Exhibit 10.17 to 10-K
AMENDMENT NO. 1 TO THE PARTICIPATION AGREEMENT,
THE CREDIT AGREEMENT, THE TRUST AGREEMENT,
THE SECURITY AGREEMENT, THE LEASE AGREEMENT AND OTHER OPERATIVE
AGREEMENTS
THIS AMENDMENT NO. 1 (this "Amendment") dated as of October 1, 1999, is by
and among CONVERGYS CORPORATION, an Ohio corporation (the "Lessee" or the
"Construction Agent"); the various parties listed on the signature pages hereto
as guarantors (subject to the definition of Guarantors in Appendix A to the
Participation Agreement referenced below, individually a "Guarantor" and
collectively, the "Guarantors"); FIRST SECURITY BANK, NATIONAL ASSOCIATION, a
national banking association, not individually but solely as the Owner Trustee
under the CRT Realty Trust 1998-1 (the "Owner Trustee" or the "Lessor"); the
various banks and other lending institutions listed on the signature pages
hereto (subject to the definition of Lenders in Appendix A to the Participation
Agreement referenced below, individually, a "Lender" and collectively, the
"Lenders"); BANK OF AMERICA, N.A., a national banking association, which is the
successor to NationsBank, N.A., as the agent for the Lenders and respecting the
Security Documents, as the agent for the Lenders and the Holders, to the extent
of their interests (in such capacity, the "Agent"); and the various banks and
other lending institutions listed on the signature pages hereto as holders of
certificates issued with respect to the CRT Realty Trust 1998-1 (subject to the
definition of Holders in Appendix A to the Participation Agreement referenced
below, individually, a "Holder" and collectively, the "Holders"). Capitalized
terms used in this Amendment but not otherwise defined herein shall have the
meanings set forth in Appendix A to the Participation Agreement (hereinafter
defined).
W I T N E S S E T H
WHEREAS, the parties to this Amendment are parties to that certain
Participation Agreement dated as of December 31, 1998 (the "Participation
Agreement"), certain of the parties to this Amendment are parties to that
certain Credit Agreement dated as of December 31, 1998 (the "Credit Agreement"),
certain of the parties to this Amendment are parties to that certain Amended and
Restated Trust Agreement dated as of December 31, 1998 (the "Trust Agreement"),
certain of the parties to this Amendment are parties to that certain Security
Agreement dated as of December 31, 1998 (the "Security Agreement"), certain of
the parties to this Amendment are parties to that certain Lease Agreement dated
as of December 31, 1998 (the "Lease") and certain of the parties to this
Amendment are parties to the other Operative Agreements relating to a $30
million tax retention operating lease facility (the "Facility") that has been
established in favor of the Lessee;
WHEREAS, the Lessee has requested certain modifications to the
Participation Agreement, the Credit Agreement, the Trust Agreement, the Security
Agreement, the Lease and the other Operative Agreements in connection with the
Lessee's request to increase the size of the Facility from $30 million to $65.2
million to finance the acquisition of a completed office and data center located
in Maitland, Florida, more particularly described on Annex A attached hereto
("Phase I"), and to provide for the syndication of the Facility;
WHEREAS, the Financing, Parties have agreed to the requested modifications
on the terms and conditions set forth herein;
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
PARTICIPATION AGREEMENT
1. Appendix A to the Participation Agreement is hereby amended to modify or
add the following defined terms as follows:
"Additional Incorporated Terms" shall have the meaning given to such term
in Section 28.2 of the Lease.
"Applicable Percentage" means, for any day, with respect to any Eurodollar
Loan or Eurodollar Holder Advance, or with respect to the Facility Fees payable
under the Operative Agreements, as the case may be, the applicable rate per
annum set forth below under the caption "Eurodollar Spread" or "Facility Fee
Rate", as the case may be, based upon the ratings by Moody's and S&P,
respectively, applicable on such date to the Index Debt:
==========================================================================================================
Index Debt Ratings Eurodollar Spread Facility Fee Rate
- ----------------------------------------------------------------------------------------------------------
Tranche Tranche B
Eurodollar Eurodollar Eurodollar A Lender Lender Holder
Tranche A Tranche B Holder Facility Facility Facility
Loans Loans Advances Fee Fee Fee
- ----------------------------------------------------------------------------------------------------------
Category 1 .325% .325% 1.075% .075% .075% .825%
A- or higher or A3 or higher
- ----------------------------------------------------------------------------------------------------------
Category 2 .400% .400% 1.150% .100% .100% .850%
BBB+ or Baal
- ----------------------------------------------------------------------------------------------------------
Category 3 .625% .625% 1.375% .125% .125% .875%
BBB or Baa2
- ----------------------------------------------------------------------------------------------------------
Category 4 .725% .725% 1.475% .150% .150% .900%
BBB- and Baa3
- ----------------------------------------------------------------------------------------------------------
Category 5 .800% .800% 1.550% .200% .200% .950%
BB+ and Bal
- ----------------------------------------------------------------------------------------------------------
Category 6 1.000% 1.000% 1.750% .250% .250% 1.000%
lower than BB+ or lower than Ba1
==========================================================================================================
For purposes of the foregoing, (i) if either Moody's or S&P shall not have
in effect a rating for the Index Debt (other than by reason of the circumstances
referred to in the last sentence of this definition), then such rating agency
shall be deemed to have established a rating in Category 6; (ii) if the ratings
established or deemed to have been established by Moody's and S&P for the Index
Debt shall fall within different Categories, then (A) if both such ratings are
at or above Category 4, the Applicable Percentage shall be based on the higher
of the two ratings unless one of the two ratings is two or more Categories lower
than the other, in which case the Applicable Percentage shall be determined by
reference to the Category next above that of the
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lower of the two ratings and (B) if one or both of such ratings is below
Category 4, the Applicable Percentage shall be determined by reference to the
lower of the two ratings; and (iii) if the ratings established or deemed to have
been established by Moody's and S&P for the Index Debt shall be changed (other
than as a result of a change in the rating system of Moody's or S&P), such
change shall be effective as of the date on which it is first announced by the
applicable rating agency. Each change in the Applicable Percentage shall apply
during the period commencing on the effective date of such change and ending on
the date immediately preceding the effective date of the next such change. If
the rating system of Moody's or S&P shall change, or if either such rating
agency shall cease to be in the business of rating corporate debt obligations,
the Lessee and the Lenders and the Holders shall negotiate in good faith to
amend this definition to reflect such changed rating system or the
unavailability of ratings from such rating agency and, pending the effectiveness
of any such amendment, the Applicable Percentage shall be determined by
reference to the rating most recently in effect prior to such change or
cessation.
In the event of any replacement or amendment of the pricing grid setting
forth the "Eurodollar Spread" and the "Facility Fee Rate" in the definition of
"Applicable Rate" under the Lessee Credit Agreement, the Eurodollar Spread for
Tranche A Eurodollar Loans and Tranche B Eurodollar Loans and the Facility Fees
for Tranche A Lender Facility Fees and Tranche B Lender Facility Fees set forth
herein for each Index Debt Rating shall be amended to equal the Eurodollar
Spread or Facility Fee, as applicable, set forth for each corresponding Index
Debt Rating in the Lessee Credit Agreement, as replaced or amended, and the
Eurodollar Spread for Eurodollar Holder Advances and the Holder Facility shall,
in each case, be equal to the Eurodollar Spread or Facility Fee, as applicable,
set forth for each corresponding Index Debt Rating in the Lessee Credit
Agreement, as replaced or amended, plus .75%; provided, in the event that any
such replacement or amendment of the pricing grid setting forth the "Eurodollar
Spread" and the "Facility Fee Rate" in the definition of "Applicable Rate" under
the Lessee Credit Agreement includes both a 364-day tranche and a multi-year
tranche, the Eurodollar Spread for Tranche A Eurodollar Loans and Tranche B
Eurodollar Loans and the Facility Fees for Tranche A Lender Facility Fees and
Tranche B Lender Facility Fees set forth herein for each Index Debt Rating shall
be amended to equal the Eurodollar Spread or Facility Fee for the multi-year
tranche (rather than the 364-day tranche), as applicable, set forth for each
corresponding Index Debt Rating in the Lessee Credit Agreement, as replaced or
amended, and the Eurodollar Spread for Eurodollar Holder Advances and the Holder
Facility shall, in each case, be equal to the Eurodollar Spread or Facility Fee
for the multi-year tranche (rather than the 364-day tranche), as applicable, set
forth for each corresponding Index Debt Rating in the Lessee Credit Agreement,
as replaced or amended, plus .75%; provided, further, any such amendment to the
Eurodollar Spread for Tranche A Eurodollar Loans and Tranche B Eurodollar Loans
and the Facility Fees for Tranche A Lender Facility Fees and Tranche B Lender
Facility Fees described in this sentence shall only be effective upon the
unanimous written consent of the Lenders and the Holders, and if such unanimous
written consent is not received, the Eurodollar Spread for Tranche A Eurodollar
Loans, Tranche B Eurodollar Loans and Eurodollar Holder Advances and the
Facility Fees for Tranche A Lender Facility Fees, Tranche B Lender Facility Fees
and Holder Facility Fees shall continue to be as set forth above.
