EXHIBIT 4.17
Dated: June 7, 2000
AMENDED RATE CAP TRANSACTION
Re: BNY Reference No.13226
Ladies and Gentlemen:
The purpose of this letter agreement is to set forth the terms and
conditions of the rate cap transaction entered into on April 18, 2000 (the
"Rate Cap Transaction") between THE BANK OF NEW YORK ("BNY"), a trust
company duly organized and existing under the laws of the State of New
York, and Niagara LaSalle Corporation, (the "Company") a corporation duly
organized on and existing under the laws of the State of Delaware,
In consideration of the payment of the sum of USD 63,000.00 (the
"Premium") by the Company to BNY by transfer of funds to BNY's Account (as
hereinafter defined), on April 20, 2000, and in consideration of the
promise by BNY to make payments to the Company in accordance with Section 2
hereof, the parties hereto agree as follows:
Definitions. The following terms shall have the following meanings:
"BNY's Account" means the account of BNY as follows:
The Bank of New York
Derivative Products Support Department
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Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
ABA #▇▇▇▇▇▇▇▇▇
Account #▇▇▇-▇▇▇▇-▇▇▇
Reference: Interest Rate Caps
"Business Day" means any day which is a New York and London
Business Day.
"Calculation Period" means each period from and including one
Payment Date (or, in the case of the initial Calculation Period, the
Effective Date) to but excluding the next succeeding Payment Date (or, in
the case of the final Calculation Period, the Termination Date).
"Cap Rate" means 8.28% per annum.
"Company's Account" means the account of the Company as follows:
M & T Bank
ABA No. ▇▇▇▇▇▇▇▇▇
A/C Name: Niagara LaSalle Corporation
A/C No. 152280
"Designated Maturity" means 3 month(s).
"Effective Date" means July 20, 2000.
"Floating Rate" means, with respect to a Reset Date for each
Calculation Period, the rate determined by BNY to be
(i) the per annum rate for deposits in U.S. dollars of the Designated
Maturity which appears on the Telerate Page 3750 Screen on the day that is
two London Business Days prior to that Reset Date (rounded upwards, if
necessary, to the nearest 1/100,000 of 1%); (ii) if such rate does not
appear on the Telerate Page 3750 Screen, the Floating Rate with respect to
that Reset Date shall be the arithmetic mean (rounded as aforesaid) of the
offered quotations obtained by BNY from the Reference Banks for deposits in
U.S. dollars to leading banks in the London interbank market as of
approximately 11:00 a.m. (London time) on the day that is two London
Business Days prior to that Reset Date, provided that at least two of the
Reference Banks provide BNY with such quotations or (iii) if fewer than two
of the Reference Banks provide BNY with such quotations, the Floating Rate
shall be the rate per annum which BNY determines to be the arithmetic mean
(rounded as aforesaid) of the offered quotations which leading banks in New
York City selected by BNY are quoting in the New York interbank market on
that Reset Date for deposits in U.S. dollars to the Reference Banks or, if
fewer than two such quotations are available, to leading European and
Canadian Banks.
"London Business Day" means any day on which banks are open for
business in London and on which dealings in deposits in U.S. dollars are
transacted in the London interbank market.
"New York Business Day" means any day on which banks are not
required or authorized by law to close in New York City.
"Notional Principal Amount" means USD 45,000,000.00.
"Payment Date" means the 20th day of each January, April, July and
October commencing on October 20, 2000, and ending on the Termination Date,
provided that if any such day is not a Business Day, such Payment Date
shall be the next succeeding Business Day, except that if such Payment Date
would then fall in the next calendar month, such Payment Date shall be the
next preceding Business Day.
"Reference Banks" means four major banks in the London interbank
market selected by BNY.
"Reset Date" means the first day of each Calculation Period,
except that if any Reset Date would fall on a day that is not a Business
Day, that Reset Date will be the first preceding day that is a Business
Day.
"Telerate Page 3750 Screen" means the display designated as "Page
3750" on the Dow ▇▇▇▇▇ Telerate Service (or such other page as may replace
Page 3750 on that service or such other service as may be nominated by the
British Bankers' Association as the information vendor for the purpose of
displaying British Bankers' Association Interest Settlement Rates for U.S.
Dollar deposits).
"Termination Date" means April 20, 2002, provided that if such day
is not a Business Day, the Termination Date shall be the next succeeding
Business Day, except that if the Termination Date would then fall in the
next calendar month, such Termination Date shall be the next preceding
Business Day.
"USD", "USD $", "U.S. Dollar", "Dollar", "U.S.$" and "$" each
means the lawful currency of the United States of America.
1. Payments. BNY agrees, subject to the payment by the Company to BNY of
the Premium, to pay to the Company on each Payment Date occurring on or
prior to the Termination Date, an amount equal to the product of (i) the
excess, if any, of the Floating Rate applicable to the Calculation Period
ending on or nearest such Payment Date over the Cap Rate, in each case as
determined by BNY, (ii) the Notional Principal Amount and (iii) the actual
number of days in that Calculation Period divided by 360. All payments to
the Company shall be made by deposit to the Company's Account. All payments
to BNY shall be made by transfer of funds to BNY's Account.
Representations. Each Party represents and warrants to the other
that:
(a) STATUS. It is duly organized and validly existing under the
laws of the jurisdiction of its organization or incorporation and, if
relevant under such laws, in good standing.
