto determined in accordance with the respective Note Rates
and distributed on a pari passu basis) the amount deposited into the Payment
Account pursuant to paragraph 5.15(a)(i) (including, without limitation,
27
indirectly pursuant to paragraphs 5.15(b)(i) and (c)(ii) above) on the
immediately preceding Series Transfer Date.
(e) On the first Payment Date occurring after the Controlled
Amortization Period or the Rapid Amortization Period begins, and on each Payment
Date thereafter, the Trustee, acting in accordance with instructions from the
Servicer, shall pay the amount deposited into the Payment Account pursuant to
paragraph 5.15(c) on the immediately preceding Series Transfer Date to the
following Persons or accounts (as the case may be) in the following priority:
(i) to the Class A Noteholders, an amount equal to the
least of (A) the Monthly Principal, (B) the Class A Note Principal and
(C) during the Controlled Amortization Period, the Class A Controlled
Distribution Amount (the "Required Class A Principal Distribution");
(ii) to the Class B Noteholders, an amount equal to the
least of (A) the Monthly Principal minus the amount distributed
pursuant to clause (i) above, (B) the Class B Note Principal and (C)
during the Controlled Amortization Period, the Class B Controlled
Distribution Amount (the "Required Class B Principal Distribution");
(iii) to the Class C Noteholders, an amount equal to the
least of (A) the Monthly Principal minus the amount distributed
pursuant to clauses (i) and (ii) above, (B) the Class C Note Principal
and (C) during the Controlled Amortization Period, the Class C
Controlled Distribution Amount (the "Required Class C Principal
Distribution");
(iv) to the Noteholders, any other amounts (including,
without limitation, accrued and unpaid interest) payable thereto
pursuant to any Transaction Document;
(v) to the extent the Available Issuer Interest is greater
than zero (after giving effect to all other reductions thereof on such
date and the payment pursuant to this clause (v) and the corresponding
provision of each other Series Supplement), to the Trustee to pay
unreimbursed expenses of the Trustee; and
(vi) the balance, if any, shall be deposited into the
Excess Funding Account.
(f) On any Redemption Date, the amounts required to be on deposit in
the Payment Account pursuant to Section 4, shall be paid to the following
Persons:
(i) to the Class A Noteholders, the Class A Note
Principal;
28
(ii) to the Class B Noteholders, the Class B Note
Principal;
(iii) to the Class C Noteholders, the Class C Note
Principal; and
(iv) to the Noteholders, any other amounts (including,
without limitation, accrued and unpaid interest) payable thereto
pursuant to the Note Purchase Agreement.
(g) On each Payment Date, the Trustee, acting in accordance with
instructions from the Servicer, shall pay the amount on deposit in the Cash
Reserve Account to the following Persons in the following priority:
(i) to the Noteholders (based on the amounts payable
thereto determined in accordance with the respective Note Rates and
distributed on a pari passu basis), an amount equal to the excess, if
any, of (A) the Required Interest Distributions over (B) the amount
distributed thereto pursuant to subsection 5.15(d) ;
(ii) during the Controlled Amortization Period or the Rapid
Amortization Period, to the Class A Noteholders, an amount equal to
the excess, if any, of (A) the Required Class A Principal
Distributions over (B) the amount distributed thereto pursuant to
paragraph 5.15(e)(i);
(iii) during the Controlled Amortization Period or the Rapid
Amortization Period, to the Class B Noteholders, an amount equal to
the excess, if any, of (A) the Required Class B Principal
Distributions over (B) the amount distributed thereto pursuant to
paragraph 5.15(e)(ii); and
(iv) during the Controlled Amortization Period or the Rapid
Amortization Period, to the Class C Noteholders, am amount equal to
the excess, if any, of (A) the Required Class C Principal
Distributions over (B) the amount distributed thereto pursuant to
paragraph 5.15(e)(iii).
SECTION 5.16. Investor Charge-Offs.
(a) On or before each Series Transfer Date, the Servicer shall
calculate the Aggregate Investor Default Amount. If, on any Series Transfer
Date, the Aggregate Investor Default Amount exceeds the aggregate amount to be
distributed with respect thereto for the relevant Monthly Period pursuant to
subsection 5.15(a)(iii) and Section 5.17(a), the Investor Interest shall be
reduced by the amount of such excess, but only to the extent such excess exceeds
the Investor Percentage (determined with regard to only (and only to the extent
of) those Series with respect to which the "Investor Interest" is being so
reduced with respect to Defaulted Receivables during such Monthly Period) of the
Available Issuer Interest (such reduction, an "Investor Charge-Off"). The
Investor
29
Interest shall thereafter be reimbursed on any Series Transfer Date by the
amount of Excess Spread and funds on deposit in the Excess Funding Account
allocated and available for such purpose pursuant to subsection 5.17(b).
(b) Except as otherwise expressly provided herein, if losses and
investment expenses attributable to the investment of amounts on deposit in any
Trust Account or any Series Account exceed interest and investment earnings in
respect of such amounts during any Monthly Period, the net losses and expenses
shall be allocated first to the Issuer Interest and second between the "Investor
Interests" of all outstanding Series, in the same proportion that losses in
respect of Principal Receivables are so allocated for such Monthly Period.
SECTION 5.17. Allocation of Excess Amounts. On or before each Series
Transfer Date, the Trustee, acting pursuant to the Servicer's instructions,
shall apply Excess Spread in the Finance Charge Account and to the extent
necessary (to cover amounts described in clauses (a) and (b) below) transfer
funds from the Excess Funding Account (after giving effect to the deposits to be
made therein on such date) to the Finance Charge Account in order to make the
following distributions on each Series Transfer Date (in the following order of
priority) for the related Monthly Period:
(a) an amount equal to the Required Amount, if any, with respect
to such Series Transfer Date will be used to fund such Required Amount and be
applied in accordance with, and in the priority set forth in, subsection
5.15(a);
(b) an amount equal to the aggregate amount by which the Investor
Interest has been reduced on previous Series Transfer Dates (but has not been
reimbursed) for reasons other than a reduction of the Required Reserve Amount
and/or the payment of principal to the Noteholders will be treated as a portion
of Investor Principal Collections and deposited into the Principal Account on
such Series Transfer Date; and
(c) any remaining Excess Spread shall be treated as a portion of
Investor Principal Collections and deposited into the Principal Account on such
Series Transfer Date.
To the extent that there are insufficient funds in the Excess Funding
Account to make all payments required under subsections 5.17(a) and (b) above
and under the corresponding provisions for each other Series, the amount on
deposit in the Excess Funding Account shall be allocated to each Series on a pro
rata basis (based on the "Investor Interest" of each such Series).
SECTION 5.18. Servicer's Failure to Make a Deposit or Payment. If the
Servicer fails to make, or give instructions to make, any payment, deposit or
withdrawal (other than as required by subsection 12.4(a) and Section 12.1)
required to be made or given by the Servicer at the time specified in the Base
Indenture or this Series Supplement (including applicable grace periods), the
Trustee shall make such payment, deposit or withdrawal from the applicable
account without
30
instruction from the Servicer. The Trustee shall be required to make any such
payment, deposit or withdrawal hereunder only to the extent that the Trustee has
sufficient information to allow it to determine the amount thereof. The Servicer
shall, upon request of the Trustee, promptly provide the Trustee with all
information necessary to allow the Trustee to make such payment, deposit or
withdrawal. Such funds or the proceeds of such withdrawal shall be applied by
the Trustee in the manner in which such payment or deposit should have been made
by the Servicer.
SECTION 5.19. Shared Principal Collections.
(a) The portion of Shared Principal Collections allocable to Series
2002-B on deposit in the Principal Account on any Series Transfer Date shall be
treated and applied as an Available Investor Principal Collection pursuant to
Section 5.15.
(b) "Shared Principal Collections allocable to Series 2002-B" on any
Series Transfer Date means an amount equal to the Series Principal Shortfall, if
any, with respect to Series 2002-B on such Series Transfer Date; provided,
however, that if the aggregate amount of Shared Principal Collections for all
Series for such Series Transfer Date is less than the Cumulative Series
Principal Shortfall for such Series Transfer Date, then "Shared Principal
Collections allocable to Series 2002-B" on such Series Transfer Date shall equal
the product of (i) Shared Principal Collections for all Series for such Series
Transfer Date and (ii) a fraction, the numerator of which is the Series
Principal Shortfall with respect to Series 2002-B and the denominator of which
shall be the aggregate amount of "Cumulative Series Principal Shortfall" for all
Series for such Series Transfer Date.
(c) Solely for the purpose of determining the amount of Available
Investor Principal Collections to be treated as Shared Principal Collections on
any Series Transfer Date allocable to other Series, on each Determination Date,
the Servicer shall determine the Required Amount and Excess Spread as of such
Determination Date for the following Series Transfer Date.
SECTION 5.20. Cash Reserve Account.
(a) The Servicer has established and maintained and shall continue to
maintain, with a Qualified Institution, in the name of the Trustee, on behalf of
the Issuer, for the benefit of the Secured Parties in Series 2002-B, a
segregated trust account (the "Cash Reserve Account"), bearing a designation
clearly indicating that the funds deposited therein are held for the benefit of
such Secured Parties. The Trustee shall possess all right, title and interest in
all funds on deposit from time to time in the Cash Reserve Account and in all
proceeds thereof. The Cash Reserve Account shall be under the sole dominion and
control of the Trustee for the benefit of the Secured Parties in Series 2002-B,
and the Trustee shall be the entitlement holder of the Cash Reserve Account. If
at any time the institution holding the Cash Reserve Account ceases to be a
Qualified Institution, the Trustee shall notify the Rating Agency and within 10
Business Days establish a new Cash Reserve Account meeting the conditions
specified above with a Qualified Institution, and shall transfer any cash or any
31
investments to such new Cash Reserve Account. The Trustee, at the direction of
the Servicer, shall (i) make withdrawals from the Cash Reserve Account from time
to time in accordance with subsection 5.15(g) and (ii) make deposits into the
Cash Reserve Account as specified in paragraph 5.15(a)(iv).
(b) Funds on deposit in the Cash Reserve Account shall be invested by
the Trustee (at the Servicer's written direction) in Permitted Investments.
Funds on deposit in the Cash Reserve Account on any Payment Date, after giving
effect to any withdrawals that day, shall be invested in Permitted Investments
that will mature so that such funds will be available for withdrawal on or
before the next Payment Date. The Trustee shall:
(i) hold each Permitted Investment (other than such as are
described in clause (c) of the definition thereof) that constitutes
investment property through a securities intermediary, which
securities intermediary shall (I) agree that such investment property
shall at all times be credited to a securities account of which the
Trustee is the entitlement holder, (II) comply with entitlement orders
originated by the Trustee without the further consent of any other
person or entity, (III) agree that all property credited to such
securities account shall be treated as a financial asset, (IV) waive
any lien on, security interest in, or right of set-off with respect to
any property credited to such securities account, and (V) agree that
its jurisdiction for purposes of Section 8-110 and Section 9-305(a)(3)
of the UCC shall be New York, and that such agreement shall be
governed by the laws of the State of New York; and
(ii) maintain for the benefit of the Secured Parties relating to
Series 2002-B, possession or control of each other Permitted
Investment (including any negotiable instruments, if any, evidencing
such Permitted Investments) not described in clause (i) above (other
than such as are described in clause (c) of the definition thereof);
provided that no Permitted Investment shall be disposed of prior to
its maturity date if such disposition would result in a loss. Terms
used in clause (i) above that are defined in the New York UCC and not
otherwise defined herein shall have the meaning set forth in the New
York UCC.
(c) All interest and earnings (net of losses and investment expenses)
accrued on funds on deposit in the Cash Reserve Account shall be treated as
Investment Earnings.
(d) On the Closing Date, the Trustee, on behalf of the Issuer, shall
deposit $8,000,000 into the Cash Reserve Account from the net proceeds of the
sale of the Notes.
(e) Amounts on deposit in the Cash Reserve Account on any Payment
Date (after giving effect to distributions therefrom pursuant to Section
5.15(g)) in excess of the Cash Reserve Account Required Amount shall be
deposited by the Trustee, at the direction of the Servicer, into the Excess
Funding Account.
32
SECTION 5.21. Excess Funding Account.
(a) The Servicer has established and maintained and shall continue to
maintain, with a Qualified Institution, in the name of the Trustee, on behalf of
the Issuer, for the benefit of the Secured Parties, a segregated trust account
(the "Excess Funding Account"), bearing a designation clearly indicating that
the funds deposited therein are held for the benefit of such Secured Parties.
The Trustee shall possess all right, title and interest in all funds on deposit
from time to time in the Excess Funding Account and in all proceeds thereof. The
Excess Funding Account shall be under the sole dominion and control of the
Trustee for the benefit of the Secured Parties, and the Trustee shall be the
entitlement holder of the Excess Funding Account. If at any time the institution
holding the Excess Funding Account ceases to be a Qualified Institution, the
Trustee shall notify the Rating Agency and within ten (10) Business Days
establish a new Excess Funding Account meeting the conditions specified above
with a Qualified Institution, and shall transfer any cash or any investments to
such new Excess Funding Account. The Trustee, at the direction of the Servicer,
shall (i) make withdrawals from the Excess Funding Account from time to time for
the purposes set forth in subsection 5.11(b) and any comparable provision of any
other Series Supplement and (ii) make deposits into the Excess Funding Account
as specified in subsections 5.11(b) and 5.20(e) and any comparable provision of
any other Series Supplement.
(b) Funds on deposit in the Excess Funding Account shall be invested
by the Trustee (at the Servicer's written discretion) in Permitted Investments.
Funds on deposit in the Excess Funding Account on any Series Transfer Date,
after giving effect to any withdrawals that day, shall be invested in Permitted
Investments that will mature so that such funds will be available for withdrawal
on or before the next Series Transfer Date. The Trustee shall:
(i) hold each Permitted Investment (other than such as are
described in clause (c) of the definition thereof) that constitutes
investment property through a securities intermediary, which
securities intermediary shall (I) agree that such investment property
shall at all times be credited to a securities account of which the
Trustee is the entitlement holder, (II) comply with entitlement orders
originated by the Trustee without the further consent of any other
person or entity, (III) agree that all property credited to such
securities account shall be treated as a financial asset, (IV) waive
any lien on, security interest in, or right of set-off with respect to
any property credited to such securities account, and (V) agree that
its jurisdiction for purposes of Sections 8-110 and Section
9-305(a)(3) of the UCC shall be New York, and that such agreement
shall be governed by the laws of the State of New York; and
(ii) maintain for the benefit of the Secured Parties, possession
or control of each other Permitted Investment (including any
negotiable instruments, if any, evidencing such Permitted Investments)
not described in clause (i) above (other than such as are described in
clause (c) of the definition thereof); provided that no
33
Permitted Investment shall be disposed of prior to its maturity date
if such disposition would result in a loss. Terms used in clause (i)
above that are defined in the New York UCC and not otherwise defined
herein shall have the meaning set forth in the New York UCC.
(c) All interest and earnings (net of losses and investment expenses)
accrued on funds on deposit in the Excess Funding Account to the extent
allocable to this Series shall be treated as Collections, deposited into the
Finance Charge Account and applied in accordance with the Indenture.
SECTION 8. Article 6 of the Base Indenture. Article 6 of the Base
Indenture shall read in its entirety as follows and shall be applicable only to
the Noteholders:
ARTICLE 6
DISTRIBUTIONS AND REPORTS
-------------------------
SECTION 6.1 Distributions.
-------------
(a) On each Payment Date, the Trustee shall distribute (in accordance
with the Monthly Servicer Report delivered by the Servicer on or before the
related Series Transfer Date pursuant to subsection 2.09(a) of the Servicing
Agreement) to each Noteholder of record on the immediately preceding Record Date
(other than as provided in Section 12.5 respecting a final distribution), such
Noteholder's pro rata share (based on the aggregate Investor Interests
represented by the Notes held by such Noteholder) of the amounts on deposit in
the Payment Account that are payable to the Noteholders pursuant to Section 5.15
by wire transfer to an account designated by such Noteholders, except that, with
respect to Notes registered in the name of the nominee of a Clearing Agency,
such distribution shall be made in immediately available funds.
(b) Notwithstanding anything to the contrary contained in the Base
Indenture or this Series Supplement, if the amount distributable in respect of
principal on the Notes on any Payment Date is less than one dollar, then no such
distribution of principal need be made on such Payment Date.
SECTION 6.2 Monthly Noteholders' Statement.
------------------------------
(a) On or before each Payment Date, the Trustee shall forward to each
Noteholder, with respect to each Noteholder's interest and to the applicable
Rating Agency and each Notice Person a statement substantially in the form of
Exhibit D hereto prepared by the Servicer and delivered to the Trustee on the
preceding Determination Date and setting forth, among other things, the
following information:
34
(i) the total amount distributed to Class A Noteholders, Class B
Noteholders and Class C Noteholders;
(ii) the amount of such distribution allocable to Monthly
Principal;
(iii) the amount of such distribution allocable to Trustee and
Back-Up Servicer Fees and Expenses, Monthly Interest, Deficiency
Amounts and Additional Interest, respectively;
(iv) the amount of Collections of Principal Receivables received
during the related Monthly Period and allocated in respect of the
Notes;
(v) the amount of Recoveries, premium refunds and Collections of
Finance Charges received during the related Monthly Period and
allocated in respect of the Notes;
(vi) the aggregate Outstanding Principal Balance of the
Receivables, the Issuer Interest, the Investor Interest, the Floating
Investor Percentage and the Fixed Investor Percentage as of the end of
the preceding Monthly Period;
(vii) the aggregate Outstanding Principal Balance of Receivables,
including earned and unearned Finance Charges, but excluding bankrupt
accounts and accounts in repossession, which were 1-30 days, 31-60
days, 61-90 days, 91-120 days, 121-180 days and more than 180 days
delinquent, respectively, as of the end of the preceding Monthly
Period;
(viii) the Net Portfolio Yield, Gross Loss Rate and the Aggregate
Investor Default Amount as of the end of the preceding Monthly Period;
(ix) the aggregate amount of Investor Charge-Offs and other
reductions in the absence of principal distributions on the Investor
Interests for such Series Transfer Date;
(x) the aggregate amount of Investor Charge-Offs and other
reductions in the absence of principal distributions on the Investor
Interests deemed to have been reimbursed on such Series Transfer Date;
(xi) the Class A Note Principal, the Class B Note Principal and
the Class C Note Principal, as of the end of the day on the Payment
Date;
(xii) the average daily balance of the Class A Notes, Class B
Notes and Class C Notes for the related Interest Period;
35
(xiii) the amount of the Servicing Fee and the Investor Percentage
of the Servicing Fee for such Series Transfer Date;
(xiv) the Note Rate for the Interest Period ending on the day
before such Payment Date;
(xv) the amount of Available Funds on deposit in the Finance
Charge Account on the related Series Transfer Date;
(xvi) the date on which the Rapid Amortization Period commenced,
if applicable;
(xvii) the Cash Option Amount, if any;
(xviii) the Minimum Issuer Interest, Available Issuer Interest and
Aggregate Net Investor Charge-Offs, if any, as of the end of the
preceding Monthly Period;
(xix) the aggregate Outstanding Principal Balance of all
Receivables the final maturity date of which has been extended by up
to six months, more than six months to twelve months and more than
twelve months, respectively, as of the end of the preceding Monthly
Period;
(xx) the aggregate amount of reductions of the Outstanding
Principal Balance of the Receivables as a result of cancellations of
service maintenance contracts and credit insurance during the related
Monthly Period; and
(xxi) the aggregate Outstanding Principal Balance of all
Receivables any Obligor of which is an Opportunity Customer as of the
end of the preceding Monthly Period.
(b) Annual Noteholders' Tax Statement. To the extent required by the
Code, on or before January 31 of each calendar year, beginning with the calendar
year 2003, the Trustee shall distribute to each Person who at any time during
the preceding calendar year was a Noteholder, a statement prepared by the
Trustee containing the information required to be contained in the regular
monthly report to Noteholders, as set forth in subclauses (i), (ii) and (iii)
above, aggregated for such calendar year or the applicable portion thereof
during which such Person was a Noteholder, together with such other customary
information (consistent with the treatment of the Notes as debt). Such
obligations of the Trustee shall be deemed to have been satisfied to the extent
that substantially comparable information shall be provided by the Trustee
pursuant to any requirements of the Code as from time to time in effect.
36
SECTION 9. Series 2002-B Pay Out Events. If any one of the following
events (a "Series 2002-B Pay Out Event") shall occur with respect to the Notes:
(a) failure on the part of the Issuer (i) to pay any amount described
in clauses (i)-(vi) of the definition of Required Amount or to make any payment
or deposit required by the terms of this Series Supplement, the Note Purchase
Agreement or any other Transaction Document, on or before the date two (2)
Business Days after the date on which such payment or deposit is required to be
made herein or therein (or, in the case of a deposit to be made with respect to
any Monthly Period, by the related Payment Date), or (ii) duly to observe or
perform in any respect any other covenants or agreements of the Issuer set forth
in this Series Supplement, the Note Purchase Agreement or any other Transaction
Document which failure, solely in the case of this clause (ii), continues
unremedied for a period of thirty (30) Business Days after the Issuer has
knowledge thereof, or after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Issuer by the
Servicer or any Noteholder; provided, however, that a Series 2002-B Pay Out
Event pursuant to this Section 9(a) shall not be deemed to have occurred
hereunder if such Series 2002-B Pay Out Event is the result of a breach of a
representation, warranty, statement or certificate with respect to any
Receivable, and the Servicer has received a Deemed Collection in connection
therewith, in an amount equal to the Outstanding Principal Balance of such
Receivable and all accrued and unpaid interest thereon for application in
accordance with Article 5 of the Base Indenture as modified by this Series
Supplement;
(b) any representation or warranty made by the Issuer in this Series
Supplement, the Note Purchase Agreement or any other Transaction Document or any
information delivered by the Issuer pursuant thereto shall prove to have been
incorrect in any respect when made or when delivered which, solely to the extent
such incorrect representation or warranty may be cured without any actual or
potential detriment to any Secured Party, continues unremedied for a period of
thirty (30) Business Days after the date on which the Issuer has knowledge
thereof or on which written notice thereof, requiring the same to be remedied,
shall have been given to the Issuer by the Servicer or any Noteholder; provided,
however, that a Series 2002-B Pay Out Event pursuant to this Section 9(b) shall
not be deemed to have occurred hereunder if such Series 2002-B Pay Out Event is
the result of a breach of a representation, warranty, statement or certificate
with respect to any Receivable, and the Servicer has received a Deemed
Collection in connection therewith, in an amount equal to the Outstanding
Principal Balance of such Receivable and all accrued and unpaid interest thereon
for application in accordance with Article 5 of the Base Indenture as modified
by this Series Supplement;
(c) the Issuer, any Seller, the Initial Seller or CAI shall become
the subject of any Event of Bankruptcy or voluntarily suspend payment of its
obligations; or the Issuer shall become unable for any reason (other than by
reason of a determination by one or more Sellers not to sell receivables to the
Issuer pursuant to the Purchase Agreement) to pledge Receivables to the Trustee
in accordance with the provisions of this Series Supplement;
37
(d) the Issuer, any Seller, the Initial Seller or CAI shall become an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended;
(e) any Servicer Default (other than a Servicer Default specified in
clause (e), (h), (i) or (j) of Section 2.04 of the Servicing Agreement) shall
occur, or a Servicer Default specified in clause (e), (h), (i) or (j) of Section
2.04 of the Servicing Agreement shall occur and not be cured within ten (10)
days after the earlier of discovery by the Servicer or the date on which written
notice of such Servicer Default, requiring the same to be remedied, shall have
been given to the Servicer by the Issuer or any Noteholder;
(f) on the close of the Issuer's business on the last day of any
Monthly Period, the Net Portfolio Yield averaged over any three consecutive
Monthly Periods is less than 2.00%;
(g) an Event of Default;
(h) on any date of determination, the Gross Loss Rate shall be equal
to or exceed 10.0% on a rolling three-month average basis;
(i) a "Pay Out Event" occurs under any other Series (unless such Pay
Out Event is solely as a result of an "Enhancement Provider Default" under such
other Series or the downgrade of the rating of the "Enhancement Provider" of
such other Series) resulting in the commencement of a "Rapid Amortization
Period" for such other Series;
(j) at any time CAI is the Servicer, any event of default (not cured
or waived within ten (10) Business Days) under (A) the Retailer Credit
Agreement, (B) any inventory financing agreement between any lender and the
Servicer, the Parent, any Seller or the Initial Seller, or (C) any indenture,
credit or loan agreement or other agreement or instrument of any kind pursuant
to which Indebtedness of the Servicer, the Parent, any Seller or the Initial
Seller in an aggregate principal amount in excess of $1,000,000 is outstanding
or by which the same is evidenced, shall have occurred and be continuing;
(k) the Trustee shall, for any reason, fail or cease to have a valid
and perfected first priority security interest in the Receivables and Related
Security, and any other Issuer assets in the Trust Estate free and clear of any
Adverse Claims (and, solely with respect to the Collections and proceeds with
respect to the foregoing or other proceeds of any item of collateral described
above, to the extent provided in Section 9-315 of the UCC);
(l) the Coverage Test is not satisfied or the Required Reserve Amount
cannot increase as a result of the limitation in the second proviso in the
definition thereof and in either case such condition continues unremedied for
three (3) Business Days;
38
(m) the imposition of (i) non de-minimis tax liens against the
Issuer, (ii) tax liens against any Seller or the Initial Seller unless such lien
would not have a Material Adverse Effect and has been released within thirty
(30) days of the earlier of (a) the date such Seller or the Initial Seller has
knowledge of the imposition of such tax lien or (b) the date on which such
Seller or the Initial Seller receives notice of the imposition of such tax lien,
and (iii) ERISA liens against the Issuer, the Initial Seller or any Seller;
(n) there shall have occurred a Change in Control;
(o) the Servicer shall become unable for any reason to transfer the
Collections on, or other proceeds of, Receivables to the Issuer in accordance
with the provisions of this Series Supplement;
(p) the occurrence and continuation of a Purchase Termination Event
under and as defined in the Purchase Agreement; or
(q) the failure of the Issuer to pay when due any amount due with
respect to any Indebtedness to which it is a party (other than Issuer
Obligations);
then, (i) in the case of any event described in subparagraph (a), (b), (e), (h),
(j), (k), (l), (m), (n), (p) or (q) after the applicable grace period, if any,
set forth in such subparagraphs, Holders of Notes (voting together without
regard to class) representing at least 51% of the aggregate Note Principal of
all Notes by written notice to the Trustee, the Issuer and the Servicer may
declare that the Rapid Pay Out Commencement Date has occurred as of the date of
such notice and (ii) in the case of an event described in subparagraphs (c),
(d), (f), (g), (i) or (o) or, three (3) Business Days following the occurrence
and continuation of an event described in subparagraph (l), the Rapid Pay Out
Commencement Date shall occur without any notice or other action on the part of
any party hereto immediately upon the occurrence of such event.
Notwithstanding anything to the contrary in the Base Indenture, no
Series 2002-B Pay Out Event may be amended, waived or deleted, and no new Series
2002-B Series Pay Out Event may be added, without the prior consent of the
Required Persons for Series 2002-B.
SECTION 10. Article 7 of the Base Indenture. Article 7 of the Base
Indenture shall read in its entirety as follows:
ARTICLE 7
REPRESENTATIONS AND WARRANTIES OF THE ISSUER
SECTION 7.1 Representations and Warranties of the Issuer. The Issuer
hereby represents and warrants to the Trustee and each of the Secured Parties
that:
39
(a) Organization and Good Standing, etc. The Issuer has been duly
organized and is validly existing and in good standing under the laws of its
state of Texas, with power and authority to own its properties and to conduct
its respective businesses as such properties are presently owned and such
business is presently conducted. The Issuer is not organized under the laws of
any other jurisdiction or governmental authority. The Issuer is duly licensed or
qualified to do business as a foreign entity in good standing in the
jurisdiction where its principal place of business and chief executive office is
located and in each other jurisdiction in which the failure to be so licensed or
qualified would be reasonably likely to have a Material Adverse Effect.
(b) Power and Authority; Due Authorization. The Issuer has (a) all
necessary power, authority and legal right to (i) execute, deliver and perform
its obligations under this Indenture 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 Indenture and the other Transaction
Documents to which it is a party and the borrowing, and the granting of security
therefor, on the terms and conditions provided herein.
(c) No Violation. The consummation of the transactions contemplated
by this Indenture and the other Transaction Documents and the fulfillment of the
terms hereof will not (a) 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, (i) the organizational documents of the Issuer or (ii)
any indenture, loan agreement, pooling and servicing agreement, receivables
purchase agreement, mortgage, deed of trust, or other agreement or instrument to
which the Issuer is a party or by which it or its properties is bound, (b)
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 (c) violate any law or any order, rule, or regulation
applicable to the Issuer 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 any of its respective properties.
(d) Validity and Binding Nature. This Indenture is, and the other
Transaction Documents to which it is a party when duly executed and delivered by
the Issuer and the other parties thereto will be, the legal, valid and binding
obligation of the Issuer 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 of any Transaction
40
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.
(f) [Reserved].
(g) Margin Regulations. The Issuer is not engaged in the business of
extending credit for the purpose of purchasing or carrying margin stock, and no
proceeds with respect to the sale of the Notes, 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.
(h) Perfection. (i) Immediately preceding the Closing Date and the
date of each recomputation of the Investor Interest, 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 Initial Closing Date and the date of 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 the assets of the Trust Estate
against all creditors (other than Secured Parties) of, and purchasers (other
than Secured Parties) from, the Issuer, each Seller and the Initial Seller will
have been (or will be within ten (10) days of the Initial 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
be within ten (10) days of the Initial Closing Date) paid in full;
(ii) the Indenture constitutes a valid grant of a security
interest to the Trustee for the benefit of the 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
41
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, 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 (or
at such other locations, notified to the Trustee in jurisdictions where all
action required thereby has been taken and completed).
(j) Tax Status. The Issuer 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).
(k) 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.
(l) Compliance with Applicable Laws; Licenses, etc.
(i) The Issuer 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) The Issuer has not 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.
(m) No Proceedings. Except as described in Schedule 1,
(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 is subject, and there is no action, suit,
arbitration, regulatory proceeding or investigation pending, or, to
the knowledge of the Issuer, 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
42
(ii) there is no action, suit, proceeding, arbitration,
regulatory or governmental investigation, pending or, to the knowledge
of the Issuer, threatened, before or by any court, regulatory body,
administrative agency, or other tribunal or governmental
instrumentality (A) asserting the invalidity of this Indenture, the
Notes or any other Transaction Document, (B) seeking to prevent the
issuance of the Notes pursuant hereto 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.
(n) Investment Company Act, Etc. The Issuer is not an "investment
company" within the meaning of the Investment Company Act of 1940, as amended,
or a "holding company", or a "subsidiary company", of a "holding company", or an
"affiliate" of a "holding company", or of a "subsidiary company" of a "holding
company", within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
(o) Eligible Receivables. Each Receivable included as an Eligible
Receivable in any Monthly Servicer Report shall be an Eligible Receivable as of
the date so included. Each Receivable, including Subsequently Purchased
Receivables, purchased by the Issuer on any Purchase Date shall be an Eligible
Receivable as of such Purchase Date unless otherwise specified to the Trustee in
writing prior to such Purchase Date.
(p) Receivables Schedule. The Receivable File is a true and correct
schedule of the Receivables included in the Trust Estate.
(q) ERISA. (i) Each of the Issuer and its 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
Issuer's ERISA Affiliates that have an aggregate Unfunded Pension Liability
equal to or greater than $1,000,000.
(r) Accuracy of Information. All information heretofore furnished by,
or on behalf of, 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).
(s) No Material Adverse Change. Since January 31, 2002, 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.
43
(t) Trade Names and Subsidiaries. Set forth on Schedule 2 hereto is a
complete list of trade names of the Issuer 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.
(u) 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 each of the Note Purchase
Agreements, will be duly and validly issued and outstanding and will be entitled
to the benefits of the Indenture.
(v) Sales by Sellers or the Initial Seller. (a) Each sale of
Receivables by any Seller or the Initial 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 such Seller or the Initial 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 such Seller or
the Initial Seller.
SECTION 7.2 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 hereof 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 11. [Reserved].
SECTION 12. [Reserved].
SECTION 13. Counterparts. This Series Supplement may be executed in any
number of counterparts, and by different parties in separate counterparts, each
of which so executed shall be deemed to be an original, but all of such
counterparts shall together constitute but one and the same instrument.
SECTION 14. Governing Law. THIS SERIES SUPPLEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS. EACH OF THE
PARTIES TO THIS SERIES SUPPLEMENT AND EACH NOTEHOLDER HEREBY AGREES TO THE
NON-EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR
44
THE SOUTHERN DISTRICT OF NEW YORK AND ANY APPELLATE COURT HAVING JURISDICTION TO
REVIEW THE JUDGMENTS THEREOF. EACH OF THE PARTIES HERETO AND EACH NOTEHOLDER
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 15. Waiver of Trial by Jury. To the extent permitted by
applicable law, each of the parties hereto and each of the Noteholders
irrevocably waives all right of trial by jury in any action, proceeding or
counterclaim arising out of or in connection with this Series Supplement or the
Transaction Documents or any matter arising hereunder or thereunder.
SECTION 16. No Petition. The Trustee, by entering into this Series
Supplement and each Noteholder, by accepting a Note hereby covenant and agree
that they will not prior to the date which is one year and one day after payment
in full of the last maturing Note of any Series and termination of the Indenture
institute against the Issuer, or join in any institution against the Issuer of,
any bankruptcy proceedings under any United States Federal or state bankruptcy
or similar law in connection with any obligations relating to the Noteholders,
the Servicing Agreement, the Base Indenture or this Series Supplement.
SECTION 17. Rights of the Trustee. The rights, privileges and immunities
afforded to the Trustee under the Base Indenture shall apply hereunder as if
fully set forth herein.
[signature page follows]
45
IN WITNESS WHEREOF, the parties hereto have caused this Series
Supplement to be duly executed by their respective officers as of the day and
year first above written.
CONN FUNDING II, L.P., as Issuer
By: Conn Funding II GP, L.L.C.,
its general partner
By: /s/ David R. Atnip
-------------------------------------
Name: David R. Atnip
Title: Secretary/Treasurer
WELLS FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, not in its individual
capacity, but solely as Trustee
By: /s/ Marianna C. Stershic
-------------------------------------
Name: Marianna Stershic
Title: Vice President
S-1 Series 2002-B Supplement
EXHIBIT A-1
FORM OF
RESTRICTED GLOBAL NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY OTHER
JURISDICTION. THIS NOTE MAY BE RESOLD, PLEDGED OR TRANSFERRED ONLY (1) TO A
PERSON THE TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT ("RULE 144A")) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (2) OUTSIDE THE UNITED STATES TO A
NON-U.S. PERSON (AS SUCH TERM IS DEFINED IN REGULATION S UNDER THE SECURITIES
ACT) IN A TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT,
(3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR
(4) IN A TRANSACTION OTHERWISE EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES
AND ANY OTHER JURISDICTION AND BASED ON AN OPINION OF COUNSEL IF THE ISSUER OR
TRANSFER AGENT AND REGISTRAR SO REQUEST, IN EACH SUCH CASE, IN COMPLIANCE WITH
THE INDENTURE AND ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER JURISDICTION. THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY TRANSFEREE FROM IT OF THE RESALE RESTRICTIONS SET FORTH
ABOVE.
BY ACQUIRING THIS NOTE, EACH PURCHASER WILL BE DEEMED TO HAVE REPRESENTED,
WARRANTED AND COVENANTED EITHER THAT (A) IT IS NOT AN "EMPLOYEE BENEFIT PLAN"
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), A "PLAN" DESCRIBED IN
A-1-1 Series 2002-B Supplement
SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, AN ENTITY
DEEMED TO HOLD "PLAN ASSETS" OF ANY OF THE FOREGOING BY REASON OF INVESTMENT BY
AN "EMPLOYEE BENEFIT PLAN" OR "PLAN" IN SUCH ENTITY, OR A GOVERNMENTAL PLAN
SUBJECT TO APPLICABLE LAW THAT IS SUBSTANTIALLY SIMILAR TO THE FIDUCIARY
RESPONSIBILITY PROVISIONS OF ERISA OR SECTION 4975 OF THE CODE OR (B) ITS
PURCHASE AND HOLDING OF THIS NOTE WILL NOT RESULT IN A NON-EXEMPT PROHIBITED
TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE (OR, IN THE CASE OF A
GOVERNMENTAL PLAN, ANY SUBSTANTIALLY SIMILAR APPLICABLE LAW).
THE INDENTURE (AS DEFINED BELOW) CONTAINS FURTHER RESTRICTIONS ON THE TRANSFER
AND RESALE OF THIS NOTE. EACH TRANSFEREE OF THIS NOTE, BY ACCEPTANCE HEREOF, IS
DEEMED TO HAVE ACCEPTED THIS NOTE, SUBJECT TO THE FOREGOING RESTRICTIONS ON
TRANSFERABILITY. IN ADDITION, EACH TRANSFEREE OF THIS NOTE, BY ACCEPTANCE
HEREOF, IS DEEMED TO HAVE MADE THE REPRESENTATIONS AND AGREEMENTS SET FORTH IN
THE INDENTURE.
BY ACCEPTANCE HEREOF, THE HOLDER OF THIS NOTE AGREES TO THE TERMS AND CONDITIONS
SET FORTH IN THE INDENTURE AND HEREIN.
EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF THIS NOTE MAY
BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES
ACT PROVIDED BY RULE 144A THEREUNDER.
A-1-2 Series 2002-B Supplement
No. R144A-1 $120,000,000
CUSIP No. 207415 AA 8
ISIN US207415AA81
SEE REVERSE FOR CERTAIN DEFINITIONS
THE PRINCIPAL OF THIS CLASS A NOTE MAY BE PAYABLE IN INSTALLMENTS AS
SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS CLASS A
NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CONN FUNDING II, L.P.
4.469% ASSET BACKED FIXED RATE NOTES, CLASS A, SERIES 2002-B
Conn Funding II, L.P., a limited partnership organized and existing
under the laws of the State of Texas (herein referred to as the "Issuer"), for
value received, hereby promises to pay Cede & Co., or registered assigns, the
principal sum set forth above or such other principal sum set forth on Schedule
A attached hereto (which sum shall not exceed $120,000,000), payable on each
Payment Date after the end of the Revolving Period (as defined in the Series
2002-B Supplement) in an amount equal to the Monthly Principal, as defined in
Section 5.13 of the Series 2002-B Supplement, dated as of September 1, 2002 (as
amended, supplemented or otherwise modified from time to time, the "Series
2002-B Supplement"), between the Issuer and the Trustee to the Base Indenture
(described below); provided, however, that the entire unpaid principal amount of
this Note shall be due and payable on May 21, 2012 (the "Legal Final Payment
Date"). The Issuer will pay interest on this Class A Note at the Note Rate (as
defined in the Series 2002-B Supplement) on each Payment Date until the
principal of this Class A Note is paid or made available for payment, on the
average daily outstanding principal balance of this Class A Note during the
related Interest Period (as defined in the Series 2002-B Supplement). Interest
will be computed on the basis set forth in the Indenture. Such principal of and
interest on this Class A Note shall be paid in the manner specified on the
reverse hereof. The aggregate principal sum of the Regulations S Global Notes
and the Restricted Global Note shall not exceed $120,000,000.
The Class A Notes are subject to optional redemption in accordance
with the Indenture on or after any Payment Date on which the Investor Interest
is reduced to an amount less than or equal to 10% of the Initial Note Principal.
The principal of and interest on this Class A Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts.
A-1-3 Series 2002-B Supplement
Reference is made to the further provisions of this Class A Note set
forth on the reverse hereof and to the Indenture, which shall have the same
effect as though fully set forth on the face of this Class A Note.
Unless the certificate of authentication hereon has been executed by
the Trustee whose name appears below by manual signature, this Class A Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
A-1-4 Series 2002-B Supplement
IN WITNESS WHEREOF, the Issuer, has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer as of the date set
forth below.
CONN FUNDING II, L.P.
By: Conn Funding II GP, L.L.C.,
its general partner
By:
-------------------------------------
Authorized Officer
Attested to:
By:
---------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A Notes referred to in the within mentioned
Series 2002-B Supplement.
