FIRST AMENDMENT (this "Amendment"), dated as of
November 26, 1997, to the CERTIFICATE PURCHASE AGREEMENT,
dated as of August 21, 1997 (the "Certificate Purchase
Agreement"), by and among Xxxxxxxx'x Credit Corporation,
a Nevada corporation (together with its successors and
permitted assigns, the "Transferor"), Xxxxxxxx'x, Inc., a
Tennessee corporation, as servicer (in such capacity, the
"Servicer"), Enterprise Funding Corporation, a Delaware
corporation (together with its successors and permitted
assigns, "EFC"), Receivables Capital Corporation, a Dela-
ware corporation (together with its successors and per-
mitted assigns, "RCC", and collectively with EFC, the
"Purchasers"), NationsBank, N.A., a national banking
association ("NationsBank"), as agent for the Senior
Class Conduits and the Bank Investors (in such capacity,
the "Agent"), as a Senior Class Agent and individually as
a Bank Investor, and Bank of America National Trust and
Savings Association, a national banking association
("Bank of America"), as a Senior Class Agent and individ-
ually as a Bank Investor.
WHEREAS, the Transferor, the Servicer, EFC,
RCC, NationsBank and Bank of America have heretofore exe-
cuted and delivered the Certificate Purchase Agreement;
WHEREAS, Section 6.2 of the Certificate Pur-
chase Agreement provides that the Transferor, the
Servicer, the Agent, each Senior Class Agent, each Senior
Class Conduit (prior to an assignment in whole by such
Senior Class Conduit of its interest in the related
Senior Class Certificate Principal Balance), and each
Bank Investor may amend the Certificate Purchase Agree-
ment; and
WHEREAS, all other conditions precedent to the
execution of this Amendment have been complied with;
NOW THEREFORE, the Transferor, the Servicer,
the Agent, each Senior Class Agent, each Senior Class
Conduit and each Bank Investor are executing and deliver-
ing this Amendment in order to amend the provisions of
the Certificate Purchase Agreement in the manner set
forth below.
Capitalized terms used herein as defined terms
but not defined herein shall have the meanings assigned
to them in the Certificate Purchase Agreement.
SECTION 1. Amendments.
(a) Section 1.1 of the Certificate Pur-
chase Agreement is hereby amended by deleting the refer-
ence to "$75,000,000" in clause (i) definition of Senior
Class Facility Limit and substituting therefor
"$100,000,000".
(b) Section 2.2(a) of the Certificate
Purchase Agreement is hereby amended to read in its
entirety as follows:
(a) Upon the terms and subject to
the conditions set forth herein and provided that
neither the Commitment Termination Date nor the
Termination Date (excluding, in the case of the Bank
Investors, a "Termination Date" occurring as a
result of clause (iv) or (v) of the definition of
"Termination Date") shall have occurred, (x) the
Transferor may, at its option, on any Business Day
during the Revolving Period, after delivery to the
Agent and each Senior Class Agent of an Additional
Investment Certificate (to be received by the Agent
and each Senior Class Agent not later than 1:00
P.M., New York City time, on the second Business Day
prior to the Business Day on which the proposed in-
crease in the Senior Class Investor Amount is to
occur), convey, transfer and assign to the Senior
Class Conduits or the Bank Investors, as applicable,
and (y) the Senior Class Conduits may, at their
respective option, or the Bank Investors shall, if
the related Senior Class Conduit has assigned its
interest in the Senior Class Certificate Principal
Balance in whole to the related Bank Investors and
if so requested under subsection 2.2(b), accept such
conveyance, transfer and assignment from the Trans-
feror of, without recourse except as provided herein
and in the other Transaction Documents, an addition-
al undivided interest in the Trust in the amount
specified in such Additional Investment Certificate
(each, an "Additional Investor Amount"); provided
that (i) such Additional Investor Amount shall not
cause the Senior Class Certificate Balance for any
Class plus the Interest Component of all Related
Commercial Paper issued by the related Senior Class
Conduit and then outstanding, if any, to exceed the
Senior Class Facility Limit for such Class, (ii)
after giving effect to such Additional Investor
Amount, the Transferor Amount as of the Business Day
immediately preceding the date of the Additional
Investment Certificate and as reported in such
Additional Investment Certificate, shall not be less
than the Minimum Transferor Amount, (iii) after
giving effect to such Additional Investor Amount,
the Subordinate Class Investor Amount, as of the
Business Day immediately preceding the date of the
Additional Investment Certificate and as reported in
such Additional Investment Certificate, shall not be
less than the Minimum Enhancement Amount, (iv) no
Potential Pay Out Event or Pay Out Event shall have
occurred and be continuing and (v) all of the repre-
sentations and warranties of the Transferor and the
Servicer made herein shall be true and correct as of
such date (except to the extent any such representa-
tion or warranty expressly relates to an earlier
date). The Senior Class Conduits or the Bank Inves-
tors, as the case may be, shall acquire such addi-
tional interest in consideration of the Senior Class
Conduits' or the Bank Investors', as the case may
be, payment to the Transferor in immediately avail-
able funds in an amount equal to the Additional In-
vestor Amount for the related Senior Class, and the
Senior Class Investor Amount for each Senior Class
shall be increased to be equal to the Senior Class
Investor Amount immediately prior to such acquisi-
tion plus the Additional Investor Amount for such
Senior Class so acquired. Each Additional Investor
Amount shall be an amount that results in the acqui-
sition by each Senior Class of an Additional Invest-
or Amount of not less than $500,000 and integral
multiples of $100,000 in excess thereof. Each
acquisition of an Additional Investor Amount hereun-
der by a Senior Class shall be made ratably in
accordance with the respective Senior Class Facility
Limits giving due regard to the respective Senior
Class Facility Limits; provided that if one or more
(but not all) Senior Class Facility Limits have been
reached, but availability exists under one or more
other Senior Class Facility Limits related to one or
more Senior Class, acquisitions of Additional In-
vestor Amounts hereunder by such Senior Class(es)
shall be made ratably among them in accordance with
their respective Senior Class Facility Limits. Each
acquisition of an Additional Investor Amount hereun-
der by the Bank Investors of a Senior Class (in the
aggregate) shall be made ratably in accordance with
the respective Commitments of such Bank Investors.
