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EXHIBIT 10.20.4
ASSIGNMENT, CONSENT AND
THIRD AMENDMENT TO OPERATIVE AGREEMENTS
THIS ASSIGNMENT, CONSENT AND THIRD AMENDMENT TO OPERATIVE AGREEMENTS Dated
as of November 8, 1996 (this "Assignment, Consent and Third Amendment") is by
and among CAPITAL ONE BANK, a Virginia banking corporation ("COB"), CAPITAL ONE
REALTY, INC., a Delaware corporation ("XXXX"), FIRST SECURITY BANK, NATIONAL
ASSOCIATION (f/k/a First Security Bank of Utah, N.A.), a national banking
association, not individually but solely as Owner Trustee under the COB Real
Estate Trust 1995-1 (the "Owner Trustee", the "Borrower" or the "Lessor", as
appropriate), NATIONSBANK OF TEXAS, N.A., a national banking association, as
Administrative Agent for the Lenders (in such capacity, the "Agent"), as a
Lender (together with the other Lenders party to the Credit Agreement, the
"Lenders") and as a Holder.
All defined terms used herein but not otherwise defined shall have the
meaning set forth in Appendix A to the Participation Agreement dated as of
January 5, 1996 by and among COB, the Owner Trustee, the Agent, the Lenders and
the Holder (as amended pursuant to the First Amendment to Operative Agreements
dated as of June 21, 1996 and as amended hereby, the "Participation Agreement).
W I T N E S S E T H:
WHEREAS, COB, the Owner Trustee, the Agent, the Lenders and the Holders
are parties to the Participation Agreement.
WHEREAS, the Owner Trustee and COB entered into (a) the Lease Agreement
(Tax Retention Operating Lease) dated as of January 5, 1996 (as amended
pursuant to the First Amendment to Operative Agreements dated as of June 21,
1996 and as amended hereby, the "Lease Agreement") between the Owner Trustee,
as lessor, and COB, as lessee and (b) the Agency Agreement dated as of January
5, 1996 (as amended pursuant to the First Amendment to Operative Agreements
dated as of June 21, 1996 and as amended hereby, the "Agency Agreement")
between the Owner Trustee, as lessor, and COB, as construction agent.
WHEREAS, COB wishes to assign all of its right, title, interests and
obligations in, to and under the Operative Agreements to XXXX and XXXX wishes
to accept such assignment (XXXX, in its capacity as successor construction
agent and as successor lessee under the Operative Agreements, may be referred
to herein as the "Replacement Construction Agent" or the "Replacement Lessee",
as appropriate).
WHEREAS, the Borrower wishes to increase the Lender Commitments and the
Holder Commitments, in the aggregate, from $90,000,000 to an amount not to
exceed $125,000,000.
WHEREAS, the parties hereto have entered into this Assignment, Consent and
Third Amendment, among other things, to (a) acknowledge and consent to the
assignment from COB
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to XXXX, (b) amend the Operative Agreements to reflect the assignment from COB
to XXXX and (c) increase the Lender Commitments and the Holder Commitments, in
the aggregate, from $90,000,000 to an amount not to exceed $125,000,000.
A G R E E M E N T
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
A. Assignment and Assumption. COB, in its capacity as Construction Agent
and/or Lessee under the Operative Agreements, hereby assigns all of its right,
title, interests and obligations in, to and under the Agency Agreement, the
Lease Agreement and all other Operative Agreements to XXXX effective as of the
Effective Date. XXXX hereby accepts such assignment, and XXXX hereby agrees
that from and after the Effective Date XXXX shall be a party to and the
Construction Agent and Lessee under all Operative Agreements and agrees to be
bound by all of the terms of, and to assume and undertake all the obligations
and liabilities of the Construction Agent and the Lessee contained in, the
Agency Agreement, the Lease Agreement and all other Operative Agreements.
B. Consent to Assignment of Construction Agent and Lessee Rights and
Obligations. The Lenders hereby consent to the assignment by COB of all of its
right, title, interests and obligations under the Agency Agreement, the Lease
Agreement and all other Operative Agreements to XXXX. The Agent and the Owner
Trustee, pursuant to Section 25.1(a) of the Lease Agreement, hereby consent to
the transfer by COB of all of its right, title, interests and obligations under
the Lease Agreement to XXXX.
C. Participation Agreement. The Participation Agreement is amended in the
following respects:
1. The terms set forth below and defined in Appendix A to the
Participation Agreement shall be amended or added to read as follows:
"Approved State" means Virginia and Florida.