WELLS FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, not in its individual
capacity, but solely as Trustee
By
--------------------------------------
Authorized Officer
A-1-5 Series 2002-B Supplement
[REVERSE OF NOTE]
This Class A Note is one of a duly authorized issue of Class A Notes
of the Issuer, designated as its 4.469% Asset Backed Fixed Rate Notes, Class A,
Series 2002-B (herein called the "Class A Notes"), all issued under the Series
2002-B Supplement to the Base Indenture dated as of September 1, 2002 (such Base
Indenture, as supplemented by the Series 2002-B Supplement and supplements
relating to other series of notes, as supplemented or amended, is herein called
the "Indenture"), between the Issuer and WELLS FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as trustee (the "Trustee," which term includes any successor
Trustee under the Indenture), to which Indenture reference is hereby made for a
statement of the respective rights and obligations thereunder of the Issuer, the
Trustee and the Class A Noteholders. The Class A Notes are subject to all terms
of the Indenture. All terms used in this Class A Note that are defined in the
Indenture shall have the meanings assigned to them in or pursuant to the
Indenture.
Principal of the Class A Notes will be payable on each Payment Date
after the end of the Revolving Period as described on the face hereof and may be
prepaid as set forth in the Indenture. "Payment Date" means the twentieth day of
each calendar month, or, if any such date is not a Business Day, the next
succeeding Business Day, commencing on October 21, 2002.
All principal payments on the Class A Notes shall be made pro rata to
the Class A Noteholders entitled thereto.
Subject to certain limitations set forth in the Indenture, payments of
interest on this Class A Note due and payable on each Payment Date, together
with the installment of principal, if any, to the extent not in full payment of
this Class A Note, shall be made by wire transfer in immediately available funds
to the Person whose name appears as the Class A Noteholder on the Note Register
as of the close of business on each Record Date without requiring that this
Class A Note be submitted for notation of payment. Any reduction in the
principal amount of this Class A Note effected by any payments made on any
Payment Date or date of prepayment shall be binding upon all future Class A
Noteholders and of any Class A Note issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof, whether or not noted on Schedule
A attached hereto. If funds are expected to be available, as provided in the
Indenture, for payment in full of the then remaining unpaid principal amount of
this Class A Note on a Payment Date, then the Trustee, in the name of and on
behalf of the Issuer, will notify the Person who was the Holder hereof as of the
Record Date preceding such Payment Date by notice mailed prior to such Payment
Date and the amount then due and payable shall be payable only upon presentation
and surrender of this Class A Note at the Trustee's principal Corporate Trust
Office or at the office of the Trustee's agent appointed for such purposes
located in the City of New York.
On any redemption, purchase, exchange or cancellation of any of the
beneficial interests represented by this Restricted Global Note, details of such
redemption, purchase,
A-1-6 Series 2002-B Supplement
exchange or cancellation shall be entered by the Paying Agent in Schedule A
hereto recording any such redemption, purchase, exchange or cancellation. Upon
any such redemption, purchase, exchange or cancellation, the principal amount of
this Restricted Global Note and the beneficial interests represented by the
Restricted Global Note shall be reduced or increased, as appropriate, by the
principal amount so redeemed, purchased, exchanged or cancelled.
Each Class A Noteholder, by acceptance of a Class A Note, covenants
and agrees that by accepting the benefits of the Indenture that such Class A
Noteholder will not prior to the date which is one year and one day after the
payment in full of the last maturing note of any Series and the termination of
the Indenture institute against the Issuer or join in any institution against
the Issuer of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings, under any United States Federal
or state bankruptcy or similar law in connection with any obligations relating
to the Notes, the Indenture or the Transaction Documents.
Each Class A Noteholder, by acceptance of a Class A Note, covenants
and agrees that by accepting the benefits of the Indenture that such Noteholder
will treat such Note as indebtedness for all Federal, state and local income and
franchise tax purposes.
Prior to the due presentment for registration of transfer of this
Class A Note, the Issuer, the Trustee and any agent of the Issuer or the Trustee
may treat the Person in whose name this Class A Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Class A
Note be overdue, and neither the Issuer, the Trustee nor any such agent shall be
affected by notice to the contrary.
As provided in the Indenture, no recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer under the Indenture,
including this Class A Note, against any Seller, the Initial Seller, the
Servicer, the Trustee or any partner, owner, incorporator, beneficiary,
beneficial owner, agent, officer, director, employee, shareholder or agent of
the Issuer, any Seller, the Initial Seller, the Servicer or the Trustee except
as any such Person may have expressly agreed.
The term "Issuer" as used in this Class A Note includes any successor
to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances,
to merge or consolidate, subject to the rights of the Trustee and the
Noteholders under the Indenture.
The Class A Notes are issuable only in registered form as provided in
the Indenture in denominations as provided in the Indenture, subject to certain
limitations therein set forth.
A-1-7 Series 2002-B Supplement
This Class A Note and the Indenture shall be construed in accordance
with the laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Class A
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Class A Note.
A-1-8 Series 2002-B Supplement
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto ________________________________________
(name and address of assignee)
the within Class A Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ____________, attorney, to transfer said Class A Note
on the books kept for registration thereof, with full power of substitution in
the premises.
Dated: /1/
------------------- ----------------------------------
Signature Guaranteed:
- --------------------------------------------------------------------------------
----------------
- ----------
/1/ NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
A-1-9 Series 2002-B Supplement
SCHEDULE A
SCHEDULE OF EXCHANGES
BETWEEN THE TEMPORARY REGULATION S GLOBAL NOTE
OR THE PERMANENT REGULATION S GLOBAL NOTE AND
THIS RESTRICTED GLOBAL NOTE, OR REDEMPTIONS
OR PURCHASES AND CANCELLATIONS
The following increases or decreases in principal amount of this Restricted
Global Note or redemptions, purchases or cancellation of this Restricted Global
Note have been made:
- ------------------------------------------------------------------------------------------------------------
Date of exchange, or Increase or decrease in Remaining principal amount Notation made by or
redemption or principal amount of this of this Restricted Global on behalf of the
purchase or Restricted Global Note due to Note following such Issuer
cancellation exchanges between the exchange, or redemption or
Temporary Regulation S Global purchase or cancellation
Note or the Permanent
Regulation S Global Note and
this Restricted Global Note
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
A-1-10 Series 2002-B Supplement
EXHIBIT A-2
FORM OF
TEMPORARY REGULATION S GLOBAL NOTE
THIS GLOBAL NOTE IS A TEMPORARY GLOBAL NOTE FOR PURPOSES OF REGULATION S
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"). NEITHER THIS TEMPORARY REGULATION S GLOBAL NOTE NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED
UNDER THE INDENTURE REFERRED TO BELOW.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT
OR THE SECURITIES LAWS OF ANY OTHER JURISDICTION. THIS NOTE MAY BE RESOLD,
PLEDGED OR TRANSFERRED ONLY (1) TO A PERSON THE TRANSFEROR REASONABLY BELIEVES
IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT ("RULE 144A")) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2)
OUTSIDE THE UNITED STATES TO A NON-U.S. PERSON (AS SUCH TERM IS DEFINED IN
REGULATION S UNDER THE SECURITIES ACT) IN A TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR (4) IN A TRANSACTION OTHERWISE EXEMPT FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER JURISDICTION AND BASED ON
AN OPINION OF COUNSEL IF THE ISSUER OR TRANSFER AGENT AND REGISTRAR SO REQUEST,
IN EACH SUCH CASE, IN COMPLIANCE WITH THE INDENTURE AND ALL APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER JURISDICTION. THE
HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY TRANSFEREE
FROM IT OF THE RESALE RESTRICTIONS SET FORTH ABOVE.
A-2-1 Series 2002-B Supplement
BY ACQUIRING THIS NOTE, EACH PURCHASER WILL BE DEEMED TO HAVE REPRESENTED,
WARRANTED AND COVENANTED EITHER THAT (A) IT IS NOT AN "EMPLOYEE BENEFIT PLAN"
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), A "PLAN" DESCRIBED IN SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED, AN ENTITY DEEMED TO HOLD "PLAN ASSETS" OF ANY OF THE
FOREGOING BY REASON OF INVESTMENT BY AN "EMPLOYEE BENEFIT PLAN" OR "PLAN" IN
SUCH ENTITY, OR A GOVERNMENTAL PLAN SUBJECT TO APPLICABLE LAW THAT IS
SUBSTANTIALLY SIMILAR TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR
SECTION 4975 OF THE CODE OR (B) ITS PURCHASE AND HOLDING OF THIS NOTE WILL NOT
RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE
CODE (OR, IN THE CASE OF A GOVERNMENTAL PLAN, ANY SUBSTANTIALLY SIMILAR
APPLICABLE LAW).
THE INDENTURE CONTAINS FURTHER RESTRICTIONS ON THE TRANSFER AND RESALE OF
THIS NOTE. EACH TRANSFEREE OF THIS NOTE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE
ACCEPTED THIS NOTE, SUBJECT TO THE FOREGOING RESTRICTIONS ON TRANSFERABILITY. IN
ADDITION, EACH TRANSFEREE OF THIS NOTE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE
MADE THE REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE INDENTURE.
BY ACCEPTANCE HEREOF, THE HOLDER OF THIS NOTE AGREES TO THE TERMS AND
CONDITIONS SET FORTH IN THE INDENTURE AND HEREIN.
A-2-2 Series 2002-B Supplement
No. TREGS-1 $120,000,000
CUSIP No. U20772 AA 4
ISIN USU20772AA47
SEE REVERSE FOR CERTAIN DEFINITIONS
THE PRINCIPAL OF THIS CLASS A NOTE MAY BE PAYABLE IN INSTALLMENTS AS
SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS CLASS A
NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CONN FUNDING II, L.P.
4.469% ASSET BACKED FIXED RATE NOTES, CLASS A, SERIES 2002-B
Conn Funding II, L.P., a limited partnership organized and existing
under the laws of the State of Texas (herein referred to as the "Issuer"), for
value received, hereby promises to pay Cede & Co., or registered assigns, the
principal sum set forth above or such other principal sum set forth on Schedule
A attached hereto (which sum shall not exceed $120,000,000), payable on each
Payment Date after the end of the Revolving Period (as defined in the Series
2002-B Supplement) in an amount equal to the Monthly Principal, as defined in
Section 5.13 of the Series 2002-B Supplement, dated as of September 1, 2002 (as
amended, supplemented or otherwise modified from time to time, the "Series
2002-B Supplement"), between the Issuer and the Trustee to the Base Indenture
(described below); provided, however, that the entire unpaid principal amount of
this Class A Note shall be due and payable on May 21, 2012 (the "Legal Final
Payment Date"). The Issuer will pay interest on this Class A Note on each
Payment Date at the Note Rate (as defined in the Series 2002-B Supplement) on
each Payment Date until the principal of this Class A Note is paid or made
available for payment, on the average daily outstanding principal balance of
this Class A Note during the related Interest Period (as defined in the Series
2002-B Supplement). Interest will be computed on the basis set forth in the
Indenture. Such principal of and interest on this Class A Note shall be paid in
the manner specified on the reverse hereof. The aggregate principal sum of the
Regulation S Global Notes and the Restricted Global Note shall not exceed
$120,000,000.
The Class A Notes are subject to optional redemption in accordance
with the Indenture on or after any Payment Date on which the Investor Interest
is reduced to an amount less than or equal to 10% of the Initial Note Principal.
The principal of and interest on this Class A Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts.
A-2-3 Series 2002-B Supplement
Reference is made to the further provisions of this Class A Note set
forth on the reverse hereof and to the Indenture, which shall have the same
effect as though fully set forth on the face of this Class A Note.
Unless the certificate of authentication hereon has been executed by
the Trustee whose name appears below by manual signature, this Class A Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
A-2-4 Series 2002-B Supplement
IN WITNESS WHEREOF, the Issuer, has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer as of the date set
forth below.
CONN FUNDING II, L.P.
By: Conn Funding II GP, L.L.C.,
its general partner
By:
--------------------------------
Authorized Officer
Attested to:
By:
-----------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A Notes referred to in the within mentioned
Series 2002-B Supplement.
WELLS FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, not in its
individual capacity, but solely as
Trustee
By
--------------------------------
Authorized Officer
A-2-5 Series 2002-B Supplement
[REVERSE OF NOTE]
This Class A Note is one of a duly authorized issue of Class A Notes
of the Issuer, designated as its 4.469% Asset Backed Fixed Rate Notes, Class A,
Series 2002-B (herein called the "Class A Notes"), all issued under the Series
2002-B Supplement to the Base Indenture dated as of September 1, 2002 (such Base
Indenture, as supplemented by the Series 2002-B Supplement and supplements
relating to other series of notes, as supplemented or amended, is herein called
the "Indenture"), between the Issuer and WELLS FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as trustee (the "Trustee", which term includes any successor
Trustee under the Indenture), to which Indenture reference is hereby made for a
statement of the respective rights and obligations thereunder of the Issuer, the
Trustee and the Holders of the Class A Notes. The Class A Notes are subject to
all terms of the Indenture. All terms used in this Class A Note that are defined
in the Indenture shall have the meanings assigned to them in or pursuant to the
Indenture.
Principal of the Class A Notes will be payable on each Payment Date
after the end of the Revolving Period as described on the face hereof and may be
prepaid as set forth in the Indenture. "Payment Date" means the twentieth day of
each calendar month, or, if any such date is not a Business Day, the next
succeeding Business Day, commencing on October 21, 2002.
All principal payments on the Class A Notes shall be made pro rata to
the Class A Noteholders entitled thereto.
Subject to certain limitations set forth in the Indenture, payments of
interest on this Class A Note due and payable on each Payment Date, together
with the installment of principal, if any, to the extent not in full payment of
this Class A Note, shall be made by wire transfer in immediately available funds
to the Person whose name appears as the Class A Noteholder on the Note Register
as of the close of business on each Record Date without requiring that this
Class A Note be submitted for notation of payment. Any reduction in the
principal amount of this Class A Note effected by any payments made on any
Payment Date or date of prepayment shall be binding upon all future Class A
Noteholders and of any Class A Note issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof, whether or not noted on Schedule
A attached hereto. If funds are expected to be available, as provided in the
Indenture, for payment in full of the then remaining unpaid principal amount of
this Class A Note on a Payment Date, then the Trustee, in the name of and on
behalf of the Issuer, will notify the Person who was the Holder hereof as of the
Record Date preceding such Payment Date by notice mailed prior to such Payment
Date and the amount then due and payable shall be payable only upon presentation
and surrender of this Class A Note at the Trustee's principal Corporate Trust
Office or at the office of the Trustee's agent appointed for such purposes
located in the City of New York.
Any interest in a Class A Note evidenced by this Temporary Regulation
S Global Note is exchangeable for an interest in a Permanent Regulation S Global
Note upon the later of (i) the Exchange Date and (ii) the furnishing of a
certificate, the form of which is attached as Exhibit C-2 to the Series 2002-B
Supplement. Interests in this Temporary Regulation S Global Note are
A-2-6 Series 2002-B Supplement
exchangeable for interests in a Permanent Regulation S Global Note or a
Restricted Global Note only upon presentation of the applicable certificate
required by Section 6 of the Series 2002-B Supplement to the Base Indenture.
Upon exchange of all interests in this Temporary Regulation S Global Note for
interests in the Permanent Regulation S Global Note and/or the Restricted Global
Note, the Trustee shall cancel this Temporary Regulation S Global Note.
Until the provision of the certifications required by Section 6 of the
Series 2002-B Supplement, beneficial interests in a Regulation S Global Note may
only be held through Euroclear or Clearstream or another agent member of
Euroclear or Clearstream acting for and on behalf of them.
On any redemption, purchase, exchange or cancellation of any of the
beneficial interests represented by this Temporary Regulation S Global Note,
details of such redemption, purchase, exchange or cancellation shall be entered
by the Paying Agent in Schedule A hereto recording any such redemption,
purchase, exchange or cancellation and shall be signed on by or on behalf of the
Issuer. Upon any such redemption, purchase, exchange or cancellation, the
principal amount of this Temporary Regulation S Global Note and the beneficial
interests represented by the Permanent Regulation S Global Note shall be reduced
or increased, as appropriate, by the principal amount so redeemed, purchased,
exchanged or cancelled.
Each Class A Noteholder, by acceptance of a Class A Note, covenants
and agrees that by accepting the benefits of the Indenture that such Class A
Noteholder will not prior to the date which is one year and one day after the
payment in full of the last maturing note of any Series and the termination of
the Indenture institute against the Issuer or join in any institution against
the Issuer of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings, under any United Stated Federal
or state bankruptcy or similar law in connection with any obligations relating
to the Class A Notes, the Indenture or the Transaction Documents.
Each Class A Noteholder, by acceptance of a Class A Note, covenants
and agrees that by accepting the benefits of the Indenture that such Class A
Noteholder will treat such Class A Note as indebtedness for all federal, state
and local income and franchise tax purposes.
Prior to the due presentment for registration of transfer of this
Class A Note, the Issuer, the Trustee and any agent of the Issuer or the Trustee
may treat the Person in whose name this Class A Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Class A
Note be overdue, and neither the Issuer, the Trustee nor any such agent shall be
affected by notice to the contrary.
As provided in the Indenture, no recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer under the Indenture,
including this Class A Note, against any Seller, the Initial Seller, the
Servicer, the Trustee or any partner, owner, incorporator, beneficiary,
A-2-7 Series 2002-B Supplement
beneficial owner, agent, officer, director, employee, shareholder or agent of
the Issuer, any Seller, the Initial Seller, the Servicer or the Trustee except
as any such Person may have expressly agreed.
The term "Issuer" as used in this Class A Note includes any successor
to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances,
to merge or consolidate, subject to the rights of the Trustee and the
Noteholders under the Indenture.
The Class A Notes are issuable only in registered form as provided in
the Indenture in denominations as provided in the Indenture, subject to certain
limitations therein set forth.
This Class A Note and the Indenture shall be construed in accordance
with the laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Class A
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Class A Note.
A-2-8 Series 2002-B Supplement
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _____________________________________
(name and address of assignee)
the within Class A Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ____________, attorney, to transfer said Class A Note
on the books kept for registration thereof, with full power of substitution in
the premises.
Dated: /2/
---------------- -----------------------------------
Signature Guaranteed:
- --------------------------------------------------------------------------------
----------------
- ----------
/2/ NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Class A Note in
every particular, without alteration, enlargement or any change whatsoever.
A-2-9 Series 2002-B Supplement
SCHEDULE A
SCHEDULE OF EXCHANGES
FOR NOTES REPRESENTED BY THE TEMPORARY
REGULATION S GLOBAL NOTE, THE PERMANENT REGULATION S GLOBAL
NOTE OR THE RESTRICTED GLOBAL NOTE, OR REDEMPTIONS OR
PURCHASES AND CANCELLATIONS
The following exchanges of a part of this Temporary Regulation S Global Note for
the Permanent Regulation S Global Note or the Restricted Global Note or an
exchange of a part of the Restricted Global Note for a part of this Temporary
Regulation S Global Note, in whole or in part, or redemptions, purchases or
cancellation of this Temporary Regulation S Global Note have been made:
- --------------------------------------------------------------------------------------------------------------------------
Date of exchange, or Part of principal Part of principal Remaining Amount of interest Notation
redemption or amount of this amount of the principal amount paid with delivery made by or
purchase or Temporary Regulation S of this Temporary of the Permanent on behalf of
cancellation Regulation S Global Global Note Regulation S Regulation S Global the Issuer
Note exchanged for exchanged for Global Note Note
Notes represented Notes represented following such
by the Permanent by this Temporary exchange, or
Regulation S Global Regulation S redemption or
Note or the Global Note purchase or
Restricted Global cancellation
Note, or redeemed
or purchased or
cancelled
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
A-2-10 Series 2002-B Supplement
EXHIBIT A-3
FORM OF
PERMANENT REGULATION S GLOBAL NOTE
THIS GLOBAL NOTE IS A PERMANENT GLOBAL NOTE FOR PURPOSES OF REGULATION S
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"). NEITHER THIS PERMANENT GLOBAL NOTE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE
INDENTURE REFERRED TO BELOW.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT
OR THE SECURITIES LAWS OF ANY OTHER JURISDICTION. THIS NOTE MAY BE RESOLD,
PLEDGED OR TRANSFERRED ONLY (1) TO A PERSON THE TRANSFEROR REASONABLY BELIEVES
IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT ("RULE 144A")) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2)
OUTSIDE THE UNITED STATES TO A NON-U.S. PERSON (AS SUCH TERM IS DEFINED IN
REGULATION S UNDER THE SECURITIES ACT) IN A TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR (4) IN A TRANSACTION OTHERWISE EXEMPT FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER JURISDICTION AND BASED ON
AN OPINION OF COUNSEL IF THE ISSUER OR TRANSFER AGENT AND REGISTRAR SO REQUEST,
IN EACH SUCH CASE, IN COMPLIANCE WITH THE INDENTURE AND ALL APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER JURISDICTION. THE
HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY TRANSFEREE
FROM IT OF THE RESALE RESTRICTIONS SET FORTH ABOVE.
