Exhibit 10.17.7
FOURTH AMENDMENT TO OPERATIVE AGREEMENTS
THIS FOURTH AMENDMENT TO OPERATIVE AGREEMENTS dated as of April 10, 1997 (this
"Fourth Amendment") is by and among CAPITAL ONE BANK, a Virginia banking
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corporation ("COB"), CAPITAL ONE REALTY, INC., a Delaware corporation ("▇▇▇▇"),
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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
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"Borrower" or the "Lessor", as appropriate), NATIONSBANK OF TEXAS, N.A., a
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national banking association, as Administrative Agent for the Lenders (in such
capacity, the "Agent"), as a Lender (together with the other Lenders party to
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the Credit Agreement, the "Lenders") and as a Holder, and the other Lenders and
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Holders set forth on the signature pages hereto.
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,
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1996 by and among COB, ▇▇▇▇, the Owner Trustee, the Agent, the Lenders and the
Holders (as amended pursuant to the First Amendment to Operative Agreements
dated as of June 21, 1996 (the "First Amendment"), the Second Amendment to
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Operative Agreements dated as of October 11, 1996 (the "Second Amendment"), the
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Assignment, Consent and Third Amendment to Operative Agreements dated as of
November 8, 1996 (the "Third Amendment"), and as the same is amended hereby, the
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"Participation Agreement").
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W I T N E S S E T H:
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WHEREAS, COB, ▇▇▇▇, the Owner Trustee, the Agent, the Lenders and the Holders
are parties to the Participation Agreement.
WHEREAS, the Owner Trustee and ▇▇▇▇ are parties to (a) the Lease Agreement
(Tax Retention Operating Lease) dated as of January 5, 1996 (as amended pursuant
to the First Amendment, the Second Amendment, the Third Amendment and as amended
hereby, the "Lease Agreement") between the Owner Trustee, as lessor, and ▇▇▇▇,
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as lessee and (b) the Agency Agreement dated as of January 5, 1996 (as amended
or modified from time to time, the "Agency Agreement") between the Owner
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Trustee, as lessor, and ▇▇▇▇, as construction agent.
WHEREAS, ▇▇▇▇ and COB have requested that certain amendments and modifications
be made to the Operative Agreements;
WHEREAS, the Lessor, the Agent, the Lenders and the Holders have agreed to
such requested amendments and modifications based on the terms and conditions
herein set forth.
A G R E E M E N T
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NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
A. Participation Agreement. The Participation Agreement is hereby amended and
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modified in the following respects:
1. The terms set forth below and defined in Appendix A to the
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Participation Agreement shall be amended to read as follows:
"Approved State" means Virginia, Florida and Texas.
"Completion Date" shall mean, with respect to a Property, the earlier of
(a) the date on which Completion for such Property has occurred or (b) June 1,
1999.
"Construction Period Termination Date" shall mean the earlier of (a) the
date that the Commitments have been terminated in their entirety in accordance
with the terms of Section 5(a) of the Credit Agreement or (b) June 1, 1999.
"Election Notice" shall have the meaning set fort in Section 20.2 of the
Lease.
"Marketing Period" shall mean, if the Lessee has given a Sale Notice in
accordance with Section 20.2 of the Lease, the period commencing on the date
such Sale Notice is given and ending on the Expiration Date.
"Permitted Facility" means each real property location used by the Lessee
and/or the Guarantor to support customer service operations, data processing
operations and related credit card servicing facilities on behalf of Capital
One Bank.
"Purchase Option" shall have the meaning given to such term in Section
20.2 of the Lease.
"Sale Option" shall have the meaning given to such term in Section 20.2 of
the Lease.
2. Section 5.3(t) is hereby amended to read as follows:
"(t) in their sole and absolute discretion, the Lenders and the Holders
shall have agreed to accept, and to fund the respective Loans and Holder
Advances regarding, the particular property then under consideration as a
Property; and"
3. Section 5.3(u) is hereby added to read as follows:
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"(u) the Property Cost for any property under consideration as a
Property shall have a minimum projected value of $10,000,000 upon Completion."
B. Lease Agreement. The Lease Agreement is hereby amended and modified in
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the following respects:
1. Section 10.2 of the Lease Agreement is hereby amended to change
the reference to "Section 20.1" contained therein to "Section 20.2."
2. Section 15.2 of the Lease Agreement is hereby amended to change
the reference to "Section 20.1" contained therein to "Section 20.2."
3. Section 19.1 of the Lease Agreement is hereby deleted in its
entirety and replaced with the following:
"19.1 Provisions Relating to Lessee's Purchase of the Properties.
