Pre-Effective Amendment to Registration Statement for Securities of a Real Estate Company — Form S-11
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-11/A Form S-11, Amendment No. 2 HTML 3.35M
2: EX-10.19 Material Contract 151 471K
3: EX-10.20 Material Contract 70 224K
4: EX-10.21 Material Contract 51 176K
5: EX-10.22 Material Contract 83 252K
6: EX-10.24 Material Contract 29 132K
7: EX-10.25 Material Contract 29 133K
8: EX-10.26 Material Contract 5 23K
9: EX-10.27 Material Contract 5 24K
10: EX-10.28 Material Contract 5 25K
11: EX-10.29 Material Contract 4 21K
12: EX-10.30 Material Contract 245 991K
13: EX-10.31 Material Contract 108 369K
14: EX-10.32 Material Contract 6 29K
15: EX-23.3 Consent of Experts or Counsel 1 10K
16: EX-23.4 Consent of Experts or Counsel 1 9K
17: EX-23.5 Consent of Experts or Counsel 1 9K
18: EX-99.3 Miscellaneous Exhibit 17 82K
19: EX-99.4 Miscellaneous Exhibit 187 895K
EXHIBIT 10.28
["FLEET" LOGO]
DATE: SEPTEMBER 13, 2002
TO: MAGUIRE PARTNERS - 355 S. GRAND, LLC ("COUNTERPARTY")
ATTN: PHILIP [COPY NOT LEGIBLE]
FAX: 213-[COPY NOT LEGIBLE]-5167
PHONE: 213-613-4467
FROM: FLEET NATIONAL BANK ("FNB")
ATTN: ROSAMOND H. SULLIVAN, DERIVATIVE CONFIRMATIONS UNIT
FAX: 617-434-4284
PHONE: 617-434-2686
RE: INTEREST RATE CAP TRANSACTION
[OUR REF [COPY NOT LEGIBLE]]
The purpose of this letter agreement is to set forth the terms and conditions of
the Interest Rate Cap Transaction entered into between Fleet National Bank
("FNB") and Maguire Partners - 355 S. Grand, LLC ("Counterparty") on the Trade
Date specified below (the "Transaction"). This letter constitutes a
"Confirmation" as referred to in the Master Agreement specified below.
The definitions and provisions contained in the 2000 ISDA Definitions (the
"Definitions"), as published by the International Swaps and Derivatives
Association, Inc. ("ISDA"), are incorporated into this Confirmation. This
Confirmation evidences a complete binding agreement between you and us as to the
terms of the Transaction to which this Confirmation relates. This Confirmation
shall supplement, form a part of, and be subject to an agreement in the form of
the ISDA Master Agreement (Multicurrency-Cross Border) (the "ISDA Form")
published by ISDA as if we had executed an agreement in such form (with a
Schedule thereto which provides that Market Quotation and the Second Method
apply for purposes of Section 6(e) of such agreement) on the Trade Date hereof.
In the event of any inconsistency between this Confirmation and the ISDA Form,
this Confirmation will govern.
1. The terms of the particular Transaction to which this Confirmation relates
are as follows:-
Trade Date: September 12, 2002
Effective Date: September 13, 2002
Termination Date: September 1, 2005, subject to
adjustment in accordance with the
Modified Following Business Day
convention.
Notional Amount:
From To CCy Notional
09/13/02 09/01/04 USD 232,000,000.00
09/01/04 10/01/04 USD 231,776,554.58
10/01/04 11/01/04 USD 231,553,109.16
11/01/04 12/01/04 USD 231,[COPY NOT LEGIBLE]
12/01/04 01/01/05 USD 231,[COPY NOT LEGIBLE]
01/01/05 02/01/05 USD 230,882,772.90
02/01/05 03/01/05 USD 230,659,327.48
03/01/05 04/01/05 USD 230,435,882.06
04/01/05 05/01/05 USD 230,212,436.64
05/01/05 06/01/05 USD 229,988,991.22
[FLEET NATIONAL BANK LOGO]
06/01/05 07/01/05 USD 229,765,545.80
07/01/05 08/01/05 USD 229,542,100.38
08/01/05 09/01/05 USD 229,318,654.96
FIXED PAYMENTS:
Fixed Rate Payer: Maguire Partners -- 355 S. Grand, LLC
Fixed Payment: USD 807,000
Fixed Rate Payment
Date: September 16, 2002
FLOATING PAYMENTS:
Floating Rate Payer: Fleet National Bank
Cap Rate: 6.00%
Floating Rate Option: USD-LIBOR-BBA
Designated Maturity: One month
Spread: N/A
Floating Rate
Day Count Fraction: Actual/360
Floating Rate
Reset Date: The first day of each Calculation Period.
Initial Calculation
Period: From and including the Effective Date, to but
excluding October 1, 2002.
Floating Rate
Calculation Period: From and including the 1st of each month to but
excluding the 1st of the following month and
ending on the Termination Date, subject to no
adjustment.
Floating Rate
Payment Dates: The 1st of each month in each year beginning
October 1, 2002, and ending on the Termination
Date, subject to adjustment in accordance with the
Following Business Day convention.
Payments: On each Floating Rate Payment Date, the Floating
Rate Payer shall pay an amount equal to the
product of (a) the positive difference, if any,
between (i) the USD-LIBOR-BBA (as adjusted for the
Spread, if any) for the immediately preceding
Calculation Period and (ii) the Cap Rate, (b) the
Notional Amount and (c) the Floating Rate Day
Count Fraction.
Calculation Agent: FNB
Business Days: New York and London
2
[FLEET LOGO]
Governing Law: New York law
2. Relationship Between Parties
Each party represents to the other party that:
(a) 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 advisors 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 related to the terms and conditions of this
Transaction shall not be considered investment advice or a recommendation to
enter into this Transaction. It has not received from the other party any
assurance or guarantee as to the expected results of this Transaction.
(b) EVALUATION AND UNDERSTANDING. It is capable of evaluating 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 financial and
other risks of this Transaction.
(c) STATUS OF PARTIES. The other party is not acting as a fiduciary or
an advisor for it in respect of this Transaction.
(d) RISK MANAGEMENT. It has entered into this Transaction for the
purpose of (i) managing its borrowings or investments, (ii) hedging its
underlying assets or liabilities or (iii) in connection with its line of
business.
(e) It is an "eligible contract participant" as defined in Section 1
[ILLEGIBLE](12) of the Commodity Exchange Act.
3. CAP ADDENDUM:
1989 ADDENDA FOR CAPS, COLLARS AND FLOORS AND OPTIONS. Paragraph (4) of
the 1989 Caps Addenda shall be incorporated into this Agreement as
follows:
"Notwithstanding the terms of Sections 5 and 6 of this Agreement, if at
any time and so long as one of the parties to this Agreement ("X") shall have
satisfied in full all its payment and delivery obligations under Section
2(a)(i) of this Agreement and shall at the time have no future payment or
delivery obligations, whether absolute or contingent, under such Section, then
unless the other party ("Y") is required pursuant to appropriate proceedings to
return to X or otherwise returns to X upon demand of X any portion of any such
payment or delivery, (a) the occurrence of an event described in Section 5(a)
of this Agreement with respect to X, any Credit Support Provider of X or any
Specified Entity of X shall not constitute an Event of Default or a Potential
Event of Default with respect to X as the Defaulting Party and (b) Y shall be
entitled to designate an Early Termination Date pursuant to Section 6 of this
Agreement only as a result of the occurrence of a Termination Event set forth
in (i) either Section 5(b)(1) or 5(b)(ii) of this
3
["FLEET" LOGO]
Agreement with respect to Y as the Affected Party or (ii) Section 5(b)(iii) of
this Agreement with respect to Y as the Burdened Party."
4. ACKNOWLEDGEMENT
"Fleet National Bank agrees that and Counterparty may transfer its rights and
obligations under this Confirmation, in whole, or in part, to any third party
within the United States, provided that Fleet National Bank gives its prior
written consent, which consent shall not be unreasonably withheld in the event
that:
(I) the transferee Affiliate expressly assumes the rights and
obligations of and Counterparty under this Agreement in a writing reasonably
satisfactory to Fleet National Bank;
(II) by accepting such transfer, the transferee agrees that Fleet
National Bank will not, as a result of such transfer, be required to pay to the
transferee an amount in respect of an Indemnifiable Tax under Section 2(d)(i)(4)
greater than the amount in respect of which Fleet National Bank would have been
required to pay to and Counterparty in the absence of such transfer.
5. ACCOUNT DETAILS:
PAYMENT INSTRUCTIONS FOR FNB:
ABA 011000138, ACCOUNT 1026103-29480
ATTENTION DERIVATIVES AREA
100 FEDERAL STREET, MADE 100-13-11
BOSTON, MA 02110
PAYMENT INSTRUCTIONS FOR
COUNTERPARTY: PLEASE ADVISE
6. CONTACT INSTRUCTIONS:
FNB: Cap Desk (Resets/Payments): Tel: (617) 434-4308
FAX: (617) 434-0505
Confirmations: Tel: (617) 434-2686
FAX: (617) 434-4284
COUNTERPARTY: Phillip [COPY NOT LEGIBLE]
FAX: 213-533-6167
PHONE: 213-613-4467
["FLEET" LETTERHEAD]
Very truly yours,
FLEET NATIONAL BANK
By: /s/ [COPY NOT LEGIBLE] By: /s/ [COPY NOT LEGIBLE]
-------------------------- --------------------------
Name: Name:
Title: Title:
Agreed and accepted as of the date first above written:
MAGUIRE PARTNERS-355 S. GRAND, LLC,
Delaware limited liability company
By: MP-355 S. Grand Mezzanine, LLC, a Delaware limited
liability company, Sole Member
By: Maguire Partners-Bunker Hill, Ltd., a
California limited partnership, Manager
By: Maguire Partners BGHS, LLC, a California
limited liability company, General Partner
By: Maguire Partners SCS, Inc., a
California corporation, Manager
By: /s/ [COPY NOT LEGIBLE]
--------------------------------
Name: [COPY NOT LEGIBLE]
Title: Senior Vice President
PLEASE COUNTERSIGN AND FAX TO: 617-434-4284 ATTN: ROSAMOND H. SULLIVAN
REQUEST CORRECTIONS AT 617-434-[COPY NOT LEGIBLE].
TELEPHONE CALLS MAY BE RECORDED TO ENSURE TRANSACTION ACCURACY.
5
Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘S-11/A’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 9/1/05 | | 1 | | | | | None on these Dates |
| Filed on: | | 4/28/03 |
| | 10/1/02 | | 2 |
| | 9/16/02 | | 2 |
| | 9/13/02 | | 1 |
| | 9/12/02 | | 1 |
| List all Filings |
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