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EXHIBIT 10.1
AMENDMENT NUMBER 1 TO NOTE PURCHASE AGREEMENT
AMENDMENT NUMBER 1 TO NOTE PURCHASE AGREEMENT (this "Amendment"), dated as
of November 1, 2000 among XXXX, INC., a Delaware corporation, as debtor (in
such capacity, the "Debtor"), THE XXXX CENTER, INC., a North Carolina
corporation, as servicer (the "Servicer" or "Belk Center"), ENTERPRISE FUNDING
CORPORATION, a Delaware corporation (the "Company") and BANK OF AMERICA, N.A.,
a national banking association ("Bank of America"), as agent for the Company
and the Bank Investors (in such capacity, the "Agent") and as a Bank Investor,
amending that certain Note Purchase Agreement dated as of May 3, 1999, as
amended prior to the date hereof (the "Note Purchase Agreement").
WHEREAS, the Debtor has requested that the Note Purchase Agreement be
amended to reflect a decrease in the Facility Amount;
WHEREAS, Bank of America solely constitutes the Majority Investors (as
defined in the Note Purchase Agreement); and
WHEREAS, the parties hereto have agreed to make certain amendments to the
Note Purchase Agreement.
NOW, THEREFORE, the parties hereby agree as follows:
SECTION 1. Defined Terms. As used in this Amendment, capitalized terms
shall have the same meanings assigned thereto in the Note Purchase Agreement.
SECTION 2. Amendment to Definitions.
(a) The definition of Facility Limit" is hereby amended to read as follows
(solely for convenience, changed text is italicized):
""Facility Limit" means $275,000,000; provided that such amount may not at
any time exceed the aggregate Commitments at any time in effect; provided,
further, that from and after the Termination Date the Facility Limit shall
at all times equal the Net Investment plus the Aggregate Interest
Component."
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SECTION 3. Commitment. The Commitment of Bank of America as a Bank
Investor is hereby reduced to $275,000,000.
SECTION 4. Conditions Precedent. This Amendment shall not become effective
until:
(a) the Company shall have received the following, each of which
shall be in form and substance satisfactory to the Company:
(i) An executed replacement Note (the "Replacement Note") (in
substantially the form called for by the Note Purchase Agreement)
in a principal amount equal to the Facility Limit as decreased
hereby, in replacement of the original Note (the "Original
Note"); and
(ii) An executed copy of this Amendment; and
(b) The Net Investment is no greater than $275,000,000.
SECTION 5. Representations and Warranties. The Debtor hereby makes to the
Company on and as of the date hereof, the following representations and
warranties:
(a) Authority. The Debtor has the requisite corporate power and
authority to execute and deliver this Amendment and to perform its
obligations hereunder and under the Note Purchase Agreement (as amended
hereby). The execution, delivery and performance by the Debtor of this
Amendment and the performance of the Note Purchase Agreement (as amended
hereby) have been duly approved by all necessary corporate action and no
other corporate proceedings are necessary to consummate such transactions;
(b) Enforceability. This Amendment has been duly executed and
delivered by the Debtor. Each of the Note Purchase Agreement (as amended
hereby) and the Note delivered in connection herewith is the legal, valid
and binding obligation of the Debtor enforceable against the Debtor in
accordance with its terms, and is in full force and effect; and
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(c) Representations and Warranties. The representations and
warranties of the Debtor contained in the Note Purchase Agreement (other
than any such representations or warranties that, by their terms, are
specifically made as of a date other than the date hereof) are correct on
and as of the date hereof as though made on and as of the date hereof.
SECTION 6. Return of Original Note. The Company shall, upon receipt of the
Replacement Note, return the Original Note to the Debtor for cancellation.
SECTION 7. Limited Scope. This amendment is specific to the circumstances
described above and does not imply any future amendment or waiver of rights
allocated to the Company under the Note Purchase Agreement.
SECTION 8. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 9. Severability; Counterparts. This Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
instrument. Any provisions of this Amendment which are prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 10. Ratification. Except as expressly affected by the provisions
hereof, the Note Purchase Agreement as amended shall remain in full force and
effect in accordance with its terms and is hereby ratified and confirmed by the
parties hereto. On and after the date hereof, each reference in the Note
Purchase Agreement to "this Agreement", "hereunder", "herein" or words of like
import shall mean and be a reference to the Note Purchase Agreement as amended
by this Amendment.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment Number 2 as of the date first written above.
XXXX, INC., as Debtor
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: President
THE XXXX CENTER, INC.,
as Servicer
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: President
ENTERPRISE FUNDING CORPORATION,
as Company
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: President
Commitment BANK OF AMERICA, N.A.,
$275,000,000 as Agent and as a Bank Investor
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Title: Vice President