"Capital One Credit Agreement" shall have the meaning given to such
term in Article IV of the Guaranty Agreement.
"Construction Agent" shall mean Capital One Realty, Inc. a Delaware
corporation, as construction agent under the Agency Agreement.
"Event of Default" shall mean a Lease Event of Default, a Guaranty
Event of Default, an Agency Agreement Event of Default or a Credit
Agreement Event of Default.
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"Guarantor" shall mean Capital One Bank, a Virginia banking
corporation.
"Guaranty Agreement" shall mean the Guaranty Agreement dated November
8, 1996 pursuant to which the Guarantor guarantees the obligations of the
Lessee under the Lease and the obligations of the Construction Agent under
the Agency Agreement.
"Guaranty Event of Default" shall mean an Event of Default as defined
in Section 2.05 of the Guaranty Agreement.
"Holder Commitments" shall mean $3,750,000, provided, that the Holder
Commitment of each Holder shall be as set forth in the Trust Agreement.
"Holder Unused Fee" shall mean the fee payable by the Lessee and the
Guarantor pursuant to Section 9.4 of the Participation Agreement.
"Incorporated Covenants" shall have the meaning given to such term in
Article IV of the Guaranty Agreement.
"Incorporated Events of Default" shall have the meaning given to such
term in Article IV of the Guaranty Agreement.
"Incorporated Representations and Warranties" shall have the meaning
given to such term in Article IV of the Guaranty Agreement.
"Indemnity Provider" shall mean each of (i) Capital One Realty, Inc.,
a Delaware corporation and (ii) Capital One Bank, a Virginia banking
corporation, with such entities acting on a joint and several basis.
"Lender Commitments" shall mean $121,250,000; provided if there shall
be more than one Lender, the Lender Commitment of each Lender shall be as
set forth in Schedule 1.1 to the Credit Agreement as such Schedule 1.1 may
be amended and replaced from time to time.
"Lender Unused Fee" shall mean the fee payable by the Lessee and the
Guarantor pursuant to Section 9.4 of the Participation Agreement.
"Material Adverse Effect" shall mean a material adverse effect on (a)
the business, condition (financial or otherwise), assets, liabilities or
operations of the Lessee, the Guarantor and their Subsidiaries, taken as a
whole, (b) the ability of the Lessee, the Guarantor or any Subsidiary to
perform its respective obligations under any Operative Agreement to which
it is a party, (c) the validity or enforceability of any Operative
Agreement or the rights and remedies of the Agent, the Lenders, the
Holders, or the Lessor thereunder, (d) the validity, priority or
enforceability of any Lien on any Property created by any of the Operative
Agreements, or (e) the value, utility or useful life of any
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Property or the use, or ability of the applicable Lessee to use, any
Property for the purpose for which it was intended.
"New Facility" shall have the meaning given to such term in Article
IV of the Guaranty Agreement.
"Operative Agreements" shall mean the following: the Participation
Agreement, the Agency Agreement, the Trust Agreement, the Certificates,
the Credit Agreement, the Notes, the Lease (and a memorandum thereof in a
form reasonably acceptable to the Agent), each Lease Supplement (and a
memorandum thereof in a form reasonably acceptable to the Agent), the
Guaranty Agreement, the Security Agreement, the Mortgage Instrument and
each Ground Lease.
"Permitted Facility" shall mean each of:
(i) The approximately 198,000 square foot operations center to be
constructed on the real property comprising a part of the Trust Estate as
of the Initial Closing Date and consisting of approximately 18 acres
located north of Innsbrook Corporate Park in Henrico County, Virginia;
(ii) The existing office building on the real property consisting of
approximately 9.75 acres located in the Innsbrook Corporate Center, which
property is currently leased by Capital One Bank;
(iii) The approximately 155,000 square foot office building to be
constructed on the real property subject to the Ground Lease between the
Guarantor and the Lessor dated June 21, 1996 located in the Innsbrook
Corporate Center; and
(iv) The approximately 110,000 square foot office building to be
constructed on the real property subject to the Ground Lease between
Capital One Services, Inc., a Delaware corporation, and the Lessor dated
November 8, 1996 located in Tampa Campus - Phase I, Hillsborough County,
Florida.
"Unused Fee" shall mean, collectively, the Lender Unused Fee and the
Holder Unused Fee.
2. Sections 5.3(a), 5.4(a), 8.2(f), 14.10(a) and 14.14 of the
Participation Agreement are hereby amended by adding ", the Guarantor"
after each reference to the "Lessee."
