CONFIRMATION Date: October 27, 2005 To: Ashford Dulles II LLC 14185 Dallas Park Suite 1100 Dallas, TX 75254 USA Documentation Contact: David Kimichik Telephone: 1 ###-###-#### Telefax: 1 ###-###-#### Cc: Chatham Financial Corporation Attention: Mike Ashby 1805 Shea Center Drive # 160 Highlands Ranch, CO 80129 Telephone: 720 ###-###-#### Telefax: 720 ###-###-#### From: SMBC Capital Markets, Inc. as Agent for SMBC Derivative Products Limited Derivative Products Group 277 Park Avenue, Fifth Floor New York, New York 10172 cc: Documentation Contact: Julie Ann Estorque Telephone: 212 ###-###-#### Telefax: 212 ###-###-#### Email Address: ***@*** Re: USD 45,000,000.00 Rate Protection Transaction, dated as of October 27, 2005 between SMBC Derivative Products Limited (Party A) and Ashford Dulles II LLC (Party B).
EX-10.23.3 3 d29785exv10w23w3.htm $45 MILLION RATE PROTECTION AGREEMENT exv10w23w3
Sumitomo Mitsui Banking Corporation Group
277 Park Avenue New York, NY 10172 PHONE: 212 ###-###-#### FAX: 212 ###-###-#### Email: ***@***
Sumitomo Mitsui Banking Corporation Group
CONFIRMATION
Date: | October 27, 2005 | |
To: | Ashford Dulles II LLC | |
| 14185 Dallas Park | ||
| Suite 1100 | ||
| Dallas, TX 75254 | ||
| USA | ||
| Documentation Contact: David Kimichik | ||
| Telephone: 1 ###-###-#### | ||
| Telefax: 1 ###-###-#### | ||
Cc: | Chatham Financial Corporation | |
| Attention: Mike Ashby | ||
| 1805 Shea Center Drive # 160 | ||
| Highlands Ranch, CO 80129 | ||
| Telephone: 720 ###-###-#### | ||
| Telefax: 720 ###-###-#### | ||
From: | SMBC Capital Markets, Inc. as Agent for SMBC Derivative Products Limited | |
| Derivative Products Group | ||
| 277 Park Avenue, Fifth Floor | ||
| New York, New York 10172 | ||
cc: | Documentation Contact: Julie Ann Estorque | |
| Telephone: 212 ###-###-#### | ||
| Telefax: 212 ###-###-#### | ||
| Email Address: ***@*** | ||
Re: | USD 45,000,000.00 Rate Protection Transaction, dated as of October 27, 2005 between SMBC Derivative Products Limited | |
| (“Party A“) and Ashford Dulles II LLC (“Party B“). |
Our Reference Number: DPA506807
The purpose of this letter agreement is to set forth the terms and conditions of the Rate Protection Transaction entered into between SMBC Derivative Products Limited and Ashford Dulles II LLC on the Trade Date specified below (the “Rate Protection Transaction“). This letter agreement constitutes a “Confirmation“ as referred to in the ISDA Master Agreement specified below. This document supersedes all previous confirmations and amendments with respect to the above referenced transaction.
The definitions and provisions contained in the 1992 ISDA Master Agreement subject to the 2000 ISDA Definitions as published by the International Swaps and Derivatives Association, Inc., are incorporated into this Confirmation. In the event of any inconsistency between those definitions and provisions and this Confirmation, this Confirmation will govern.
SMBC Derivative Products Limited and Ashford Dulles II LLC have agreed not to amend, modify, assign, or terminate the Rate Protection Transaction without the prior written consent of Merrill Lynch Mortgage Lending, Inc. or the current lender, as the case may be.
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DPA506807
SMBC Derivative Products Limited and Ashford Dulles II LLC have agreed not to amend, modify, assign, or terminate the Rate Protection Transaction without the prior written consent of Merrill Lynch Mortgage Lending, Inc. or the current lender, as the case may be.
1. ISDA AGREEMENT:
This Confirmation evidences a complete and binding agreement between you and us as to the terms of the Transaction to which Confirmation relates. In addition, you and we agree to use all reasonable efforts promptly to negotiate, execute and deliver an agreement in the form of the ISDA Master Agreement (Multicurrency-Cross Border) ( the “ISDA Form“ ), with such modifications as you and we will in good faith agree. Upon the execution by you and us of such an agreement, this Confirmation will supplement, form part of, and be subject to that agreement. All provisions contained in or incorporated by reference in that agreement upon its execution will govern this Confirmation except as expressly modified below. Until we execute and deliver that agreement, this Confirmation, together with all other documents referring to the ISDA Form (each a “Confirmation“) confirming transactions (each a “Transaction“) entered into between us (notwithstanding anything to the contrary in a Confirmation), shall supplement, form a part of, and be subject to, an agreement in the form of the ISDA Form as if we had executed an agreement in such form on the Trade Date of the first such Transaction between us. In the event of any inconsistency between the provisions of that agreement and this Confirmation, this Confirmation will prevail for the purpose of this Transaction.
2. NOTICE TO COUNTERPARTY:
SMBC Derivative Products Limited is solely responsible for its contractual obligations and commitments; none of Sumitomo Mitsui Banking Corporation, SMBC Capital Markets, Inc., SMBC Limited nor any other affiliate of SMBC Derivative Products Limited shall be responsible for the contractual obligations or commitments of SMBC Derivative Products Limited.
SMBC Derivative Products Limited is not a bank and is separate from any affiliated bank, and the obligations of SMBC Derivative Products Limited are not deposits, are not insured by the United States of America or any agency thereof, are not guaranteed by an affiliated bank, and are not otherwise an obligation of an affiliated bank.
SMBC Derivative Products Limited is regulated by Financial Services Authority. The time of execution of the transaction is available on request.
3. TERMS OF RATE PROTECTION TRANSACTION:
The terms of the particular Rate Protection Transaction to which this Confirmation relates are as follows:
| Type of Rate Protection Transaction: | Rate Cap Transaction | |
Notional Amount: | USD 45,000,000.00 | |
Trade Date: | October 27, 2005 | |
Effective Date: | October 28, 2005 | |
Termination Date: | October 15, 2007 |
SMBC Derivative Products Limited and Ashford Dulles II LLC have agreed not to amend, modify, assign, or terminate the Rate Protection Transaction without the prior written consent of Merrill Lynch Mortgage Lending, Inc. or the current lender, as the case may be.
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DPA506807
SMBC Derivative Products Limited and Ashford Dulles II LLC have agreed not to amend, modify, assign, or terminate the Rate Protection Transaction without the prior written consent of Merrill Lynch Mortgage Lending, Inc. or the current lender, as the case may be.
| FLOATING AMOUNTS: | ( PARTY A ) | |
Floating Rate Payer: | SMBC Derivative Products Limited | |
Initial Calculation Period: | The initial Calculation Period will be from and including the Effective Date up to but excluding November 15, 2005, with No Adjustment for Period End Dates | |
Floating Rate Calculation Period: | The Floating Rate Calculation Period will be the initial Calculation Period and thereafter, from and including the fifteenth (15th) day of each month to but excluding the fifteenth (15th) day of the following month and continuing up to but excluding the Termination Date; with No Adjustment for Period End Dates | |
Floating Rate Payer Payment Dates: | Five (5) Business Days prior to the twelfth (12th) calendar day of each month, beginning with November 4, 2005 and continuing until the fifth (5th) Business Day prior to October 12, 2007, however, the 12th day of each month will first be subject to adjustment in accordance with the Preceding Business Day Convention | |
Floating Rate for initial Calculation Period: | 4.07000 % (percent) per annum | |
Floating Rate Option: | USD-LIBOR-BBA | |
Designated Maturity: | 1 Month | |
Spread: | Inapplicable | |
Floating Rate Day Count Fraction: | Actual/360 | |
Reset Dates: | The fifteenth (15th) calendar day of each month | |
Compounding: | Inapplicable | |
Cap Rate: | 7.00000 % (percent) per annum | |
FIXED AMOUNTS: | ( PARTY B ) | |
Fixed Rate Payer: | Ashford Dulles II LLC | |
Fixed Rate Payer Payment Date: | October 31, 2005 | |
Fixed Amount: | USD 9,400.00 | |
Business Days for Payments by both parties: | New York | |
Calculation Agent: | SMBC Derivative Products Limited |
SMBC Derivative Products Limited and Ashford Dulles II LLC have agreed not to amend, modify, assign, or terminate the Rate Protection Transaction without the prior written consent of Merrill Lynch Mortgage Lending, Inc. or the current lender, as the case may be.
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DPA506807
SMBC Derivative Products Limited and Ashford Dulles II LLC have agreed not to amend, modify, assign, or terminate the Rate Protection Transaction without the prior written consent of Merrill Lynch Mortgage Lending, Inc. or the current lender, as the case may be.
Governing Law: | New York | |
Collateral Assignment: | SMBC Derivative Products Limited consents to a collateral assignment of this Confirmation and the Agreement (if requested) and agrees to execute separate consents as may be reasonably requested by the parties to such agreements | |
Assignment: | SMBC Derivative Products Limited will not unreasonably withhold or delay an assignment of this agreement, in whole or in part, to any other third party |
4. CREDIT SUPPORT DOCUMENTS: Inapplicable
5. PAYMENT INSTRUCTIONS:
Payments to SMBC Derivative Products Limited of USD amounts:
Depository: | JPMorgan Chase Bank, N.A. New York Branch | |
ABA Routing No.: | 021000021 | |
Address: | New York, NY | |
In Favor Of: | SMBC Derivative Products Limited | |
Account No.: | 400035413 |
Please contact Larry Weissblum of our Operations Group if you have any questions concerning SMBC Derivative Products Limited’s payment instructions referenced above (Telephone: 212 ###-###-####; Telefax: 212 ###-###-####).
Payments to Ashford Dulles II LLC of USD amounts:
Depository: | PLEASE ADVISE | |
In Favor Of: |
Each party will be deemed to represent to the other party on the date on which it enters into this Transaction that (absent a written agreement between the parties that expressly imposes affirmative obligations to the contrary for this Transaction):
(i) Non-Reliance. It is acting for its own account, and it has made its own independent decisions to enter into this Transaction and as to whether this 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 this Transaction: it being understood that information and explanations relating to the terms and conditions of this Transaction shall not be considered investment advice or a recommendation to enter into this 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 this Transaction.
(ii) 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 this Transaction. It is also capable of assuming, and assumes, the risks of this Transaction.
(iii) Status of Parties. The other party is not acting as a fiduciary for or an advisor to it in respect of this Transaction.
SMBC Derivative Products Limited and Ashford Dulles II LLC have agreed not to amend, modify, assign, or terminate the Rate Protection Transaction without the prior written consent of Merrill Lynch Mortgage Lending, Inc. or the current lender, as the case may be.
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DPA506807
SMBC Derivative Products Limited and Ashford Dulles II LLC have agreed not to amend, modify, assign, or terminate the Rate Protection Transaction without the prior written consent of Merrill Lynch Mortgage Lending, Inc. or the current lender, as the case may be.
Please confirm that the foregoing correctly sets forth the terms of the agreement between you and us by executing this Confirmation and returning it to the documentation contact above.
Yours Sincerely,
Yours Sincerely,
SMBC Capital Markets, Inc. as Agent for SMBC Derivative Products Limited
By: /S/ LARRY WEISSBLUM | ||
Name: Larry Weissblum | ||
Title: Senior Vice President | ||
By: /S/ DANNY BOODRAM | ||
Name: Danny Boodram | ||
Title: Assistant Vice President |
Confirmed as of the date first written above:
ASHFORD DULLES II LLC, a Delaware limited liability company
| By: | /S/ DAVID A. BROOKS | |||
| David A. Brooks | ||||
| Vice President | ||||
SMBC Derivative Products Limited and Ashford Dulles II LLC have agreed not to amend, modify, assign, or terminate the Rate Protection Transaction without the prior written consent of Merrill Lynch Mortgage Lending, Inc. or the current lender, as the case may be.