A-3-1 Series 2002-B Supplement
BY ACQUIRING THIS NOTE, EACH PURCHASER WILL BE DEEMED TO HAVE REPRESENTED,
WARRANTED AND COVENANTED EITHER THAT (A) IT IS NOT AN "EMPLOYEE BENEFIT PLAN"
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), A "PLAN" DESCRIBED IN SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED, AN ENTITY DEEMED TO HOLD "PLAN ASSETS" OF ANY OF THE
FOREGOING BY REASON OF INVESTMENT BY AN "EMPLOYEE BENEFIT PLAN" OR "PLAN" IN
SUCH ENTITY, OR A GOVERNMENTAL PLAN SUBJECT TO APPLICABLE LAW THAT IS
SUBSTANTIALLY SIMILAR TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR
SECTION 4975 OF THE CODE OR (B) ITS PURCHASE AND HOLDING OF THIS NOTE WILL NOT
RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE
CODE (OR, IN THE CASE OF A GOVERNMENTAL PLAN, ANY SUBSTANTIALLY SIMILAR
APPLICABLE LAW).
THE INDENTURE CONTAINS FURTHER RESTRICTIONS ON THE TRANSFER AND RESALE OF
THIS NOTE. EACH TRANSFEREE OF THIS NOTE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE
ACCEPTED THIS NOTE, SUBJECT TO THE FOREGOING RESTRICTIONS ON TRANSFERABILITY. IN
ADDITION, EACH TRANSFEREE OF THIS NOTE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE
MADE THE REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE INDENTURE.
BY ACCEPTANCE HEREOF, THE HOLDER OF THIS NOTE AGREES TO THE TERMS AND
CONDITIONS SET FORTH IN THE INDENTURE AND HEREIN.
A-3-2 Series 2002-B Supplement
No. REGS-1 $120,000,000
CUSIP No. U20772 AA 4
ISIN USU20772AA47
SEE REVERSE FOR CERTAIN DEFINITIONS
THE PRINCIPAL OF THIS CLASS A NOTE MAY BE PAYABLE IN INSTALLMENTS AS
SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS CLASS A
NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CONN FUNDING II, L.P.
4.469% ASSET BACKED FIXED RATE NOTES, CLASS A, SERIES 2002-B
Conn Funding II, L.P., a limited partnership organized and existing
under the laws of the State of Texas (herein referred to as the "Issuer"), for
value received, hereby promises to pay Cede & Co., or registered assigns, the
principal sum set forth above or such other principal amount set forth on
Schedule A attached hereto (which sum shall not exceed $120,000,000), payable on
each Payment Date after the end of the Revolving Period (as defined in the
Series 2002-B Supplement) in an amount equal to the Monthly Principal, as
defined in Section 5.13 of the Series 2002-B Supplement, dated as of September
1, 2002 (as amended, supplemented or otherwise modified from time to time, the
"Series 2002-B Supplement"), between the Issuer and the Trustee to the Base
Indenture (described below); provided, however, that the entire unpaid principal
amount of this Class A Note shall be due and payable on May 21, 2012 (the "Legal
Final Payment Date"). The Issuer will pay interest on this Class A Note on each
Payment Date at the Note Rate (as defined in the Series 2002-B Supplement) on
each Payment Date until the principal of this Class A Note is paid or made
available for payment, on the average daily outstanding principal balance of
this Class A Note during the related Interest Period (as defined in the Series
2002-B Supplement). Interest will be computed on the basis set forth in the
Indenture. Such principal of and interest on this Class A Note shall be paid in
the manner specified on the reverse hereof. The aggregate principal sum of the
Regulation S Global Notes and the Restricted Global Note shall not exceed
$120,000,000.
The Class A Notes are subject to optional redemption in accordance
with the Indenture on or after any Payment Date on which the Investor Interest
is reduced to an amount less than or equal to 10% of the Initial Note Principal.
The principal of and interest on this Class A Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts.
A-3-3 Series 2002-B Supplement
Reference is made to the further provisions of this Class A Note set
forth on the reverse hereof and to the Indenture, which shall have the same
effect as though fully set forth on the face of this Class A Note.
Unless the certificate of authentication hereon has been executed by
the Trustee whose name appears below by manual signature, this Class A Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
A-3-4 Series 2002-B Supplement
IN WITNESS WHEREOF, the Issuer, has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer as of the date set
forth below.
CONN FUNDING II, L.P.
By: Conn Funding II GP, L.L.C.,
its general partner
By:
--------------------------------
Authorized Officer
Attested to:
By:
----------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A Notes referred to in the within mentioned
Series 2002-B Supplement.
WELLS FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, not in
its individual capacity, but
solely as Trustee
By
------------------------------
Authorized Officer
A-3-5 Series 2002-B Supplement
[REVERSE OF NOTE]
This Class A Note is one of a duly authorized issue of Class A Notes
of the Issuer, designated as its 4.469% Asset Backed Fixed Rate Notes, Class A,
Series 2002-B (herein called the "Class A Notes"), all issued under the Series
2002-B Supplement to the Base Indenture dated as of September 1, 2002 (such Base
Indenture, as supplemented by the Series 2002-B Supplement and supplements
relating to other series of notes, as supplemented or amended, is herein called
the "Indenture"), between the Issuer and WELLS FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as trustee (the "Trustee", which term includes any successor
Trustee under the Indenture), to which Indenture reference is hereby made for a
statement of the respective rights and obligations thereunder of the Issuer, the
Trustee and the Class A Noteholders. The Class A Notes are subject to all terms
of the Indenture. All terms used in this Class A Note that are defined in the
Indenture shall have the meanings assigned to them in or pursuant to the
Indenture.
Principal of the Class A Notes will be payable on each Payment Date
after the end of the Revolving Period as described on the face hereof and may be
prepaid as set forth in the Indenture. "Payment Date" means the twentieth day of
each calendar month, or, if any such date is not a Business Day, the next
succeeding Business Day, commencing on October 21, 2002.
All principal payments on the Class A Notes shall be made pro rata to
the Class A Noteholders entitled thereto.
Subject to certain limitations set forth in the Indenture, payments of
interest on this Class A Note due and payable on each Payment Date, together
with the installment of principal, if any, to the extent not in full payment of
this Class A Note, shall be made by wire transfer in immediately available funds
to the Person whose name appears as the Class A Noteholder on the Note Register
as of the close of business on each Record Date without requiring that this
Class A Note be submitted for notation of payment. Any reduction in the
principal amount of this Class A Note effected by any payments made on any
Payment Date or date of prepayment shall be binding upon all future Class A
Noteholders and of any Class A Note issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof, whether or not noted on Schedule
A attached hereto. If funds are expected to be available, as provided in the
Indenture, for payment in full of the then remaining unpaid principal amount of
this Class A Note on a Payment Date, then the Trustee, in the name of and on
behalf of the Issuer, will notify the Person who was the Holder hereof as of the
Record Date preceding such Payment Date by notice mailed prior to such Payment
Date and the amount then due and payable shall be payable only upon presentation
and surrender of this Class A Note at the Trustee's principal Corporate Trust
Office or at the office of the Trustee's agent appointed for such purposes
located in the City of New York.
On any redemption, purchase, exchange or cancellation of any of the
beneficial interest represented by this Permanent Regulation S Global Note,
details of such redemption, purchase, exchange or cancellation shall be entered
by the Paying Agent in Schedule A hereto recording any such redemption,
purchase, exchange or cancellation and shall be signed by or on
A-3-6 Series 2002-B Supplement
behalf of the Issuer. Upon any such redemption, purchase, exchange or
cancellation, the principal amount of this Permanent Regulation S Global Note
and the beneficial interests represented by this Permanent Regulation S Global
Note shall be reduced or increased, as appropriate, by the principal amount so
redeemed, purchased, exchanged or cancelled.
Each Class A Noteholder, by acceptance of a Class A Note, covenants
and agrees that by accepting the benefits of the Indenture that such Class A
Noteholder will not prior to the date which is one year and one day after the
payment in full of the last maturing note of any Series and the termination of
the Indenture institute against the Issuer or join in any institution against
the Issuer of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings, under any United Stated federal
or state bankruptcy or similar law in connection with any obligations relating
to the Class A Notes, the Indenture or the Transaction Documents.
Each Class A Noteholder, by acceptance of a Class A Note, covenants
and agrees that by accepting the benefits of the Indenture that such Class A
Noteholder will treat such Class A Note as indebtedness for all federal, state
and local income and franchise tax purposes.
Prior to the due presentment for registration of transfer of this
Class A Note, the Issuer, the Trustee and any agent of the Issuer or the Trustee
may treat the Person in whose name this Class A Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Class A
Note be overdue, and neither the Issuer, the Trustee nor any such agent shall be
affected by notice to the contrary.
As provided in the Indenture, no recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer under the Indenture,
including this Class A Note, against any Seller, the Initial Seller, the
Servicer, the Trustee or any partner, owner, incorporator, beneficiary,
beneficial owner, agent, officer, director, employee, shareholder or agent of
the Issuer, any Seller, the Initial Seller, the Servicer or the Trustee except
as any such Person may have expressly agreed.
The term "Issuer" as used in this Class A Note includes any successor
to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances,
to merge or consolidate, subject to the rights of the Trustee and the
Noteholders under the Indenture.
The Class A Notes are issuable only in registered form as provided in
the Indenture in denominations as provided in the Indenture, subject to certain
limitations therein set forth.
This Class A Note and the Indenture shall be construed in accordance
with the laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
A-3-7 Series 2002-B Supplement
No reference herein to the Indenture and no provision of this Class A
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Class A Note.
A-3-8 Series 2002-B Supplement
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________
(name and address of assignee)
the within Class A Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ____________, attorney, to transfer said Class A Note
on the books kept for registration thereof, with full power of substitution in
the premises.
Dated: /3/
------------ ---------------------------
Signature Guaranteed:
________________________________________________________________________________
------------
- ----------
/3/ NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Class A Note in
every particular, without alteration, enlargement or any change whatsoever.
A-3-9 Series 2002-B Supplement
SCHEDULE A
SCHEDULE OF EXCHANGES
BETWEEN THIS PERMANENT REGULATION S
GLOBAL NOTE AND THE TEMPORARY REGULATION S GLOBAL NOTE AND
THE RESTRICTED GLOBAL NOTE,
OR REDEMPTIONS OR PURCHASES AND CANCELLATIONS
The following increases or decreases in the principal amount of this Permanent
Regulation S Global Note or redemptions, purchases or cancellation of this
Permanent Regulation S Global Note have been made:
- --------------------------------------------------------------------------------
Date of exchange, or Increases or decreases Remaining principal Notation made
redemption or in principal amount amount of this by or on
purchase or of this Permanent Permanent behalf of the
cancellation Regulation S Global Regulation Issuer
Note due to exchanges S Global Note
between the Temporary following such
Regulation S Global exchange, or
Note or the Restricted redemption or
Global Note and this purchase or
Permanent Regulation cancellation
S Global Note
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
A-3-10 Series 2002-B Supplement
EXHIBIT B-1
FORM OF
RESTRICTED GLOBAL NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY OTHER
JURISDICTION. THIS NOTE MAY BE RESOLD, PLEDGED OR TRANSFERRED ONLY (1) TO A
PERSON THE TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT ("RULE 144A")) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (2) OUTSIDE THE UNITED STATES TO A
NON-U.S. PERSON (AS SUCH TERM IS DEFINED IN REGULATION S UNDER THE SECURITIES
ACT) IN A TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT,
(3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR
(4) IN A TRANSACTION OTHERWISE EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES
AND ANY OTHER JURISDICTION AND BASED ON AN OPINION OF COUNSEL IF THE ISSUER OR
TRANSFER AGENT AND REGISTRAR SO REQUEST, IN EACH SUCH CASE, IN COMPLIANCE WITH
THE INDENTURE AND ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER JURISDICTION. THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY TRANSFEREE FROM IT OF THE RESALE RESTRICTIONS SET FORTH
ABOVE.
BY ACQUIRING THIS NOTE, EACH PURCHASER WILL BE DEEMED TO HAVE REPRESENTED,
WARRANTED AND COVENANTED EITHER THAT (A) IT IS NOT AN "EMPLOYEE BENEFIT PLAN"
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), A "PLAN" DESCRIBED IN SECTION
B-1-1 Series 2002-B Supplement
4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, AN ENTITY DEEMED TO
HOLD "PLAN ASSETS" OF ANY OF THE FOREGOING BY REASON OF INVESTMENT BY AN
"EMPLOYEE BENEFIT PLAN" OR "PLAN" IN SUCH ENTITY, OR A GOVERNMENTAL PLAN SUBJECT
TO APPLICABLE LAW THAT IS SUBSTANTIALLY SIMILAR TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA OR SECTION 4975 OF THE CODE OR (B) ITS PURCHASE AND HOLDING
OF THIS NOTE WILL NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA
OR SECTION 4975 OF THE CODE (OR, IN THE CASE OF A GOVERNMENTAL PLAN, ANY
SUBSTANTIALLY SIMILAR APPLICABLE LAW).
THE INDENTURE (AS DEFINED BELOW) CONTAINS FURTHER RESTRICTIONS ON THE TRANSFER
AND RESALE OF THIS NOTE. EACH TRANSFEREE OF THIS NOTE, BY ACCEPTANCE HEREOF, IS
DEEMED TO HAVE ACCEPTED THIS NOTE, SUBJECT TO THE FOREGOING RESTRICTIONS ON
TRANSFERABILITY. IN ADDITION, EACH TRANSFEREE OF THIS NOTE, BY ACCEPTANCE
HEREOF, IS DEEMED TO HAVE MADE THE REPRESENTATIONS AND AGREEMENTS SET FORTH IN
THE INDENTURE.
BY ACCEPTANCE HEREOF, THE HOLDER OF THIS NOTE AGREES TO THE TERMS AND CONDITIONS
SET FORTH IN THE INDENTURE AND HEREIN.
EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF THIS NOTE MAY
BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES
ACT PROVIDED BY RULE 144A THEREUNDER.
B-1-2 Series 2002-B Supplement
No. R144A-1 $57,778,000
CUSIP No. 207415 AB 6
ISIN US207415AB64
SEE REVERSE FOR CERTAIN DEFINITIONS
THE PRINCIPAL OF THIS CLASS B NOTE MAY BE PAYABLE IN INSTALLMENTS AS
SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS CLASS B
NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CONN FUNDING II, L.P.
5.769% ASSET BACKED FIXED RATE NOTES, CLASS B, SERIES 2002-B
Conn Funding II, L.P., a limited partnership organized and existing
under the laws of the State of Texas (herein referred to as the "Issuer"), for
value received, hereby promises to pay Cede & Co., or registered assigns, the
principal sum set forth above or such other principal sum set forth on Schedule
A attached hereto (which sum shall not exceed $57,778,000), payable on each
Payment Date after the end of the Revolving Period (as defined in the Series
2002-B Supplement) in an amount equal to the Monthly Principal, as defined in
Section 5.13 of the Series 2002-B Supplement, dated as of September 1, 2002 (as
amended, supplemented or otherwise modified from time to time, the "Series
2002-B Supplement"), between the Issuer and the Trustee to the Base Indenture
(described below); provided, however, that the entire unpaid principal amount of
this Note shall be due and payable on May 21, 2012 (the "Legal Final Payment
Date"). The Issuer will pay interest on this Class B Note at the Note Rate (as
defined in the Series 2002-B Supplement) on each Payment Date until the
principal of this Class B Note is paid or made available for payment, on the
average daily outstanding principal balance of this Class B Note during the
related Interest Period (as defined in the Series 2002-B Supplement). Interest
will be computed on the basis set forth in the Indenture. Such principal of and
interest on this Note shall be paid in the manner specified on the reverse
hereof. The aggregate principal sum of the Regulations S Global Notes and the
Restricted Global Note shall not exceed $57,778,000.
The Class B Notes are subject to optional redemption in accordance
with the Indenture on or after any Payment Date on which the Investor Interest
is reduced to an amount less than or equal to 10% of the Initial Note Principal.
The principal of and interest on this Class B Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts.
B-1-3 Series 2002-B Supplement
Reference is made to the further provisions of this Class B Note set
forth on the reverse hereof and to the Indenture, which shall have the same
effect as though fully set forth on the face of this Class B Note.
Unless the certificate of authentication hereon has been executed by
the Trustee whose name appears below by manual signature, this Class B Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
B-1-4 Series 2002-B Supplement
IN WITNESS WHEREOF, the Issuer, has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer as of the date set
forth below.
CONN FUNDING II, L.P.
By: Conn Funding II GP, L.L.C.,
its general partner
By:
-------------------------------------
Authorized Officer
Attested to:
By:
-----------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Notes referred to in the within mentioned
Series 2002-B Supplement.
WELLS FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, not in its
individual capacity, but solely as
Trustee
By
--------------------------------------
Authorized Officer
B-1-5 Series 2002-B Supplement
[REVERSE OF NOTE]
This Class B Note is one of a duly authorized issue of Class B Notes
of the Issuer, designated as its 5.769% Asset Backed Fixed Rate Notes, Class B,
Series 2002-B (herein called the "Class B Notes"), all issued under the Series
2002-B Supplement to the Base Indenture dated as of September 1, 2002 (such Base
Indenture, as supplemented by the Series 2002-B Supplement and supplements
relating to other series of notes, as supplemented or amended, is herein called
the "Indenture"), between the Issuer and WELLS FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as trustee (the "Trustee," which term includes any successor
Trustee under the Indenture), to which Indenture reference is hereby made for a
statement of the respective rights and obligations thereunder of the Issuer, the
Trustee and the Class B Noteholders. The Class B Notes are subject to all terms
of the Indenture. All terms used in this Class B Note that are defined in the
Indenture shall have the meanings assigned to them in or pursuant to the
Indenture.
Principal of the Class B Notes will be payable on each Payment Date
after the end of the Revolving Period as described on the face hereof and may be
prepaid as set forth in the Indenture. "Payment Date" means the twentieth day of
each calendar month, or, if any such date is not a Business Day, the next
succeeding Business Day, commencing on October 21, 2002.
All principal payments on the Class B Notes shall be made pro rata to
the Class B Noteholders entitled thereto.
Subject to certain limitations set forth in the Indenture, payments of
interest on this Class B Note due and payable on each Payment Date, together
with the installment of principal, if any, to the extent not in full payment of
this Class B Note, shall be made by wire transfer in immediately available funds
to the Person whose name appears as the Class B Noteholder on the Note Register
as of the close of business on each Record Date without requiring that this
Class B Note be submitted for notation of payment. Any reduction in the
principal amount of this Class B Note effected by any payments made on any
Payment Date or date of prepayment shall be binding upon all future Class B
Noteholders and of any Class B Note issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof, whether or not noted on Schedule
A attached hereto. If funds are expected to be available, as provided in the
Indenture, for payment in full of the then remaining unpaid principal amount of
this Class B Note on a Payment Date, then the Trustee, in the name of and on
behalf of the Issuer, will notify the Person who was the Holder hereof as of the
Record Date preceding such Payment Date by notice mailed prior to such Payment
Date and the amount then due and payable shall be payable only upon presentation
and surrender of this Class B Note at the Trustee's principal Corporate Trust
Office or at the office of the Trustee's agent appointed for such purposes
located in the City of New York.
On any redemption, purchase, exchange or cancellation of any of the
beneficial interests represented by this Restricted Global Note, details of such
redemption, purchase, exchange or cancellation shall be entered by the Paying
Agent in Schedule A hereto recording any such redemption, purchase, exchange or
cancellation. Upon any such redemption, purchase, exchange
B-1-6 Series 2002-B Supplement
or cancellation, the principal amount of this Restricted Global Note and the
beneficial interests represented by the Restricted Global Note shall be reduced
or increased, as appropriate, by the principal amount so redeemed, purchased,
exchanged or cancelled.