(b) POWERS. It has the power to execute this letter agreement and
any other documentation relating to this letter agreement to which it is a
party, to deliver this letter agreement and any other documentation
relating to this letter agreement that it is required by this letter
agreement to deliver and perform its obligations under this letter
agreement and has taken all necessary action to authorize such execution,
delivery and performance including, without limitation, approval of its
board of directors which approval is reflected in the minutes of said
board.
(c) 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.
(d) CONSENTS. All governmental and other consents that are
required to have been obtained by it with respect to this letter agreement
have been obtained and are in full force and effect and all conditions of
any such consents have been complied with.
(e) OBLIGATIONS BINDING. Its obligations under this letter
agreement constitute its legal, valid and binding obligations, enforceable
in accordance with their respective terms (subject to applicable
bankruptcy, reorganization, insolvency, moratorium or similar laws
affecting creditors' rights generally and subject, as to enforceability, to
equitable principals of general application (regardless of whether
enforcement is sought in a proceeding in equity or at law)).
(f) 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 letter
agreement.
(g) ELIGIBLE SWAP PARTICIPANT. It is an "eligible swap
participant" as defined in Commodity Futures Trading Commission Rule
35.1(b)(2) (17 C.F.R. 35.1(b)(2)).
(h) NON-RELIANCE. It is acting for its own account, and it has
made its own independent decisions to enter into the transaction evidenced
by this letter agreement and as to whether such transaction is appropriate
or proper for it based upon its own judgment and upon advice from such
advisers as it has deemed necessary. It is not relying on any communication
(written or oral) of the other party as investment advice or as a
recommendation to enter into such transaction; it being understood that
information and explanations related to the terms and conditions of such
transaction shall not be considered investment advice or a recommendation
to enter into such transaction. No communication (written or oral) received
from the other party shall be deemed to be an assurance or guarantee as to
the expected results of the transaction.
(i) ASSESSMENT AND UNDERSTANDING. It is capable of assessing the
merits of and understanding (on its own behalf or through independent
professional advice), and understands and accepts, the terms, conditions
and risks of the transaction evidenced by this letter agreement. It is also
capable of assuming, and assumes, the risks of such transaction.
(j) STATUS OF PARTIES. The other party is not acting as a
fiduciary for or an adviser to it in respect of the transaction evidenced
by this letter agreement.
Delivery of Documents. Upon the execution and delivery of this
letter agreement the Company shall deliver to BNY certified copies of (i)
resolutions adopted by the Board of Directors of the Company authorizing
the execution, delivery and performance of this letter agreement, (ii)
other necessary approvals and authorizations with respect to the execution,
delivery and performance of this letter agreement, if any, and (iii) an
incumbency certificate certifying the names, true signatures and authority
of the person or persons signing this letter agreement.
Waiver of Jury Trial. Each party hereby waives and agrees to waive
the right to trial by jury in any action or proceeding instituted with
respect to this letter agreement or the transaction contemplated hereby.
Notices. Any notice or other communication in respect of this
letter agreement may be given in any manner set forth below to the address
or number provided below 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 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 transmission report generated by the
sender's facsimile machine); or
(iii) 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, unless the date of that
delivery (or attempted delivery) or that receipt, as applicable, is not a
Business Day or that communication is delivered (or attempted) or received,
as applicable, after the close of business on a Business Day, in which case
that communication shall be deemed given and effective on the first
following day that is a Business Day.
Either party may by notice to the other change the address or
facsimile number at which notices or communication are to be given to it.
The address for notices to the Company is:
Niagara LaSalle Corporation
c/o Niagara Corporation
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Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telefax: 212-317-1001
The address for notices to BNY is:
The Bank of New York
Swaps and Derivative Products Group
Treasury Division
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Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Governing Law. This letter agreement shall be governed by and
construed in accordance with the laws of the State of New York without
reference to choice of law doctrine.
Assignments. Neither party shall have the right to assign its
rights or obligations under this letter agreement without the prior written
consent of the other party.
Set-Off or Counterclaim. All payments under this letter agreement
will be made without set-off or counterclaim, except that each party will
have the right to set-off, counterclaim or withhold payment in respect of
any default by the other party under this letter agreement or under any
other agreement between the parties.
Amendments. No amendment, modification or waiver in respect of
this letter agreement will be effective unless in writing and executed by
both BNY and the Company.
Entire Agreement. This letter agreement constitutes the entire
agreement and understanding of the Company and BNY with respect to its
subject matter and supersedes all oral and prior writings with respect
thereto, including the Confirmation dated April 18,2000 between the
parties.
Facsimile Execution. This letter agreement, any amendment,
modification or waiver in respect thereof or notice hereunder may be
executed and delivered by facsimile transmission; provided that the party
sending such facsimile transmission shall indemnify and hold harmless the
receiving party from and against any and all costs, expenses, damages,
liabilities and claims (including attorney's fees) incurred by the
receiving party as a result of any action taken or omitted by the receiving
party based on its good faith reliance on such facsimile transmission; and
provided further that any notice is subject to the provisions regarding
"Notices" hereunder.
Please confirm that the foregoing correctly sets forth the terms
of our agreement by executing this agreement and returning it via facsimile
to Derivative Products Support Dept., Attn: ▇▇▇▇▇ Au-▇▇▇▇▇ at
▇▇▇-▇▇▇-▇▇▇▇/5837. Once we receive this we will send you two original
confirmations for execution.
THE BANK OF NEW YORK
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
Accepted, agreed and confirmed as
of the date first above written:
NIAGARA LASALLE CORPORATION
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chairman
Ref #: 13226