ISDA International Swap Dealers Association, Inc. MASTER AGREEMENT Dated as of : March 16, 2006
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(Local
Currency-Single Jurisdiction)
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Exhibit
10.22
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ISDA
International
Swap Dealers Association, Inc.
Dated
as
of : March
16, 2006
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KeyBank
National Association
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and
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▇▇▇▇▇▇▇
REIT Operating Partnership,
L.P.
and ▇▇▇▇▇▇▇ REIT Operating
Partnership
III LP
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have
entered and/or anticipate entering into one or more transactions (each a
“Transaction”) that are or will be governed by this Master Agreement, which
includes the schedule (the “Schedule”), and the documents and other confirming
evidence (each a “Confirmation”) exchanged
between the parties confirming those Transactions.
Accordingly,
the parties agree as follows:-
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1.
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Interpretation
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(a) Definitions.
The
terms defined in Section 12 and in the Schedule will have the meanings therein
specified for the purpose of this Master Agreement.
(b) Inconsistency.
In the
event of any inconsistency between the provisions of the Schedule and the other
provisions of this Master Agreement, the Schedule will prevail. In the event
of
any inconsistency between the provisions of any Confirmation and this Master
Agreement (including the Schedule), such Confirmation will prevail for the
purpose of the relevant Transaction.
(c) Single
Agreement.
All
Transactions are entered into in reliance on the fact that this Master Agreement
and all Confirmations form a single agreement between the parties (collectively
referred to as this “Agreement”), and the parties would not otherwise enter into
any Transactions.
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2.
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Obligations
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(a) General
Conditions.
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(i)
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Each
party will make each payment or delivery specified in each Confirmation
to
be made by it, subject to the other provisions of this
Agreement.
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(ii)
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Payments
under this Agreement will be made on the due date for value on that
date
in the place of the account specified in the relevant Confirmation
or
otherwise pursuant to this Agreement, in freely transferable funds
and in
the manner customary for payments in the required currency. Where
settlement is by delivery (that is, other than by payment), such
delivery
will be made for receipt on the due date in the manner customary
for the
relevant obligation unless otherwise specified in the relevant
Confirmation or elsewhere in this
Agreement.
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(iii)
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Each
obligation of each party under Section 2(a)(i) is subject to (1)
the
condition precedent that no Event of Default or Potential Event of
Default
with respect to the other party has occurred and is continuing, (2)
the
condition precedent that no Early Termination Date in respect of
the
relevant Transaction has occurred or been effectively designated
and (3)
each other applicable condition precedent specified in this
Agreement.
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(b) Change
of Account.
Either
party may change its account for receiving a payment or delivery by giving
notice to the other party at least five Local Business Days prior to the
scheduled date for the payment or delivery to which such change applies unless
such other party gives timely notice of a reasonable objection to such
change.
(c) Netting.
If on
any date amounts would otherwise be payable:-
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(i)
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in
the same currency; and
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(ii)
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in
respect of the same Transaction
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by
each
party to the other, then, on such date, each party's obligation to make payment
of any such amount will be automatically satisfied and discharged and, if the
aggregate amount that would otherwise have been payable by one party exceeds
the
aggregate amount that would otherwise have been payable by the other party,
replaced by an obligation upon the party by whom the larger aggregate amount
would have been payable to pay to the other party the excess of the larger
aggregate amount over the smaller aggregate amount.
The
parties may elect in respect of two or more Transactions that a net amount
will
be determined in respect of all amounts payable on the same date in the same
currency in respect of such Transactions, regardless of whether such amounts
are
payable in respect of the same Transaction. The election may be made in the
Schedule or a Confirmation by specifying that subparagraph (ii) above will
not
apply to the Transactions identified as being subject to the election, together
with the starting date (in which case subparagraph (ii) above will not, or
will
cease to, apply to such Transactions from such date). This election may be
made
separately for different groups of Transactions and will apply separately to
each pairing of branches or offices through which the parties make and receive
payments or deliveries.
(d) Default
Interest; Other Amounts.
Prior
to the occurrence or effective designation of an Early Termination Date in
respect of the relevant Transaction, a party that defaults in the performance
of
any payment obligation will, to the extent permitted by law and subject to
Section 6(c), be required to pay interest (before as well as after judgment)
on
the overdue amount to the other party on demand in the same currency as such
overdue amount, for the period from (and including) the original due date for
payment to (but excluding) the date of actual payment, at the Default Rate.
Such
interest will be calculated on the basis of daily compounding and the actual
number of days elapsed. If, prior to the occurrence or effective designation
of
an Early Termination Date in respect of the relevant Transaction, a party
defaults in the performance of any obligation required to be settled by
delivery, it will compensate the other party on demand if and to the extent
provided for in the relevant Confirmation or elsewhere in this
Agreement.
2
3. Representations
Each
party represents to the other party (which representations will be deemed to
be
repeated by each party on each date on which a Transaction is entered into)
that:-
(a) Basic
Representations.
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(i)
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Status.
It is duly organised and validly existing under the laws of the
jurisdiction of its organisation or incorporation and, if relevant
under
such laws, in good standing;
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(ii)
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Powers.
It has the power to execute this Agreement and any other documentation
relating to this Agreement to which it is a party, to deliver this
Agreement and any other documentation relating to this Agreement
that it
is required by this Agreement to deliver and to perform its obligations
under this Agreement and any obligations it has under any Credit
Support
Document to which it is a party and has taken all necessary action
to
authorise such execution, delivery and
performance;
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(iii)
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No
Violation or Conflict.
Such execution, delivery and performance do not violate or conflict
with
any law applicable to it, any provision of its constitutional documents,
any order or judgment of any court or other agency of government
applicable to it or any of its assets or any contractual restriction
binding on or affecting it or any of its
assets;
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(iv)
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Consents.
All governmental and other consents that are required to have been
obtained by it with respect to this Agreement or any Credit Support
Document to which it is a party have been obtained and are in full
force
and effect and all conditions of any such consents have been complied
with; and
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(v)
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Obligations
Binding.
Its obligations under this Agreement and any Credit Support Document
to
which it is a party constitute its legal, valid and binding obligations,
enforceable in accordance with their respective terms (subject to
applicable bankruptcy, reorganisation, insolvency, moratorium or
similar
laws affecting creditors' rights generally and subject, as to
enforceability, to equitable principles of general application (regardless
of whether enforcement is sought in a proceeding in equity or at
law)).
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(b) Absence
of Certain Events.
No
Event of Default or Potential Event of Default or, to its knowledge, Termination
Event with respect to it has occurred and is continuing and no such event or
circumstance would occur as a result of its entering into or performing its
obligations under this Agreement or any Credit Support Document to which it
is a
party_
(c) Absence
of Litigation.
There
is not pending or, to its knowledge, threatened against it or any of its
Affiliates any action, suit or proceeding at law or in equity or before any
court, tribunal, governmental body, agency or official or any arbitrator that
is
likely to affect the legality, validity or enforceability against it of this
Agreement or any Credit Support Document to which it is a party or its ability
to perform its obligations under this Agreement or such Credit Support
Document.