3. Sections 8.1, 8.1(a), 8.2, 8.2(a), 8.3 and 8.3(a) of the
Participation Agreement are hereby amended to add ", the Guarantor" after
each reference to the "Construction Agent."
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4. The last sentence of Section 9.1(a) of the Participation Agreement
is deleted in its entirety and replaced with the following"
"The Lessee and the Guarantor jointly and severally agree to timely
pay all amounts referred to in this Section 9.1(a) to the extent not paid
by Lessor."
5. The last sentence of Section 9.1(b) of the Participation Agreement
is deleted in its entirety and replaced with the following:
"The Lessee and the Guarantor jointly and severally agree to pay all
amounts referred to in this Section 9.1(b) to the extent not paid by the
Lessor."
6. Section 9.3 of the Participation Agreement is hereby amended by
deleting the word "agrees" in the first line of the Section and replacing
it with "and the Guarantor agree" in such line.
7. Section 9.4 of the Participation Agreement is hereby deleted in
its entirety and replaced with the following:
"9.4 Unused Fee. The Guarantor and the Lessee jointly and severally
agree to pay to the Agent for the account of each Lender an unused fee
(the "Lender Unused Fee") computed at a rate per annum equal to Applicable
Percentage for the Unused Fee multiplied by the Available Commitment of
each Lender during the Commitment Period. The Guarantor and the Lessee
jointly and severally agree to pay to the Agent for the account of each
Holder an unused fee (the "Holder Unused Fee") computed at a rate per
annum equal to Applicable Percentage for the Unused Fee multiplied by the
Available Holder Commitment of each Holder during the Commitment Period.
Such Lender Unused Fee and such Holder Unused Fee shall be calculated on
the basis of 360-day year from the actual days elapsed and shall be
payable quarterly in arrears on each Commitment Fee Payment Date. If all
or a portion of any such Lender Unused Fee or Holder Unused Fee shall not
be paid when due, such overdue amount shall bear interest, payable by the
Lessee and the Guarantor on demand, at a rate per annum equal to the ABR
plus three percent (3%) from the date of such non-payment until such
amount is paid in full (as well as before judgment)."
8. Section 10.3 of the Participation Agreement is hereby retitled to
"Lessee and Guarantor Covenants, Consent and Acknowledgement."
9. Section 10.3(a) of the Participation Agreement is hereby deleted
in its entirety and replaced with the following:
"(a) Lessee and Guarantor hereby each acknowledge and agree that the
Owner Trustee, pursuant to the terms and conditions of the Security
Agreement and the Mortgage Instruments, shall create Liens respecting the
various personal property,
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fixtures and real property described therein in favor of the Agent (which
property includes specifically without limitation all rights and claims of
the Owner Trustee under the Guaranty Agreement). Lessee and Guarantor
hereby each irrevocably consent to the creation, perfection and
maintenance of such Liens. Each of the Construction Agent, the Lessee and
the Guarantor shall, to the extent reasonably requested by any of the
other parties hereto, cooperate with the other parties in connection with
their covenants herein or in the other Operative Agreements and shall from
time to time duly execute and deliver any and all such future instruments,
documents and financing statements (and continuation statements related
thereto) as any other party hereto may reasonably request."
10. Section 13.3 shall be added to the Participation Agreement to
read as follows:
"13.3. Joint and Several Obligations of the Indemnity Provider.
Notwithstanding any of the provisions of any other Operative Agreement,
Capital One Realty, Inc. and Capital One Bank hereby acknowledge and agree
that such entities have jointly and severally assumed and undertaken the
indemnity obligations and other obligations under this Section 13."
11. Section 14.3 is hereby amended to provide that the notice address
shall be applicable for the Lessee, the Construction Agent or the
Guarantor.
12. Section 14.5 is hereby amended by deleting the last sentence of
the Section and replacing it with the following:
"This Agreement may be terminated by an agreement signed in writing
by the Owner Trustee, the Holders, the Lessee, the Guarantor and the
Agent."
13. The parties hereto acknowledge and agree that all references to
the "Construction Agent" or the "Lessee" shall be deemed as of the
Effective Date to refer to Capital One Realty, Inc.
D. Lease Agreement. The Lease Agreement is hereby amended or modified in
the following respects:
1. The parties hereto acknowledge and agree that all references to
"Lessee" shall be deemed as of the Effective Date to refer to Capital One
Realty, Inc.
2. Section 17.1(d) of the Lease Agreement is hereby amended by
deleting the parentheticals referring to (a) Incorporated Covenants and
(b) Incorporated Representations and Warranties.
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3. Section 17.1 of the Lease Agreement is amended to add the
following as subsection (f):
"(f) A Guaranty Agreement Event of Default;"
3. Sections 28.1 and 28.2 of the Lease Agreement are deleted in their
entirety and replaced with the following:
"28.1 [Intentionally Omitted]."
"28.2 [Intentionally Omitted]."
E. Credit Agreement. The Credit Agreement is hereby amended and modified
in the following respects:
1. Schedule 1.1 to the Credit Agreement is hereby replaced with
Schedule 1.1 attached hereto and made a part of this Assignment, Consent
and Third Amendment.
2. Section 9.1(a) is amended to add the following as subsection (vii)
before the phrase "without the unanimous consent of the Lenders and the
Holders":
"and (vii) modify the terms of the Guaranty Agreement"
F. The Trust Agreement is amended in the following respects:
1. The Certificates of the Owner Trustee issued to each Holder in the
original aggregate amount of $2,700,000.00 shall be amended, restated and
substituted with new Certificates in the aggregate amount of $3,750,000.
The Holder Commitment of each Holder shall be as set forth on Schedule 1.2
attached hereto and made a part of this Assignment, Consent and Third
Amendment and shall be deemed to be a part of the Trust Agreement.
G. Operative Agreements. The parties hereto acknowledge and agree that all
references to the "Construction Agent" or the "Lessee" set forth in all other
Operative Agreements shall be deemed to refer to Capital One Realty, Inc.
H. Each of the parties hereto hereby represent and warrant that as of the
date hereof (i) the representations and warranties of such party contained in
Section 7 and Section 8 of the Participation Agreement are true and correct in
all material respects and (ii) no Default or Event of Default currently exists
and is continuing with respect to any such party.
I. The effectiveness of this Assignment, Consent and Third Amendment is
contingent upon the receipt by the Agent of the following items, each in form
and substance satisfactory to the Agent: (i) this Assignment, Consent and Third
Amendment duly executed by
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the parties hereto; (ii) the Guaranty Agreement duly executed by the Guarantor;
(iii) the Assumption and Modification to be recorded in each jurisdiction where
an existing Permitted Facility is located; (iv) Amended, Restated and
Substituted Tranche A Notes duly executed by the Borrower in favor of each
Lender in the principal amounts as set forth in Schedule 1.1 attached hereto;
(v) Amended, Restated and Substituted Tranche B Notes duly executed by the
Borrower in favor of each Lender in the principal amounts as set forth in
Schedule 1.1 attached hereto; (vi) Amended, Restated and Substituted Holder
Certificates duly executed by the Owner Trustee in favor of each Holder in the
principal amounts as set forth in Schedule 1.2 attached hereto; (vii) copies of
the Articles of Incorporation, By-Laws and Resolutions of the Replacement
Lessee certified by a Responsible Officer of the Replacement Lessee and
authorizing the transactions contemplated by the Assignment, Consent and Third
Amendment; (viii) copies of an Officer's Certificate of the Replacement Lessee
substantially in the form of Exhibit D to the Participation Agreement; (ix)
Good Standing Certificates from the Replacement Lessee's state of incorporation
and each state where it is required to qualify in order to do business; (x) a
legal opinion of counsel to the Replacement Lessee and the Guarantor in form
and substance satisfactory to the Agent; and (xi) such other certificates,
resolutions and opinions as deemed necessary or advisable by the Agent.
J. This Assignment, Consent and Third Amendment may be executed in any
number of counterparts, each of which when executed and delivered shall be
deemed to be an original and it shall not be necessary in making proof of this
Assignment, Consent and Third Amendment to produce or account for more than one
such counterpart.
K. Except as modified hereby, all of the terms and conditions of the
Operative Agreements shall remain in full force and effect.
L. This Assignment, Consent and Third Amendment shall be governed by, and
construed in accordance with, the laws of the Commonwealth of Virginia.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Third
Amendment to be duly executed and delivered as of the date first above written.
