EXHIBIT 10.6
AMENDMENT NUMBER 6 TO NOTE PURCHASE AGREEMENT
AMENDMENT NUMBER 6 TO NOTE PURCHASE AGREEMENT (this "Amendment"), dated
as of November 3, 2003 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"), XX XXXX TRUST, a
Delaware statutory trust, as assignee of Enterprise Funding Corporation (the
"Trust"), and BANK OF AMERICA, N.A., a national banking association ("Bank of
America"), as agent for the Trust 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 reduction of the Facility Limit;
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. The definition of "Facility Limit"
is hereby amended to read as follows (solely for convenience, changed text is
italicized):
""Facility Limit" means $250,000,000; 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."
SECTION 3. Commitment. The Commitment of Bank of America as a Bank
Investor is hereby reduced to $250,000,000.
SECTION 4. Conditions Precedent. This amendment shall not become
effective until:
(a) The Trust shall have received the following, each of which shall be
in form and substance satisfactory to the Trust:
(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");
(ii) an executed copy of this Amendment; and
(b) The Net Investment is no greater than $250,000,000.
SECTION 5. Representations and Warranties. The Debtor hereby makes to
the Trust 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.
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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 Trust 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.
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 the Amendment.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment Number 3 as of the date first written above.
XXXX, INC., as Debtor
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
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Title: Chairman
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THE XXXX CENTER, INC.,
as Servicer
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
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Title: Chairman
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XX XXXX TRUST,
as Trust
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
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Title: Vice President
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BANK OF AMERICA, N.A.
as Agent and as a Bank Investor
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
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Title: Vice President
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