Each Class B Noteholder, by acceptance of a Class B Note, covenants
and agrees that by accepting the benefits of the Indenture that such Class B
Noteholder will not prior to the date which is one year and one day after the
payment in full of the last maturing note of any Series and the termination of
the Indenture institute against the Issuer or join in any institution against
the Issuer of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings, under any United States Federal
or state bankruptcy or similar law in connection with any obligations relating
to the Notes, the Indenture or the Transaction Documents.
Each Class B Noteholder, by acceptance of a Class B Note, covenants
and agrees that by accepting the benefits of the Indenture that such Noteholder
will treat such Note as indebtedness for all Federal, state and local income and
franchise tax purposes.
Prior to the due presentment for registration of transfer of this
Class B Note, the Issuer, the Trustee and any agent of the Issuer or the Trustee
may treat the Person in whose name this Class B Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Class B
Note be overdue, and neither the Issuer, the Trustee nor any such agent shall be
affected by notice to the contrary.
As provided in the Indenture, no recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer under the Indenture,
including this Class B Note, against any Seller, the Initial Seller, the
Servicer, the Trustee or any partner, owner, incorporator, beneficiary,
beneficial owner, agent, officer, director, employee, shareholder or agent of
the Issuer, any Seller, the Initial Seller, the Servicer or the Trustee except
as any such Person may have expressly agreed.
The term "Issuer" as used in this Class B Note includes any successor
to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances,
to merge or consolidate, subject to the rights of the Trustee and the
Noteholders under the Indenture.
The Class B Notes are issuable only in registered form as provided in
the Indenture in denominations as provided in the Indenture, subject to certain
limitations therein set forth.
This Class B Note and the Indenture shall be construed in accordance
with the laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
B-1-7 Series 2002-B Supplement
No reference herein to the Indenture and no provision of this Class B
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Class B Note.
B-1-8 Series 2002-B Supplement
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto ________________________
(name and address of assignee)
the within Class B Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ____________, attorney, to transfer said Class B Note
on the books kept for registration thereof, with full power of substitution in
the premises.
Dated: /4/
----------- ------------------------
Signature Guaranteed:
________________________________________________________________________________
------------
- ----------
/4/ NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Class A Note in
every particular, without alteration, enlargement or any change whatsoever.
B-1-9 Series 2002-B Supplement
SCHEDULE A
SCHEDULE OF EXCHANGES
BETWEEN THE TEMPORARY REGULATION S GLOBAL NOTE
OR THE PERMANENT REGULATION S GLOBAL NOTE AND
THIS RESTRICTED GLOBAL NOTE, OR REDEMPTIONS
OR PURCHASES AND CANCELLATIONS
The following increases or decreases in principal amount of this Restricted
Global Note or redemptions, purchases or cancellation of this Restricted Global
Note have been made:
- --------------------------------------------------------------------------------
Date of exchange, Increase or decrease in Remaining principal Notation made
or redemption principal amount of this amount of this by or on
or purchase or Restricted Global Note Restricted Global behalf of the
cancellation due to exchanges between Note following such Issuer
the Temporary Regulation exchange, or
S Global Note or the redemption or
Permanent Regulation S purchase or
Global Note and this cancellation
Restricted Global Note
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
B-1-10 Series 2002-B Supplement
EXHIBIT B-2
FORM OF
TEMPORARY REGULATION S GLOBAL NOTE
THIS GLOBAL NOTE IS A TEMPORARY GLOBAL NOTE FOR PURPOSES OF REGULATION S
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"). NEITHER THIS TEMPORARY REGULATION S GLOBAL NOTE NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED
UNDER THE INDENTURE REFERRED TO BELOW.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT
OR THE SECURITIES LAWS OF ANY OTHER JURISDICTION. THIS NOTE MAY BE RESOLD,
PLEDGED OR TRANSFERRED ONLY (1) TO A PERSON THE TRANSFEROR REASONABLY BELIEVES
IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT ("RULE 144A")) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2)
OUTSIDE THE UNITED STATES TO A NON-U.S. PERSON (AS SUCH TERM IS DEFINED IN
REGULATION S UNDER THE SECURITIES ACT) IN A TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR (4) IN A TRANSACTION OTHERWISE EXEMPT FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER JURISDICTION AND BASED ON
AN OPINION OF COUNSEL IF THE ISSUER OR TRANSFER AGENT AND REGISTRAR SO REQUEST,
IN EACH SUCH CASE, IN COMPLIANCE WITH THE INDENTURE AND ALL APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER JURISDICTION. THE
HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY TRANSFEREE
FROM IT OF THE RESALE RESTRICTIONS SET FORTH ABOVE.
B-2-1 Series 2002-B Supplement
BY ACQUIRING THIS NOTE, EACH PURCHASER WILL BE DEEMED TO HAVE REPRESENTED,
WARRANTED AND COVENANTED EITHER THAT (A) IT IS NOT AN "EMPLOYEE BENEFIT PLAN"
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), A "PLAN" DESCRIBED IN SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED, AN ENTITY DEEMED TO HOLD "PLAN ASSETS" OF ANY OF THE
FOREGOING BY REASON OF INVESTMENT BY AN "EMPLOYEE BENEFIT PLAN" OR "PLAN" IN
SUCH ENTITY, OR A GOVERNMENTAL PLAN SUBJECT TO APPLICABLE LAW THAT IS
SUBSTANTIALLY SIMILAR TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR
SECTION 4975 OF THE CODE OR (B) ITS PURCHASE AND HOLDING OF THIS NOTE WILL NOT
RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE
CODE (OR, IN THE CASE OF A GOVERNMENTAL PLAN, ANY SUBSTANTIALLY SIMILAR
APPLICABLE LAW).
THE INDENTURE CONTAINS FURTHER RESTRICTIONS ON THE TRANSFER AND RESALE OF
THIS NOTE. EACH TRANSFEREE OF THIS NOTE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE
ACCEPTED THIS NOTE, SUBJECT TO THE FOREGOING RESTRICTIONS ON TRANSFERABILITY. IN
ADDITION, EACH TRANSFEREE OF THIS NOTE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE
MADE THE REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE INDENTURE.
BY ACCEPTANCE HEREOF, THE HOLDER OF THIS NOTE AGREES TO THE TERMS AND
CONDITIONS SET FORTH IN THE INDENTURE AND HEREIN.
B-2-2 Series 2002-B Supplement
No. TREGS-1 $57,778,000
CUSIP No. U20772 AB 2
ISIN USU20772AB20
SEE REVERSE FOR CERTAIN DEFINITIONS
THE PRINCIPAL OF THIS CLASS B NOTE MAY BE PAYABLE IN INSTALLMENTS AS
SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS CLASS B
NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CONN FUNDING II, L.P.
5.769% ASSET BACKED FIXED RATE NOTES, CLASS B SERIES 2002-B
Conn Funding II, L.P., a limited partnership organized and existing
under the laws of the State of Texas (herein referred to as the "Issuer"), for
value received, hereby promises to pay Cede & Co., or registered assigns, the
principal sum set forth above or such other principal sum set forth on Schedule
A attached hereto (which sum shall not exceed $57,778,000), payable on each
Payment Date after the end of the Revolving Period (as defined in the Series
2002-B Supplement) in an amount equal to the Monthly Principal, as defined in
Section 5.13 of the Series 2002-B Supplement, dated as of September 1, 2002 (as
amended, supplemented or otherwise modified from time to time, the "Series
2002-B Supplement"), between the Issuer and the Trustee to the Base Indenture
(described below); provided, however, that the entire unpaid principal amount of
this Class B Note shall be due and payable on May 21, 2012 (the "Legal Final
Payment Date"). The Issuer will pay interest on this Class B Note on each
Payment Date at the Note Rate (as defined in the Series 2002-B Supplement) on
each Payment Date until the principal of this Class B Note is paid or made
available for payment, on the average daily outstanding principal balance of
this Class B Note during the related Interest Period (as defined in the Series
2002-B Supplement). Interest will be computed on the basis set forth in the
Indenture. Such principal of and interest on this Class B Note shall be paid in
the manner specified on the reverse hereof. The aggregate principal sum of the
Regulation S Global Notes and the Restricted Global Note shall not exceed
$57,778,000.
The Class B Notes are subject to optional redemption in accordance
with the Indenture on or after any Payment Date on which the Investor Interest
is reduced to an amount less than or equal to 10% of the Initial Note Principal.
The principal of and interest on this Class B Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts.
B-2-3 Series 2002-B Supplement
Reference is made to the further provisions of this Class B Note set
forth on the reverse hereof and to the Indenture, which shall have the same
effect as though fully set forth on the face of this Class B Note.
Unless the certificate of authentication hereon has been executed by
the Trustee whose name appears below by manual signature, this Class B Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
B-2-4 Series 2002-B Supplement
IN WITNESS WHEREOF, the Issuer, has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer as of the date set
forth below.
CONN FUNDING II, L.P.
By: Conn Funding II GP, L.L.C.,
its general partner
By:
-----------------------------------
Authorized Officer
Attested to:
By:
---------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Notes referred to in the within mentioned
Series 2002-B Supplement.
WELLS FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, not in its individual
capacity, but solely as Trustee
By
------------------------------------
Authorized Officer
B-2-5 Series 2002-B Supplement
[REVERSE OF NOTE]
This Class B Note is one of a duly authorized issue of Class B Notes
of the Issuer, designated as its 5.769% Asset Backed Fixed Rate Notes, Class B,
Series 2002-B (herein called the "Class B Notes"), all issued under the Series
2002-B Supplement to the Base Indenture dated as of September 1, 2002 (such Base
Indenture, as supplemented by the Series 2002-B Supplement and supplements
relating to other series of notes, as supplemented or amended, is herein called
the "Indenture"), between the Issuer and WELLS FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as trustee (the "Trustee", which term includes any successor
Trustee under the Indenture), to which Indenture reference is hereby made for a
statement of the respective rights and obligations thereunder of the Issuer, the
Trustee and the Holders of the Class B Notes. The Class B Notes are subject to
all terms of the Indenture. All terms used in this Class B Note that are defined
in the Indenture shall have the meanings assigned to them in or pursuant to the
Indenture.
Principal of the Class B Notes will be payable on each Payment Date
after the end of the Revolving Period as described on the face hereof and may be
prepaid as set forth in the Indenture. "Payment Date" means the twentieth day of
each calendar month, or, if any such date is not a Business Day, the next
succeeding Business Day, commencing on October 21, 2002.
All principal payments on the Class B Notes shall be made pro rata to
the Class B Noteholders entitled thereto.
Subject to certain limitations set forth in the Indenture, payments of
interest on this Class B Note due and payable on each Payment Date, together
with the installment of principal, if any, to the extent not in full payment of
this Class B Note, shall be made by wire transfer in immediately available funds
to the Person whose name appears as the Class B Noteholder on the Note Register
as of the close of business on each Record Date without requiring that this
Class B Note be submitted for notation of payment. Any reduction in the
principal amount of this Class B Note effected by any payments made on any
Payment Date or date of prepayment shall be binding upon all future Class B
Noteholders and of any Class B Note issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof, whether or not noted on Schedule
A attached hereto. If funds are expected to be available, as provided in the
Indenture, for payment in full of the then remaining unpaid principal amount of
this Class B Note on a Payment Date, then the Trustee, in the name of and on
behalf of the Issuer, will notify the Person who was the Holder hereof as of the
Record Date preceding such Payment Date by notice mailed prior to such Payment
Date and the amount then due and payable shall be payable only upon presentation
and surrender of this Class B Note at the Trustee's principal Corporate Trust
Office or at the office of the Trustee's agent appointed for such purposes
located in the City of New York.
Any interest in a Class B Note evidenced by this Temporary Regulation
S Global Note is exchangeable for an interest in a Permanent Regulation S Global
Note upon the later of (i) the Exchange Date and (ii) the furnishing of a
certificate, the form of which is attached as Exhibit C-2 to the Series 2002-B
Supplement. Interests in this Temporary Regulation S Global Note are
B-2-6 Series 2002-B Supplement
exchangeable for interests in a Permanent Regulation S Global Note or a
Restricted Global Note only upon presentation of the applicable certificate
required by Section 6 of the Series 2002-B Supplement to the Base Indenture.
Upon exchange of all interests in this Temporary Regulation S Global Note for
interests in the Permanent Regulation S Global Note and/or the Restricted Global
Note, the Trustee shall cancel this Temporary Regulation S Global Note.
Until the provision of the certifications required by Section 6 of the
Series 2002-B Supplement, beneficial interests in a Regulation S Global Note may
only be held through Euroclear or Clearstream or another agent member of
Euroclear or Clearstream acting for and on behalf of them.
On any redemption, purchase, exchange or cancellation of any of the
beneficial interests represented by this Temporary Regulation S Global Note,
details of such redemption, purchase, exchange or cancellation shall be entered
by the Paying Agent in Schedule A hereto recording any such redemption,
purchase, exchange or cancellation and shall be signed on by or on behalf of the
Issuer. Upon any such redemption, purchase, exchange or cancellation, the
principal amount of this Temporary Regulation S Global Note and the beneficial
interests represented by the Permanent Regulation S Global Note shall be reduced
or increased, as appropriate, by the principal amount so redeemed, purchased,
exchanged or cancelled.
Each Class B Noteholder, by acceptance of a Class B Note, covenants
and agrees that by accepting the benefits of the Indenture that such Class B
Noteholder will not prior to the date which is one year and one day after the
payment in full of the last maturing note of any Series and the termination of
the Indenture institute against the Issuer or join in any institution against
the Issuer of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings, under any United Stated Federal
or state bankruptcy or similar law in connection with any obligations relating
to the Class B Notes, the Indenture or the Transaction Documents.
Each Class B Noteholder, by acceptance of a Class B Note, covenants
and agrees that by accepting the benefits of the Indenture that such Class B
Noteholder will treat such Class B Note as indebtedness for all federal, state
and local income and franchise tax purposes.
Prior to the due presentment for registration of transfer of this
Class B Note, the Issuer, the Trustee and any agent of the Issuer or the Trustee
may treat the Person in whose name this Class B Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Class B
Note be overdue, and neither the Issuer, the Trustee nor any such agent shall be
affected by notice to the contrary.
As provided in the Indenture, no recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer under the Indenture,
including this Class B Note, against any Seller, the Initial Seller, the
Servicer, the Trustee or any partner, owner, incorporator, beneficiary,
B-2-7 Series 2002-B Supplement
beneficial owner, agent, officer, director, employee, shareholder or agent of
the Issuer, any Seller, the Initial Seller, the Servicer or the Trustee except
as any such Person may have expressly agreed.
The term "Issuer" as used in this Class B Note includes any successor
to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances,
to merge or consolidate, subject to the rights of the Trustee and the
Noteholders under the Indenture.
The Class B Notes are issuable only in registered form as provided in
the Indenture in denominations as provided in the Indenture, subject to certain
limitations therein set forth.
This Class B Note and the Indenture shall be construed in accordance
with the laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Class B
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Class B Note.
B-2-8 Series 2002-B Supplement
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _____________________________________
(name and address of assignee)
the within Class B Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ____________, attorney, to transfer said Class B Note
on the books kept for registration thereof, with full power of substitution in
the premises.
Dated: /5/
---------------- --------------------------------------
Signature Guaranteed:
________________________________________________________________________________
------------
- ----------
/5/ NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Class B Note in
every particular, without alteration, enlargement or any change whatsoever.
B-2-9 Series 2002-B Supplement
SCHEDULE A
SCHEDULE OF EXCHANGES
FOR NOTES REPRESENTED BY THE TEMPORARY
REGULATION S GLOBAL NOTE, THE PERMANENT REGULATION S GLOBAL
NOTE OR THE RESTRICTED GLOBAL NOTE, OR REDEMPTIONS OR PURCHASES AND
CANCELLATIONS
The following exchanges of a part of this Temporary Regulation S Global
Note for the Permanent Regulation S Global Note or the Restricted Global
Note or an exchange of a part of the Restricted Global Note for a part of
this Temporary Regulation S Global Note, in whole or in part, or
redemptions, purchases or cancellation of this Temporary Regulation S
Global Note have been made:
- ------------------------------------------------------------------------------------------------------------------------
Date of exchange, Part of principal Part of principal Remaining Amount of interest Notation made
or redemption or amount of this amount of the principal amount paid with delivery by or on behalf
purchase or Temporary Regulation S Global of this Temporary of the Permanent of the Issuer
cancellation Regulation S Global Note exchanged for Regulation S Regulation S
Note exchanged for Notes represented Global Note Global Note
Notes represented by this Temporary following such
by the Permanent Regulation S Global exchange, or
Regulation S Global Note redemption or
Note or the purchase or
Restricted Global cancellation
Note, or redeemed
or purchased or
cancelled
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
B-2-10 Series 2002-B Supplement
EXHIBIT B-3
FORM OF
PERMANENT REGULATION S GLOBAL NOTE
THIS GLOBAL NOTE IS A PERMANENT GLOBAL NOTE FOR PURPOSES OF REGULATION S
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"). NEITHER THIS PERMANENT GLOBAL NOTE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE
INDENTURE REFERRED TO BELOW.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT
OR THE SECURITIES LAWS OF ANY OTHER JURISDICTION. THIS NOTE MAY BE RESOLD,
PLEDGED OR TRANSFERRED ONLY (1) TO A PERSON THE TRANSFEROR REASONABLY BELIEVES
IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT ("RULE 144A")) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2)
OUTSIDE THE UNITED STATES TO A NON-U.S. PERSON (AS SUCH TERM IS DEFINED IN
REGULATION S UNDER THE SECURITIES ACT) IN A TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR (4) IN A TRANSACTION OTHERWISE EXEMPT FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER JURISDICTION AND BASED ON
AN OPINION OF COUNSEL IF THE ISSUER OR TRANSFER AGENT AND REGISTRAR SO REQUEST,
IN EACH SUCH CASE, IN COMPLIANCE WITH THE INDENTURE AND ALL APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER JURISDICTION. THE
HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY TRANSFEREE
FROM IT OF THE RESALE RESTRICTIONS SET FORTH ABOVE.
B-3-1 Series 2002-B Supplement
BY ACQUIRING THIS NOTE, EACH PURCHASER WILL BE DEEMED TO HAVE REPRESENTED,
WARRANTED AND COVENANTED EITHER THAT (A) IT IS NOT AN "EMPLOYEE BENEFIT PLAN"
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), A "PLAN" DESCRIBED IN SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED, AN ENTITY DEEMED TO HOLD "PLAN ASSETS" OF ANY OF THE
FOREGOING BY REASON OF INVESTMENT BY AN "EMPLOYEE BENEFIT PLAN" OR "PLAN" IN
SUCH ENTITY, OR A GOVERNMENTAL PLAN SUBJECT TO APPLICABLE LAW THAT IS
SUBSTANTIALLY SIMILAR TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR
SECTION 4975 OF THE CODE OR (B) ITS PURCHASE AND HOLDING OF THIS NOTE WILL NOT
RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE
CODE (OR, IN THE CASE OF A GOVERNMENTAL PLAN, ANY SUBSTANTIALLY SIMILAR
APPLICABLE LAW).
THE INDENTURE CONTAINS FURTHER RESTRICTIONS ON THE TRANSFER AND RESALE OF
THIS NOTE. EACH TRANSFEREE OF THIS NOTE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE
ACCEPTED THIS NOTE, SUBJECT TO THE FOREGOING RESTRICTIONS ON TRANSFERABILITY. IN
ADDITION, EACH TRANSFEREE OF THIS NOTE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE
MADE THE REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE INDENTURE.
BY ACCEPTANCE HEREOF, THE HOLDER OF THIS NOTE AGREES TO THE TERMS AND
CONDITIONS SET FORTH IN THE INDENTURE AND HEREIN.
B-3-2 Series 2002-B Supplement
No. REGS-1 $57,778,000
CUSIP No. U20772 AB 2
ISIN USU20772A520
SEE REVERSE FOR CERTAIN DEFINITIONS
THE PRINCIPAL OF THIS CLASS B NOTE MAY BE PAYABLE IN INSTALLMENTS AS
SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS CLASS B
NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CONN FUNDING II, L.P.