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Subject to Section 19.2, in connection with (a) any termination of this Lease
with respect to the Property pursuant to the terms of Section 16.2, or (b)
Lessee's exercise of its Purchase Option under Section 20.2, or (c) Lessee's
exercise of an option to purchase one or more Properties pursuant to the terms
of Section 20.1, or (d) Lessor's exercise of its option to transfer the
Properties subject to this Lease to the Lessee pursuant to the terms of
Section 20.3, then, upon the date on which this Lease is to terminate with
respect to the Property, and upon tender by Lessee of the amounts set forth in
Sections 16.2(b), 20.1, 20.2 or 20.3, as applicable, Lessor shall execute and
deliver to Lessee (or to Lessee's designee), at Lessee's cost and expense,
each of the following: (i) a special or limited warranty Deed conveying the
Property (to the extent it is real property) to Lessee free and clear of the
Lien of this Lease, the Lien of the Credit Documents and any Lessor Liens;
(ii) a ▇▇▇▇ of Sale conveying the Property (to the extent it is personal
property) to Lessee free and clear of the Lien of this Lease, the Lien of the
Credit Documents and any Lessor Liens; (iii) any real estate tax affidavit or
other document required by law to be executed and filed in order to record the
Deed; and (iv) a FIRPTA affidavit. The applicable Property shall be conveyed
to Lessee "AS-IS" "WHERE IS" and in then present physical condition."
4. Article XX is hereby deleted in its entirety and replaced with
the following:
"ARTICLE XX
20.1 Purchase Option on a Scheduled Interest Payment Date.
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Provided that the Election Notice referred to in Section 20.2 has not
been delivered, Lessee shall have the option, exercisable at any time and from
time to time, by giving Lessor and the Agent no more than sixty (60) days and
no less than thirty (30) days irrevocable written notice of Lessee's election
to exercise such option, to either (a) purchase one or more (but not all) of
the Properties on the Scheduled Interest Payment Date identified in such
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written notice, at a price equal to the Termination Value for such Property or
Properties (which the parties do not intend to be a "bargain" purchase price);
provided, however, that the option referred to in this subclause (a) may not
be exercised by the Lessee (i) if, after giving effect to such exercise, the
aggregate Property Cost of all Properties then subject to the Lease would be
less than $20,000,000 or (ii) if any Lease Default of the types specified in
Sections 17.1(a), 17.1(b) 17.1(i) or any Lease Event of Default shall have
occurred and be continuing; or (b) purchase all of the Properties on any
Scheduled Interest Payment Date as identified in such written notice, at a
price equal to the Termination Value for all of the Properties (which the
parties do not intend to be a "bargain" purchase) and upon such payment this
Lease shall terminate, the Available Loan Commitment and the Available Holder
Commitment shall be reduced to zero and the outstanding Loans and Holder
Amount shall be paid in full.
20.2 Expiration Date Purchase or Sale Option.
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(a) Not less than 120 days and no more than 180 days prior to the
Expiration Date, Lessee may give Lessor and Agent irrevocable written notice
(the "Election Notice") that Lessee is electing to exercise either (a) the
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option to purchase all of the Properties on the Expiration Date specified in
the Election Notice (the "Purchase Option") or (b) the option to remarket the
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Properties and cause a sale of the Properties to occur on the Expiration Date
pursuant to the terms of Section 22.1 (the "Sale Option"). If Lessee does not
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give an Election Notice indicating the Sale Option at least 120 days and not
more than 180 days prior to the then Expiration Date, then Lessee shall be
deemed to have elected the Purchase Option. If Lessee shall either (i) elect
(or be deemed to elect) to exercise the Purchase Option or (ii) elect the Sale
Option and fail to cause all of the Properties to be sold in accordance with
the terms of Section 22.1 on the Expiration Date, then in either case, Lessee
shall pay to Lessor on the date on which such purchase or sale is to occur an
amount equal to the Termination Value for all the Properties (which the
parties do not intend to be a "bargain" purchase) and, upon receipt of such
amount, Lessor shall transfer to Lessee all of Lessor's right, title and
interest in and to the Properties in accordance with Section 19.1.
(b) If any Property is the subject of remediation efforts respecting
Hazardous Substances at the Expiration Date which could materially and
adversely impact the Fair Market Sales Value of such Property, then Lessee
shall be obligated to repurchase each such Property pursuant to Section
20.2(a).
20.3 Third Party Sale Option.
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(a) Provided no Default or Event of Default shall have occurred and
be continuing and provided that the Election Notice has been appropriately
given specifying the Sale Option, Lessee shall undertake to cause a sale of
the Properties on the Expiration Date (all as specified in the Election
Notice) in accordance with the provisions of Section 22.1 hereof.