3
(d) Accuracy
of Specified Information.
All
applicable information that is furnished in writing by or on behalf of it to
the
other party and is identified for the purpose of this Section 3(d) in the
Schedule is, as of the date of the information, true, accurate and complete
in
every material respect.
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4.
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Agreements
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Each
party agrees with the other that, so long as either party has or may have any
obligation under this Agreement or under any Credit Support Document to which
it
is a party:-
(a) Furnish
Specified Information.
It will
deliver to the other party any forms, documents or certificates specified in
the
Schedule or any Confirmation by the date specified in the Schedule or such
Confirmation or, if none is specified, as soon as reasonably
practicable.
(b) Maintain
Authorisations.
It will
use all reasonable efforts to maintain in full force and effect all consents
of
any governmental or other authority that are required to be obtained by it
with
respect to this Agreement or any Credit Support Document to which it is a party
and will use all reasonable efforts to obtain any that may become necessary
in
the future.
(c) Comply
with Laws.
it will
comply in all material respects with all applicable laws and orders to which
it
may be subject if failure so to comply would materially impair its ability
to
perform its obligations under this Agreement or any Credit Support Document
to
which it is a party.
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5.
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Events
of Default and Termination
Events
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(a) Events
of Default.
The
occurrence at any time with respect to a party or, if applicable, any Credit
Support Provider of such party or any Specified Entity of such party of any
of
the following events constitutes an event of default (an 'Event of Default')
with respect to such party:
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(i)
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Failure
to Pay or Deliver.
Failure by the party to make, when due, any payment under this Agreement
or delivery under Section 2(a)(i) or 2(d) required to be made by
it if
such failure is not remedied on or before the third Local Business
Day
after notice of such failure is given to the
party;
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(ii)
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Breach
of Agreement.
Failure by the party to comply with or perform any agreement or obligation
(other than an obligation to make any payment under this Agreement
or
delivery under Section 2(a)(i) or 2(d) or to give notice of a Termination
Event) to be complied with or performed by the party in accordance
with
this Agreement if such failure is not remedied on or before the thirtieth
day after notice of such failure is given to the
party;
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(iii)
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Credit
Support Default.
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(1)
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Failure
by the party or any Credit Support Provider of such party to comply
with
or perform any agreement or obligation to be complied with or performed
by
it in accordance with any Credit Support Document if such failure
is
continuing after any applicable grace period has
elapsed;
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4
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(2)
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the
expiration or termination of such Credit Support Document or the
failing
or ceasing of such Credit Support Document to be in full force and
effect
for the purpose of this Agreement (in either case other than in accordance
with its terms) prior to the satisfaction of all obligations of such
party
under each Transaction to which such Credit Support Document relates
without the written consent of the other party;
or
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(3)
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the
party or such Credit Support Provider disaffirms, disclaims, repudiates
or
rejects, in whole or in part, or challenges the validity of, such
Credit
Support Document.
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(iv)
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Misrepresentation.
A
representation made or repeated or deemed to have been made or repeated
by
the party or any Credit Support Provider of such party in this Agreement
or any Credit Support Document proves to have been incorrect or misleading
in any material respect when made or repeated or deemed to have been
made
or repeated;
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(v)
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Default
under Specified Transaction.
The party, any Credit Support Provider of such party or any applicable
Specified Entity of such party (1) defaults under a Specified Transaction
and, after giving effect to any applicable notice requirement or
grace
period, there occurs a liquidation of, an acceleration of obligations
under, or an early termination of, that Specified Transaction, (2)
defaults, after giving effect to any applicable notice requirement
or
grace period, in making any payment or delivery due on the last payment,
delivery or exchange date of, or any payment on early termination
of, a
Specified Transaction or such default continues for at least three
Local Business Days if there is no applicable notice requirement
or grace
period) or (3) disaffirms, disclaims, repudiates or rejects, in whole
or
in part, a Specified Transaction (or such action is taken by any
person or
entity appointed or empowered to operate it or act on its
behalf);
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(vi)
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Cross
Default.
If “Cross Default' is specified in the Schedule as applying to the party,
the occurrence or existence of (1) a default, event of default or
other
similar condition or event (however described) in respect of such
party,
any Credit Support Provider of such party or any applicable Specified
Entity of such party under one or more agreements or instruments
relating
to Specified Indebtedness of any of them (individually or collectively)
in
an aggregate amount of not less than the applicable Threshold Amount
(as
specified in the Schedule) which has resulted in such Specified
Indebtedness becoming, or becoming capable at such time of being
declared,
due and payable under such agreements or instruments, before it would
otherwise have been due and payable or (2) a default by such party,
such
Credit Support Provider or such Specified Entity (individually or
collectively) in making one or more payments on the due date thereof
in an
aggregate amount of not less than the applicable Threshold Amount
under
such agreements or instruments (after giving effect to any applicable
notice requirement or grace
period);
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5
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(vii)
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Bankruptcy.
The party, any Credit Support Provider of such party or any applicable
Specified Entity of such party:-
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(1)
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is
dissolved (other than pursuant to a consolidation, amalgamation or
merger); (2) becomes insolvent or is unable to pay its debts or fails
or
admits in writing its inability generally to pay its debts as they
become
due; (3) makes a general assignment, arrangement or composition with
or
for the benefit of its creditors; (4) institutes or has instituted
against
it a proceeding seeking a judgment of insolvency or bankruptcy or
any
other relief under any bankruptcy or insolvency law or other similar
law
affecting creditors' rights, or a petition is presented for its winding-up
or liquidation, and, in the case of any such proceeding or petition
instituted or presented against it, such proceeding or petition (A)
results in a judgment of insolvency or bankruptcy or the entry of
an order
for relief or the making of an order for its winding-up or liquidation
or
(B) is not dismissed, discharged, stayed or restrained in each case
within
30 days of the institution or presentation thereof, (5) has a resolution
passed for its winding-up, official management or liquidation (other
than
pursuant to a consolidation, amalgamation or merger); (6) seeks or
becomes
subject to the appointment of an administrator, provisional liquidator,
conservator, receiver, trustee, custodian or other similar official
for it
or for all or substantially all its assets; (7) has a secured party
take
possession of all or substantially all its assets or has a distress,
execution, attachment, sequestration or other legal process levied,
enforced or sued on or against all or substantially all its assets
and
such secured party maintains possession, or any such process is not
dismissed, discharged, stayed or restrained, in each case within
30 days
thereafter, (8) causes or is subject to any event with respect to
it
which, under the applicable laws of any jurisdiction, has an analogous
effect to any of the events specified in clauses (1) to (7) (inclusive);
or (9) takes any action in furtherance of, or indicating its consent
to,
approval of, or acquiescence in, any of the foregoing acts;
or
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(viii)
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Merger
Without Assumption.