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"Assignment and Acceptance" shall mean the Assignment and Acceptance in the
form attached to the Credit Agreement as Exhibit B.
"Eligible Assignee" shall mean (i) a Lender or a Holder, as the case may
be; (ii) an Affiliate of a Lender or a Holder, as the case may be; and (iii) any
other Person approved by the Agent and, unless an Event of Default has occurred
and is continuing at the time any assignment is effected in accordance with the
Operative Agreements, the Lessee or the Construction Agent, such approval not to
be unreasonably withheld or delayed by the Lessee or the Construction Agent and
such approval to be deemed given by the Lessee or the Construction Agent if no
objection is received by the assigning Lender or Holder and the Agent from the
Lessee or the Construction Agent within five (5) Business Days after notice of
such proposed assignment has been provided by the assigning Lender or Holder to
the Lessee or the Construction Agent; provided, however, that neither the Lessee
or the Construction Agent nor an Affiliate of the Lessee or the Construction
Agent shall qualify as an Eligible Assignee.
"Holder Commitments" shall mean $1,956,000, as such amount may be increased
or decreased from time to time in accordance with the provisions of the
Operative Agreements (including without limitation pursuant to Section 5.13 of
the Participation Agreement); provided, if there shall be more than one (1)
Holder, the Holder Commitment of each Holder shall be as set forth in Schedule I
to the Trust Agreement as such Schedule I may be amended and replaced from time
to time (including without limitation pursuant to Section 5.13 of the
Participation Agreement).
"Incorporated Covenants" shall have the meaning given to such term in
Section 28.2 of the Lease.
"Incorporated Representations and Warranties" shall have the meaning given
to such term in Section 28.2 of the Lease.
"Index Debt" means senior, unsecured, long-term indebtedness for borrowed
money of the Lessee that is not guaranteed by any other Person or subject to any
other credit enhancement.
"Interest Period" means with respect to any Eurodollar Loan or Eurodollar
Holder Advance, the period commencing on the date of such Loan or Holder Advance
and ending on the numerically corresponding day in the calendar month that is
one, two, three or six months (or, with the consent of each Lender and each
Holder, nine or twelve months) thereafter, as the Borrower may elect; provided
that (i) if any Interest Period would end on a day other than a Business Day,
such Interest Period shall be extended to the next succeeding Business Day
unless, in the case of a Eurodollar Loan or Eurodollar Holder Advance, such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day and (ii) any
Interest Period pertaining to a Eurodollar Loan or Eurodollar Holder Advance
that commences on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the last calendar month of
such Interest Period) shall end on the last Business Day of the last calendar
month of such Interest Period. For purposes hereof, the date of a Loan or Holder
Advance shall be the date on which
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such Loan or Holder Advance is made, the effective date of the most recent
conversion or continuation of such Loan or Holder Advance.
"Lender Commitments" shall mean $63,244,000, as such amount may be
increased or decreased from time to time in accordance with the provisions of
the Operative Agreements (including without limitation pursuant to Section 5.13
of the Participation Agreement); provided, if there shall be more than one (1)
Lender, the Lender Commitment of each Lender shall be as set forth in Schedule
2.1 to the Credit Agreement as such Schedule 2.1 may be amended and replaced
from time to time (including without limitation pursuant to Section 5.13 of the
Participation Agreement).
"Lessee Credit Agreement" shall mean that certain 364-Day Credit Agreement
dated as of December 16, 1998 between the Lessee and the lenders party thereto,
PNC Bank, National Association, Bank of America National Trust & Savings
Association and Citibank, N.A., as cosyndication agents, and The Chase Manhattan
Bank, as administrative agent, as such may hereafter be amended, modified,
supplemented, restated and/or replaced from time to time with the same or
different lenders and, subject to Section 28.2 of the Lease, any such amended,
modified, supplemented, restated or new credit facility shall be deemed to be
included in this definition.
"Lessee Credit Agreement Event of Default" shall mean an Event of Default
as defined in Article VII of the Lessee Credit Agreement.
"Majority Holders" shall mean at any time, Holders whose Holder Advances
outstanding represent at least fifty-one percent (51%) of (a) the aggregate
Holder Advances outstanding or (b) to the extent there are no Holder Advances
outstanding, the aggregate Holder Commitments.
"Majority Lenders" shall mean at any time, Lenders whose Loans outstanding
represent at least fifty-one percent (51%) of (a) the aggregate Loans
outstanding or (b) to the extent there are no Loans outstanding, the aggregate
of the Lender Commitments.
"Majority Secured Parties" shall mean at any time, Lender and Holders whose
Loans and Holder Advances outstanding represent at least fifty-one percent (51
%) of (a) the aggregate Advances outstanding or (b) to the extent there are no
Advances outstanding, the sum of the aggregate Holder Commitments plus the
aggregate Lender Commitments.
"New Facility" shall have the meaning given to such term in Section 28.2 of
the Lease.
"Participant" shall have the meaning given to such term in Section 9.7 of
the Credit Agreement.
"Register" shall have the meaning given to such term in Section 9.9 of the
Credit Agreement.
2. The following is hereby added as Section 3.4 to the Participation
Agreement:
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3.4. Ratable Interests of the Holders and the Lenders.
Each Holder and Lender agrees at all times (a) to hold the same ratable
portion of the aggregate Lender Commitment for Tranche A Loans, the aggregate
Lender Commitment for Tranche B Loans and the aggregate Holder Commitment and
(b) to make advances consistent with such committed amounts referenced in
Section 3.4(a) in accordance with the requirements of the Operative Agreements.
3. Section 5.3(a) of the Participation Agreement is hereby amended to read
as follows:
(a) the correctness of the representations and warranties of the
parties to this Agreement contained herein, in each of the other Operative
Agreements and each certificate delivered pursuant to any Operative
Agreement (including without limitation the Incorporated Representations
and Warranties) on each such date;
4. Section 5.4(a) of the Participation Agreement is hereby amended to read
as follows:
(a) the correctness on such date of the representations and warranties
of the parties to this Agreement contained herein, in each of the other
Operative Agreements and in each certificate delivered pursuant to any
Operative Agreement (including without limitation the Incorporated
Representations and Warranties);
5. The first sentence of Section 5.5 of the Participation Agreement is
hereby amended to read as follows:
On or prior to the Completion Date for each Property, the Construction
Agent shall deliver to the Agent an Officer's Certificate in the form attached
hereto as Exhibit I, or in such other form as is acceptable to the Agent
specifying (a) the address for such Property, (b) the Completion Date for such
Property, (c) the aggregate Property Cost for such Property, (d) detailed,
itemized documentation supporting the asserted Property Cost figures and (e)
that all representations and warranties of the Construction Agent and Lessee in
each of the Operative Agreements and each certificate delivered pursuant thereto
(including without limitation the Incorporated Representations and Warranties)
are true and correct as of the Completion Date.
6. Section 6.2(a) of the Participation Agreement is hereby amended to read
as follows:
(a) The Incorporated Representations and Warranties are true and
correct (unless such relate solely to an earlier point in time) and the
Lessee has delivered to the Agent the financial statements and other
reports referred to in Section 5.01 of the Lessee Credit Agreement;
7. Section 8.3(e) of the Participation Agreement is hereby amended to read
as follows:
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(e) The Lessee hereby covenants and agrees to cause an Appraisal or
reappraisal (in form and substance satisfactory to the Agent and from an
appraiser selected by the Agent) to be issued respecting any Property as
requested by the Agent from time to time (i) at each and every time as such
shall be required to satisfy any regulatory requirements imposed on the
Agent, the Lessor, the Trust Company, any Lender and/or any Holder, (ii)
after the occurrence of an Event of Default and (iii) in connection with
the exercise by the Lessee of the Purchase Option with respect to one or
more, but less than all, of the Properties pursuant to Article XX of the
Lease.
8. Section 8.3(1) of the Participation Agreement is hereby deleted.
9. Section 8.3(p)(i) of the Participation Agreement is hereby amended to
read as follows:
(i) except as permitted by the express provisions of the Lessee
Credit Agreement, preserve and maintain its separate legal existence
and all rights, franchises, licenses and privileges necessary to the
conduct of its business, and qualify and remain qualified as a foreign
corporation (or partnership, limited liability company or other such
similar entity, as the case may be) and authorized to do business in
each jurisdiction in which the failure to so qualify and remain
qualified would have a Material Adverse Effect;
10. Sections 8.3(u), (v), (w) and (x) of the Participation Agreement are
hereby deleted.
11. Section 10 of the Participation Agreement is hereby amended to read as
follows:
SECTION 10. TRANSFER OF INTEREST.
10.1. Restrictions on Transfer.
Each Lender may participate, assign or transfer all or a portion of its
interest hereunder and under the other Operative Agreements in accordance with
Sections 9.7 and 9.8 of the Credit Agreement; provided, each participant,
assignee or transferee must obtain the same ratable interest in Tranche A Loans,
Tranche A Commitments, Tranche B Loans and Tranche B Commitments, and (and to
the extent the selling Lender is also a Holder (or an Affiliate of a Holder),
each such participant, assignor or transferee must also obtain the same ratable
interest in and to the Holder Advances, Holder Commitments and the Trust
Estate); provided further, that each Lender that participates, assigns or
transfers all or a portion of its interest hereunder and under the other
Operative Agreements shall deliver to the Agent a copy of each Assignment and
Acceptance (as referenced in Section 9.8 of the Credit Agreement) for purposes
of maintaining the Register. The Holders may, directly or indirectly, assign,
convey or otherwise transfer any of their right, title or interest in or to the
Trust Estate or the Trust Agreement with the prior written consent of the Agent
and the Lessee (which consent shall not be unreasonably withheld or delayed) and
in accordance with the terms of Section 11.8(b) of the Trust Agreement;
provided,
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to the extent the selling Holder is also a Lender (or an Affiliate of a Lender),
each such assignee, receiver of a conveyance or other transferee must also
obtain the same ratable interest in and to the Tranche A Loans, Tranche A
Commitments, Tranche B Loans and Tranche B Commitments. The Owner Trustee may,
subject to the rights of the Lessee under the Lease and the other Operative
Agreements and to the Lien of the applicable Security Documents but only with
the prior written consent of the Agent (which consent may be withheld by the
Agent in its sole discretion) and (provided, no Default or Event of Default has
occurred and is continuing) with the consent of the Lessee, directly or
indirectly, assign, convey, appoint an agent with respect to enforcement of, or
otherwise transfer any of its right, title or interest in or to any Property,
the Lease, the Trust Agreement and the other Operative Agreements (including
without limitation any right to indemnification thereunder), or any other
document relating to a Property or any interest in a Property as provided in the
Trust Agreement and the Lease. The provisions of the immediately preceding
sentence shall not apply to the obligations of the Owner Trustee to transfer
Property to the Lessee or a third party purchaser pursuant to Article XXII of
the Lease upon payment for such Property in accordance with the terms and
conditions of the Lease. Neither the Lessee nor the Construction Agent may
assign any of the Operative Agreements or any of their respective rights or
obligations thereunder or with respect to any Property in whole or in part to
any Person without the prior written consent of the Agent, the Lenders, the
Holders and the Lessor.
10.2. Effect of Transfer.
From and after any transfer effected in accordance with this Section 10,
the transferor shall be released, to the extent of such transfer, from its
liability hereunder and under the other documents to which it is a party in
respect of obligations to be performed on or after the date of such transfer;
provided, however, that any transferor shall remain liable hereunder and under
such other documents to the extent that the transferee shall not have assumed
the obligations of the transferor thereunder. Upon any transfer by the Owner
Trustee, a Holder or a Lender as above provided, any such transferee shall
assume the obligations of the Owner Trustee, the Holder or the Lender, as the
case may be, and shall be deemed an "Owner Trustee", "Holder", or "Lender", as
the case may be, for all purposes of such documents and each reference herein to
the transferor shall thereafter be deemed a reference to such transferee for all
purposes, except as provided in the preceding sentence. Notwithstanding any
transfer of all or a portion of the transferor's interest as provided in this
Section 10, the transferor shall be entitled to all benefits accrued and all
rights vested prior to such transfer including without limitation rights to
indemnification under any such document.
CREDIT AGREEMENT
12. Sections 6(a) and (b) of the Credit Agreement are hereby amended to
read as follows:
(a) Except as provided in Section 6(c), the Borrower shall default in the
payment when due of any principal on the Loans or default in the payment when
due of any interest on the Loans, and in either such case, such default shall
continue for three (3) or more Business Days; or
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(b) Except as provided in Sections 6(a) and 6(c), the Borrower shall
default, and such default shall continue for three (3) or more Business Days, in
the payment of any amount owing under any Credit Document; or
13. Section 9.7 of the Credit Agreement is hereby amended to read as
follows:
9.7 Participations.
Subject to and in accordance with Section 10.1 of the Participation
Agreement, each Lender may sell participation to one or more Persons (each, a
"Participant") in all or a portion of its rights, obligations or rights and
obligations under the Operative Agreements (including all or a portion of its
Commitment or its Loans); provided, however, that (a) such Lender's obligations
under the Operative Agreements shall remain unchanged, (b) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations, (c) the Participant shall be entitled to the benefit of the
yield protection provisions contained in Sections 11.2(e), 11.3 and 11.4 of the
Participation Agreement and the right of set-off contained in Section 12.15 of
the Participation Agreement, and (d) the Borrower shall continue to deal solely
and directly with such Lender in connection with such Lender's rights and
obligations under the Operative Agreements, and such Lender shall retain the
sole right to enforce the obligations of the Borrower relating to its Loans and
its Notes and to approve any amendment, modification, or waiver of any provision
of the Operative Agreements (other than amendments, modifications, or waivers
decreasing the amount of principal of or the rate at which interest is payable
on such Loans or Notes, extending any scheduled principal payment date or date
fixed for the payment of interest on such Loans or Notes, or extending its
Commitment).
Any Lender may furnish any information concerning the Borrower, the Lessee
or any Subsidiaries of the Lessee in the possession of such Lender from time to
time to participants (including prospective participants), subject, however, to
the provisions of Section 12.13 of the Participation Agreement.
14. Section 9.8 of the Credit Agreement is hereby amended to read as
follows:
9.8 Assignments.
Assignments. (a) Subject to and in accordance with Section 10.1 of the
Participation Agreement, each Lender may assign to one or more Eligible
Assignees all or a portion of its rights and obligations under the
Operative Agreements (including, without limitation, all or a portion of
its Loans, its Notes, and its Commitment); provided, however, that
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender or an
assignment of all of a Lender's rights and obligations under the
Operative Agreements, any such partial assignment shall be in an
amount at least equal to $10,000,000 or an integral multiple of
$1,000,000 in excess thereof;
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(iii) each such assignment by a Lender shall be of a constant,
and not varying, percentage of all of its rights and obligations under
the Operative Agreements and the Notes; and
(iv) the parties to such assignment shall execute and deliver to
the Agent for its acceptance an Assignment and Acceptance
substantially in the form of Exhibit B hereto, together with any Note
subject to such assignment and a processing fee in an amount not to
exceed $3,500.
Upon execution, delivery, and acceptance of such Assignment and Acceptance,
the assignee thereunder shall be a party hereto and, to the extent of such
assignment, have the obligations, rights and benefits of a Lender under the
Operative Agreements and the assigning Lender shall, to the extent of such
assignment, relinquish its rights and be released from its obligations
under the Operative Agreements. Upon the consummation of any assignment
pursuant to this Section, the assignor, the Agent and the Borrower shall
make appropriate arrangements so that, if required, new Notes are issued to
the assignor and the assignee. If the assignee is not incorporated under
the laws of the United States of America or a state thereof, it shall
deliver to the Borrower and the Agent certification as to exemption from
deduction or withholding of Taxes in accordance with Section 11.2(e) of the
Participation Agreement.
(b) Upon its receipt of an Assignment and Acceptance executed by the
parties thereto, together with any Note subject to such assignment and
payment of the processing fee, the Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit B
hereto, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the parties thereto.
(c) Notwithstanding any other provision set forth in any Operative
Agreement, any Lender may at any time assign and pledge all or any portion
of its Loans and its Notes to any Federal Reserve Bank as collateral
security pursuant to Regulation A and any Operating Circular issued by such
Federal Reserve Bank. No such assignment shall release the assigning Lender
from its obligations hereunder.
(d) Any Lender may furnish any information concerning the Borrower,
the Lessee or any Subsidiaries of the Lessee in the possession of such
Lender from time to time to assignees (including prospective assignees),
subject, however, to the provisions of Section 12.13 of the Participation
Agreement.
15. Section 9.9 of the Credit Agreement is hereby amended to read as
follows:
9.9 The Register; Disclosure; Pledges to Federal Reserve Banks.
The Agent shall maintain at its address referred to in Section 12.2 of the
Participation Agreement a copy of each Assignment and Acceptance delivered to
and accepted by it and a
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register for the recordation of the names and addresses of the Lenders and the
Commitment of, and principal amount of the Loans owing to, each Lender from time
to time (the "Register"). The entries in the Register shall be conclusive and
binding for all purposes, absent manifest error, and the Borrower, the Agent and
the Lenders may treat each Person whose name is recorded in the Register as a
Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
16. Schedule 2.1 of the Credit Agreement is hereby deemed amended and
restated in its entirety to read as Schedule 2.1 attached hereto as EXHIBIT 1.
17. The form of Assignment and Acceptance attached hereto as RIDER A is
hereby added as EXHIBIT B to the Credit Agreement.
TRUST AGREEMENT
18. Section 11.8(b) of the Trust Agreement is hereby amended to read as
follows:
Any Holder may transfer or assign all or any portion of its right,
title and interest in the Trust Estate, this Trust Agreement and the
Certificate of such Holder in accordance with the requirements of
Section 10.1 of the Participation Agreement and pursuant to an
assignment agreement in substantially the form of Exhibit B, which
assignment agreement shall provide, without limitation, that the
assignee undertakes and assumes all obligations and covenants of a
Holder under this Trust Agreement and the other Operative Agreements.
The Holder proposing the transfer or assignment shall notify the Owner
Trustee, the Agent and Lessee in writing of the effective date of the
transfer or assignment, which effective date shall be at least three
(3) Business Days after the date of such notification. The Owner
Trustee shall maintain a register showing the Holders and their
respective interests in the Trust Estate and, upon the occurrence of a
permitted assignment pursuant to this Section 11.8(b), shall issue a
Certificate to the assignee and, if the assigning Holder is
maintaining an interest hereunder, a new Certificate to such assigning
Holder representing its revised interest in the Trust Estate. The
Owner Trustee shall not recognize any purported assignment or transfer
by a Holder that does not comply with the terms of this Section
11.8(b) and any such attempted transfer or assignment by a Holder in
violation of the terms of this Section 11.8(b) shall be null and void
and of no effect.
19. Schedule I of the Trust Agreement is hereby deemed amended and restated
in its entirety to read as Schedule I attached hereto as EXHIBIT 2.
20. The form of assignment agreement attached hereto as RIDER B is hereby
added as EXHIBIT B to the Trust Agreement.
11
SECURITY AGREEMENT
21. The first paragraph of the Preliminary Statement to the Security
Agreement is hereby deleted and replaced with the following:
Pursuant to the Credit Agreement, the Lenders have severally agreed to make
Loans to the Borrower in an aggregate amount not to exceed $63,244,000 upon the
terms and subject to the conditions set forth therein, to be evidenced by the
Notes issued by the Borrower under the Credit Agreement. Pursuant to the Trust
Agreement, the Holders have agreed to purchase the ownership interests of the
Trust created thereby in an aggregate amount not to exceed $1,956,000 upon the
terms and subject to the conditions set forth therein, to be evidenced by the
Certificates issued by the Borrower under the Trust Agreement. The Borrower is,
or shall be upon the date of the initial Advance with respect to each Property,
the legal and beneficial owner of such Property (except the Borrower may have a
ground leasehold interest in certain Properties pursuant to one (1) or more
Ground Leases). The Borrower holds a ground leasehold interest in certain
Properties pursuant to a ground lease dated September 10, 1998 between Convergys
Corporation and the Borrower.
LEASE AGREEMENT
22. The reference to "$30,000,000" in Section 5.2 of the Lease and in
Section 7 of the form of OPEN-END MORTGAGE, ASSIGNMENT OF LEASES, RENTS AND
PROFITS AND MEMORANDUM OF LEASE AND LEASE SUPPLEMENT NO. attached to the
---
Lease as EXHIBIT B TO THE LEASE is hereby deleted and replaced with
"$65,200,000".
23. Section 10.1(e) of the Lease is hereby amended to read as follows:
(e) Lessee shall cause to be delivered to Lessor (at Lessee's sole
expense) one or more additional Appraisals (or reappraisals of Property) as
Lessor may request if any one of Lessor, the Agent, the Trust Company, any
Lender or any Holder is required pursuant to any applicable Legal
Requirement to obtain such Appraisals (or reappraisals), upon the
occurrence of any Event of Default and in connection with the exercise by
the Lessee of the Purchase Option with respect to one or more, but less
than all, of the Properties pursuant to Article XX.
24. Sections 17.1(a) and (b) of the Lease are hereby amended to read as
follows:
(a) Lessee shall fail to make payment of (i) any Basic Rent
(except as set forth in clause (ii)) within three (3) Business Days
after the same has become due and payable or (ii) any Termination
Value, on the date any such payment is due and payable, or any payment
of Basic Rent or Supplemental Rent due on the due date of any such
payment of Termination Value, or any amount due on the Expiration
Dare;
(b) Lessee shall fail to make payment of any Supplemental Rent
(other than Supplemental Rent referred to in Section 17.1(a)(ii) or
any other Credit Party
12
shall fail to make any payment of any amount under any Operative
Agreement which has become due and payable within three (3) Business
Days after receipt of notice that such payment is due;
25. Section 17.1(d) of the Lease is hereby amended to read as follows:
(d) (i) Lessee shall fail to observe or perform any term, covenant,
obligation or condition of Lessee (including without limitation the
Incorporated Covenants) under this Lease or any other Operative Agreement
to which Lessee is a party other than those set forth in Sections 17.1(a),
(b) or (c) hereof, or any other Credit Party shall fail to observe or
perform any term, covenant, obligation or condition of such Credit Party
(including without limitation the Incorporated Covenants) under any
Operative Agreement other than those set forth in Section 17.1(b) hereof
and such failure shall continue for thirty (30) days after notice thereof
to Lessee or such Credit Party; provided, if such failure cannot be cured
within such thirty (30) days but can be cured with subsequent diligence and
Lessee or such Credit Party diligently pursues such cure, then no Lease
Event of Default shall be deemed to occur with respect to such failure
until the passage of an additional sixty (60) days after the initial thirty
(30) days referenced above or (ii) any representation or warranty made by
Lessee or any other Credit Party (including without limitation the
Incorporated Representations and Warranties) set forth in this Lease or in
any other Operative Agreement or in any document entered into in connection
herewith or therewith or in any document, certificate or financial or other
statement delivered in connection herewith or therewith shall be false or
inaccurate in any material way when made and such matter giving rise to
such misrepresentation or breach of warranty shall continue for thirty (30)
days after notice thereof to Lessee or such Credit Party; provided, if such
matter giving rise to such misrepresentation or breach of warranty cannot
be cured within such thirty (30) days but can be cured with subsequent
diligence and Lessee or such Credit Party diligently pursues such cure,
then no Lease Event of Default shall be deemed to occur with respect to
such failure until the passage of an additional sixty (60) days after the
initial thirty (30) days referenced above;
26. The following is hereby added as Section 17.1(r) of the Lease:
(r) Any Lessee Credit Agreement Event of Default shall have occurred
and be continuing and shall not have been waived;
27. Section 20.1 is hereby amended to read as follows:
20.1 Purchase Option or Sale Option-General Provisions.
Not less than one hundred twenty (120) days and no more than one
hundred eighty (180) days prior to the Expiration Date or (respecting the
Purchase Option only) any Payment Date prior to the Expiration Date (so long as
the appraised value pursuant to an Appraisal delivered to the Agent not more
than sixty (60) days prior to the Payment Date specified in the Election Notice,
as defined below, respecting each Property remaining in the Trust and subject to
this Lease after such Payment Date is equal to or greater than ninety percent
13
(90%) of the Property Cost of such remaining Property), Lessee may give Lessor
irrevocable written notice (the "Election Notice") that Lessee is electing to
exercise either (a) the option to purchase all, but not less than all, the
Properties on the Expiration Date or each Property or any Property on the
Payment Date specified in the Election Notice (the "Purchase Option") or (b)
with respect to an Election Notice given in connection with the Expiration Date
only, the option to remarket all, but not less than all, the Properties to a
Person other than Lessee or any Affiliate of Lessee and cause a sale of such
Properties to occur on the Expiration Date pursuant to the terms of Section 22.1
(the "Sale Option"). Not more than two hundred (200) days prior to the final
Expiration Date, Lessor may give Lessee notice of Lessee's obligation to deliver
the Election Notice. If Lessee fails to give an Election Notice within the
specified time period prior to the Expiration Date and Lessor has not given
Lessee notice as specified in the preceding sentence, then Lessor shall give
Lessee notice of Lessee's obligation to deliver the Election Notice, and Lessee
shall have five (5) Business Days after receipt of such notice within which to
make the Election Notice. If Lessee elects, or is deemed to have elected, either
the Purchase Option or the Sale Option and fails to satisfy all related
obligations of Lessee pursuant to the Operative Agreements, then such failure
shall be deemed to be a Lease Event of Default. If Lessee does not give an
Election Notice indicating the Purchase Option or the Sale Option at least one
hundred twenty (120) days and not more than one hundred eighty (180) days prior
to the Expiration Date, then, unless such Expiration Date is the final
Expiration Date to which the Term may be extended, the term of this Lease shall
be extended in accordance with Section 2.2 hereof; if such Expiration Date is
the final Expiration Date (and Lessor has given Lessee notice of Lessee's
obligation to deliver the Election Notice but Lessee has not made its Election
Notice within five (5) Business Days after receipt of such notice from Lessor),
then Lessee shall be deemed to have elected the Purchase Option. If Lessee shall
either (i) elect (or be deemed to have elected) to exercise the Purchase Option
or (ii) elect the Sale Option and fail to cause all, but not less than all, 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 scheduled to occur an amount equal to the
Termination Value for all, but not less than all, the Properties (which the
parties do not intend to be a "bargain" purchase price) and, upon receipt of
such amounts and satisfaction of such obligations, Lessor shall transfer to
Lessee all of Lessor's right, title and interest in and to all, but not less
than all, the Properties in accordance with Section 20.2.
28. Section 20.2 is hereby amended to read as follows:
20.2 Lessee Purchase Option.
Provided, no Default or Event of Default shall have occurred and be
continuing (other than those that will be cured by the payment of the
Termination Value for all the Properties) and provided, that the Election Notice
has been appropriately given specifying the Purchase Option, Lessee shall
purchase all the Properties on the Expiration Date or each Property or any
Property as elected for any Payment Date prior to the Expiration Date at a price
equal to the Termination Value for such Properties (which the parties do not
intend to be a "bargain" purchase price).
14
Subject to Section 19.2, in connection with any termination of this
Lease with respect to any Property pursuant to the terms of Section 16.2, or in
connection with Lessee's exercise of its Purchase Option, upon the date on which
this Lease is to terminate with respect to a Property or all of the Properties,
and upon tender by Lessee of the amounts set forth in Section 16.2(b) or this
Section 20.2, as applicable, Lessor shall execute, acknowledge (where required)
and deliver to Lessee, at Lessee's cost and expense, each of the following: (a)
a termination or assignment (as requested by the Lessee) of each applicable
Ground Lease and special or limited warranty Deeds conveying each Property (to
the extent it is real property not subject to a Ground Lease) to Lessee free and
clear of the Lien of this Lease, the Lien of the Credit Documents and any Lessor
Liens; (b) a Bill of Sale conveying each 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 and, to the extent the following are
agreed to by the Agent in its reasonable discretion, such title affidavits and
other documents as may be reasonably requested by any title insurance
underwriter issuing title insurance in connection with the acquisition of each
such Property by Lessee; (c) any real estate tax affidavit or other document
required by law to be executed and filed in order to record the applicable Deed
and/or the applicable Ground Lease termination; and (d) FIRPTA affidavits. All
of the foregoing documentation must be in form and substance reasonably
satisfactory to Lessor. The applicable Property shall be conveyed to Lessee
"AS-IS, WHERE-IS" and in then present physical condition.
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 (with materiality determined
in Lessor's discretion), then Lessee shall be obligated to purchase each such
Property pursuant to Section 20.2.
On the Expiration Date and/or any Payment Date on which Lessee has
elected to exercise its Purchase Option, Lessee shall pay (or cause to be paid)
to Lessor, the Agent and all other parties, as appropriate, the sum of all costs
and expenses incurred by any such party in connection with the election by
Lessee to exercise its Purchase Option and all Rent and all other amounts then
due and payable or accrued under this Lease and/or any other Operative
Agreement.
29. The following is hereby added as Section 28.2 of the Lease:
28.2 Incorporation of Covenants.
Reference is made to the Lessee Credit Agreement and the
representations and warranties of Lessee contained in Article III of the Lessee
Credit Agreement (hereinafter referred to as the "Incorporated Representations
and Warranties") and the covenants contained in Articles V and VI of the Lessee
Credit Agreement (hereinafter referred to as the "Incorporated Covenants").
Lessee agrees with Lessor that the Incorporated Representations and Warranties
and the Incorporated Covenants (and all other relevant provisions of the Lessee
Credit Agreement related thereto, including without limitation the defined terms
contained in Section 1.01 thereof which are used in the Incorporated
Representations and Warranties and the Incorporated Covenants, hereinafter
referred to as the "Additional Incorporated Terms") are
15
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
Lessor, without giving effect to any waiver, amendment, modification or
replacement of the Lessee Credit Agreement or any term or provision of the
Incorporated Representations and Warranties or the Incorporated Covenants
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 Lessee Credit Agreement or an amendment or
modification is executed with respect to the Lessee Credit Agreement, and such
waiver, amendment and/or modification affects the Incorporated Representations
and Warranties, the Incorporated Covenants or the Additional Incorporated Terms,
then such waiver, amendment or modification shall be effective with respect to
the Incorporated Representations and Warranties, the Incorporated Covenants and
the Additional Incorporated Terms as incorporated by reference into this Lease
only if consented to in writing by the Agent (acting upon the direction of the
Majority Secured Parties). In the event of any replacement of the Lessee Credit
Agreement with a similar credit facility (the "New Facility") the
representations and warranties, covenants and additional terms contained in the
New Facility which correspond to the representations and warranties, covenants
contained in Article III and Articles V and VI, respectively, and such
additional terms (each of the foregoing contained in the Lessee Credit
Agreement) shall become the Incorporated Representations and Warranties, the
Incorporated Covenants and the Additional Incorporated Terms only if consented
to in writing by the Agent (acting upon the direction of the Majority Secured
Parties) and, if such consent is not granted or if the Lessee Credit Agreement
is terminated and not replaced, then the representations and warranties and
covenants contained in Article III and Articles V and VI, respectively, and such
additional terms (each of the foregoing contained in the Lessee Credit Agreement
(together with any modifications or amendments approved in accordance with this
paragraph)) shall continue to be the Incorporated Representations and
Warranties, the Incorporated Covenants and the Additional Incorporated Terms
hereunder.
MISCELLANEOUS
30. This Amendment shall be effective upon satisfaction of the following
conditions:
(a) execution and delivery of this Amendment by the parties hereto and
execution and delivery of such other documents, agreements or instruments
deemed necessary or advisable by the Agent; and
(b) execution and delivery of the following:
(i) an Assignment and Acceptance substantially in the form of
EXHIBIT B to the Credit Agreement (as amended by this Amendment) and
dated as of the date hereof between Bank of America, N.A., SunTrust
Bank, Central Florida, N.A., and consented to by the Owner Trustee and
the Agent, whereby Bank of America, N.A. agrees to assign, and
SunTrust Bank, Central Florida, N.A. agrees to accept such assignment,
of Tranche A Commitments (and a ratable portion of Tranche A Loans
previously made to date thereunder) and Tranche B
16
Commitments (and a ratable portion of Tranche B Loans previously made
to date thereunder) in an aggregate amount of $9,700,000;
(ii) an assignment agreement substantially in the form of EXHIBIT
B to the Trust Agreement (as amended by this Amendment) and dated as
of the date hereof between Bank of America, N.A., SunTrust Bank,
Central Florida, N.A., and consented to by the Owner Trustee, the
Agent and the Lessee, whereby Bank of America, N.A. agrees to assign,
and SunTrust Bank, Central Florida, N.A. agrees to accept such
assignment, of Holder Commitments (and a pro rata portion of Holder
Advances previously made to date thereunder) in the amount of
$300,000;
(iii) an Assignment and Acceptance substantially in the form of
EXHIBIT B to the Credit Agreement (as amended by this Amendment) and
dated as of the date hereof between Bank of America, N.A., Bank One,
N.A., and consented to by the Owner Trustee and the Agent, whereby
Bank of America, N.A. agrees to assign, and Bank One, N.A. agrees to
accept such assignment, of Tranche A Commitments (and a ratable
portion of Tranche A Loans previously made to date thereunder) and
Tranche B Commitments (and a ratable portion of Tranche B Loans
previously made to date thereunder) in an aggregate amount of
$19,400,000;
(iv) an assignment agreement substantially in the form of EXHIBIT
B to the Trust Agreement (as amended by this Amendment) and dated as
of the date hereof between Bank of America, N.A., Bank One, N.A., and
consented to by the Owner Trustee, the Agent and the Lessee, whereby
Bank of America, N.A. agrees to assign, and Bank One, N.A. agrees to
accept such assignment, of Holder Commitments (and a pro rata portion
of Holder Advances previously made to date thereunder) in the amount
of $600,000;
(c) (i) receipt by the Agent of an officer's certificate of the Lessee
and the Construction Agent (in form and in substance reasonably
satisfactory to the Agent) certifying that a resolution has been adopted by
Lessee's Board of Directors approving and authorizing the execution,
delivery, and performance of this Amendment, specifying that no Default or
Event of Default shall have occurred and be continuing, specifying that the
representations and warranties of Lessee set forth in the Participation
Agreement are true and correct (except for any such representations and
warranties which relate solely to an earlier time) and certifying as to the
incumbency of the officer of Lessee executing this Amendment and (ii)
receipt by the Agent of an officer's certificate of each Credit Party
(other than the Lessee and the Construction Agent) certifying that a
resolution has been adopted by such Credit Party's Board of Directors
approving and authorizing the execution, delivery and performance of this
Amendment, such officer's certificate to be in form and substance
reasonably satisfactory to the Agent and certifying as to the incumbency of
the officer of such Credit Party executing this Amendment;
17
(d) receipt by the Agent of legal opinions of counsel to the Lessee
relating to this Amendment in form and substance reasonably satisfactory
to the Agent;
(e) Receipt by the Agent of payment from the Lessee of the structuring
and arrangement fee referenced in that certain Engagement and Fee Letter
dated as of August 21, 1998 among Convergys Corporation, Bank of America,
N.A. (which is the successor to NationsBank, N.A.) and Banc of America
Securities LLC (which is the successor to NationsBanc Montgomery
Securities, LLC); and
(f) payment by the Lessee of all fees referenced in that certain fee
letter dated as of August 30, 1999 among the Lessee, the Agent and Banc of
America Securities LLC.
31. The parties to this Amendment hereby acknowledge and agree that:
(a) the conditions precedent to an Acquisition Advance set forth in
Sections 5.3(p) and 5.3(q) of the Participation Agreement are not
applicable with respect to Phase I because Phase I is not subject to a
Ground Lease;
(b) the condition precedent to an Acquisition Advance set forth in
Section 5.3(r) of the Participation Agreement is not applicable with
respect to Phase I because no construction is contemplated with respect to
Phase I, Phase I is not a Construction Period Property and no Construction
Advances will be made in connection with Phase I;
(c) the conditions precedent set forth in Sections 5.3(z) through
5.3(gg) of the Participation Agreement are not applicable to the Property
Closing Date relating to Phase I or the effective date of this
Amendment because such conditions precedent are applicable only as of the
Initial Closing Date; and
(d) the conditions precedent to a Construction Advance set forth in
Section 5.4 of the Participation Agreement are not applicable with respect
to Phase I because no construction is contemplated with respect to Phase I,
Phase I is not a Construction Period Property and no Construction Advances
will be made in connection with Phase I.
32. The parties to this Amendment hereby acknowledge and agree that none of
the liabilities or obligations of the Construction Agent under any of the
Operative Agreements that are binding on the Construction Agent solely in
connection with a Construction Period Property shall be applicable to the Lessee
in connection with Phase I; notwithstanding the foregoing, the parties to this
Amendment further acknowledge and agree that (a) no construction is contemplated
with respect to Phase I, Phase I is not a Construction Period Property and no
Construction Advances will be made in connection with Phase I, (b) the Basic
Term with respect to Phase I shall commence, and the Basic Term Commencement
Date and the Rent Commencement Date with respect to Phase I shall occur, on the
Property Closing Date respecting Phase I, and (c) with respect to Phase I, the
Lessee shall comply with all provisions of, and shall satisfy all liabilities
and obligations of the Lessee under, each of the Operative
18
Agreements binding upon the Lessee as such provisions, liabilities and
obligations apply with respect to any Property as of and after the Rent
Commencement Date for such Property.
33. The Owner Trustee, the Agent and the Lessee hereby agree to waive the
three (3) Business Day notice required in connection with a transfer or
assignment pursuant to Section 11.8(b) of the Trust Agreement, as amended
pursuant to this Amendment, and any other notice required by any other provision
in any Operative Agreement in connection with such a transfer or assignment,
solely as such notice requirements are otherwise applicable to the assignments
from Bank of America, N.A. to SunTrust Bank, Central Florida, N.A. and to Bank
One, N.A., as more particularly described in sub-clauses (i) - (iv) of clause
(b) to paragraph 30 of this Amendment.
34. Immediately after the effective date of this Amendment, Schedule 2.1 of
the Credit Agreement shall be deemed to be amended and restated in its entirety
to read as Replacement Schedule 2.1 attached hereto as EXHIBIT 3 and Schedule I
to the Trust Agreement shall be deemed to be amended and restated in its
entirety to read as Replacement Schedule I attached hereto as EXHIBIT 4.
35. Except as modified hereby, all of the terms and provisions of the
Operative Agreements (including Schedules and Exhibits) shall remain in full
force and effect.
36. The Lessee agrees to pay all reasonable costs and expenses of the Agent
in connection with the preparation, execution and delivery of this Amendment,
including without limitation the reasonable fees and expenses of Moore & Van
Allen, PLLC.
37. This Amendment may be executed in any number of counterparts, each of
which when so executed and delivered shall be deemed an original and it shall
not be necessary in making proof of this Amendment to produce or account for
more than one such counterpart.
38. This Amendment shall be deemed to be a contract made under, and for all
purposes shall be construed in accordance with the laws of the State of North
Carolina.
[The remainder of this page has been left blank intentionally.]
19
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Amendment to be duly executed and delivered as of the date first above
written.
CONVERGYS CORPORATION,
as the Construction Agent
and as the Lessee
By: /s/ Steven G. Rolls
------------------------------------
Name: Steven G. Rolls
Title: CFO
CONVERGYS CUSTOMER MANAGEMENT
GROUP INC., as a Guarantor
By: /s/ William Coleman
------------------------------------
Name: William Coleman
Title: Sr. V.P.
CONVERGYS INFORMATION MANAGEMENT
GROUP INC., as a Guarantor
By: /s/ Jeffery P. Poland
------------------------------------
Name: Jeffery P. Poland
Title: Sr. V.P
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not individually, except as
expressly stated herein, but solely as
the Owner Trustee under the CRT Realty
Trust 1998-1
By: /s/ Val T. Orton
------------------------------------
Name: Val T. Orton
-----------------------------------
Title: Vice President
----------------------------------
BANK OF AMERICA, N.A. (which is the
successor to NationsBank, N.A.), as a
Holder, as a Lender and as the Agent
By: /s/ John E. Williams
------------------------------------
Name: John E. Williams
Title: Managing Director
Annex A
[Description of Property Located in Maitland, Florida ("Phase I")]
LEGAL DESCRIPTION
A portion of Section 7, Township 20 South, Range 30 East and Section 12.
Township 20 South, Range 29 East. Seminole County, Florida being more
particularly described as follows:
Begin at the West 1/4 corner of Section 7, Township 20 South, Range 30 East,
Seminole County, Florida and run North 00 degree 21' 05" West along the West
line of the Northwest 1/4 of said Section 7 for a distance of 0.50 feet; thence
run North 89 degree 46' 28" East, 459.09 feet to the Westerly right of way line
of Interstate No. 4 (State Road No. 400); thence run South 17 degree 35' 11"
West along said right of way line for a distance of 429.25 feet; thence South 21
degree 35' 11" West, 592.53 feet; thence deporting said right of way run North
68 degree 24' 49" West, 1015.73 feet to a point lying on a curve concave
Southeasterly having a radius of 1041.19 feet; thence from a tangent bearing of
North 40 degree 16' 07" East run Northeasterly along the arc of said curve
through a central angle of 08 degree 19' 34" for 151.30 feet to a point of
compound curvature of a curve concave Southeasterly and having a radius of
3445.17 feet; thence Northeasterly along the arc of said curve through a central
angle of 11 degree 21' 53" for a distance of 683.36 feet to the point of
tangency, thence run North 59 degree 57' 35" East, 155.27 feet; thence run North
89 degree 46' 28" East, 38.97 feet to the POINT OF BEGINNING.
LESS: The following described property:
LIFT STATION SITE
A portion of Section 12, Township 20 South. Range 29 East, Seminole County,
Florida being more particularly described as follows:
Commence at the West 1/4 corner of Section 7, Township 20 South, Range 30 East,
Seminole County, Florida and run North 00 degree 21' 05" West along the West
line of the Northwest 1/4 of said Section 7 for a distance of (0.50) feet;
thence run North 89 degree 46' 28" East. 459.09 feet to the Westerly right of
way line of Interstate No. 4 (State Road No. 400); thence run South 17 degree
35' 11" West along said right of way line for a distance of 429.25 feet; thence
South 21 degree 35' 11" West, 592.53 feet; thence departing said right of way
run North 68 degree 24' 49" West. 702.86 feet to the POINT OF BEGINNING; thence
continue North 68 degree 24' 49" West, 20.00 feet; thence run North 21 degree
35' 11" East, 24.50 feet; thence South 68 degree 24" 49" East, 20.00 feet;
thence South 21 degree 35' 11" West, 24.50 feet to the POINT OF BEGINNING.
Together With:
TOGETHER WITH:
Easement Parcel 1
Easements benefitting Parcel 1 and created in the Cross Easement for Master
Drainage and Utility Systems between Heathrow Land and Development Corporation
and Heathrow Development Associates, Ltd., dated January 17, 1990, recorded
January 18, 1990 in Official Records Book 2144, Page 1101; and as re-recorded
February 16, 1990 in Official Records Book 2153, Page 1540, Public Records of
Seminole County, Florida; as amended by the First Amendment to Cross Easement
for Master Drainage and Utility Systems dated as of April 18, 1995, and recorded
April 18, 1995, in Official Records Book 2905, Page 909, Public Records of
Seminole County, Florida
Easement Parcel 2
Easements benefitting Parcel 1 and created in the Declaration of Easement
executed by Heathrow Land Development Corporation, a Florida corporation, for
International Parkway, recorded July 11, 1985 in Official Records Book 1653,
Page 686; as modified by Modification of Declaration of Easement recorded April
5, 1989 in Official Records Book 2056, Page 1275; as affected by Special
Warranty Deed dated November 30, 1990 executed by Heathrow II Commercial
Development Associates, a Florida general partnership in favor of Northfox
Properties, Inc. a Massachusetts corporation, dated November 30, 1990, recorded
December 18, 1990 in Official Records Book 2250, Page 329, all in the Public
Records of Seminole County, Florida; as modified by Easement Agreement for
International Parkway Boulevard dated January 17, 1990, recorded January 18,
1990 in Official Records Book 2144, Page 1027, and re-recorded February 16, 1990
in Official records Book 2153, Page 1481, Public Records of Seminole County,
Florida.
Easement Parcel 3
Easement benefitting Parcel 1 and created in the Easement executed by HIBC
Development Company, a Florida general partnership, recorded May 26, 1995, in
Official records Book 2920, Page 697, Public Records of Seminole County,
Florida, covering the real property lying between Easement Parcel 2, described
above, and Parcel 1, described on page one (1) of this Exhibit.
Easement Parcel 4
Easement benefitting Parcel 1 and created in the Drainage Stormwater Management
Easement Agreement [to be] recorded in Official Records Book 3122, Page 1947,
Public Records of Seminole County, Florida.
EXHIBIT 1
Schedule 2.1
Tranche A Tranche B
Commitment Commitment
---------- ----------
Name and Address of Lenders Amount Percentage Amount Percentage
- --------------------------- ----------- ---------- ---------- ----------
BANK OF AMERICA, N.A. $55,420,000 100% $7,824,000 100%
One Independence Center
101 North Tryon Street
NC1-001-15-01
Charlotte, NC 28255
Attention: Michael D'Amico
Telephone: (704) 386-3781
Telecopy: (704) 409-0066
TOTAL $55,420,000 100% $7,824,000 100%
EXHIBIT 2
Schedule I
HOLDER COMMITMENTS
Holder Commitment
-----------------
Name of Holder Amount/Percentage
- -------------- -----------------
Bank of America, N.A. $1,956,000 100%
One Independence Center
101 North Tryon Street
NC1-001-15-01
Charlotte, NC 28255
Attention: Michael D'Amico
Telephone: (704) 386-3781
Telecopy: (704) 409-0066
TOTAL $1,956,000 100%
EXHIBIT 3
Replacement Schedule 2.1
Tranche A Tranche B
Commitment Commitment
---------- ----------
Name and Address of Lenders Amount Percentage Amount Percentage
- --------------------------- ----------- ---------- ---------- ----------
BANK OF AMERICA, N.A. $29,920,000 53.99% $4,224,000 53.99%
One Independence Center
101 North Tryon Street
NC1-001-15-01
Charlotte, NC 28255
Attention: Michael D'Amico
Telephone: (704) 386-3781
Telecopy: (704) 409-0066
BANK ONE, MICHIGAN $17,000,000 30.67% $2,400,000 $30.67%
611 Woodward Avenue
2nd Floor - MI1-8079
Attn: Linda Oddo
Telephone: (313) 225-4674
Telecopy: (313) 225-2747
SUNTRUST BANK, $ 8,500,000 15.34% $1,200,000 15.34%
CENTRAL FLORIDA, N.A.
OH1 0170
200 South Orange Avenue
Orlando, FL 32801
Attn: Steven L. Leister
Telephone: (407) 237-4705
Telecopy: (407) 237-6894
TOTAL $55,420,000 100% $7,824,000 100%
EXHIBIT 4
Replacement Schedule I
HOLDER COMMITMENTS
Holder Commitment
------------------
Name of Holder Amount/Percentage
- -------------- ------------------
Bank of America, N.A. $1,056,000 53.99%
One Independence Center
101 North Tryon Street
NC1-001-15-01
Charlotte, NC 28255
Attention: Michael D'Amico
Telephone: (704) 386-3781
Telecopy: (704) 409-0066
Bank One, Michigan $ 600,000 30.67%
611 Woodward Avenue
2nd Floor - MI1-8079
Attn: Linda Oddo
Telephone: (313) 225-4674
Telecopy: (313) 225-2747
SunTrust Bank, Central Florida, N.A. $ 300,000 15.34%
200 South Orange Avenue
Orlando, FL 32801
Attn: Steven L. Leister
Telephone: (407) 237-4705
Telecopy: (407) 237-6894
TOTAL $1,956,000 100%
RIDER A
Exhibit B
FORM OF ASSIGNMENT AND ACCEPTANCE
THIS ASSIGNMENT AND ACCEPTANCE dated as of , 1999 (as amended,
-----------
modified, supplemented, restated and/or replaced from time to time, the
"'Assignment and Acceptance") is between [_________] (the "Assignor") and
[__________] (the "Assignee").
Reference is made to the Credit Agreement, dated as of December 31, 1998
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among FIRST SECURITY BANK, NATIONAL ASSOCIATION, not in its
individual capacity, but solely as the Owner Trustee under the CRT Realty Trust
1998-1 (the "Owner Trustee" or the "Borrower"), the Lenders named therein and
BANK OF AMERICA, N.A., which is the successor to NationsBank, N.A., as the
Agent. Unless otherwise defined herein, terms defined in the Credit Agreement
(or pursuant to Section 1 of the Credit Agreement, defined in other agreements)
and used herein shall have the meanings given to them in or pursuant to the
Credit Agreement.
The Assignor and the Assignee agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocably purchases
and assumes from the Assignor without recourse to the Assignor, as of the
Effective Date (as defined below), a [___%] interest (the "Assigned Interest")
in and to the Assignor's rights and obligations under the Credit Agreement with
respect to the credit facility contained in the Credit Agreement as are set
forth on Schedule 1, hereto (the "Assigned Facility"), in a principal amount for
the Assigned Facility as set forth on Schedule 1.
2. The Assignor (a) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or any other Operative
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement, any other Operative Agreement or
any other instrument or document furnished pursuant thereto, other than that it
has not created any adverse claim upon the interest being assigned by it
hereunder and that such interest is free and clear of any such adverse claim;
(b) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower, or any other obligor or the
performance or observance by the Borrower, or any other obligor of any of their
respective obligations under the Credit Agreement or any other Operative
Agreement or any other instrument or document furnished pursuant hereto or
thereto; and (c) attaches the Note held by it evidencing the Assigned Facility
and requests that the Agent exchange such Note for a new Note payable to the
Assignee and (if the Assignor has retained any interest in the Assigned
Facility) a new Note payable to the Assignor in the respective
amounts which reflect the assignment being made hereby (and after giving effect
to any other assignments which have become effective on the Effective Date).
3. The Assignee (a) represents and warrants that it is legally authorized
to enter into this Assignment and Acceptance; (b) confirms that it has received
copies of the Operative Agreements, and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to enter
into this Assignment and Acceptance; (c) agrees that it will, independently and
without reliance upon the Assignor, the Agent or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Credit Agreement, the other Operative Agreements or any other instrument or
document furnished pursuant hereto or thereto; (d) appoints and authorizes the
Agent to take such action as agent on its behalf and to exercise such powers and
discretion under the Credit Agreement, the other Operative Agreements or any
other instrument or document furnished pursuant hereto or thereto as are
delegated to the Agent by the terms thereof, together with such powers as are
incidental thereto; and (e) agrees that it will be bound by the provisions of
the Credit Agreement and the other Operative Agreements to which Assignee is a
party and will perform in accordance herewith all the obligations which by the
terms of the Credit Agreement and the other Operative Agreements to which
Assignee is a party are required to be performed by it as a Lender including
without limitation, if it is organized under the laws of a jurisdiction outside
the U.S., its obligation pursuant to Section 11.2(e) of the Participation
Agreement.