(c) The Commitment of NationsBank set
forth on the signature page to the Certificate Purchase
Agreement is amended to read "$100,000,000".
SECTION 2. Delivery of Certificate. In con-
nection with the increase of the Senior Class Facility
Limit for the Class of which EFC is a member, the Trans-
feror agrees to deliver a Senior Class Certificates in
the name of "NationsBank, N.A., as agent for the members
of the Senior Class of which Enterprise Funding Corpora-
tion and NationsBank, N.A. are members" in the face
amount of $100,000,000, duly executed by the Transferor
and duly authenticated by the Trustee against delivery to
the Trustee, for cancellation, of the existing Senior
Class Certificate(s) related to the Senior Class of which
EFC is a member.
SECTION 3. Ratification of Certificate Pur-
chase Agreement. As amended by this Amendment, the
Certificate Purchase Agreement is in all respects rati-
fied and confirmed, and the Certificate Purchase Agree-
ment, as so amended by this Amendment, shall be read,
taken and construed as one and the same instrument. This
Amendment has been executed and delivered solely for the
purpose of providing for the amendments set forth in
Section 1 hereof, and nothing herein expressed or implied
shall constitute: (i) an amendment, supplement or other
modification to any other term, provision or condition
contained in the Certificate Purchase Agreement; (ii) a
waiver of any right, remedy, power or privilege of the
Agent, any Senior Class Agent, any Senior Class Conduit
or any Bank Investor thereunder; or (iii) a waiver of the
performance, compliance or observance by the Transferor
or the Servicer of any of their respective covenants,
obligations or other agreements contained therein. By
executing this Amendment, each of the Transferor and the
Servicer hereby confirms in all respects each term,
condition, representation, warranty, covenant and agree-
ment set forth in the Certificate Purchase Agreement and
agrees that the same shall continue in full force and
effect.
SECTION 4. Governing Law. This Amendment
shall be construed in accordance with the laws of the
State of New York, without reference to its conflict of
law provisions, and the obligations, rights and remedies
of the parties hereunder shall be determined in accor-
dance with such laws.
SECTION 5. Severability. If any one or more
of the covenants, agreements, provisions or terms of this
Amendment shall for any reason whatsoever be held inval-
id, then such covenants, agreements, provisions or terms
shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Amendment and
shall in no way affect the validity or enforceability of
the other provisions of this Amendment.
SECTION 6. Counterparts. This Amendment may
be executed in any number of counterparts (and by differ-
ent parties on separate counterparts), each of which
shall be an original, but all of which together shall
constitute one and the same instrument.
SECTION 7. Headings. The headings herein are
for purposes of reference only and shall not otherwise
affect the meaning or interpretation of any provision
hereof.
IN WITNESS WHEREOF, the parties hereto have
executed and delivered this Amendment as of the date
first written above.
XXXXXXXX'X CREDIT CORPORATION,
as Transferor
By:
Name:
Title:
XXXXXXXX'X, INC.,
as Servicer
By:
Name:
Title:
ENTERPRISE FUNDING CORPORATION,
as a Purchaser and a Senior
Class Conduit
By:
Name:
Title:
RECEIVABLES CAPITAL CORPORATION,
as a Purchaser and a Senior Class
Conduit
By:
Name:
Title:
NATIONSBANK, N.A., as Agent,
as a Senior Class Agent and
as a Bank Investor
By:
Name:
Title:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as a Senior Class Agent
and as a Bank Investor
By:
Name:
Title:
