SECOND AMENDMENT (this "Amendment"), dated as
of February 2, 1998, to the CERTIFICATE PURCHASE AGREE-
MENT, dated as of August 21, 1997 (the "Certificate
Purchase Agreement"), by and among Xxxxxxxx'x Credit
Corporation, a Nevada corporation (together with its suc-
cessors 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 Delaware corporation (together
with its successors and permitted 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 Inves-
tors (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 nation-
al banking association ("Bank of America"), as a Senior
Class Agent and individually 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
and the First Amendment thereto, dated as of November 26,
1997;
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 defini-
tion of "Senior Class Facility Limit" and substituting
therefor the following:
"Senior Class Facility Limit" shall
mean, (i) with respect to the Senior Class of which
EFC is a member, $250,000,000, and (ii) with respect
to the Senior Class of which RCC is a member,
$150,000,000, and (iii) with respect to any other
Class, the amount indicated in any supplement hereto
for such Senior Class; provided that in each case
such amount may not at any time exceed the aggregate
Commitments for the related Bank Investors.
(b) The Commitment of NationsBank set
forth on the signature page to the Certificate Purchase
Agreement is amended to read "$250,000,000".
(c) The Commitment of Bank of America set
forth on the signature page to the Certificate Purchase
Agreement is amended to read "$150,000,000".
(d) Section 3.4(d) of the Certificate
Purchase Agreement is hereby deleted in its entirety and
substituted with the following:
"(d) Financial Covenants. The
Servicer shall:
(i) not permit, at any time, the
ratio of Consolidated Funded
Total Indebtedness to Xxxxxxx-
dated EBITDA for the four fiscal
quarter period most recently
ended to be equal to or greater
than 3.50 to 1.00; and
(ii) not permit, at any time
during any four-quarter period
of the Servicer, the Consolidat-
ed Fixed Charge Ratio for such
four-quarter period to be equal
to or less than 1.50 to 1.00."
(e) Exhibit F to the Certificate Purchase
Agreement is hereby deleted in its entirety and replaced
with Exhibit F attached hereto.
SECTION 2. Delivery of Certificate. In con-
nection with the increase of the Senior Class Facility
Limits, the Transferor agrees to deliver Senior Class
Certificates (a) in the name of "NationsBank, N.A., as
agent for the members of the Senior Class of which Enter-
prise Funding Corporation and NationsBank, N.A. are
members" in the face amount of $250,000,000, duly execut-
ed by the Transferor and duly authenticated by the Trust-
ee 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 and (b) in the name
of "Bank of America National Trust and Savings Associa-
tion, as agent for the members of the Senior Class of
which Receivables Capital Corporation and Bank of America
National Trust and Savings Association are members" in
the face amount of $150,000,000, duly executed by the
Transferor and duly authenticated by the Trustee against
delivery to the Trustee, for cancellation, of the exist-
ing Senior Class Certificate(s) related to the Senior
Class of which RCC 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 except as expressly stated herein,
this Amendment shall not 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 agree-
ments 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 agreement set forth in the Certif-
icate 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:
