EXHIBIT 10.17.4
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AMENDMENT NO. 1 dated as of April 1, 1999 between:
CAPITAL ONE BANK, a Virginia banking corporation duly organized and validly
existing under the laws of the State of Virginia (the "Guarantor"); and
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FIRST SECURITY BANK, N.A., a national banking association having an address
at 79 South Main Street, Salt Lake City, Utah 84111, and Val T. Orton, not
individually but solely in their capacities as owner trustee (the "Owner
Trustee") of the Capital One Bank Real Estate Trust 1995-1 (the "Lessor").
The Guarantor has executed a Guaranty dated as of October 14, 1998 (the
"Guaranty") in favor of the Lessor and the Obligees defined therein.
The Guarantor has requested that the Lessor agree and the required Obligees
consent, and the Lessor and the required Obligees are willing, to amend Section
3.1(b) of the Guaranty, all on the terms and conditions of this Amendment.
Accordingly, in consideration of the premises and the mutual agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. Definitions. Terms used but not defined herein shall have the
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respective meanings ascribed to such terms in the Guaranty.
Section 2. Amendment. Subject to the satisfaction of the conditions to
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effectiveness specified in Section 4 hereof, but with effect on and after the
date hereof, the Guaranty shall be amended as follows:
(a) Section 3.1(b) of the Guaranty shall be deleted in its entirety and the
following paragraph shall be substituted therefor:
"(b) Annual Statements - within 120 days after the end of each
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fiscal year of the Guarantor, copies of
(i) a consolidated report of condition of the Guarantor and
its Subsidiaries as at the end of such year,
(ii) consolidated reports of income and changes in equity
capital and cash flows of the Guarantor and its
Subsidiaries, for such year,
(iii) a consolidated report of the condition of the Parent
and its Subsidiaries, which requirement may be
satisfied by providing the documents required by
Section 3(c), and
(iv) consolidated reports of income and changes in equity
capital and cash flows of the Parent and its
Subsidiaries, which requirement may be satisfied by
providing the documents required by Section 3(c),
setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail, prepared in accordance
with GAAP, and accompanied, in the case of subparagraphs (iii) and
(iv) above,
(1) by an opinion thereon of independent public accountants
of recognized national standing, which opinion shall
state that such financial statements present fairly, in
all material respects, the financial position of the
companies being reported upon and their results of
operations and cash flows and have been prepared in
conformity with GAAP, and that the examination of such
accountants in connection with such financial
statements has been made in accordance with generally
accepted auditing standards, and that such audit
provides a reasonable basis for such opinion in the
circumstances, and
(2) a certificate of such accountants stating that they
have reviewed this Guaranty and stating further
whether, in making their audit, they have become aware
of any condition or event that then constitutes a Lease
Default or a Lease Event of Default, and, if they are
aware that any such condition or event then exists,
specifying the nature and period of the existence
thereof (it being understood that such accountants
shall not be liable, directly or indirectly, for any
failure to obtain knowledge of any Lease Default or
Lease Event of Default unless such accountants should
have obtained knowledge thereof in making an audit in
accordance with generally accepted auditing standards
or did not make such an audit);"
Section 3. Representations and Warranties. The Guarantor represents and
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warrants to the Lessor that (a) this Amendment has been duly and validly
executed and delivered by the Guarantor and constitutes the Guarantor's legal,
valid binding obligation, enforceable against the Guarantor in accordance with
its terms, and (b) no Lease Default or Lease Event of Default has occurred and
is continuing. It shall be a Lease Event of Default for all purposes of the
Guaranty, as amended hereby, if any representation, warranty or certification
made by the Guarantor in this Amendment shall
prove to have been false or misleading as of the time made or furnished in any
material respect.
Section 4. Conditions To Effectiveness. The amendment to the Guaranty set
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forth in Section 2 hereof shall become effective, as of the date hereof, upon
the receipt by the Guarantor and the Lessor of this Amendment, duly executed and
delivered by the parties hereto, and consented to by the Obligees as required by
Section 6.5 of the Guaranty.
Section 5. Documents Otherwise Unchanged. Except as herein provided, the
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Guaranty shall remain unchanged and in full force and effect, and each reference
to the Guaranty and words of similar import in the Guaranty, as amended hereby,
and in the other Operative Documents to which the Guarantor is a party shall be
a reference to the Guaranty as amended hereby and as the same may be further
amended, supplemented and otherwise modified and in effect from time to time.
Section 6. Counterparts. This Amendment may be executed in any number of
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counterparts, each of which shall be identical and all of which, when taken
together, shall constitute one and the same instrument, and any of the parties
hereto may execute this Amendment by signing any such counterpart manually or by
facsimile.
Section 7. Expenses. Without limiting its obligations under the Guaranty,
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the Guarantor agrees to pay, on demand, all reasonable out-of-pocket costs and
expenses of the Lessor and the Obligees (including legal fees and disbursements)
incurred in connection with the negotiation, preparation, execution and delivery
of this Amendment.
Section 8. Binding Effect. This Amendment shall be binding upon and inure
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to the benefit of the parties hereto and their respective successors and
assigns.
Section 9. Governing Law. This Amendment shall be governed by, and
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construed in accordance with, the law of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the day and year first above written.
GUARANTOR
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CAPITAL ONE BANK
/s/ Stephen Linehan
By:-----------------------------------
Name: Stephen Linehan
Title: Manager, Corporate Funding
LESSOR
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FIRST SECURITY BANK, N.A., as Owner Trustee
/s/ Val T. Orton
By:-----------------------------------
Name: Val T. Orton
Title: Vice President
/s/ Val T. Orton
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Val T. Orton, as Owner Trustee
Consented hereto by:
OBLIGEES
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AMERICAN GENERAL ANNUITY
INSURANCE COMPANY
ALL AMERICAN LIFE INSURANCE COMPANY
AMERICAN GENERAL LIFE INSURANCE
COMPANY OF NEW YORK
AMERICAN GENERAL ASSURANCE COMPANY
/S/
By:____________________________
Name:
Title:
LIFE REASSURANCE CORPORATION OF
AMERICA
/S/
By:___________________________
Name:
Title:
SUNAMERICA LIFE INSURANCE COMPANY
/S/
By:___________________________
Name:
Title:
J. ROMEO & CO.
/S/
By:___________________________
Name:
Title:
GENERAL AMERICAN LIFE INSURANCE
COMPANY
/S/
By:___________________________
Name:
Title:
AMERICAN INVESTORS LIFE INSURANCE
COMPANY
/S/
By:___________________________
Name:
Title:
RELIASTAR UNITED SERVICES LIFE
INSURANCE COMPANY
/S/
By:_____________________________
Name:
Title:
RELIASTAR LIFE INSURANCE COMPANY
/S/
By:___________________________
Name:
Title:
NORTHERN LIFE INSURANCE COMPANY
/S/
By:___________________________
Name:
Title:
COVA FINANCIAL SERVICES LIFE
INSURANCE COMPANY
/S/
By:___________________________
Name:
Title:
HARE & CO.
/S/
By:___________________________
Name:
Title:
AUSA LIFE INSURANCE COMPANY, INC.
/S/
By:___________________________
Name:
Title: