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EXHIBIT 10.5
AMENDMENT NO. 2 TO
NOTE PURCHASE AND SECURITY AGREEMENT
AMENDMENT NO. 2 TO NOTE PURCHASE AND SECURITY AGREEMENT (this "Amendment"),
dated as of April 28, 1999, among XXXX, INC., a Delaware corporation (the
"Debtor"), THE XXXX CENTER, INC., a North Carolina corporation, as servicer
(the "Servicer"), ENTERPRISE FUNDING CORPORATION, a Delaware corporation (the
"Company") and NATIONSBANK, N.A., a national banking association
("NationsBank"), as agent for the Company and the Bank Investors (in such
capacity, the "Agent"), amending that certain Note Purchase and Security
Agreement, dated as of June 12, 1998, among the Debtor, the Servicer, the
Company, the Agent and NationsBank, as a Bank Investor (the "Agreement").
WHEREAS, on the terms and conditions set forth herein, the parties to the
Agreement wish to amend the Agreement as provided herein.
NOW, THEREFORE, the parties hereby agree as follows:
SECTION 1. Defined Terms. As used in this Amendment capitalized terms
have the same meanings assigned thereto in the Agreement.
SECTION 2. Amendment of Certain Definition. In Section 1.1 of the
Agreement, the definition of "Commitment Termination Date" shall be amended
such that the reference to "June 11, 1999" shall be amended to read "April 27,
2000".
SECTION 3. Representations and Warranties.
(a) The Debtor hereby makes to the Agent, the Company and the Bank
Investors, on and as of the date hereof, all of the representations and
warranties set forth in Section 3.1 of the Agreement, except that to the extent
that any of such representations and warranties expressly relate to an earlier
date, such representations and warranties shall be true and correct as of such
earlier date.
(b) The Servicer hereby makes to the Agent, the Company and the Bank
Investors, on and as of the date hereof, all of the representations and
warranties set forth in Section 3.2 of the Agreement, except that to the extent
that any of such representations and warranties expressly relate to an earlier
date, such representations
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and warranties shall be true and correct as of such earlier date.
SECTION 4. Effectiveness. This Amendment shall become effective on
the later of (i) the first day on or after which it is executed by all the
parties hereto, and (ii) April 28, 1999.
SECTION 5. Costs and Expenses. The Debtor shall pay all of the
Company's and the Agent's cost and expenses (including out of pocket expenses
and reasonable attorneys fees and disbursements) incurred by them in
connection with the preparation, execution and delivery of this Amendment.
SECTION 6. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. 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 8. Captions. The captions in this Amendment are for
convenience of reference only and shall not define or limit any of the terms
or provisions hereof.
SECTION 9. Ratification. Except as expressly affected by the
provisions hereof, the Agreement as amended shall remain in full force and
effect in accordance with its terms and ratified and confirmed by the parties
hereto. On and after the date hereof, each reference in the Agreement to "this
Agreement", "hereunder", "herein" or words of like import shall mean and be a
reference to the Agreement as amended by this Amendment.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the date first written above.
ENTERPRISE FUNDING
CORPORATION, as Company
By: /s/ XXXXX X. XXXXX
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Name: Xxxxx X. Xxxxx
Title: Vice President
XXXX, INC., as Debtor
By: /s/ XXXX X. XXXX
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Name: Xxxx X. Xxxx
Title: Chairman and CEO
THE XXXX CENTER, INC.,
as Servicer
By: /s/ XXXXX X. XXXXX
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Name: Xxxxx X. Xxxxx
Title: Vice President
NATIONSBANK, N.A., as Agent
and a Bank Investor
By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: Vice President