5.769% ASSET BACKED FIXED RATE NOTES, CLASS B, SERIES 2002-B
Conn Funding II, L.P., a limited partnership organized and existing
under the laws of the State of Texas (herein referred to as the "Issuer"), for
value received, hereby promises to pay Cede & Co., or registered assigns, the
principal sum set forth above or such other principal amount set forth on
Schedule A attached hereto (which sum shall not exceed $57,778,000), payable on
each Payment Date after the end of the Revolving Period (as defined in the
Series 2002-B Supplement) in an amount equal to the Monthly Principal, as
defined in Section 5.13 of the Series 2002-B Supplement, dated as of September
1, 2002 (as amended, supplemented or otherwise modified from time to time, the
"Series 2002-B Supplement"), between the Issuer and the Trustee to the Base
Indenture (described below); provided, however, that the entire unpaid principal
amount of this Class B Note shall be due and payable on May 21, 2012 (the "Legal
Final Payment Date"). The Issuer will pay interest on this Class B Note on each
Payment Date at the Note Rate (as defined in the Series 2002-B Supplement) on
each Payment Date until the principal of this Class B Note is paid or made
available for payment, on the average daily outstanding principal balance of
this Class B Note during the related Interest Period (as defined in the Series
2002-B Supplement). Interest will be computed on the basis set forth in the
Indenture. Such principal of and interest on this Class B Note shall be paid in
the manner specified on the reverse hereof. The aggregate principal sum of the
Regulation S Global Notes and the Restricted Global Note shall not exceed
$57,778,000.
The Class B Notes are subject to optional redemption in accordance
with the Indenture on or after any Payment Date on which the Investor Interest
is reduced to an amount less than or equal to 10% of the Initial Note Principal.
The principal of and interest on this Class B Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts.
B-3-3 Series 2002-B Supplement
Reference is made to the further provisions of this Class B Note set
forth on the reverse hereof and to the Indenture, which shall have the same
effect as though fully set forth on the face of this Class B Note.
Unless the certificate of authentication hereon has been executed by
the Trustee whose name appears below by manual signature, this Class B Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
B-3-4 Series 2002-B Supplement
IN WITNESS WHEREOF, the Issuer, has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer as of the date set
forth below.
CONN FUNDING II, L.P.
By: Conn Funding II GP, L.L.C.,
its general partner
By:
------------------------------------
Authorized Officer
Attested to:
By:
---------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Notes referred to in the within mentioned
Series 2002-B Supplement.
WELLS FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, not in its individual
capacity, but solely as Trustee
By
-------------------------------------
Authorized Officer
B-3-5 Series 2002-B Supplement
[REVERSE OF NOTE]
This Class B Note is one of a duly authorized issue of Class B Notes
of the Issuer, designated as its 5.769% Asset Backed Fixed Rate Notes, Class B,
Series 2002-B (herein called the "Class B Notes"), all issued under the Series
2002-B Supplement to the Base Indenture dated as of September 1, 2002 (such Base
Indenture, as supplemented by the Series 2002-B Supplement and supplements
relating to other series of notes, as supplemented or amended, is herein called
the "Indenture"), between the Issuer and WELLS FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as trustee (the "Trustee", which term includes any successor
Trustee under the Indenture), to which Indenture reference is hereby made for a
statement of the respective rights and obligations thereunder of the Issuer, the
Trustee and the Class B Noteholders. The Class B Notes are subject to all terms
of the Indenture. All terms used in this Class B Note that are defined in the
Indenture shall have the meanings assigned to them in or pursuant to the
Indenture.
Principal of the Class B Notes will be payable on each Payment Date
after the end of the Revolving Period as described on the face hereof and may be
prepaid as set forth in the Indenture. "Payment Date" means the twentieth day of
each calendar month, or, if any such date is not a Business Day, the next
succeeding Business Day, commencing on October 21, 2002.
All principal payments on the Class B Notes shall be made pro rata to
the Class B Noteholders entitled thereto.
Subject to certain limitations set forth in the Indenture, payments of
interest on this Class B Note due and payable on each Payment Date, together
with the installment of principal, if any, to the extent not in full payment of
this Class B Note, shall be made by wire transfer in immediately available funds
to the Person whose name appears as the Class B Noteholder on the Note Register
as of the close of business on each Record Date without requiring that this
Class B Note be submitted for notation of payment. Any reduction in the
principal amount of this Class B Note effected by any payments made on any
Payment Date or date of prepayment shall be binding upon all future Class B
Noteholders and of any Class B Note issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof, whether or not noted on Schedule
A attached hereto. If funds are expected to be available, as provided in the
Indenture, for payment in full of the then remaining unpaid principal amount of
this Class B Note on a Payment Date, then the Trustee, in the name of and on
behalf of the Issuer, will notify the Person who was the Holder hereof as of the
Record Date preceding such Payment Date by notice mailed prior to such Payment
Date and the amount then due and payable shall be payable only upon presentation
and surrender of this Class B Note at the Trustee's principal Corporate Trust
Office or at the office of the Trustee's agent appointed for such purposes
located in the City of New York.
On any redemption, purchase, exchange or cancellation of any of the
beneficial interest represented by this Permanent Regulation S Global Note,
details of such redemption, purchase, exchange or cancellation shall be entered
by the Paying Agent in Schedule A hereto recording any such redemption,
purchase, exchange or cancellation and shall be signed by or on
B-3-6 Series 2002-B Supplement
behalf of the Issuer. Upon any such redemption, purchase, exchange or
cancellation, the principal amount of this Permanent Regulation S Global Note
and the beneficial interests represented by this Permanent Regulation S Global
Note shall be reduced or increased, as appropriate, by the principal amount so
redeemed, purchased, exchanged or cancelled.
Each Class B Noteholder, by acceptance of a Class B Note, covenants
and agrees that by accepting the benefits of the Indenture that such Class B
Noteholder will not prior to the date which is one year and one day after the
payment in full of the last maturing note of any Series and the termination of
the Indenture institute against the Issuer or join in any institution against
the Issuer of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings, under any United Stated federal
or state bankruptcy or similar law in connection with any obligations relating
to the Class B Notes, the Indenture or the Transaction Documents.
Each Class B Noteholder, by acceptance of a Class B Note, covenants
and agrees that by accepting the benefits of the Indenture that such Class B
Noteholder will treat such Class B Note as indebtedness for all federal, state
and local income and franchise tax purposes.
Prior to the due presentment for registration of transfer of this
Class B Note, the Issuer, the Trustee and any agent of the Issuer or the Trustee
may treat the Person in whose name this Class B Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Class B
Note be overdue, and neither the Issuer, the Trustee nor any such agent shall be
affected by notice to the contrary.
As provided in the Indenture, no recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer under the Indenture,
including this Class B Note, against any Seller, the Initial Seller the
Servicer, the Trustee or any partner, owner, incorporator, beneficiary,
beneficial owner, agent, officer, director, employee, shareholder or agent of
the Issuer, any Seller, the Initial Seller, the Servicer or the Trustee except
as any such Person may have expressly agreed.
The term "Issuer" as used in this Class B Note includes any successor
to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances,
to merge or consolidate, subject to the rights of the Trustee and the
Noteholders under the Indenture.
The Class B Notes are issuable only in registered form as provided in
the Indenture in denominations as provided in the Indenture, subject to certain
limitations therein set forth.
This Class B Note and the Indenture shall be construed in accordance
with the laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
B-3-7 Series 2002-B Supplement
No reference herein to the Indenture and no provision of this Class B
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Class B Note.
B-3-8 Series 2002-B Supplement
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto_________________________________
(name and address of assignee)
the within Class B Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ____________, attorney, to transfer said Class B Note
on the books kept for registration thereof, with full power of substitution in
the premises.
Dated: /6/
----------------------- ---------------------------
Signature Guaranteed:
________________________________________________________________________________
------------
- ----------
/6/ NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Class B Note in
every particular, without alteration, enlargement or any change whatsoever.
B-3-9 Series 2002-B Supplement
SCHEDULE A
SCHEDULE OF EXCHANGES
BETWEEN THIS PERMANENT REGULATION S
GLOBAL NOTE AND THE TEMPORARY REGULATION S GLOBAL NOTE AND
THE RESTRICTED GLOBAL NOTE,
OR REDEMPTIONS OR PURCHASES AND CANCELLATIONS
The following increases or decreases in the principal amount of this Permanent
Regulation S Global Note or redemptions, purchases or cancellation of this
Permanent Regulation S Global Note have been made:
- -----------------------------------------------------------------------------
Date of exchange, Increases or Remaining principal Notation made
or redemption or decreases in amount of this by or on
purchase or principal amount Permanent Regulation behalf of
cancellation of this Permanent S Global Note the Issuer
Regulation S Global following such
Note due to exchanges exchange, or
between the Temporary redemption or
Regulation S Global purchase or
Note or the cancellation
Restricted Global
Note and this
Permanent Regulation
S Global Note
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
B-3-10 Series 2002-B Supplement
EXHIBIT C-1
FORM OF
RESTRICTED GLOBAL NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY OTHER
JURISDICTION. THIS NOTE MAY BE RESOLD, PLEDGED OR TRANSFERRED ONLY (1) TO A
PERSON THE TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT ("RULE 144A")) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (2) OUTSIDE THE UNITED STATES TO A
NON-U.S. PERSON (AS SUCH TERM IS DEFINED IN REGULATION S UNDER THE SECURITIES
ACT) IN A TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT,
(3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR
(4) IN A TRANSACTION OTHERWISE EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES
AND ANY OTHER JURISDICTION AND BASED ON AN OPINION OF COUNSEL IF THE ISSUER OR
TRANSFER AGENT AND REGISTRAR SO REQUEST, IN EACH SUCH CASE, IN COMPLIANCE WITH
THE INDENTURE AND ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER JURISDICTION. THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY TRANSFEREE FROM IT OF THE RESALE RESTRICTIONS SET FORTH
ABOVE.
BY ACQUIRING THIS NOTE, EACH PURCHASER WILL BE DEEMED TO HAVE REPRESENTED,
WARRANTED AND COVENANTED EITHER THAT (A) IT IS NOT AN "EMPLOYEE BENEFIT PLAN"
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), A "PLAN" DESCRIBED IN SECTION
C-1-1 Series 2002-B Supplement
4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, AN ENTITY DEEMED TO
HOLD "PLAN ASSETS" OF ANY OF THE FOREGOING BY REASON OF INVESTMENT BY AN
"EMPLOYEE BENEFIT PLAN" OR "PLAN" IN SUCH ENTITY, OR A GOVERNMENTAL PLAN SUBJECT
TO APPLICABLE LAW THAT IS SUBSTANTIALLY SIMILAR TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA OR SECTION 4975 OF THE CODE OR (B) ITS PURCHASE AND HOLDING
OF THIS NOTE WILL NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA
OR SECTION 4975 OF THE CODE (OR, IN THE CASE OF A GOVERNMENTAL PLAN, ANY
SUBSTANTIALLY SIMILAR APPLICABLE LAW).
THE INDENTURE (AS DEFINED BELOW) CONTAINS FURTHER RESTRICTIONS ON THE TRANSFER
AND RESALE OF THIS NOTE. EACH TRANSFEREE OF THIS NOTE, BY ACCEPTANCE HEREOF, IS
DEEMED TO HAVE ACCEPTED THIS NOTE, SUBJECT TO THE FOREGOING RESTRICTIONS ON
TRANSFERABILITY. IN ADDITION, EACH TRANSFEREE OF THIS NOTE, BY ACCEPTANCE
HEREOF, IS DEEMED TO HAVE MADE THE REPRESENTATIONS AND AGREEMENTS SET FORTH IN
THE INDENTURE.
BY ACCEPTANCE HEREOF, THE HOLDER OF THIS NOTE AGREES TO THE TERMS AND CONDITIONS
SET FORTH IN THE INDENTURE AND HEREIN.
EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF THIS NOTE MAY
BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES
ACT PROVIDED BY RULE 144A THEREUNDER.
C-1-2 Series 2002-B Supplement
No. R144A-1 $22,222,000
CUSIP No. 207415 AC 4
ISIN US207415AC48
SEE REVERSE FOR CERTAIN DEFINITIONS
THE PRINCIPAL OF THIS CLASS C NOTE MAY BE PAYABLE IN INSTALLMENTS AS
SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS CLASS C
NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CONN FUNDING II, L.P.
8.180% ASSET BACKED FIXED RATE NOTES, CLASS C, SERIES 2002-B
Conn Funding II, L.P., a limited partnership organized and existing
under the laws of the State of Texas (herein referred to as the "Issuer"), for
value received, hereby promises to pay Cede & Co., or registered assigns, the
principal sum set forth above or such other principal sum set forth on Schedule
A attached hereto (which sum shall not exceed $22,222,000), payable on each
Payment Date after the end of the Revolving Period (as defined in the Series
2002-B Supplement) in an amount equal to the Monthly Principal, as defined in
Section 5.13 of the Series 2002-B Supplement, dated as of September 1, 2002 (as
amended, supplemented or otherwise modified from time to time, the "Series
2002-B Supplement"), between the Issuer and the Trustee to the Base Indenture
(described below); provided, however, that the entire unpaid principal amount of
this Note shall be due and payable on May 21, 2012 (the "Legal Final Payment
Date"). The Issuer will pay interest on this Class C Note at the Note Rate (as
defined in the Series 2002-B Supplement) on each Payment Date until the
principal of this Note is paid or made available for payment, on the average
daily outstanding principal balance of this Note during the related Interest
Period (as defined in the Series 2002-B Supplement). Interest will be computed
on the basis set forth in the Indenture. Such principal of and interest on this
Note shall be paid in the manner specified on the reverse hereof. The aggregate
principal sum of the Regulations S Global Notes and the Restricted Global Note
shall not exceed $22,222,000.
The Class C Notes are subject to optional redemption in accordance
with the Indenture on or after any Payment Date on which the Investor Interest
is reduced to an amount less than or equal to 10% of the Initial Note Principal.
The principal of and interest on this Class C Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts.
C-1-3 Series 2002-B Supplement
Reference is made to the further provisions of this Class C Note set
forth on the reverse hereof and to the Indenture, which shall have the same
effect as though fully set forth on the face of this Class C Note.
Unless the certificate of authentication hereon has been executed by
the Trustee whose name appears below by manual signature, this Class C Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
C-1-4 Series 2002-B Supplement
IN WITNESS WHEREOF, the Issuer, has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer as of the date set
forth below.
CONN FUNDING II, L.P.
By: Conn Funding II GP, L.L.C.,
its general partner
By:
------------------------------------
Authorized Officer
Attested to:
By:
--------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class C Notes referred to in the within mentioned
Series 2002-B Supplement.
WELLS FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, not in its individual
capacity, but solely as Trustee
By
--------------------------------------
Authorized Officer
C-1-5 Series 2002-B Supplement
[REVERSE OF NOTE]
This Class C Note is one of a duly authorized issue of Class C Notes
of the Issuer, designated as its 8.180% Asset Backed Fixed Rate Notes, Class C,
Series 2002-B (herein called the "Class C Notes"), all issued under the Series
2002-B Supplement to the Base Indenture dated as of September 1, 2002 (such Base
Indenture, as supplemented by the Series 2002-B Supplement and supplements
relating to other series of notes, as supplemented or amended, is herein called
the "Indenture"), between the Issuer and WELLS FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as trustee (the "Trustee," which term includes any successor
Trustee under the Indenture), to which Indenture reference is hereby made for a
statement of the respective rights and obligations thereunder of the Issuer, the
Trustee and the Class C Noteholders. The Class C Notes are subject to all terms
of the Indenture. All terms used in this Class C Note that are defined in the
Indenture shall have the meanings assigned to them in or pursuant to the
Indenture.
Principal of the Class C Notes will be payable on each Payment Date
after the end of the Revolving Period as described on the face hereof and may be
prepaid as set forth in the Indenture. "Payment Date" means the twentieth day of
each calendar month, or, if any such date is not a Business Day, the next
succeeding Business Day, commencing on October 21, 2002.
All principal payments on the Class C Notes shall be made pro rata to
the Class C Noteholders entitled thereto.
Subject to certain limitations set forth in the Indenture, payments of
interest on this Class C Note due and payable on each Payment Date, together
with the installment of principal, if any, to the extent not in full payment of
this Class C Note, shall be made by wire transfer in immediately available funds
to the Person whose name appears as the Class C Noteholder on the Note Register
as of the close of business on each Record Date without requiring that this
Class C Note be submitted for notation of payment. Any reduction in the
principal amount of this Class C Note effected by any payments made on any
Payment Date or date of prepayment shall be binding upon all future Class C
Noteholders and of any Class C Note issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof, whether or not noted on Schedule
A attached hereto. If funds are expected to be available, as provided in the
Indenture, for payment in full of the then remaining unpaid principal amount of
this Class C Note on a Payment Date, then the Trustee, in the name of and on
behalf of the Issuer, will notify the Person who was the Holder hereof as of the
Record Date preceding such Payment Date by notice mailed prior to such Payment
Date and the amount then due and payable shall be payable only upon presentation
and surrender of this Class C Note at the Trustee's principal Corporate Trust
Office or at the office of the Trustee's agent appointed for such purposes
located in the City of New York.
On any redemption, purchase, exchange or cancellation of any of the
beneficial interests represented by this Restricted Global Note, details of such
redemption, purchase, exchange or cancellation shall be entered by the Paying
Agent in Schedule A hereto recording any such redemption, purchase, exchange or
cancellation. Upon any such redemption, purchase, exchange
C-1-6 Series 2002-B Supplement
or cancellation, the principal amount of this Restricted Global Note and the
beneficial interests represented by the Restricted Global Note shall be reduced
or increased, as appropriate, by the principal amount so redeemed, purchased,
exchanged or cancelled.
Each Class C Noteholder, by acceptance of a Class C Note, covenants
and agrees that by accepting the benefits of the Indenture that such Class C
Noteholder will not prior to the date which is one year and one day after the
payment in full of the last maturing note of any Series and the termination of
the Indenture institute against the Issuer or join in any institution against
the Issuer of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings, under any United States Federal
or state bankruptcy or similar law in connection with any obligations relating
to the Notes, the Indenture or the Transaction Documents.
Each Class C Noteholder, by acceptance of a Class C Note, covenants
and agrees that by accepting the benefits of the Indenture that such Class C
Noteholder will treat such Class C Note as indebtedness for all Federal, state
and local income and franchise tax purposes.
Prior to the due presentment for registration of transfer of this
Class C Note, the Issuer, the Trustee and any agent of the Issuer or the Trustee
may treat the Person in whose name this Class C Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Class C
Note be overdue, and neither the Issuer, the Trustee nor any such agent shall be
affected by notice to the contrary.
As provided in the Indenture, no recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer under the Indenture,
including this Class C Note, against any Seller, the Initial Seller, the
Servicer, the Trustee or any partner, owner, incorporator, beneficiary,
beneficial owner, agent, officer, director, employee, shareholder or agent of
the Issuer, any Seller, the Initial Seller, the Servicer or the Trustee except
as any such Person may have expressly agreed.
The term "Issuer" as used in this Class C Note includes any successor
to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances,
to merge or consolidate, subject to the rights of the Trustee and the Holders of
Notes under the Indenture.
The Class C Notes are issuable only in registered form as provided in
the Indenture in denominations as provided in the Indenture, subject to certain
limitations therein set forth.
This Class C Note and the Indenture shall be construed in accordance
with the laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
C-1-7 Series 2002-B Supplement
No reference herein to the Indenture and no provision of this Class C
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Class C Note.
C-1-8 Series 2002-B Supplement
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto ______________________________________
(name and address of assignee)
the within Class C Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ____________, attorney, to transfer said Class C Note
on the books kept for registration thereof, with full power of substitution in
the premises.
Dated: /7/
----------------------- ----------------------------------
Signature Guaranteed:
________________________________________________________________________________
------------
- ----------
/7/ NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Class B Note in
every particular, without alteration, enlargement or any change whatsoever.