4. The effective date of this Assignment and Acceptance shall
be[____________,199_] (the "Effective Date"). Following the execution of this
Assignment and Acceptance, it will be delivered to the Agent for acceptance by
it and recording by the Agent pursuant to Section 9.9 of the Credit Agreement,
effective as of the Effective Date (which shall not, unless otherwise agreed to
by the Agent, be earlier than five (5) Business Days after the date of such
acceptance and recording by the Agent).
5. Upon such acceptance and recording, from and after the Effective Date,
the Agent shall make all payments in respect of the Assigned Interest (including
without limitation payments of principal, interest, fees and other amounts) to
the Assignee whether such amounts have accrued prior to the Effective Date or
accrue subsequent to the Effective Date. The Assignor and the Assignee shall
make all appropriate adjustments in payments by the Agent for periods prior to
the Effective Date or with respect to the making of this assignment directly
between themselves.
6. From and after the Effective Date, (a) the Assignee shall be a party to
the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and under the
other Operative Agreements and shall be bound by the provisions thereof and (b)
the Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement and the other Operative Agreements.
7. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY, AND CONSTRUED,
INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH
CAROLINA.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their respective
duly authorized officers on Schedule 1 hereto.
[Name of Assignor]
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
[Name of Assignee]
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
Consented To:
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not individually, but solely as the
Owner Trustee under the CRT Realty Trust 1998-1
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
BANK OF AMERICA, N.A. (which is the
successor to NationsBank, N.A.),as the Agent
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
[consents required only to the extent expressly provided in Section 9.8 of
the Credit Agreement]
SCHEDULE I
TO ASSIGNMENT AND ACCEPTANCE
RELATING TO THE CREDIT AGREEMENT,
DATED AS OF DECEMBER 31, 1998,
AMONG
FIRST SECURITY BANK, NATIONAL ASSOCIATION
NOT INDIVIDUALLY,
BUT SOLELY AS THE OWNER TRUSTEE,
THE LENDERS NAMED THEREIN
AND
BANK OF AMERICA, N.A. WHICH IS THE SUCCESSOR TO
NATIONSBANK, N.A., AS THE AGENT
FOR THE LENDERS (IN SUCH CAPACITY, THE "AGENT")
Name of Assignor:
--------------------------
Name of Assignee:
-------------------------
Effective Date of Assignment:
--------------
Credit Facility Principal Amount Commitment Percentage
Assigned Assigned Assigned
-------- -------- --------
$ %
------------- -------------- -------------------
[Name of Assignor]
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[Name of Assignee]
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
RIDER B
Exhibit B
FORM OF ASSIGNMENT AND ACCEPTANCE
THIS ASSIGNMENT AND ACCEPTANCE dated as of , 1999
---------------
(as amended, modified, supplemented, restated and/or replaced from time to time,
the "Assignment and Acceptance") is between [______________] (the "Assignor")
and [______________] (the "Assignee").
Reference is made to the Trust Agreement, dated as of December 31, 1998 (as
amended, supplemented or otherwise modified from time to time, the "Trust
Agreement"), among FIRST SECURITY BANK, NATIONAL ASSOCIATION, not in its
individual capacity except as stated therein, but solely as the Owner Trustee
under the CRT Realty Trust 1998-1 (the "Owner Trustee" or the "Owner Trustee")
and the Holders named therein. Unless otherwise defined herein, terms defined in
the Trust Agreement (or pursuant to Section 1 of the Trust Agreement, defined in
other agreements) and used herein shall have the meanings given to them in or
pursuant to the Trust Agreement.
The Assignor and the Assignee agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocably purchases
and assumes from the Assignor without recourse to the Assignor, as of the
Effective Date (as defined below), a [__ %] interest (the "Assigned Interest")
in and to the Assignor's rights and obligations under the Trust Agreement with
respect to the facility contained in the Trust Agreement as are set forth on
Schedule 1 hereto (the "Assigned Facility"), in a principal amount for the
Assigned Facility as set forth on Schedule 1.
2. The Assignor (a) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Trust Agreement or any other Operative
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Trust Agreement, any other Operative Agreement or
any other instrument or document furnished pursuant thereto, other than that it
has not created any adverse claim upon the interest being assigned by it
hereunder and that such interest is free and clear of any such adverse claim;
(b) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Owner Trustee or any other obligor or
the performance or observance by the Owner Trustee, or any other obligor of any
of their respective obligations under the Trust Agreement or any other Operative
Agreement or any other instrument or document furnished pursuant hereto or
thereto; and (c) attaches the Certificate held by it evidencing the Assigned
Facility and requests that the Owner Trustee exchange such Certificate for a new
Certificate payable to the Assignee and (if the Assignor has retained any
interest in the Assigned Facility) a new Certificate payable to the Assignor in
the respective amounts which reflect the assignment being
made hereby (and after giving effect to any other assignments which have become
effective on the Effective Date).
3. The Assignee (a) represents and warrants that it is legally authorized
to enter into this Assignment and Acceptance; (b) confirms that it has received
copies of the Operative Agreements, and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to enter
into this Assignment and Acceptance; (c) agrees that it will, independently and
without reliance upon the Assignor, the Agent, any other Holder or the Owner
Trustee and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under the Trust Agreement, the other Operative Agreements or any other
instrument or document furnished pursuant hereto or thereto; (d) appoints and
authorizes the Agent and the Owner Trustee, respectively, to take such action as
agent on its behalf and to exercise such powers and discretion under the Trust
Agreement, the other Operative Agreements or any other instrument or document
furnished pursuant hereto or thereto as are delegated to the Agent and the Owner
Trustee, respectively, by the terms thereof, together with such powers as are
incidental thereto; and (e) agrees that it will be bound by the provisions of
the Trust Agreement and the other Operative Agreements to which Assignee is a
party and will perform in accordance herewith all the obligations which by the
terms of the Trust Agreement and the other Operative Agreements to which
Assignee is a party are required to be performed by it as a Holder including
without limitation, if it is organized under the laws of a jurisdiction outside
the U.S., its obligation pursuant to Section 11.2(e) of the Participation
Agreement.
4. The effective date of this Assignment and Acceptance shall be
[__________,19__] (the "Effective Date"). Following the execution of this
Assignment and Acceptance, it will be delivered to the Owner Trustee for
acceptance by it and recording by the Owner Trustee pursuant to Section 11.8(b)
of the Trust Agreement, effective as of the Effective Date (which shall not,
unless otherwise agreed to by the Owner Trustee, be earlier than five (5)
Business Days after the date of such acceptance and recording by the Owner
Trustee).
5. Upon such acceptance and recording, from and after the Effective Date,
the Owner Trustee shall make, or cause to be made, all payments in respect of
the Assigned Interest (including without limitation payments of Holder Advance,
yield, fees and other amounts) to the Assignee whether such amounts have accrued
prior to the Effective Date or accrue subsequent to the Effective Date. The
Assignor and the Assignee shall make all appropriate adjustments in payments by
the Owner Trustee for periods prior to the Effective Date or with respect to the
making of this assignment directly between themselves.
6. From and after the Effective Date, (a) the Assignee shall be a party to
the Trust Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Holder thereunder and under the
other Operative Agreements and shall be bound by the provisions thereof and (b)
the Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Trust
Agreement and the other Operative Agreements.
7. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY, AND CONSTRUED,
INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF UTAH.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their respective
duly authorized officers on Schedule 1 hereto.
Name of Assignor
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
Name of Assignee
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
Consented To:
CONVERGYS CORPORATION, as the
Construction Agent and as the Lessee
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
BANK OF AMERICA, N.A. which is the
successor to NationsBank, N.A.,
as the Agent
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not individually, but
solely as the Owner Trustee under
the CRT Realty Trust 1998-1
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
SCHEDULE I
TO ASSIGNMENT AND ACCEPTANCE
RELATING TO THE TRUST AGREEMENT,
DATED AS OF DECEMBER 31, 1998, (THE "TRUST AGREEMENT")
AMONG
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
NOT INDIVIDUALLY EXCEPT AS STATED THEREIN,
BUT SOLELY AS THE OWNER TRUSTEE,
AND
THE HOLDERS NAMED THEREIN
Name of Assignor: [____________________]
Name of Assignee: [____________________]
Effective Date of Assignment: [____________________]
Trust Agreement Holder Advance Commitment
Facility Assigned Amount Assigned Percentage Assigned
----------------- --------------- -------------------
Holder Commitment [$____________] [_____________%] of the
to Amount pursuant aggregate Holder Commitment
above-referenced (which is [__%] of the Assignor's
Trust Agreement Holder Commitment)
[____________________]
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
[____________________]
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------