(b) In the event the Lessee exercises the Sale Option then, as soon
as practicable and in all events prior to the Expiration Date, the Lessee, at
its expense, shall cause to be
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delivered to Lessor an environmental site assessment for each of the
Properties recently prepared (no later than 30 days old) by an independent
recognized professional reasonably acceptable to Lessor and the Agent and in
form, scope and content satisfactory to Lessor and the Agent. In the event
that Lessor and the Agent shall not have received such environmental
assessment by the Expiration Date or in the event that such environmental
assessment shall reveal the existence of any material violation of
Environmental Laws, other material Environmental Violation or potential
material Environmental Violation (with materiality determined in each case in
Lessor's sole discretion acting reasonably), then Lessee on the Expiration
Date shall pay to Lessor an amount equal to the Termination Value for all of
the Properties and any and all other amounts due and owing hereunder. Upon
receipt of such payment and all other amounts due under the Lease, Lessor
shall transfer to Lessee all of Lessor's right, title and interest in and to
the Properties in accordance with Section 19.1."
5. Section 22.1(a) is hereby amended by changing the reference to
"Section 20.1" contained in the third full paragraph of such subsection to
"Section 20.2."
C. Credit Agreement. The Credit Agreement is hereby amended and
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modified in the following respects:
1. Section 2.1(a) of the Credit Agreement is hereby amended by
deleting the last sentence of such subsection (a) and replacing it with the
following:
"Any prepayment of the Loans, whether mandatory or at Borrower's
election, shall be subject to reborrowing in accordance with the provisions of
this Section 2."
2. Section 2.3(a) of the Credit Agreement is hereby amended by
deleting the last sentence of such subsection (a) and replacing it with the
following:
"Loans repaid or prepaid by the Borrower may be reborrowed
hereunder."
3. Section 2.6(a) of the Credit Agreement is hereby amended by
deleting the last sentence of such subsection (a) and replacing it with the
following:
"Amounts prepaid may be reborrowed in accordance with the provisions
of this Section 2."
D. Trust Agreement. The Trust Agreement is hereby amended and modified
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in the following respects:
1. Section 3.4(a) of the Trust Agreement is hereby amended by
adding the following sentence to the end of such subsection:
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"The Owner Trustee may request that Holder Advances prepaid pursuant
to this Section be re-advanced in accordance with the provisions of Section
3.1 of this Trust Agreement."
E. Security Agreement. The Security Agreement is hereby amended and
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modified in the following respects:
1. Section 21 of the Security Agreement is hereby deleted in its
entirety and replaced with the following:
"21. Partial Release; Full Release. The Administrative Agent may
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release for such consideration as it may require any portion of the Trust
Property without (as to the remainder of the Trust Property) in any way
impairing or affecting the Lien, security interest and priority herein
provided for the Administrative Agent compared to any other Lien holder or
secured party. Further, upon receipt by the Borrower of the Termination
Value with respect to one or more Properties and payment to the Lenders of
principal and interest due on the Loan (corresponding to the Termination
Value payment) and all other Obligations with respect to such Property
encumbered by this Security Agreement, the Administrative Agent shall
execute and deliver to the Borrower such documents and instruments as may
be required to release the Lien and security interest created by this
Security Agreement with respect to the applicable Property or Properties,
as the case may be."
F. 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.
G. The effectiveness of this Fourth Amendment is contingent upon the
receipt by the Agent of the following items, each in form and substance
satisfactory to the Agent: (i) this Fourth Amendment duly executed by the
parties hereto; (ii) a legal opinion of counsel to COB and ▇▇▇▇ in form and
substance satisfactory to the Agent; and (iii) such other certificates,
resolutions and opinions as deemed necessary or advisable by the Agent.
H. This Fourth 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 Fourth Amendment to produce or
account for more than one such counterpart.
I. Except as modified hereby, all of the terms and conditions of the
Operative Agreements shall remain in full force and effect.
J. This Fourth 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 Fourth
Amendment to be duly executed and delivered as of the date first above written.
CAPITAL ONE REALTY, INC.
as Construction Agent and as Lessee
By:
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Name:
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Title:
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ACKNOWLEDGED AND AGREED TO AS A SIGNATORY TO THE PARTICIPATION AGREEMENT AND AS
THE GUARANTOR:
CAPITAL ONE BANK,
as Guarantor
By:
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Name:
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Title:
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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:
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Name:
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Title:
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NATIONSBANK OF TEXAS, N.A.,
as Holder, as a Lender and as Administrative Agent
By:
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Name:
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Title:
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FIRST UNION NATIONAL BANK OF VIRGINIA, as a Lender
and a Holder
By:
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Name:
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Title:
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THE FIRST NATIONAL BANK OF CHICAGO, as a Lender
By:
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Name:
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Title:
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BANK OF TOKYO - MITSUBISHI TRUST COMPANY, as a
Lender
By:
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Name:
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Title:
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UNION BANK OF SWITZERLAND, NEW YORK BRANCH, as a
Lender
By:
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Name:
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Title:
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By:
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Name:
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Title:
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BARCLAYS BANK PLC, as a Lender
By:
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Name:
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Title:
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BANK OF MONTREAL, as a Lender and a Holder
By:
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Name:
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Title:
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KREDIETBANK N.V., as a Lender
By:
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Name:
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Title:
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By:
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Name:
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Title:
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