The party or any Credit Support Provider of such party consolidates
or
amalgamates with, or merges with or into, or transfers all or
substantially all its assets to, another entity and, at the time
of such
consolidation, amalgamation, merger or
transfer:--
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(1)
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the
resulting, surviving or transferee entity fails to assume all the
obligations of such party or such Credit Support Provider under this
Agreement or any Credit Support Document to which it or its predecessor
was a party by operation of law or pursuant to an agreement reasonably
satisfactory to the other party to this Agreement;
or
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(2)
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the
benefits of any Credit Support Document fail to extend (without the
consent of the other party) to the performance by such resulting,
surviving or transferee entity of its obligations under this
Agreement.
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(b) Termination
Events.
The
occurrence at any time with respect to a party or, if applicable, any Credit
Support Provider of such party or any Specified Entity of such party of any
event specified below constitutes an Illegality if the event is specified in
(i)
below, and, if specified to be applicable, a Credit Event Upon Merger if the
event is specified pursuant to (ii) below or an Additional Termination Event
if
the event is specified pursuant to (iii) below:-
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(i)
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Illegality.
Due to the adoption of, or any change in, any applicable law after
the
date on which a Transaction is entered into, or due to the promulgation
of, or any change in, the interpretation by any court, tribunal or
regulatory authority with competent jurisdiction of any applicable
law
after such date, it becomes unlawful (other than as a result of a
breach
by the party of Section 4(b)) for such party (which will be the Affected
Party):-
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(1)
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to
perform any absolute or contingent obligation to make a payment or
delivery or to receive a payment or delivery in respect of such
Transaction or to comply with any other material provision of this
Agreement relating to such Transaction;
or
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(2)
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to
perform, or for any Credit Support Provider of such party to perform,
any
contingent or other obligation which the party (or such Credit Support
Provider) has under any Credit Support Document relating to such
Transaction;
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(ii)
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Credit
Event Upon Merger.
If “Credit Event Upon Merger” is specified in the Schedule as applying to
the party, such party (“X”), any Credit Support Provider of X or any
applicable Specified Entity of X consolidates or amalgamates with,
or
merges with or into, or transfers all or substantially all its assets
to,
another entity and such action does not constitute an event described
in
Section 5(a)(viii) but the creditworthiness of the resulting, surviving
or
transferee entity is materially weaker than that of X, such Credit
Support
Provider or such Specified Entity, as the case may be, immediately
prior
to such action (and, in such event, X or its successor or transferee,
as
appropriate, will be the Affected Party);
or
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(iii)
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Additional
Termination Event.
if any “Additional Termination Event' is specified in the Schedule or any
Confirmation as applying, the occurrence of such event (and, in such
event, the Affected Party or Affected Parties shall be as specified
for
such Additional Termination Event in the Schedule or such
Confirmation).
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(c) Event
of Default and Illegality.
If an
event or circumstance which would otherwise constitute or give rise to an Event
of Default also constitutes an Illegality, it will be treated as an Illegality
and will not constitute an Event of Default.
7
6. Early
Termination
(a) Right
to Terminate Following Event of Default.
If at
any time an Event of Default with respect to a party (the “Defaulting Party”) has occurred
and
is then continuing, the other party (the 'Non-defaulting Party') may, by not
more than 20 days notice to the Defaulting Party specifying the relevant Event
of Default, designate a day not earlier than the day such notice is effective
as
an Early Termination Date in respect of all outstanding Transactions. If,
however, “Automatic Early Termination” is specified in the Schedule as applying
to a party, then an Early Termination Date in respect of all outstanding
Transactions will occur immediately upon the occurrence with respect to such
party of an Event of Default specified in Section 5 (a)(vii)(1), (3), (5),
(6)
or, to the extent analogous thereto, (8), and as of the time immediately
preceding the institution of the relevant proceeding or the presentation of
the
relevant petition upon the occurrence with respect to such party of an Event
of
Default specified in Section 5(a)(vii)(4) or, to the extent analogous thereto,
(8).
(b) Right
to Terminate Following Termination Event
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(i)
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Notice.
If a Termination Event occurs, an Affected Party will, promptly upon
becoming aware of it, notify the other party, specifying the nature
of
that Termination Event and each Affected Transaction and will also
give
such other information about that Termination Event as the other
party may
reasonably require.
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(ii)
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Two
Affected Parties.
If an Illegality under Section 5(b)(i)(1) occurs and there are two
Affected Parties, each party will use all reasonable efforts to reach
agreement within 30 days after notice thereof is given under Section
6(b)(i) on action to avoid that Termination
Event.
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(iii)
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Right
to Terminate.
If:
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(1)
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an
agreement under Section 6(b)(ii) has not been effected with respect
to all
Affected Transactions within 30 days after an Affected Party gives
notice
under Section 6(b)(i); or
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(2)
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an
illegality other than that referred to in Section 6(b)(ii), a Credit
Event
Upon Merger or an Additional Termination Event
occurs,
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either
party in the case of an illegality, any Affected Party in the case of an
Additional Termination Event if there is more than one Affected Party, or the
party which is not the Affected Party in the case of a Credit Event Upon Merger
or an Additional Termination Event if there is only one Affected Party may,
by
not more than 20 days notice to the other party and provided that the relevant
Termination Event is then continuing, designate a day not earlier than the
day
such notice is effective as an Early Termination Date in respect of all Affected
Transactions.
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(c) Effect
of Designation.
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(i)
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If
notice designating an Early Termination Date is given under Section
6(a)
or (b), the Early Termination Date will occur on the date so designated,
whether or not the relevant Event of Default or Termination Event
is then
continuing.
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(ii)
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Upon
the occurrence or effective designation of an Early Termination Date,
no
further payments or deliveries under Section 2(a)(i) or 2(d) in respect
of
the Terminated Transactions will be required to be made, but without
prejudice to the other provisions of this Agreement. The amount,
if any,
payable in respect of an Early Termination Date shall be determined
pursuant to Section 6(e).
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(d) Calculations.
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(i)
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Statement.
On or as soon as reasonably practicable following the occurrence
of an
Early Termination Date, each party will make the calculations on
its part,
if any, contemplated by Section 6(e) and will provide to the other
party a
statement (1) showing, in reasonable detail, such calculations (including
all relevant quotations and specifying any amount payable under Section
6(e)) and (2) giving details of the relevant account to which any
amount
payable to it is to be paid. In the absence of written confirmation
from
the source of a quotation obtained in determining a Market Quotation,
the
records of the party obtaining such quotation will be conclusive
evidence
of the existence and accuracy of such
quotation.
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(ii)
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Payment
Date.
An amount calculated as being due in respect of any Early Termination
Date
under Section 6(e) will be payable on the day that notice of the
amount
payable is effective (in the case of an Early Termination Date which
is
designated or occurs as a result of an Event of Default) and on the
day
which is two Local Business Days after the day on which notice of
the
amount payable is effective (in the case of an Early Termination
Date
which is designated as a result of a Termination Event). Such amount
will
be paid together with (to the extent permitted under applicable law)
interest thereon (before as well as after judgment), from (and including)
the relevant Early Termination Date to (but excluding) the date such
amount is paid, at the Applicable Rate. Such interest will be calculated
on the basis of daily compounding and the actual number of days
elapsed.
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(e) Payments
on Early Termination.
If an
Early Termination Date occurs, the following provisions shall apply based on
the
parties' election in the Schedule of a payment measure, either 'Market
Quotation” or 'Loss', and a payment method, either the “First Method” or the
“Second Method”. if the parties fail to designate a payment measure or payment
method in the Schedule, it will be deemed that “Market Quotation” or the “Second
Method”, as the case may be, shall apply. The amount, if any, payable in respect
of an Early Termination Date and determined pursuant to this Section will be
subject to any Set-off.
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(i)
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Events
of Default.
If the Early Termination results from an Event of
Default:---
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(1)
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First
Method and Market Quotation.
If the First Method and Market Quotation apply, the Defaulting Party
will
pay to the Non-defaulting Party the excess, if a positive number,
of (A)
the sum of the Settlement Amount (determined by the Non-defaulting
Party)
in respect of the Terminated Transactions and the Unpaid Amounts
owing to
the Non-defaulting Party over (B) the Unpaid Amounts owing to the
Defaulting Party.
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(2)
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First
Method and Loss.
If the First Method and Loss apply, the Defaulting Party will pay
to the
Non-defaulting Party, if a positive number, the Non-defaulting Party's
Loss in respect of this Agreement.
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(3)
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Second
Method and Market Quotation.
If the Second Method and Market Quotation apply, an amount will be
payable
equal to (A) the sum of the Settlement Amount (determined by the
Non-defaulting Party) in respect of the Terminated Transactions and
the
Unpaid Amounts owing to the Non-defaulting Party less (B) the Unpaid
Amounts owing to the Defaulting Party. If that amount is a positive
number, the Defaulting Party will pay it to the Non-defaulting party;
if
it is a negative number, the Non-defaulting Party will pay the absolute
value of that amount to the Defaulting
Party.
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(4)
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Second
Method and Loss.
If the Second Method and Loss apply, an amount will be payable equal
to
the Non-defaulting Party's Loss in respect of this Agreement. If
that
amount is a positive number, the Defaulting Party will pay it to
the
Non-defaulting Party; if it is a negative number, the Non-defaulting
Party
will pay the absolute value of that amount to the Defaulting
Party.
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(ii)
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Termination
Events.
If the Early Termination Date results from a Termination
Event-
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(1)
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One
Affected Party.
If there is one Affected Party, the amount payable will be determined
in
accordance with Section 6(e)(i)(3), if Market Quotation applies,
or
Section 6(e)(i)(4), if Loss applies, except that, in either case,
references to the Defaulting Party and to the Non-defaulting Party
will be
deemed to be references to the Affected Party and the party which
is not
the Affected Party, respectively, and, if Loss applies and fewer
than all
the Transactions are being terminated, Loss shall be calculated in
respect
of all Terminated Transactions.
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(2)
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Two
Affected Parties.
If there are two Affected Parties:
-
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(A)
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If
Market Quotation applies, each party will determine a Settlement
Amount in
respect of the Terminated Transactions, and an amount will be payable
equal to (I) the sum of (a) one-half of the difference between the
Settlement Amount of the party with the higher Settlement Amount
('X”) and
the Settlement Amount of the party with the lower Settlement Amount
(“Y”)
and (b) the Unpaid Amounts owing to X less (II) the Unpaid Amounts
owing
to Y; and
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10
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(B)
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If
Loss applies, each party will determine its Loss in respect of this
Agreement (or, if fewer than all the Transactions are being terminated,
in
respect of all Terminated Transactions) and an amount will be payable
equal to one-half of the difference between the Loss of the party
with the
higher Loss (“X') and the Loss of the party with the lower loss
(“Y°).
|
If
the
amount payable is a positive number, Y will pay it to X; if it is a negative
number, X will pay the absolute value of that amount to Y.
|
(iii)
|
Adjustment
for Bankruptcy.
In circumstances where an Early Termination Date occurs because 'Automatic
Early Termination' applies in respect of a party, the amount determined
under this Section 6(e) will be subject to such adjustments as are
appropriate and permitted by taw to reflect any payments or deliveries
made by one party to the other under this Agreement (and retained
by such
other party) during the period from the relevant Early Termination
Date to
the date for payment determined under Section
6(d)(ii).
|
|
(iv)
|
Pre-Estimate.
The parties agree that if Market Quotation applies an amount recoverable
under this Section 6(e) is a reasonable pre-estimate of loss and
not a
penalty. Such amount is payable for the loss of bargain and the loss
of
protection against future risks and except as otherwise provided
in this
Agreement neither party will be entitled to recover any additional
damages
as a consequence of such losses.
|
|
7.
|
Transfer
|
Neither
this Agreement nor any interest or obligation in or under this Agreement may
be
transferred (whether by way of security or otherwise) by either party without
the prior written consent of the other party, except that -
(a) a
party
may make such a transfer of this Agreement pursuant to a consolidation or
amalgamation with, or merger with or into, or transfer of all or substantially
all its assets to, another entity (but without prejudice to any other right
or
remedy under this Agreement); and
(b) a
party
may make such a transfer of all or any part of its interest in any amount
payable to it from a Defaulting Party under Section 6(e).
Any
purported transfer that is not in compliance with this Section will be void.
11
|
8.
|
Miscellaneous
|
(a) Entire
Agreement.
This
Agreement constitutes the entire agreement and understanding of the parties
with
respect to its subject matter and supersedes all oral communication and prior
writings with respect thereto.
(b) Amendments.
No
amendment, modification or waiver in respect of this Agreement will be effective
unless in writing (including a writing evidenced by a facsimile transmission)
and executed by each of the parties or confirmed by an exchange of telexes
or
electronic messages on an electronic messaging system.
(c) Survival
of Obligations.
Without
prejudice to Sections 2(a)(iii) and 6(c)(ii), the obligations of the parties
under this Agreement will survive the termination of any
Transaction.
(d) Remedies
Cumulative.
Except
as provided in this Agreement, the rights, powers, remedies and privileges
provided in this Agreement are cumulative and not exclusive of any rights,
powers, remedies and privileges provided by law.
(e) Counterparts
and Confirmations.
|
(i)
|
This
Agreement (and each amendment, modification and waiver in respect
of it)
may be executed and delivered in counterparts (including by facsimile
transmission), each of which will be deemed an
original.
|
|
(ii)
|
The
parties intend that they are legally bound by the terms of each
Transaction from the moment they agree to those terms (whether orally
or
otherwise). A Confirmation shall be entered into as soon as practicable
and may be executed and delivered in counterparts (including by facsimile
transmission) or be created by an exchange of telexes or by an exchange
of
electronic messages on an electronic messaging system, which in each
case
will be sufficient for all purposes to evidence a binding supplement
to
this Agreement. The parties will specify therein or through another
effective means that any such counterpart, telex or electronic message
constitutes a Confirmation.
|
(f) No
Waiver of Rights.
A
failure or delay in exercising any right, power or privilege in respect of
this
Agreement will not be presumed to operate as a waiver, and a single or partial
exercise of any right, power or privilege will not be presumed to preclude
any
subsequent or further exercise, of that right, power or privilege or the
exercise of any other right, power or privilege.
(g) Headings.
The
headings used in this Agreement are for convenience of reference only and are
not to affect the construction of or to be taken into consideration in
interpreting this Agreement.
|
9.
|
Expenses
|
A
Defaulting Party will, on demand, indemnify and hold harmless the other party
for and against all reasonable out-of pocket expenses, including legal fees,
incurred by such other party by reason of the enforcement and protection of
its
rights under this Agreement or any Credit Support Document to which the
Defaulting Party is a party or by reason of the early termination of any
Transaction, including, but not limited to, costs of collection.
12
|
10.
|
Notices
|
(a) Effectiveness.
Any
notice or other communication in respect of this Agreement may be given in
any
manner set forth below (except that a notice or other communication under
Section 5 or 6 may not be given by facsimile transmission or electronic
messaging system) to the address or number or in accordance with the electronic
messaging system details provided (see the Schedule) and will be deemed
effective as indicated:-
|
(i)
|
if
in writing and delivered in person or by courier, on the date it
is
delivered;
|
|
(ii)
|
if
sent by telex, on the date the recipient's answerback is
received;
|
|
(iii)
|
if
sent by facsimile transmission, on the date that transmission is
received
by a responsible employee of the recipient in legible form (it being
agreed that the burden of proving receipt will be on the sender and
will
not be met by a transmission report generated by the sender's facsimile
machine);
|
|
(iv)
|
if
sent by certified or registered mail (airmail, if overseas) or the
equivalent (return receipt requested), on the date that mail is delivered
or its delivery is attempted; or
|
|
(v)
|
if
sent by electronic messaging system, on the date that electronic
message
is received, unless
the date of that delivery (or attempted delivery) or that receipt,
as
applicable, is not a Local Business Day or that communication is
delivered
(or attempted) or received, as applicable, after the close of business
on
a Local Business Day, in which case that communication shall be deemed
given and effective on the first following day that is a Local Business
Day.
|
(b) Change
of Addresses.
Either
party may by notice to the other change the address, telex or facsimile number
or electronic messaging system details at which notices or other communications
are to be given to it.
|
11.
|
Governing
Law and Jurisdiction
|
(a) Governing
Law.
This
Agreement will be governed by and construed in accordance with the law specified
in the Schedule.
(b) Jurisdiction.
With
respect to any suit, action or proceedings relating to this Agreement
(“Proceedings”), each party irrevocably:
|
(i)
|
submits
to the jurisdiction of the English courts, if this Agreement is expressed
to be governed by English law, or to the non-exclusive jurisdiction
of the
courts of the State of New York and the United States District Court
located in the Borough of Manhattan in New York City, if this Agreement
is
expressed to be governed by the laws of the State of New York;
and
|
13
|
(ii)
|
waives
any objection which it may have at any time to the laying of venue
of any
Proceedings brought in any such court, waives any claim that such
Proceedings have been brought in an inconvenient forum and further
waives
the right to object, with respect to such Proceedings, that such
court
does not have any jurisdiction over such
party.
|
Nothing
in this Agreement precludes either party from bringing Proceedings in any other
jurisdiction (outside, if this Agreement is expressed to be governed by English
law, the Contracting States, as defined in Section 1(3) of the Civil
Jurisdiction and Judgments Ac▇ ▇▇▇▇ ▇r any modification, extension or
re-enactment thereof for the time being in force) nor will the bringing of
Proceedings in any one or more jurisdictions preclude the bringing of
Proceedings in any other jurisdiction.
(c) Waiver
of Immunities.
Each
party irrevocably waives, to the fullest extent permitted by applicable law,
with respect to itself and its revenues and assets (irrespective of their use
or
intended use), all immunity on the grounds of sovereignty or other similar
grounds from (i) suit, (ii) jurisdiction of any court, (iii) relief by way
of
injunction, order for specific performance or for recovery of property, (iv)
attachment of its assets (whether before or after judgment) and (v) execution
or
enforcement of any judgment to which it or its revenues or assets might
otherwise be entitled in any Proceedings in the courts of any jurisdiction
and
irrevocably agrees, to the extent permitted by applicable law, that it will
not
claim any such immunity in any Proceedings.
|
12.
|
Definitions
|
As
used
in this Agreement:-
“Additional
Termination Event”
has
the
meaning specified in Section 5(b).
“Affected
Party” has the meaning specified in Section 5(b).
“Affected
Transactions”
means
(a) with respect to any Termination Event consisting of an illegality, all
Transactions affected by the occurrence of such Termination Event and (b) with
respect to any other Termination Event, all Transactions.
“Affiliate”
means,
subject to the Schedule, in relation to any person, any entity controlled,
directly or indirectly, by the person, any entity that controls, directly or
indirectly, the person or any entity directly or indirectly under common control
with the person. For this purpose, “control” of any
entity or
person means ownership of a majority of the voting power of the entity or
person.
14
“Applicable
Rate”
means:-
(a) in
respect of obligations payable or deliverable (or which would have been but
for
Section 2(a)(iii)) by a Defaulting Party, the Default Rate;
(b) in
respect of an obligation to pay an amount under Section 6(e) of either party
from and after the date (determined in accordance with Section 6(d)(ii)) on
which that amount is payable, the Default Rate;
(c) in
respect of all other obligations payable or deliverable (or which would have
been but for Section 2(a)(iii)) by a Non-defaulting Party, the Non-default
Rate;
and
(d) in
all
other cases, the Termination Rate.
“consent”
includes a consent, approval, action, authorisation, exemption, notice, filing,
registration or exchange control consent.
“Credit
Event Upon Merger”
has
the
meaning specified in Section 5(b).
“Credit
Support Document” means any agreement or instrument that is
specified as such in this Agreement.
“Credit
Support Provider”
has
the
meaning specified in the Schedule.
“Default
Rate”
means
a
rate per annum equal to the cost (without proof or evidence of any actual cost)
to the relevant payee (as certified by it) if it were to fund or of funding
the
relevant amount plus 1% per annum.
“Defaulting
Party”
has
the
meaning specified in Section 6(a).
“Early
Termination Date”
means
the date determined in accordance with Section 6(a) or 6(b)(iii).
“Event
of Default” has the meaning specified in Section 5(a) and, if
applicable, in the Schedule.
“Illegality”
has
the
meaning specified in Section 5(b).
“law”
includes any treaty, law, rule or regulation and “lawful”
and
“unlawful”
will
be
construed accordingly.
“Local
Business Day”
means,
subject to the Schedule, a day on which commercial banks are open for business
(including dealings in foreign exchange and foreign currency deposits) (a)
in
relation to any obligation under Section 2(a)(i), in the place(s) specified
in
the relevant Confirmation or, if not so specified, as otherwise agreed by the
parties in writing or determined pursuant to provisions contained, or
incorporated by reference, in this Agreement, (b) in relation to any other
payment, in the place where the relevant account is located, (c) in relation
to
any notice or other communication, including notice contemplated under Section
5(a)(i), in the city specified in the address for notice provided by the
recipient and, in the case of a notice contemplated by Section 2(b), in the
place where the relevant new account is to be located and (d) in relation to
Section 5(a)(v)(2), in the relevant locations for performance with respect
to
such Specified Transaction.
15
“Loss”
means,
with respect to this Agreement or one or more Terminated Transactions, as the
case may be, and a party, an amount that party reasonably determines in good
faith to be its total losses and costs (or gain, in which case expressed as
a
negative number) in connection with this Agreement or that Terminated
Transaction or group of Terminated Transactions, as the case may be, including
any loss of bargain, cost of funding or, at the election of such party but
without duplication, loss or cost incurred as a result of its terminating,
liquidating, obtaining or reestablishing any hedge or related trading position
(or any gain resulting from any of them). Loss includes losses and costs (or
gains) in respect of any payment or delivery required to have been made
(assuming satisfaction of each applicable condition precedent) on or before
the
relevant Early Termination Date and not made, except, so as to avoid
duplication, if Section 6(e)(i)(1) or (3) or 6(e)(ii)(2)(A) applies. Loss does
not include a party's legal fees and out-of-pocket expenses referred to under
Section 9. A party will determine its Loss as of the relevant Early Termination
Date, or, if that is not reasonably practicable, as of the earliest date
thereafter as is reasonably practicable. A party may (but need not) determine
its Loss by reference to quotations of relevant rates or prices from one or
more
leading dealers in the relevant markets.
“Market
Quotation”
means,
with respect to one or more Terminated Transactions and a party making the
determination, an amount determined on the basis of quotations from Reference
Market-makers. Each quotation will be for an amount, if any, that would be
paid
to such party (expressed as a negative number) or by such party (expressed
as a
positive number) in consideration of an agreement between such party (taking
into account any existing Credit Support Document with respect to the
obligations of such party) and the quoting Reference Market-maker to enter
into
a transaction (the 'Replacement Transaction') that would have the effect of
preserving for such party the economic equivalent of any payment or delivery
(whether the underlying obligation was absolute or contingent and assuming
the
satisfaction of each applicable condition precedent) by the parties under
Section 2(a)(i) in respect of such Terminated Transaction or group of Terminated
Transactions that would, but for the occurrence of the relevant Early
Termination Date, have been required after that date. For this purpose, Unpaid
Amounts in respect of the Terminated Transaction or group of Terminated
Transactions are to be excluded but, without limitation, any payment or delivery
that would, but for the relevant Early Termination Date, have been required
(assuming satisfaction of each applicable condition precedent) after that Early
Termination Date is to be included. The Replacement Transaction would be subject
to such documentation as such party and the Reference Market-maker may, in
good
faith, agree. The party making the determination (or its agent) will request
each Reference Market-maker to provide its quotation to the extent reasonably
practicable as of the same day and time (without regard to different time zones)
on or as soon as reasonably practicable after the relevant Early Termination
Date. The day and time as of which those quotations are to be obtained will
be
selected in good faith by the party obliged to make a determination under
Section 6(e), and, if each party is so obliged, after consultation with the
other. If more than three quotations are provided, the Market Quotation will
be
the arithmetic mean of the quotations, without regard to the quotations having
the highest and lowest values. If exactly three such quotations are provided,
the Market Quotation will be the quotation remaining after disregarding the
highest and lowest quotations. For this purpose, if more than one quotation
has
the same highest value or lowest value, then one of such quotations shall be
disregarded. If fewer than three quotations are provided, it Will be deemed
that
the Market Quotation in respect of such Terminated Transaction or group of
Terminated Transactions cannot be determined.
16
“Non-default
Rate”
means
a
rate per annum equal to the cost (without proof or evidence of any actual cost)
to the Non-defaulting Party (as certified by it) if it were to fund the relevant
amount.
“Non-defaulting
Party”
has
the
meaning specified in Section 6(a).
“Potential
Event of Default”
means
any event which, with the giving of notice or the lapse of time or both, would
constitute an Event of Default.
“Reference
Market-makers”
means
four leading dealers in the relevant market selected by the party determining
a
Market Quotation in good faith (a) from among dealers of the highest credit
standing which satisfy all the criteria that such party applies generally at
the
time in deciding whether to offer or to make an extension of credit and (b)
to
the extent practicable, from among such dealers having an office in the same
city.
“Scheduled
Payment Date”
means
a
date on which a payment or delivery is to be made under Section 2(a)(i) with
respect to a Transaction.
“Set-off”
means
set-off, offset, combination of accounts, right of retention or withholding
or
similar right or requirement to which the payer of an amount under Section
6 is
entitled or subject (whether arising under this Agreement, another contract,
applicable law or otherwise) that is exercised by, or imposed on, such
payer.
“Settlement
Amount”
means,
with respect to a party and any Early Termination Date, the sum
of:-
(a) the
Market Quotations (whether positive or negative) for each Terminated Transaction
or group of Terminated Transactions for which a Market Quotation is determined;
and
(b) such
party's Loss (whether positive or negative and without reference to any Unpaid
Amounts) for each Terminated Transaction or group of Terminated Transactions
for
which a Market Quotation cannot be determined or would not (in the reasonable
belief of the party making the determination) produce a commercially reasonable
result.
“Specified
Entity”
has
the
meaning specified in the Schedule.
“Specified
Indebtedness”
means,
subject to the Schedule, any obligation (whether present or future, contingent
or otherwise, as principal or surety or otherwise) in respect of borrowed
money.
“Specified
Transaction”
means,
subject to the Schedule, (a) any transaction (including an agreement with
respect thereto) now existing or hereafter entered into between one party to
this Agreement (or any Credit Support Provider of such party or any applicable
Specified Entity of such party) and the other party to this Agreement (or any
Credit Support Provider of such other party or any applicable Specified Entity
of such other party) which is a rate swap transaction, basis swap, forward
rate
transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or any other similar transaction (including any
option with respect to any of these transactions), (b) any combination of these
transactions and (c) any other transaction identified as a Specified Transaction
in this Agreement or the relevant confirmation.
17
“Terminated
Transactions”
means
with respect to any Early Termination Date (a) if resulting from a Termination
Event, all Affected Transactions and (b) if resulting from an Event of Default,
all Transactions (in either case) in effect immediately before the effectiveness
of the notice designating that Early Termination Date (or, if “Automatic Early
Termination' applies, immediately before that Early Termination
Date).
“Termination
Event”
means
Illegality or, if specified to be applicable, a Credit Event Upon Merger or
an
Additional Termination Event.
“Termination
Rate”
means
a
rate per annum equal to the arithmetic mean of the cost (without proof or
evidence of any actual cost) to each party (as certified by such party) if
it
were to fund or of funding such amounts.
