Exhibit 10.5
November 4, 1997
Boston Properties, L.P.
0 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxx Xxx
Phone: 000-000-0000
Fax: 000-000-0000
Re: Swap Transaction (Our Ref. No. A414770/45059131)
Dear Sirs:
The purpose of this Letter Agreement is to set forth the terms and
conditions of the Swap Transaction entered into between us on the trade date
specified below (the "Swap Transaction"). This Letter Agreement constitutes a
"confirmation" as referred to in the agreement specified below.
The definitions and provisions contained in the 1991 ISDA definitions (the
"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.
1. This confirmation evidences a complete binding agreement between you
and us as to the terms of the Swap Transaction to which this confirmation
relates and will constitute a confirmation subject to the terms and conditions
of the Master Agreement in the form published by the International Swaps and
Derivatives Association, Inc. ("ISDA") (Multicurrency -- Cross Border), except
as expressly modified herein (the "ISDA Form"). In addition, upon the execution
by you and us of such Master Agreement, with such modifications as you and we
shall in good faith agree (the "Agreement"), this confirmation will supplement,
form a part of, and be subject to the Agreement, which shall supersede such ISDA
Form as applicable to the Swap Transaction, all provisions contained or
incorporated by reference in such Agreement upon its execution shall govern this
confirmation except as expressly modified below. Upon your request, Chase will
promptly send you a copy of such ISDA Form and Definitions.
Boston Properties, L.P.
November 4, 1997
Page 2
2. Each party will make each payment specified in this confirmation as
being payable by it, not later than the due date for value on that date in the
place of the account specified below, in freely transferable funds and in the
manner customary for payments in the required currency. If on any date amounts
would otherwise be payable in the same currency 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 of this confirmation are the Chase Manhattan Bank ("Chase") and
Boston Properties, L.P. (the "Counterparty").
3. The terms and conditions of the particular Swap Transaction to which
this confirmation relates are as follows:
Notional Amount: USA 213,000,000.00
Trade Date: October 30, 1997
Effective Date: November 14, 1997
Termination Date: September 11, 2002
Subject to adjustment in accordance with the
modified following business day convention
Fixed Amounts
Fixed Rate Payer: The Counterparty
Fixed rate payer payment dates, subject to adjustment in
accordance with the modified following business day convention:
December 14, January 14, February 14, March 14, April 14, May
14, June 14, July 14, August 14, September 14, October 14,
November 14 of each year prior to and including the termination
date, commencing with December 15, 1997.
Fixed rate and fixed rate day count fraction: 6.0%; Actual/360
Boston Properties, L.P.
November 4, 1997
Page 3
Floating Amounts
Floating Rate
Payer: Chase
Floating rate payer payment dates, subject to adjustment in
accordance with the modified following business day convention,
December 14, January 14, February 14, March 14, April 14, May
14, June 14, July 14, August 14, September 14, October 14,
November 14 of each year prior to and including the termination
date, commencing with December 15, 1997.
Floating Rate Option: USD-LIBOR-BBA
Floating Rate For
Initial Calculation
Period: To be set 2 days prior to the Effective Date
Designated Maturity: 1 month
Spread: Plus 0.0%
Floating Rate Day
Count Fraction: Actual/360
Reset Dates: The first day of each calculation period for
the floating rate payer.
Business Days for
Payments by Both
Parties: London, New York
Calculation Agent: Chase
4. Account Details
Payments to Chase
Boston Properties, L.P.
November 4, 1997
Page 4
Account for payments in USD:
Chase Manhattan Bank
New York
FED ABA 000-000-000
A/C # 000-0-000000
Payments to Counterparty
Account for payments in USD:
To be advised
5. Office and address for notices in connection with this Swap
Transaction:
(a) Chase: its head office in New York at 0 Xxxxx Xxxxxxxxx Xxxxxx,
00xx Xxxxx, Xxxxxxxx, XX 00000, Attn: Global Derivative
Operations.
(b) Counterparty: its office in 0 Xxxxxxxxx Xxxxxx, Xxxxxx, XX 00000,
Attn: Xxxxx Xxx, Phone (000) 000-0000, Fax: (000) 000-0000.
6. Documents to be Delivered:
(a) Each party shall deliver to the other, at the time of its
execution of this confirmation, evidence of the specimen signature and
incumbency of each person who is executing the confirmation on the party's
behalf, unless such evidence has previously been supplied in connection with
this agreement and remains true and in effect.
(b) Counterparty agrees to deliver to Chase an opinion from counsel
in form and substance satisfactory to Chase.
7. Governing Law.
This confirmation will be governed by and construed in accordance with the
Law of the State of New York, provided however, that upon execution of the
Agreement, this confirmation shall be governed by and construed in accordance
with the law governing the Agreement.
Boston Properties, L.P.
November 4, 1997
Page 5
Each party will be deemed to represent to the other party on the date on
which it enters into a Swap Transaction that (absent a written agreement between
the parties that expressly imposes affirmative obligations to the contrary for
that Swap Transaction):
(a) Non Reliance. It is acting for its own account, and it has made
its own independent decisions to enter into that Swap Transaction and as to
whether that Swap 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 that Swap Transaction: it
being understood that information and explanations related to the terms and
conditions of a Swap Transaction shall not be considered investment advice or a
recommendation to enter into that Swap 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 that Swap Transaction.
(b) 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 that Swap Transaction. It also is capable of assuming, and assumes,
the risks of that Swap Transaction.
(c) Status of Parties. The other party is not acting as a fiduciary
for or an adviser to it in respect of that Swap Transaction.
Negative Interest Rates.
(a) Chase and Counterparty agree that, if with respect to a
calculation period, either party is obligated to pay a floating amount that is a
negative number (either due to a quoted negative floating rate or by operation
of a spread that is subtracted from the floating rate), the floating amount with
respect to that party for that calculation period will be deemed to be zero, and
the other party will pay to that party the absolute value of the negative
floating amount as calculated, in addition to any amounts otherwise owed by the
other party for that calculation period, on the payment date that the floating
amount would have been due if it had been a positive number.
Please confirm that the foregoing correctly sets forth the terms of our
Agreement by executing the copies of this confirmation enclosed for that purpose
and returning them to us.
Boston Properties, L.P.
November 4, 1997
Page 6
For inquiries regarding this confirmation please call: Customer Service at
(000) 000-0000, or Fax (000) 000-0000/4809/4811.
Yours sincerely,
THE CHASE MANHATTAN BANK
By: /s/ Xxxxxx Xxxxxx
--------------------------------
Authorized Signature
Xxxxxx Xxxxxx
Vice President
Chase Manhattan Bank
Confirmed as of the date first
above written:
BOSTON PROPERTIES, L.P.
By: _____________________________________