C-1-9 Series 2002-B Supplement
SCHEDULE A
SCHEDULE OF EXCHANGES
BETWEEN THE TEMPORARY REGULATION S GLOBAL NOTE
OR THE PERMANENT REGULATION S GLOBAL NOTE AND
THIS RESTRICTED GLOBAL NOTE, OR REDEMPTIONS
OR PURCHASES AND CANCELLATIONS
The following increases or decreases in principal amount of this Restricted
Global Note or redemptions, purchases or cancellation of this Restricted Global
Note have been made:
- -----------------------------------------------------------------------------
Date of exchange, Increase or Remaining principal Notation made
or redemption or decrease in amount of this by or on
purchase or principal amount Restricted behalf of
cancellation of this Restricted Global Note the Issuer
Global Note due following such
to exchanges exchange, or
between the Temporary redemption or
Regulation S Global purchase or
Note or the cancellation
Permanent Regulation
S Global
Note and this
Restricted Global
Note
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- ----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
C-1-10 Series 2002-B Supplement
EXHIBIT C-2
FORM OF
TEMPORARY REGULATION S GLOBAL NOTE
THIS GLOBAL NOTE IS A TEMPORARY GLOBAL NOTE FOR PURPOSES OF REGULATION S
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"). NEITHER THIS TEMPORARY REGULATION S GLOBAL NOTE NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED
UNDER THE INDENTURE REFERRED TO BELOW.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT
OR THE SECURITIES LAWS OF ANY OTHER JURISDICTION. THIS NOTE MAY BE RESOLD,
PLEDGED OR TRANSFERRED ONLY (1) TO A PERSON THE TRANSFEROR REASONABLY BELIEVES
IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT ("RULE 144A")) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2)
OUTSIDE THE UNITED STATES TO A NON-U.S. PERSON (AS SUCH TERM IS DEFINED IN
REGULATION S UNDER THE SECURITIES ACT) IN A TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR (4) IN A TRANSACTION OTHERWISE EXEMPT FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER JURISDICTION AND BASED ON
AN OPINION OF COUNSEL IF THE ISSUER OR TRANSFER AGENT AND REGISTRAR SO REQUEST,
IN EACH SUCH CASE, IN COMPLIANCE WITH THE INDENTURE AND ALL APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER JURISDICTION. THE
HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY TRANSFEREE
FROM IT OF THE RESALE RESTRICTIONS SET FORTH ABOVE.
C-2-1 Series 2002-B Supplement
BY ACQUIRING THIS NOTE, EACH PURCHASER WILL BE DEEMED TO HAVE REPRESENTED,
WARRANTED AND COVENANTED EITHER THAT (A) IT IS NOT AN "EMPLOYEE BENEFIT PLAN"
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), A "PLAN" DESCRIBED IN SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED, AN ENTITY DEEMED TO HOLD "PLAN ASSETS" OF ANY OF THE
FOREGOING BY REASON OF INVESTMENT BY AN "EMPLOYEE BENEFIT PLAN" OR "PLAN" IN
SUCH ENTITY, OR A GOVERNMENTAL PLAN SUBJECT TO APPLICABLE LAW THAT IS
SUBSTANTIALLY SIMILAR TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR
SECTION 4975 OF THE CODE OR (B) ITS PURCHASE AND HOLDING OF THIS NOTE WILL NOT
RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE
CODE (OR, IN THE CASE OF A GOVERNMENTAL PLAN, ANY SUBSTANTIALLY SIMILAR
APPLICABLE LAW).
THE INDENTURE CONTAINS FURTHER RESTRICTIONS ON THE TRANSFER AND RESALE OF
THIS NOTE. EACH TRANSFEREE OF THIS NOTE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE
ACCEPTED THIS NOTE, SUBJECT TO THE FOREGOING RESTRICTIONS ON TRANSFERABILITY. IN
ADDITION, EACH TRANSFEREE OF THIS NOTE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE
MADE THE REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE INDENTURE.
BY ACCEPTANCE HEREOF, THE HOLDER OF THIS NOTE AGREES TO THE TERMS AND
CONDITIONS SET FORTH IN THE INDENTURE AND HEREIN.
C-2-2 Series 2002-B Supplement
No. TREGS-1 $22,222,000
CUSIP No. U20772 AC 0
ISIN USU20772AC03
SEE REVERSE FOR CERTAIN DEFINITIONS
THE PRINCIPAL OF THIS CLASS C NOTE MAY BE PAYABLE IN INSTALLMENTS AS
SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS CLASS C
NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CONN FUNDING II, L.P.
8.180% ASSET BACKED FIXED RATE NOTES, CLASS C, SERIES 2002-B
Conn Funding II, L.P., a limited partnership organized and existing
under the laws of the State of Texas (herein referred to as the "Issuer"), for
value received, hereby promises to pay Cede & Co., or registered assigns, the
principal sum set forth above or such other principal sum set forth on Schedule
A attached hereto (which sum shall not exceed $22,222,000), payable on each
Payment Date after the end of the Revolving Period (as defined in the Series
2002-B Supplement) in an amount equal to the Monthly Principal, as defined in
Section 5.13 of the Series 2002-B Supplement, dated as of September 1, 2002 (as
amended, supplemented or otherwise modified from time to time, the "Series
2002-B Supplement"), between the Issuer and the Trustee to the Base Indenture
(described below); provided, however, that the entire unpaid principal amount of
this Class C Note shall be due and payable on May 21, 2012 (the "Legal Final
Payment Date"). The Issuer will pay interest on this Class C Note on each
Payment Date at the Note Rate (as defined in the Series 2002-B Supplement) on
each Payment Date until the principal of this Class C Note is paid or made
available for payment, on the average daily outstanding principal balance of
this Class C Note during the related Interest Period (as defined in the Series
2002-B Supplement). Interest will be computed on the basis set forth in the
Indenture. Such principal of and interest on this Class C Note shall be paid in
the manner specified on the reverse hereof. The aggregate principal sum of the
Regulation S Global Notes and the Restricted Global Note shall not exceed
$22,222,000.
The Class C Notes are subject to optional redemption in accordance
with the Indenture on or after any Payment Date on which the Investor Interest
is reduced to an amount less than or equal to 10% of the Initial Note Principal.
The principal of and interest on this Class C Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts.
C-2-3 Series 2002-B Supplement
Reference is made to the further provisions of this Class C Note set
forth on the reverse hereof and to the Indenture, which shall have the same
effect as though fully set forth on the face of this Class C Note.
Unless the certificate of authentication hereon has been executed by
the Trustee whose name appears below by manual signature, this Class C Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
C-2-4 Series 2002-B Supplement
IN WITNESS WHEREOF, the Issuer, has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer as of the date set
forth below.
CONN FUNDING II, L.P.
By: Conn Funding II GP, L.L.C.,
its general partner
By:
---------------------------------
Authorized Officer
Attested to:
By:
----------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class C Notes referred to in the within mentioned
Series 2002-B Supplement.
WELLS FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, not in its
individual capacity, but solely as
Trustee
By
---------------------------------
Authorized Officer
C-2-5 Series 2002-B Supplement
[REVERSE OF NOTE]
This Class C Note is one of a duly authorized issue of Class C Notes
of the Issuer, designated as its 8.180% Asset Backed Fixed Rate Notes, Class C,
Series 2002-B (herein called the "Class C Notes"), all issued under the Series
2002-B Supplement to the Base Indenture dated as of September 1, 2002 (such Base
Indenture, as supplemented by the Series 2002-B Supplement and supplements
relating to other series of notes, as supplemented or amended, is herein called
the "Indenture"), between the Issuer and WELLS FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as trustee (the "Trustee", which term includes any successor
Trustee under the Indenture), to which Indenture reference is hereby made for a
statement of the respective rights and obligations thereunder of the Issuer, the
Trustee and the Holders of the Class C Notes. The Class C Notes are subject to
all terms of the Indenture. All terms used in this Class C Note that are defined
in the Indenture shall have the meanings assigned to them in or pursuant to the
Indenture.
Principal of the Class C Notes will be payable on each Payment Date
after the end of the Revolving Period as described on the face hereof and may be
prepaid as set forth in the Indenture. "Payment Date" means the twentieth day of
each calendar month, or, if any such date is not a Business Day, the next
succeeding Business Day, commencing on October 21, 2002.
All principal payments on the Class C Notes shall be made pro rata to
the Class C Noteholders entitled thereto.
Subject to certain limitations set forth in the Indenture, payments of
interest on this Class C Note due and payable on each Payment Date, together
with the installment of principal, if any, to the extent not in full payment of
this Class C Note, shall be made by wire transfer in immediately available funds
to the Person whose name appears as the Class C Noteholder on the Note Register
as of the close of business on each Record Date without requiring that this
Class C Note be submitted for notation of payment. Any reduction in the
principal amount of this Class C Note effected by any payments made on any
Payment Date or date of prepayment shall be binding upon all future Class C
Noteholders and of any Class C Note issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof, whether or not noted on Schedule
A attached hereto. If funds are expected to be available, as provided in the
Indenture, for payment in full of the then remaining unpaid principal amount of
this Class C Note on a Payment Date, then the Trustee, in the name of and on
behalf of the Issuer, will notify the Person who was the Holder hereof as of the
Record Date preceding such Payment Date by notice mailed prior to such Payment
Date and the amount then due and payable shall be payable only upon presentation
and surrender of this Class C Note at the Trustee's principal Corporate Trust
Office or at the office of the Trustee's agent appointed for such purposes
located in the City of New York.
Any interest in a Class C Note evidenced by this Temporary Regulation
S Global Note is exchangeable for an interest in a Permanent Regulation S Global
Note upon the later of (i) the Exchange Date and (ii) the furnishing of a
certificate, the form of which is attached as Exhibit C-2 to the Series 2002-B
Supplement. Interests in this Temporary Regulation S Global Note are
C-2-6 Series 2002-B Supplement
exchangeable for interests in a Permanent Regulation S Global Note or a
Restricted Global Note only upon presentation of the applicable certificate
required by Section 6 of the Series 2002-B Supplement to the Base Indenture.
Upon exchange of all interests in this Temporary Regulation S Global Note for
interests in the Permanent Regulation S Global Note and/or the Restricted Global
Note, the Trustee shall cancel this Temporary Regulation S Global Note.
Until the provision of the certifications required by Section 6 of the
Series 2002-B Supplement, beneficial interests in a Regulation S Global Note may
only be held through Euroclear or Clearstream or another agent member of
Euroclear or Clearstream acting for and on behalf of them.
On any redemption, purchase, exchange or cancellation of any of the
beneficial interests represented by this Temporary Regulation S Global Note,
details of such redemption, purchase, exchange or cancellation shall be entered
by the Paying Agent in Schedule A hereto recording any such redemption,
purchase, exchange or cancellation and shall be signed on by or on behalf of the
Issuer. Upon any such redemption, purchase, exchange or cancellation, the
principal amount of this Temporary Regulation S Global Note and the beneficial
interests represented by the Permanent Regulation S Global Note shall be reduced
or increased, as appropriate, by the principal amount so redeemed, purchased,
exchanged or cancelled.
Each Class C Noteholder, by acceptance of a Class C Note, covenants
and agrees that by accepting the benefits of the Indenture that such Class C
Noteholder will not prior to the date which is one year and one day after the
payment in full of the last maturing note of any Series and the termination of
the Indenture institute against the Issuer or join in any institution against
the Issuer of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings, under any United Stated Federal
or state bankruptcy or similar law in connection with any obligations relating
to the Class C Notes, the Indenture or the Transaction Documents.
Each Class C Noteholder, by acceptance of a Class C Note, covenants
and agrees that by accepting the benefits of the Indenture that such Class C
Noteholder will treat such Class C Note as indebtedness for all federal, state
and local income and franchise tax purposes.
Prior to the due presentment for registration of transfer of this
Class C Note, the Issuer, the Trustee and any agent of the Issuer or the Trustee
may treat the Person in whose name this Class C Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Class C
Note be overdue, and neither the Issuer, the Trustee nor any such agent shall be
affected by notice to the contrary.
As provided in the Indenture, no recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer under the Indenture,
including this Class C Note, against any Seller, the Initial Seller, the
Servicer, the Trustee or any partner, owner, incorporator, beneficiary,
C-2-7 Series 2002-B Supplement
beneficial owner, agent, officer, director, employee, shareholder or agent of
the Issuer, any Seller, the Initial Seller, the Servicer or the Trustee except
as any such Person may have expressly agreed.
The term "Issuer" as used in this Class C Note includes any successor
to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances,
to merge or consolidate, subject to the rights of the Trustee and the Class C
Noteholders under the Indenture.
The Class C Notes are issuable only in registered form as provided in
the Indenture in denominations as provided in the Indenture, subject to certain
limitations therein set forth.
This Class C Note and the Indenture shall be construed in accordance
with the laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Class C
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Class C Note.
C-2-8 Series 2002-B Supplement
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto ___________________________
(name and address of assignee)
the within Class C Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ____________, attorney, to transfer said Class C Note
on the books kept for registration thereof, with full power of substitution in
the premises.
Dated: /8/
-------------------- ---------------------------------
Signature Guaranteed:
________________________________________________________________________________
------------
- ----------
/8/ NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Class C Note in
every particular, without alteration, enlargement or any change whatsoever.
C-2-9 Series 2002-B Supplement
SCHEDULE A
SCHEDULE OF EXCHANGES
FOR NOTES REPRESENTED BY THE TEMPORARY
REGULATION S GLOBAL NOTE, THE PERMANENT REGULATION S GLOBAL
NOTE OR THE RESTRICTED GLOBAL NOTE, OR REDEMPTIONS OR
PURCHASES AND CANCELLATIONS
The following exchanges of a part of this Temporary Regulation S Global Note for
the Permanent Regulation S Global Note or the Restricted Global Note or an
exchange of a part of the Restricted Global Note for a part of this Temporary
Regulation S Global Note, in whole or in part, or redemptions, purchases or
cancellation of this Temporary Regulation S Global Note have been made:
- -----------------------------------------------------------------------------------------------------------------------
Date of exchange, Part of principal Part of principal Remaining Amount of interest Notation made by or
or redemption or amount of this amount of the principal amount paid with delivery on behalf of the
purchase or Temporary Regulation S Global of this Temporary of the Permanent Issuer
cancellation Regulation S Global Note exchanged for Regulation S Regulation S
Note exchanged for Notes represented Global Note Global Note
Notes represented by this Temporary following such
by the Permanent Regulation S Global exchange, or
Regulation S Global Note redemption or
Note or the purchase or
Restricted Global cancellation
Note, or redeemed
or purchased or
cancelled
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
C-2-10 Series 2002-B Supplement
EXHIBIT C-3
FORM OF
PERMANENT REGULATION S GLOBAL NOTE
THIS GLOBAL NOTE IS A PERMANENT GLOBAL NOTE FOR PURPOSES OF REGULATION S
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"). NEITHER THIS PERMANENT GLOBAL NOTE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE
INDENTURE REFERRED TO BELOW.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT
OR THE SECURITIES LAWS OF ANY OTHER JURISDICTION. THIS NOTE MAY BE RESOLD,
PLEDGED OR TRANSFERRED ONLY (1) TO A PERSON THE TRANSFEROR REASONABLY BELIEVES
IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT ("RULE 144A")) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2)
OUTSIDE THE UNITED STATES TO A NON-U.S. PERSON (AS SUCH TERM IS DEFINED IN
REGULATION S UNDER THE SECURITIES ACT) IN A TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR (4) IN A TRANSACTION OTHERWISE EXEMPT FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER JURISDICTION AND BASED ON
AN OPINION OF COUNSEL IF THE ISSUER OR TRANSFER AGENT AND REGISTRAR SO REQUEST,
IN EACH SUCH CASE, IN COMPLIANCE WITH THE INDENTURE AND ALL APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER JURISDICTION. THE
HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY TRANSFEREE
FROM IT OF THE RESALE RESTRICTIONS SET FORTH ABOVE.
C-3-1 Series 2002-B Supplement
BY ACQUIRING THIS NOTE, EACH PURCHASER WILL BE DEEMED TO HAVE REPRESENTED,
WARRANTED AND COVENANTED EITHER THAT (A) IT IS NOT AN "EMPLOYEE BENEFIT PLAN"
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), A "PLAN" DESCRIBED IN SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED, AN ENTITY DEEMED TO HOLD "PLAN ASSETS" OF ANY OF THE
FOREGOING BY REASON OF INVESTMENT BY AN "EMPLOYEE BENEFIT PLAN" OR "PLAN" IN
SUCH ENTITY, OR A GOVERNMENTAL PLAN SUBJECT TO APPLICABLE LAW THAT IS
SUBSTANTIALLY SIMILAR TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR
SECTION 4975 OF THE CODE OR (B) ITS PURCHASE AND HOLDING OF THIS NOTE WILL NOT
RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE
CODE (OR, IN THE CASE OF A GOVERNMENTAL PLAN, ANY SUBSTANTIALLY SIMILAR
APPLICABLE LAW).
THE INDENTURE CONTAINS FURTHER RESTRICTIONS ON THE TRANSFER AND RESALE OF
THIS NOTE. EACH TRANSFEREE OF THIS NOTE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE
ACCEPTED THIS NOTE, SUBJECT TO THE FOREGOING RESTRICTIONS ON TRANSFERABILITY. IN
ADDITION, EACH TRANSFEREE OF THIS NOTE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE
MADE THE REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE INDENTURE.
BY ACCEPTANCE HEREOF, THE HOLDER OF THIS NOTE AGREES TO THE TERMS AND
CONDITIONS SET FORTH IN THE INDENTURE AND HEREIN.
C-3-2 Series 2002-B Supplement
No. REGS-1 $22,222,000
CUSIP No. US0772 AC 0
ISIN USU20772AC03
SEE REVERSE FOR CERTAIN DEFINITIONS
THE PRINCIPAL OF THIS CLASS C NOTE MAY BE PAYABLE IN INSTALLMENTS AS
SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS CLASS C
NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CONN FUNDING II, L.P.
8.180% ASSET BACKED FIXED RATE NOTES, CLASS C, SERIES 2002-B
Conn Funding II, L.P., a limited partnership organized and existing
under the laws of the State of Texas (herein referred to as the "Issuer"), for
value received, hereby promises to pay Cede & Co., or registered assigns, the
principal sum set forth above or such other principal amount set forth on
Schedule A attached hereto (which sum shall not exceed $22,222,000), payable on
each Payment Date after the end of the Revolving Period (as defined in the
Series 2002-B Supplement) in an amount equal to the Monthly Principal, as
defined in Section 5.13 of the Series 2002-B Supplement, dated as of September
1, 2002 (as amended, supplemented or otherwise modified from time to time, the
"Series 2002-B Supplement"), between the Issuer and the Trustee to the Base
Indenture (described below); provided, however, that the entire unpaid principal
amount of this Class C Note shall be due and payable on May 21, 2012 (the "Legal
Final Payment Date"). The Issuer will pay interest on this Class C Note on each
Payment Date at the Note Rate (as defined in the Series 2002-B Supplement) on
each Payment Date until the principal of this Class C Note is paid or made
available for payment, on the average daily outstanding principal balance of
this Class C Note during the related Interest Period (as defined in the Series
2002-B Supplement). Interest will be computed on the basis set forth in the
Indenture. Such principal of and interest on this Class C Note shall be paid in
the manner specified on the reverse hereof. The aggregate principal sum of the
Regulation S Global Notes and the Restricted Global Note shall not exceed
$22,222,000.
The Class C Notes are subject to optional redemption in accordance
with the Indenture on or after any Payment Date on which the Investor Interest
is reduced to an amount less than or equal to 10% of the Initial Note Principal.
The principal of and interest on this Class C Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts.
C-3-3 Series 2002-B Supplement
Reference is made to the further provisions of this Class C Note set
forth on the reverse hereof and to the Indenture, which shall have the same
effect as though fully set forth on the face of this Class C Note.
Unless the certificate of authentication hereon has been executed by
the Trustee whose name appears below by manual signature, this Class C Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
C-3-4 Series 2002-B Supplement
IN WITNESS WHEREOF, the Issuer, has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer as of the date set
forth below.
CONN FUNDING II, L.P.
By: Conn Funding II GP, L.L.C.,
its general partner
By:
---------------------------------
Authorized Officer
Attested to:
By:
------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class C Notes referred to in the within mentioned
Series 2002-B Supplement.
WELLS FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, not in its
individual capacity, but solely as
Trustee
By
-------------------------------
Authorized Officer
C-3-5 Series 2002-B Supplement
[REVERSE OF NOTE]
This Class C Note is one of a duly authorized issue of Class C Notes
of the Issuer, designated as its 8.180% Asset Backed Fixed Rate Notes, Class C,
Series 2002-B (herein called the "Class C Notes"), all issued under the Series
2002-B Supplement to the Base Indenture dated as of September 1, 2002 (such Base
Indenture, as supplemented by the Series 2002-B Supplement and supplements
relating to other series of notes, as supplemented or amended, is herein called
the "Indenture"), between the Issuer and WELLS FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as trustee (the "Trustee", which term includes any successor
Trustee under the Indenture), to which Indenture reference is hereby made for a
statement of the respective rights and obligations thereunder of the Issuer, the
Trustee and the Class C Noteholders. The Class C Notes are subject to all terms
of the Indenture. All terms used in this Class C Note that are defined in the
Indenture shall have the meanings assigned to them in or pursuant to the
Indenture.
Principal of the Class C Notes will be payable on each Payment Date
after the end of the Revolving Period as described on the face hereof and may be
prepaid as set forth in the Indenture. "Payment Date" means the twentieth day of
each calendar month, or, if any such date is not a Business Day, the next
succeeding Business Day, commencing on October 21, 2002.
All principal payments on the Class C Notes shall be made pro rata to
the Class C Noteholders entitled thereto.
Subject to certain limitations set forth in the Indenture, payments of
interest on this Class C Note due and payable on each Payment Date, together
with the installment of principal, if any, to the extent not in full payment of
this Class C Note, shall be made by wire transfer in immediately available funds
to the Person whose name appears as the Class C Noteholder on the Note Register
as of the close of business on each Record Date without requiring that this
Class C Note be submitted for notation of payment. Any reduction in the
principal amount of this Class C Note effected by any payments made on any
Payment Date or date of prepayment shall be binding upon all future Class C
Noteholders and of any Class C Note issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof, whether or not noted on Schedule
A attached hereto. If funds are expected to be available, as provided in the
Indenture, for payment in full of the then remaining unpaid principal amount of
this Class C Note on a Payment Date, then the Trustee, in the name of and on
behalf of the Issuer, will notify the Person who was the Holder hereof as of the
Record Date preceding such Payment Date by notice mailed prior to such Payment
Date and the amount then due and payable shall be payable only upon presentation
and surrender of this Class C Note at the Trustee's principal Corporate Trust
Office or at the office of the Trustee's agent appointed for such purposes
located in the City of New York.
On any redemption, purchase, exchange or cancellation of any of the
beneficial interest represented by this Permanent Regulation S Global Note,
details of such redemption, purchase, exchange or cancellation shall be entered
by the Paying Agent in Schedule A hereto recording any such redemption,
purchase, exchange or cancellation and shall be signed by or on
C-3-6 Series 2002-B Supplement
behalf of the Issuer. Upon any such redemption, purchase, exchange or
cancellation, the principal amount of this Permanent Regulation S Global Note
and the beneficial interests represented by this Permanent Regulation S Global
Note shall be reduced or increased, as appropriate, by the principal amount so
redeemed, purchased, exchanged or cancelled.
Each Class C Noteholder, by acceptance of a Class C Note, covenants
and agrees that by accepting the benefits of the Indenture that such Class C
Noteholder will not prior to the date which is one year and one day after the
payment in full of the last maturing note of any Series and the termination of
the Indenture institute against the Issuer or join in any institution against
the Issuer of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings, under any United Stated federal
or state bankruptcy or similar law in connection with any obligations relating
to the Class C Notes, the Indenture or the Transaction Documents.
Each Class C Noteholder, by acceptance of a Class C Note, covenants
and agrees that by accepting the benefits of the Indenture that such Class C
Noteholder will treat such Class C Note as indebtedness for all federal, state
and local income and franchise tax purposes.
Prior to the due presentment for registration of transfer of this
Class C Note, the Issuer, the Trustee and any agent of the Issuer or the Trustee
may treat the Person in whose name this Class C Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Class C
Note be overdue, and neither the Issuer, the Trustee nor any such agent shall be
affected by notice to the contrary.
As provided in the Indenture, no recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer under the Indenture,
including this Class C Note, against any Seller, the Initial Seller, the
Servicer, the Trustee or any partner, owner, incorporator, beneficiary,
beneficial owner, agent, officer, director, employee, shareholder or agent of
the Issuer, any Seller, the Initial Seller, the Servicer or the Trustee except
as any such Person may have expressly agreed.
The term "Issuer" as used in this Class C Note includes any successor
to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances,
to merge or consolidate, subject to the rights of the Trustee and the
Noteholders under the Indenture.
The Class C Notes are issuable only in registered form as provided in
the Indenture in denominations as provided in the Indenture, subject to certain
limitations therein set forth.
This Class C Note and the Indenture shall be construed in accordance
with the laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
C-3-7 Series 2002-B Supplement
No reference herein to the Indenture and no provision of this Class C
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Class C Note.
C-3-8 Series 2002-B Supplement
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________
(name and address of assignee)
the within Class C Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ____________, attorney, to transfer said Class C Note
on the books kept for registration thereof, with full power of substitution in
the premises.
Dated: /9/
-------------------- ---------------------------------
Signature Guaranteed:
________________________________________________________________________________
------------
- ----------
/9/ NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Class C Note in
every particular, without alteration, enlargement or any change whatsoever.
C-3-9 Series 2002-B Supplement
SCHEDULE A
SCHEDULE OF EXCHANGES
BETWEEN THIS PERMANENT REGULATION S
GLOBAL NOTE AND THE TEMPORARY REGULATION S GLOBAL NOTE AND
THE RESTRICTED GLOBAL NOTE,
OR REDEMPTIONS OR PURCHASES AND CANCELLATIONS
The following increases or decreases in the principal amount of this Permanent
Regulation S Global Note or redemptions, purchases or cancellation of this
Permanent Regulation S Global Note have been made:
- ---------------------------------------------------------------------------------------------
Date of exchange, or Increases or Remaining principal Notation made by or
redemption or purchase decreases in amount of this on behalf of the
or cancellation principal amount of Permanent Regulation Issuer
this Permanent S Global Note
Regulation S Global following such
Note due to exchanges exchange, or
between the Temporary redemption or
Regulation S Global purchase or
Note or the cancellation
Restricted Global
Note and this
Permanent Regulation
S Global Note
- ---------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------
C-3-10 Series 2002-B Supplement
EXHIBIT D
FORM OF MONTHLY NOTEHOLDERS' STATEMENT
D-1 Series 2002-B Supplement
[Monthly Report to Noteholders Appears Here]
EXHIBIT E-1
FORM OF TRANSFER CERTIFICATE
To: Wells Fargo Bank Minnesota, National Association,
as Trustee and Registration and Transfer Agent
MAC N9311-161
6/th/ and Marquette
Minneapolis, Minnesota 55479-0700
Attention: Corporate Trust Services/Asset-Backed Administration
Re: Conn Funding II, L.P.-[__]% Asset Backed
Fixed Rate Notes, Class [__], Series 2002-B (CUSIP No. [_________])
This Certificate relates to $_____________ principal amount of
Class [__] Notes held in
[ ] book-entry or
[ ] definitive form
by ____________________ (the "Transferor") issued pursuant to the Base
Indenture, dated as of September 1, 2002, between Conn Funding II, L.P., as
Issuer, and Wells Fargo Bank Minnesota, National Association, as Trustee (as
amended, supplemented or otherwise modified from time to time, the "Base
Indenture") and the Series 2002-B Supplement thereto, dated as of September 1,
2002 (as amended, supplemented or otherwise modified from time to time, the
"Series Supplement" and, together with the Base Indenture, the "Indenture").
Capitalized terms used herein and not otherwise defined, shall have the meanings
given thereto in the Indenture.
The Transferor has requested the Trustee by written order to
exchange or register the transfer of a Note or Notes.
In connection with such request and in respect of each such Note,
the Transferor does hereby certify as follows:
[ ] Such Note is being acquired for its own account.
[ ] Such Note is being transferred pursuant to and in accordance
with Rule 144A under the Securities Act, and, accordingly, the Transferor
further certifies that the Series 2002-B Notes are being transferred to a Person
that the Transferor reasonably believes is purchasing the Series 2002-B Notes
for its own account, or for an account with respect to which such Person
exercises sole investment discretion, and such Person and such account is a
"qualified institutional
E-1-1 Series 2002-B Supplement
buyer" within the meaning of Rule 144A in a transaction meeting the requirements
of Rule 144A; or (ii) pursuant to an exemption from registration in accordance
with Regulation S under the Securities Act.
[ ] Such Note is being transferred in reliance on and in
compliance with an exemption from the registration requirements of the
Securities Act, other than Rule 144A or Regulation S under the Securities Act,
and in compliance with other applicable state and federal securities laws and,
if requested by the Trustee, an opinion of counsel is being furnished
simultaneously with the delivery of this Certificate as required under Section 6
of the Series Supplement. This Certificate and the statements contained therein
are made for your benefit and the benefit of the Issuer.
[INSERT NAME OF TRANSFEROR]
By:
------------------------------------
Name:
Title:
Date:
E-1-2 Series 2002-B Supplement
EXHIBIT E-2
FORM OF CERTIFICATE TO BE DELIVERED TO
EXCHANGE TEMPORARY REGULATION S GLOBAL NOTE
FOR PERMANENT REGULATION S GLOBAL NOTE
--------------------------------------
Conn Funding II, L.P.
3295 College Street
Beaumont, Texas 77701
Attn: David Atnip
Wells Fargo Bank Minnesota, National Association,
as Trustee and Registration and Transfer Agent
MAC N9311-161
6/th/ and Marquette
Minneapolis, Minnesota 55479-0700
Attention: Corporate Trust Services/Asset-Backed Administration
Reference is hereby made to the Base Indenture, dated as of September 1,
2002, between Conn Funding II, L.P., as Issuer, and Wells Fargo Bank Minnesota,
National Association, as Trustee (as amended, supplemented otherwise modified
from time to time, the "Base Indenture") and the Series 2002-B Supplement
thereto, dated as of September 1, 2002 (as amended, supplemented or otherwise
modified from time to time, the "Series Supplement" and, together with the Base
Indenture, the "Indenture"). Capitalized terms used but not defined herein shall
have the meanings given to them in the Base Indenture.
This is to certify that, based solely on certificates, we have received in
writing, by tested telex or by electronic transmissions from noteholders
appearing in our records as persons being entitled to a portion of the principal
amount of the Class [__] Notes represented by the Temporary Regulation S Note
equal to, as of the date hereof, U.S. $_______ (our "Class [__] Noteholders"),
certificates with respect to such portion, substantially to the effect set forth
in Exhibit [__] hereto.
We further certify (i) that we are not making available herewith for
exchange any portion of the Temporary Regulation S Global Note excepted in such
certificates and (ii) that as of the date hereof we have not received any
notification from any of our Class [__] Noteholders to the effect that the
statements made by such Class [__] Noteholder with respect to any portion of the
part submitted herewith for exchange are no longer true and cannot be relied
upon as at the date hereof. We understand that this certification is required in
connection with certain securities laws of the United
E-2-1 Series 2002-B Supplement
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certificate is or would be
relevant, we irrevocably authorize you to produce this certification to any
interested party in such proceedings.
E-2-2 Series 2002-B Supplement
Dated: _______________, [_______]/10/
Yours faithfully,
[Euroclear/Clearstream],
By:
------------------------------------
Name:
Title:
- ----------
/10/ To be dated no earlier than the earliest of the Exchange Date or the
relevant Interest Payment Date or the redemption date (as the case may
be).
E-2-3 Series 2002-B Supplement
EXHIBIT A
---------
[Euroclear/Clearstream]
Re: Conn Funding II, L.P. --[__]% Asset Backed
Fixed Rate Notes, Class [__], Series 2002-B (CUSIP
(CINS) No. [______])
Ladies and Gentlemen:
Reference is hereby made to the Base Indenture, dated as of September
1, 2002 (as amended, supplemented or otherwise modified from time to time, the
"Base Indenture"), between Conn Funding II, L.P. (the "Issuer") and Wells Fargo
Bank Minnesota, National Association, as Trustee and the Series 2002-B
Supplement thereto, dated as of September 1, 2002 (as amended, supplemented or
otherwise modified from time to time, the "Series Supplement" and, together with
the Base Indenture, the "Indenture"). Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.
This letter relates to $______ principal amount of Class [___] Notes which
are represented by a beneficial interest in the Temporary Regulation S Global
Note held with [Euroclear/Clearstream] (ISIN CODE [_____]) through DTC by or on
behalf of the undersigned as beneficial owner (the "Holder") which bears a
legend outlining restrictions upon transfer of such interests in such Class
[___] Note. Pursuant to paragraph 6(c)(ii) of the Series Supplement, the Holder
hereby certifies that it is not (or it holds such securities on behalf of an
account that is not) a "U.S. person" as such term is defined in Regulation S
promulgated under the U.S. Securities Act of 1933, as amended ("Regulation S").
Accordingly, you are hereby requested to exchange such beneficial interest in
the Temporary Regulation S Global Note for a beneficial interest in the
Permanent Regulation S Global Note representing an identical principal amount of
Class [___] Notes, all in the manner provided for in the Series Supplement.
E-2-4 Series 2002-B Supplement
Each of you is entitled to rely upon this letter and is irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby. Terms used in this certificate have the meanings set
forth in Regulation S.
Very truly yours,
[NAME OF HOLDER]
By:
------------------------------------
Authorized Signature
Dated: _______________, [_______]
E-2-5 Series 2002-B Supplement
EXHIBIT E-3
FORM OF TRANSFER CERTIFICATE
FOR TRANSFER OR EXCHANGE FROM RESTRICTED GLOBAL
NOTE TO TEMPORARY REGULATION S GLOBAL NOTE
------------------------------------------
(exchanges or transfers pursuant to
Section 6 of the Series Supplement)
Wells Fargo Bank Minnesota, National Association,
as Trustee and Registration and Transfer Agent
MAC N9311-161
6/th/ and Marquette
Minneapolis, Minnesota 55479-0700
Attention: Corporate Trust Services/Asset-Backed Administration
Re: Conn Funding II, L.P. (the "Issuer")
[__]% Asset Backed Fixed Rate
Notes, Class [__], Series 2002-B (CUSIP No. [_______])
(the "Notes")
Reference is hereby made to the 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 Minnesota, National
Association, as Trustee and the Series 2002-B Supplement thereto, dated as of
September 1, 2002 (as amended, supplemented or otherwise modified from time to
time, the "Series Supplement" and, together with the Base Indenture, the
"Indenture"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
This letter relates to $_______ principal amount of the Class [__]
Notes represented by a beneficial interest in the Restricted Global Note held
with DTC by or on behalf of the undersigned as beneficial owner (the
"Transferor"). The Transferor has requested an exchange or transfer of its
beneficial interest for an interest in the Temporary Regulation S Global Series
2002-B Note (CUSIP (CINS) No. [____________]) to be held with [Euroclear]
[Clearstream] (ISIN Code [_______]) through DTC.
In connection with such request and in respect of such Class [__]
Note, the Transferor does hereby certify that such exchange or transfer has been
effected in accordance with the transfer restrictions set forth in the Class
[__] Notes and the Series Supplement and pursuant to and in accordance with
Regulation S and any applicable laws of the relevant jurisdiction, and
accordingly the Transferor does hereby certify that:
(1) the offer of the Class [__] Notes was not made to a person in the
United States;
E-3-1 Series 2002-B Supplement
(2) (A) at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person
acting on its behalf reasonably believed and believes that
the transferee was outside the United States, or
(B) the transaction was executed in, on or through the
facilities of a designated offshore securities market and
neither the Transferor nor any person acting on its behalf
knows that the transaction was prearranged with a buyer in
the United States;
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) upon completion of the transaction, the beneficial interest being
transferred as described above will be held with DTC through Euroclear or
Clearstream or both (ISIN Code [__________]).
This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuer.
[Insert Name of Transferor]
By:
------------------------------------
Name:
Title:
Dated: _______________, 2002
E-3-2 Series 2002-B Supplement
EXHIBIT E-4
FORM OF TRANSFER CERTIFICATE
FOR TRANSFER OR EXCHANGE FROM RESTRICTED GLOBAL
NOTE TO PERMANENT REGULATION S GLOBAL NOTE
------------------------------------------
(exchanges or transfers pursuant to
Section 6 of the Series Supplement)
Wells Fargo Bank Minnesota, National Association,
as Trustee and Registration and Transfer Agent
MAC N9311-161
6/th/ and Marquette
Minneapolis, Minnesota 55479-0700
Attention: Corporate Trust Services/Asset-Backed Administration
Re: Conn Funding II, L.P. (the "Issuer")
[__]% Asset Backed Fixed Rate
Notes, Class [__], Series 2002-B (CUSIP No. [____])
(the "Notes")
Reference is hereby made to the 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 Minnesota, National
Association, as Trustee and the Series 2002-B Supplement thereto, dated as of
September 1, 2002 (as amended, supplemented or otherwise modified from time to
time, the "Series Supplement" and, together with the Base Indenture, the
"Indenture"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
This letter relates to $_______ principal amount of the Class [__] Notes
represented by a beneficial interest in the Restricted Global Note held with DTC
by or on behalf of the undersigned as beneficial owner (the "Transferor"). The
Transferor has requested an exchange or transfer of its beneficial interest for
an interest in the Permanent Regulation S Global Note (CUSIP (CINS) No.
[_________]).
In connection with such request and in respect of such Class [__] Notes,
the Transferor does hereby certify that such exchange or transfer has been
effected in accordance with the transfer restrictions set forth in the Class
[___] Notes and the Series Supplement and pursuant to and in accordance with
Regulation S and any applicable securities laws of the relevant jurisdiction and
that:
(1) the offer of the Class [__] Notes was not made to a person in the
United States;
E-4-1 Series 2002-B Supplement
(2) (A) at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person
acting on its behalf reasonably believed and believes that
the transferee was outside the United States, or
(B) the transaction was executed in, on or through the
facilities of a designated offshore securities market and
neither the Transferor nor any person acting on its behalf
knows that the transaction was prearranged with a buyer in
the United States;
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable,
and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuer.
[INSERT NAME OF TRANSFEROR]
By:
------------------------------------
Name:
Title:
Dated: ________________, 2002
E-4-2 Series 2002-B Supplement
EXHIBIT E-5
FORM OF TRANSFER CERTIFICATE FOR TRANSFER OR
EXCHANGE FROM TEMPORARY REGULATION S GLOBAL NOTE
TO RESTRICTED GLOBAL NOTE
-------------------------
(exchanges or transfers pursuant to
Section 6 of the Series Supplement)
Wells Fargo Bank Minnesota, National Association,
as Trustee and Registration and Transfer Agent
MAC N9311-161
6/th/ and Marquette
Minneapolis, Minnesota 55479-0700
Attention: Corporate Trust Services/Asset-Backed Administration
Re: Conn Funding II, L.P. (the "Issuer")
[__]% Asset Backed Fixed Rate
Notes, Class [__], Series 2002-B (CUSIP No. [_____])
(the "Notes")
Reference is hereby made to the 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 Minnesota, National
Association, as Trustee and the Series 2002-B Supplement thereto dated as of
September 1, 2002 (as amended, supplemented or otherwise modified from time to
time, the "Series Supplement" and, together with the Base Indenture, the
"Indenture"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
This letter relates to $______ principal amount of Class [__] Notes which
are represented by a beneficial interest in the Permanent Regulation S Global
Note (CUSIP) (CINS) No. [________] with Euroclear/Clearstream/11/ (ISIN Code
[_________]) through DTC by or on behalf of [the undersigned] as beneficial
owner (the "Transferor"). The Transferor has requested an exchange or transfer
of its beneficial interest in the Temporary Regulation S Global Note for an
interest in the Restricted Global Note (CUSIP No. [____________]).
In connection with such request, and in respect of the Notes, the
Transferor does hereby certify that such Class [__] Notes are being transferred
in accordance with Rule 144A and in compliance with any applicable state
securities laws, to a transferee that the Transferor reasonably believes is
purchasing the Class [__] Note for its own account or an account with respect to
which the transferee exercises sole investment discretion and the transferee and
any such account is a
- ----------
/11/ Select appropriate depositary.
E-5-1 Series 2002-B Supplement
"qualified institutional buyer" within the meaning of Rule 144A, in each case in
a transaction meeting the requirements of Rule 144A.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuer.
[INSERT NAME OF TRANSFEROR]
By:
------------------------------------
Name:
Title:
Dated: _________________, 2002
E-5-2 Series 2002-B Supplement
SCHEDULE 1
LIST OF PROCEEDINGS
None.
Schedule 1-1 Series 2002-B Supplement
SCHEDULE 2
LIST OF TRADE NAMES
None.
Schedule 2-1 Series 2002-B Supplement