“Unpaid
Amounts”
owing
to any party means, with respect to an Early Termination Date, the aggregate
of
(a) in respect of all Terminated Transactions, the amounts that became payable
(or that would have become payable but for Section 2(a)(iii)) to such party
under Section 2(a)(i) on or prior to such Early Termination Date and which
remain unpaid as at such Early Termination Date and (b) in respect of each
Terminated Transaction, for each obligation under Section 2(a)(i) which was
(or
would have been but for Section 2(a)(iii)) required to be settled by delivery
to
such party on or prior to such Early Termination Date and which has not been
so
settled as at such Early Termination Date, an amount equal to the fair market
value of that which was (or would have been) required to be delivered as of
the
originally scheduled date for delivery, in each case together with (to the
extent permitted under applicable law) interest, in the currency of such
amounts, from (and including) the date such amounts or obligations were or
would
have been required to have been paid or performed to (but excluding) such Early
Termination Date, at the Applicable Rate. Such amounts of interest will be
calculated on the basis of daily compounding and the actual number of days
elapsed. The fair market value of any obligation referred to in clause (b)
above
shall be reasonably determined by the party obliged to make the determination
under Section 6(e) or, if each party is so obliged, it shall be the average
of
the fair market values reasonably determined by both parties.
18
IN
WITNESS WHEREOF
the
parties have executed this document on the respective dates specified below
with
effect from the date specified on the first page of this document.
|
KeyBank
National Association
|
▇▇▇▇▇▇▇
REIT Operating Partnership, L.P.
|
|||||
|
(Name
of Party)
|
(Name
of Party)
|
|||||
|
By:
|
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
By:
|
▇▇▇▇▇▇▇
Commercial Properties REIT, its
sole
general partner
|
|||
|
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior
Vice President
Date: March
16, 2006
|
|
|||||
|
By:
|
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
|||||
|
Name: ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
Title: President
Date:
|
||||||
|
▇▇▇▇▇▇▇
REIT Operating Partnership III LP
|
||||||
|
By:
▇▇▇▇▇▇▇ REIT Operating Partnership III GP LLC, a Texas limited liability
company, its sole general partner
|
||||||
|
By:
▇▇▇▇▇▇▇ REIT Operating Partnership, L.P., a Delaware limited partnership,
its sole partner
|
||||||
|
By:
▇▇▇▇▇▇▇ Commercial Properties REIT, a Maryland real estate investment
trust, its sole general partner
|
||||||
|
By:
|
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
|||||
|
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
|
||||||
19
SCHEDULE
TO THE MASTER AGREEMENT
dated
as
of March 16, 2006
between
Key
Bank National Association
(“Party
A”) and ▇▇▇▇▇▇▇
REIT Operating Partnership, L.P. and ▇▇▇▇▇▇▇ REIT Operating Partnership III
LP
(“Party
B”)
Part
1. Termination Provisions.
(a) “Specified
Entity” means
in
relation to Party A for the purpose of:
Section
5(a)(v), None
Section
5(a)(vi), None
Section
5(a)(vii), None
Section
5(b)(ii), None
and
in
relation to Party B for the purpose of:
Section 5(a)(v),
Any
current or future Affiliate of Party B
Section
5(a)(vi), Any
current or future Affiliate of Party B
Section
5(a)(vii), Any
current or future Affiliate of Party B
Section
5(b)(ii), Any
current or future Affiliate of Party B
|
(b)
|
“Specified
Transaction”
will have the meaning specified in Section 12 of this
Agreement.
|
|
(c)
|
The
“Cross
Default”
provisions of Section 5(a)(vi) will apply to Party
B.
|
|
(d)
|
“Specified
Indebtedness”
will have the meaning specified in Section 12 of this
Agreement.
|
|
(e)
|
“Threshold
Amount”
means $100,000.
|
|
(f)
|
The
“Credit
Event Upon Merger”
provisions of Section 5(b)(ii) will apply to Party
B.
|
|
(g)
|
The
“Automatic
Early Termination” provision
of Section 6(a) will not apply to Party A or Party
B.
|
|
(h)
|
Payments
on Early Termination.
For purposes of Section 6(e) of this Agreement:
|
(i) The
Second Method payment method will apply.
(ii) The
Loss
payment measure will apply.
|
(i)
|
Additional
Termination Event:
For the purpose of Section 5(b)(iii) of this Agreement, it shall
be an
“Additional Termination Event” with Party B being the Affected Party if
(i) the loan or other indebtedness in connection with which a Transaction
is entered into by Party B for the purpose or with the effect of
altering
the net combined payment of Party B
from a floating to fixed or a fixed to floating rate basis is repaid,
in
whole or in part, whether upon acceleration of principal, at maturity,
or
otherwise, or for any other reason ceases to be an obligation of
Party B,
with or without the consent of Party A, or (ii) any Credit Support
Document expires, terminates, or ceases to be in full force and effect
for
the purpose of this Agreement unless this Agreement is expressly
amended
in writing to reflect that it is no longer a Credit Support Document
hereunder.
|
Page
1 of 5
Part
2. Agreement to Deliver Documents.
For
the
purpose of Section 4(a) of this Agreement, Party B agrees to deliver the
following documents:
|
(a)
|
A
certificate of an authorized officer of Party B evidencing the necessary
corporate authorizations, resolutions, and approvals with respect
to the
execution, delivery and performance of this Agreement, and certifying
the
names, true signatures, and authority of the officer(s) signing this
Agreement and executing Transactions
hereunder.
|
| (b) |
Quarterly
and annual financial statements of Party B when requested by Party
A.
|
| (c) |
IRS
Form W-9 of Party B when requested by Party
A.
|
Part
3. Miscellaneous.
(a) Addresses
for Notices:
For the
purpose of Section 10(a) of this Agreement
Address
for notices or communications to Party
A:
Address:
127
Public Square, OH—01-27-0405, Cl▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
Interest
Rate Risk Management
Facsimile
No.: (▇▇▇)
▇▇▇-▇▇▇▇ Telephone
No.: ▇▇▇-▇▇▇-▇▇▇▇
Address
for notices or communications to Party
B:
Address:
14▇▇
▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Facsimile
No.: (▇▇▇)
▇▇▇-▇▇▇▇ Telephone
No.: ▇▇▇-▇▇▇-▇▇▇▇
(b) Calculation
Agent. The
Calculation Agent is Party A.
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(c)
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Credit
Support Document:
In
relation to Party B, means REVOLVING CREDIT AGREEMENT among ▇▇▇▇▇▇▇
REIT
OPERATING PARTNERSHIP, L.P., ▇▇▇▇▇▇▇ REIT OPERATING PARTNERSHIP
III LP and
OTHER BORROWERS WHICH
MAY BECOME PARTIES TO THIS AGREEMENT and KEYBANK NATIONAL ASSOCIATION,
UNION BANK OF CALIFORNIA, N.A., COMPASS BANK, COMERICA BANK AND
COMMERCEBANK, N.A. and OTHER LENDERS WHICH MAY BECOME PARTIES TO
THIS
AGREEMENT and KEYBANK NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT
and
UNION BANK OF CALIFORNIA, N.A. AS DOCUMENTATION AGENT with KEYBANC
CAPITAL
MARKETS, AS LEAD ARRANGER AND BOOK MANAGER, Dated as of March 11,
2005;
and any guarantee, security agreement, or other document in effect
from
time to time that, by its terms, guarantees, secures or otherwise
supports
the performance of Party B’s obligations under this
Agreement.
