Amendment No. 5 to Note Purchase Agreement



 



AMENDMENT NUMBER 5 TO NOTE PURCHASE AGREEMENT



     AMENDMENT NUMBER 5 TO NOTE PURCHASE AGREEMENT
(this “Amendment”), dated as of April 26, 2003 among BELK, INC., a Delaware
corporation, as debtor (in such capacity, the “Debtor”), THE BELK 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 an extension of the Commitment Termination Date;


     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 “Commitment Termination Date” is hereby
amended to read as follows (solely for convenience, changed text is
italicized):



	 	““Commitment Termination Date” means April 24, 2004, or such later
date to which the Commitment Termination Date may be extended by
Debtor, the Agent and the Bank Investors not later than 30 days prior to
the then current Commitment Termination Date.”



     (b)    The definition of “Official Body” is hereby amended to read as
follows (solely for convenience, changed text is italicized):


 






 



	 	““Official Body” means any government or political subdivision or any
agency, authority, bureau, central bank, commission, department or
instrumentality of any such government or political subdivision, or any
court, tribunal, grand jury or arbitrator, or any accounting board or
authority (whether or not part of government) which is responsible for the
establishment or interpretation of national or international accounting
principals, in each case whether foreign or domestic.”



     SECTION 3.  Amendment to Financial Covenants of Debtor.


     (a)    Section 5.3(a) of the Note Purchase Agreement is hereby amended
to read as follows (solely for convenience, changed text is italicized):



	 	“The Debtor shall not permit the Fixed Charge Coverage Ratio for the
consecutive three-quarter period of the Debtor ending on February 1,
2003, or for any consecutive four-quarter period of the Debtor ending on a
date after February 1, 2003, to be less than 2.0 to 1.0.”



     (b)      Section 5.3(b) of the Note Purchase Agreement is hereby amended
to read as follows (solely for convenience, changed text is italicized):



	 	“The Debtor shall not permit, the Leverage Ratio for: (i) the consecutive
three-quarter period of the Debtor ending on January 30, 1999, to be equal
to or greater than 3.00 to 1.00, (ii) any consecutive four-quarter period
of the Debtor including and ending with the first fiscal quarter of any
fiscal year to be greater than 3.25 to 1.00, (iii) any consecutive four-quarter
period of the Debtor including and ending with the second fiscal quarter
of any fiscal year to be greater than 3.25 to 1.00, (iv) any consecutive
four-quarter period of the Debtor including and ending with the third
fiscal quarter of any fiscal year to be greater than 3.70 to 1.00, or (v) any
consecutive four-quarter period of the Debtor including and ending with the
fourth fiscal quarter of any fiscal year to be greater than 4.25 to 1.00.”



     SECTION 4.  Amendment to Indemnity for Taxes, Reserves and
Expenses.


     (a)    Section 6.2(b) of the Note Purchase Agreement is hereby amended
by adding the following to the end thereof:


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	 	“For avoidance of doubt, any interpretation of Accounting Research
Bulletin No. 51 by the Financial Accounting Standards Board, including
Interpretation No. 46: Consolidation of Variable Interest Entities, shall
constitute an adoption, change, request or directive subject to this
Section 6.2(b).”



     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. The Note Purchase Agreement (as amended
hereby) 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




		
	 	       (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.  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 7.  Governing Law. THIS AMENDMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK.


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     SECTION 8.  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 9.  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 5 as of the date first written above.



	 	 	 	 	 
	 	 	BELK, INC., as Debtor
	 	 	 	 	 
	 	 	
By:
 /s/ John M. Belk


Name: John M. Belk

Title: Chairman
	 	 	 	 	 
	 	 	THE BELK CENTER, INC.,
    
as Servicer
	 	 	 	 	 
	 	 	
By:
 /s/ John M. Belk


Name: John M. Belk

Title: Chairman
	 	 	 	 	 
	 	 	ENTERPRISE FUNDING CORPORATION,

    as Company
	 	 	 	 	 
	 	 	
By:
 /s/ Kevin P. Burns


Name: Kevin P. Burns

Title: Vice President
	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A.,
    
as Agent and as a Bank Investor
	 	 	 	 	 
	 	 	
By:
 /s/ Elliott Lemon



Name: Elliott Lemon

Title: Vice President