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EXHIBIT 10.20.3
SECOND AMENDMENT TO OPERATIVE AGREEMENTS
THIS SECOND AMENDMENT TO OPERATIVE AGREEMENTS dated as of October 11, 1996
(the "Second Amendment") is among CAPITAL ONE BANK, a Virginia banking
corporation (the "Lessee" or the "Construction Agent", as appropriate), 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 a Lender (in such capacity, the "Lender"), NATIONSBANK OF
TEXAS, N.A., a national banking association, as Administrative Agent for the
Lenders (in such capacity, the "Agent") and NATIONSBANK OF TEXAS, N.A., a
national banking association, as Holder of the Certificates issued with respect
to the COB Real Estate Trust 1995-1 (in such capacity, the "Holder") and is a
second amendment to: (a) that certain Participation Agreement dated as of
January 5, 1996 (as amended by that certain First Amendment to Operative
Agreements dated as of June 21, 1996 (the "First Amendment"), the
"Participation Agreement") among the Construction Agent, the Lessee, the Owner
Trustee, the Agent, the Lender and the Holder; (b) that certain Lease Agreement
(Tax Retention Operating Lease) dated as of January 5, 1996 (as amended by the
First Amendment, the "Lease") between the Lessor and the Lessee; and (c) that
certain Credit Agreement dated as of January 5, 1996 (as amended by the First
Amendment, the "Credit Agreement") among the Borrower, the Lender and the
Agent.
W I T N E S S E T H:
WHEREAS, the Lessee has requested that certain amendments and
modifications be made to the Participation Agreement and the Lease; and
WHEREAS, the Lessor, the Lender, the Agent and the Holder have agreed to
the modifications requested by the Lessee.
NOW, THEREFORE, in consideration of the premises set forth herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
A. Capitalized terms used but not otherwise defined in this Second
Amendment shall have the meanings set forth in Appendix A to the Participation
Agreement.
B. 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 added to or amended to read as follows:
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"Incorporated Events of Default" shall have the meaning given to such
term in Section 28.2 of the Lease.
"Overdue Rate" shall mean (i) with respect to Basic Rent, and any
other amount owed under or with respect to the Credit Agreement or the
Security Documents, the rate specified in Section 2.8(b) of the Credit
Agreement, (ii) with respect to Lessor Basic Rent, the Holder Yield and
any other amount owed under or with respect to the Trust Agreement, the
applicable rate specified in the Trust Agreement, and (iii) with respect
to any other amount, the amount referred to in clause (y) of Section
2.8(b) of the Credit Agreement.
2. A parenthesis is inserted in Section 5.4(a) after the term
"Incorporated Representations and Warranties."
3. The parenthetical in Section 11.1(a) referring to Section 5.7 is
hereby deleted.
C. The Lease is amended in the following respects:
1. The word "insurers" in the third sentence of Section 14.1 of the
Lease is amended to refer to "insureds."
2. Section 17.1(m) of the Lease is deleted in its entirety and
replaced with the following:
"(m) An Incorporated Event of Default shall have occurred and be
continuing;"
3. Article XXVIII is amended by adding the following as Section 28.2:
"28.2 Incorporation of Events of Default. Reference is made to the
events of default set forth in Section 9 of the Capital One Credit
Agreement (hereinafter referred to as the "Incorporated Events of
Default"). The Lessee agrees with the Lessor that the Incorporated Events
of Default (and all other relevant provisions of the Capital One Credit
Agreement related thereto, including specifically without limitation the
defined terms contained in Section 1 thereof which are used in the
Incorporated Events of Default) are hereby incorporated by reference into
this Lease to the same extent and with the same effect as if set forth
fully herein and shall inure to the benefit of the Lessor, without giving
effect to any waiver, amendment, modification or replacement of the
Capital One Credit Agreement or any term or provision of the Incorporated
Events of Default occurring subsequent to the date of this Lease, except
to the extent otherwise specifically provided in the following provisions
of this paragraph. In the event a waiver is granted under the Capital One
Credit Agreement or an amendment or modification is executed with respect
to the Capital One Credit
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Agreement, and such waiver, amendment and/or modification affects the
Incorporated Events of Defaults, then such waiver, amendment or
modification shall be effective with respect to the Incorporated Events of
Default as incorporated by reference into this Lease only if consented to
in writing by the Majority Lenders. In the event of any replacement of the
Capital One Credit Agreement with a New Facility, the events of default
contained in the New Facility which correspond to the events of default
contained in Section 9 of the Capital One Credit Agreement shall become
the Incorporated Events of Default hereunder only if consented to in
writing by the Lessor and the Majority Lenders and, if such consent is not
granted or if the Capital One Credit Agreement is terminated and not
replaced, then the events of default contained in Section 9 of the Capital
One Credit Agreement (together with any modifications or amendments
approved in accordance with this paragraph) shall continue to be the
Incorporated Events of Default hereunder."
D. The Credit Agreement is amended in the following respects:
1. The reference to "10:00 a.m. Dallas, Texas time" in subsection
2.3(a)(ii) is amended to refer to "12:00 Noon, Dallas, Texas time."
2. The parenthesis following the term "Lease" in Section 2.11 is
deleted.
3. The first paragraph of Section 9.1 is amended by deleting the
following proviso from the end of the third sentence:
"provided, however, that so long as the Administrative Agent has no
actual knowledge of the existence of an Event of Default the
Administrative Agent may grant waivers and/or consents with respect to the
terms and requirements of the Participation Agreement without the prior
consent of the Lenders (as such authority of the Administrative Agent is
more specifically described in Section 7.1 hereof)"
E. 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.
F. The effectiveness of this Second Amendment is contingent upon the
receipt by the Agent of the following items, each in form and substance
satisfactory to the Agent: (i) this Second Amendment duly executed by the
parties hereto and (ii) such other certificates, resolutions and opinions as
deemed necessary or advisable by the Agent.
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G. This Second 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 Second Amendment to produce
or account for more than one such counterpart.
H. Except as modified hereby, all of the terms and conditions of the
Operative Agreements shall remain in full force and effect.
I. This Second 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 Second
Amendment to be duly executed and delivered as of the date first above written.
CAPITAL ONE BANK,
as Construction Agent and as Lessee
By: /s/ MURRAY P. ABRAMS
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Name: MURRAY P. ABRAMS
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Title: ASSISTANT TREASURER
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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: /s/ VAL T. ORTON
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Name: VAL T. ORTON
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Title: VICE PRESIDENT
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NATIONSBANK OF TEXAS, N.A.,
as Holder, as a Lender and as
Administrative Agent
By: /s/ PATRICK K. DOYLE
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Name: PATRICK K. DOYLE
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Title: SENIOR VICE PRESIDENT
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