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(d)
|
Credit
Support Provider:
Any individual or entity named in a Credit Support Document who is
securing Party B’s full and timely performance of its obligations to Party
A under such documents, including without limitation
guarantors.
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(e)
|
Governing
Law.
This Agreement will be governed by and construed in accordance with
the
laws of the State of New York without reference to choice of law
doctrine.
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(f)
|
Definitions.
Section 12 is modified as follows:
|
(i) “Default
Rate” means Prime +2%.
|
(g)
|
Payments.
|
|
Party
A will make payments to Party B by transfer to the account of Party
B at
KeyBank National Association (Account
Number: Please Provide ____________________).
|
|
Party
B will make payments to Party A by transfer from the account of Party
B at
KeyBank National Association (Account
Number: Please Provide _______________),
and Party A is irrevocably authorized to debit such account for each
such
payment (it being understood that Party B will at all times maintain
sufficient balances in such account for such
purposes).
|
Part
4. Other Provisions.
|
(a)
|
Additional
Representations.
Party B represents to Party A (which representation will be deemed
to be
repeated by Party B on each date on which a Transaction is entered
into)
that it, or any Credit Support Provider has: (A) if a corporation,
partnership, proprietorship, limited liability company or trust,
(1) total
assets exceeding $10,000,000 or (2) a net worth exceeding $1,000,000
and
is
entering into the Transaction in connection with the conduct of its
business or to manage the risk associated with an asset or liability
owned
or incurred in the conduct of its business, or (B) if an individual,
total
assets exceeding (1) $10,000,000 or (2) $5,000,000 and
who is entering into the Transaction to manage the risk associated
with an
asset owned or liability incurred, or reasonably likely to be owned
or
incurred, by the individual.
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(b)
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Event
of Default.
Each Party agrees to notify the other party of the occurrence of
any Event
of Default or Potential Event of Default immediately upon learning
of the
occurrence thereof.
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(c)
|
Disclaimer.
In
entering into this Agreement:
|
|
1.
|
Party
B understands that there is no assurance as to the direction in which
interests rates in financial markets may move in the future and that
Party
A makes no covenant, representation, or warranty in this regard or
in
regard to the suitability of the terms of the Agreement or any Transaction
to the particular needs and financial situation of Party
B.
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|
2.
|
Party
B has made its own independent, informed decision to enter into this
Agreement and any Transaction.
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3.
|
Party
B represents, which representation shall be deemed repeated with
respect
to and at the time of each Agreement and Transaction, that (A) it
has had
the opportunity, independently of Party A and Party A’s affiliates,
officers, employees, and agents, to consult its own financial advisors
and
has determined that it is in Party B’s interest to enter into the
Agreement and any Transaction, (B) it is capable of assuming and
assumes
the risks of any Transaction and (C) it is capable of assuming and
assumes
all risks (financial and otherwise) associated with any Transaction,
including but not limited to, Market Risk (defined as the risk that
the
Transaction may increase or decrease in value with a change in, among
other things, interest rates or the yield curve), and Liquidity Risk
(defined as the risk that the Transaction cannot be closed out of
or
disposed of quickly at or near its
value).
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4.
|
Party
A is not acting as a fiduciary for or advisor to Party B in respect
of any
Transaction.
|
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5.
|
Party
B is not relying on any communications (written or oral) of Party
A as
investment advice or as a recommendation to enter into this Transaction,
it being understood that information and explanations related to
the terms
and conditions of this Agreement and any Transaction shall not be
considered investment advice or a recommendation to enter into this
Transaction.
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6.
|
Party
B is capable of assessing the terms, conditions and risks (on its
own
behalf or through independent professional advice) of this Agreement
and
any Transaction and understands and accepts such terms, conditions
and
risks.
|
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(d)
|
Waiver
of Jury Trial.
Each party hereby irrevocably waives, to the fullest extent permitted
by
applicable law, and any and all rights it may have to trial by jury
in
respect of any proceedings arising out of or relating to this Agreement
or
any Transaction and acknowledges that it and the other party have
been
induced to enter into this Agreement by, among other things, these
mutual
waivers.
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(e)
|
Set-off.
The right to exercise a Set-off against any amount otherwise payable
in
respect of an Early Termination Date pursuant to Section 6(e) may
be
applied solely at the election of the Non-Defaulting Party in the
case of
an Event of Default, and by the party other than the Affected Party
in the
case of a Termination Event or Additional Termination Event, whether
or
not such party is the payer or payee of an amount determined pursuant
to
Section 6. If an obligation is unascertained, such party may in good
faith
estimate that obligation and exercise a Set-off in respect of the
estimate, subject to the relevant party accounting to the other party
when
the obligation becomes ascertained.
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4 of 5
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(f)
|
Small
Business Administration Loans.
If
this Agreement relates to an interest rate swap on a loan guaranteed
by
the Small Business Administration, then Party B acknowledges that
the
Small Business Administration is not a party to this Agreement and
does
not guaranty it. In the event that the Small Business Administration
is
called upon to honor its guaranty to Party A, Party B’s debt will be
determined by the terms of the loan, including the variable interest
rate
provision.
|
|
(g)
|
USA
PATRIOT Act Notice.
Party A hereby notified Party B that pursuant to the requirements
of the
USA Patriot Act (Title III of Pub. L 107-56 (signed into law October
26,
2001)) (the “Act”), it is required to obtain, verify and record
information that identifies Party B, which information includes the
name
and address of Party B, the Tax-Identification Number, and other
information that will allow Party A to identify Party B in accordance
with
the Act. 1
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(h)
|
Termination.
Party B acknowledges that upon an early termination of any or all
Transactions or Specified Transactions under this Agreement, monies
may be
due and payable by Party B to Party A, or by Party A to Party
B.
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KeyBank
National Association
|
▇▇▇▇▇▇▇
REIT Operating Partnership, L.P.
|
|
(Name
of Party)
|
(Name
of Party)
|
|
By:
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
By:
▇▇▇▇▇▇▇ Commercial Properties REIT,
|
|
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
its sole general partner
|
|
Title:
Senior Vice President
|
|
|
Date:
March 16, 2006
|
By:
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
|
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
|
|
Title:
President
|
|
|
Date:
|
|
▇▇▇▇▇▇▇
REIT Operating Partnership III L.P.
|
|
| By: ▇▇▇▇▇▇▇ REIT Operating Partnership III GP LLC, | |
| a Texas limited liability company, its sole general partner | |
|
By:
▇▇▇▇▇▇▇ REIT Operating Partnership, L.P.,
|
|
|
a Delaware limited partnership, its sole
|
|
|
partner
|
|
|
By:
▇▇▇▇▇▇▇ Commercial Properties REIT,
|
|
|
a Maryland real estate investment trust,
|
|
|
its sole general partner
|
|
|
By:
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
|
|
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, president
|
1
This
provision is included as a means of compliance with the notice requirements
contained in the regulations under the USA PATRIOT ACT.
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