CAPITAL ONE BANK,
as Construction Agent and as Lessee
and as Guarantor
By: /s/ XXXXXX XXXXXX
----------------------------------------
Name: XXXXXX XXXXXX
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Title: ASSISTANT TREASURER
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CAPITAL ONE REALTY, INC.
as Replacement Construction Agent
and as Replacement Lessee
By: /s/ XXXXXX XXXXXX
--------------------------------------
Name: XXXXXX XXXXXX
-----------------------------------
Title: ASSISTANT TREASURER
-----------------------------------
FIRST SECURITY BANK, NATIONAL ASSOCIATION (f/k/a First
Security Bank of Utah, N.A.), not individually, except
as expressly stated herein, but solely as Owner
Trustee under the COB Real Estate Trust 1995-1
By: /s/ XXX X. XXXXX
----------------------------------------
Name: XXX X. XXXXX
--------------------------------------
Title: VICE PRESIDENT
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NATIONSBANK OF TEXAS, N.A.,
as Holder, as a Lender and as Administrative Agent
By: /s/ XXXXXXX X. XXXXX
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Name: XXXXXXX X. XXXXX
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Title: SENIOR VICE PRESIDENT
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FIRST UNION NATIONAL BANK OF
VIRGINIA, as a Lender and a Holder
By: /s/ XXXXXX X. XXXXXXX
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Name: XXXXXX X. XXXXXXX
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Title: SVP
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THE FIRST NATIONAL BANK OF CHICAGO,
as a Lender
By: /s/ XXXXXX X. X'XXXXXXX
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Name: XXXXXX X. X'XXXXXXX
------------------------------------
Title: VICE PRESIDENT
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THE BANK OF TOKYO - MITSUBISHI TRUST
COMPANY, as a Lender
By: /s/ XXXXXXXXX XXXXXX
-----------------------------------------
Name: C. A. MOESER
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Title: AVP
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UNION BANK OF SWITZERLAND, NEW
YORK BRANCH, as a Lender
By: /s/ XXXXXX XXXXXXXX
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Name: XXXXXX XXXXXXXX
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Title: VICE PRESIDENT
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By: /s/ XXXXXX XXXXXXXX
----------------------------------------
Name: XXXXXX XXXXXXXX
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Title: VICE PRESIDENT
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BARCLAYS BANK PLC, as a Lender
By: /s/ XXXXX X. XXXXXX
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Name: XXXXX X. XXXXXX
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Title: ASSOCIATE DIRECTOR
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BANK OF MONTREAL, as a Lender and a Holder
By: /s/ INBA XXXXXXXXX
---------------------------------
Name: INBA XXXXXXXXX
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Title: DIRECTOR
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KREDIETBANK N.V., as a Lender
By: /s/ X. XXXXXXXX
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Name: XXXXXX XXXXXXXX
------------------------------------
Title: VICE PRESIDENT
-----------------------------------
By: [SIG]
--------------------------------------
Name: [SIG]
------------------------------------
Title: VICE PRESIDENT
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SCHEDULE 1.1
Tranche A Tranche B
Commitment Commitment
------------------------------- ------------------------------
Name and Address of Lender Amount Percentage Amount Percentage
-------------------------- ------ ---------- ------ ----------
NationsBank of Texas, N.A. $18,688,747.22 17.385% $2,390,421.16 17.385%
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Union Bank of $20,317,869.44 18.900% $2,598,797.25 18.900%
Switzerland, New
York Branch
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
The First National Bank $12,313,859.72 11.455% $1,575,028.98 11.455%
of Chicago
One First Xxxxxxxx Xxxxx
Xxxxx #0000, 00xx Xxxxx
Xxxxxxx, XX 00000
The Bank of Tokyo - $12,313,859.72 11.455% $1,575,028.57 11.455%
Mitsubishi Trust Company
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Barclays Bank PLC $12,313,859.72 11.455% $1,575,028.57 11.455%
00 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Bank of Montreal $11,944,444.44 11.111% $1,527,777.78 11.111%
U.S. Corporate Banking
000 Xxxxx XxXxxxx, 00xx Xx.
Xxxxxxx, XX 00000
First Union National $10,987,656.94 10.221% $1,405,397.98 10.221%
Bank of Virginia
X.X. Xxx 00000 (VA7564)
Xxxxxxx, XX 00000
Kredietbank N.V. $8,619,702.78 8.018% $1,102,520.12 8.018%
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
=============== ======= ============== =======
Total: $107,500,000.00 100.000% $13,750,000.00 100.000%
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SCHEDULE 1.2
Name and Address of Holder Holder Commitment Percentage
-------------------------- ----------------- ----------
NationsBank of Texas, N.A. $1,837,500.00 49.000%
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
First Union National $1,495,833.30 39.889%
Bank of Virginia
X.X. Xxx 00000 (VA7564)
Xxxxxxx, XX 00000
Bank of Montreal $ 416,666.67 11.111%
U.S. Corporate Banking
000 Xxxxx XxXxxxx, 00xx Xx.
Xxxxxxx, XX 00000
============= ========
Total: $3,750,000.00 100.000%
