EXHIBIT 38
[Graphic Omitted]
FORWARD SHARE TRANSACTION
DATE: JUNE 18, 2003
TO: SECURITY CAPITAL SHOPPING MALL BUSINESS TRUST
ADDRESS: C/O GE CAPITAL REAL ESTATE
000 XXXX XXXXX XXXX
XXXXXXXX, XX 00000
ATTENTION: XXXXXX XXXXX
FACSIMILE: (000) 000-0000
FROM: WACHOVIA SECURITIES, LLC
AS AGENT OF WACHOVIA BANK, NATIONAL ASSOCIATION (THE "AGENT")
WACHOVIA REFERENCE NUMBER: 484996
The purpose of this letter agreement (this "Confirmation") is to
confirm the terms and conditions of the Transaction entered into between
Wachovia Bank, National Association ("Wachovia" or "Party B") and Security
Capital Shopping Mall Business Trust ("Party A") (collectively with Wachovia,
the "parties") on the Trade Date as specified below (the "Transaction"). This
Confirmation constitutes a "Confirmation" as referred to in the Master Agreement
specified below.
The definitions and provisions contained in the 2000 ISDA Definitions
(including the June 2000 Version Annex thereto) (the "2000 Definitions") and the
1996 ISDA Equity Derivatives Definitions (the "Equity Definitions", and together
with the 2000 Definitions, the "Definitions"), in each case as published by the
International Swaps and Derivatives Association, Inc. ("ISDA") are incorporated
into, and subject to, this Confirmation. References herein to "Transaction"
shall be deemed references to "Swap Transaction" for purposes of the 2000
Definitions. In the event of any inconsistency between the 2000 Definitions and
the Equity Definitions, the Equity Definitions will govern. In the event of any
inconsistency between either set of Definitions and this Confirmation, this
Confirmation will prevail.
This Confirmation supplements, forms part of, and is subject to, the
ISDA Master Agreement between the parties, dated as of June 18, 2003 as may be
amended and supplemented from time to time (the "Master Agreement"). All
provisions contained in or incorporated by reference into the Master Agreement
will govern this Confirmation except as expressly modified below.
1. The terms of the particular Transaction to which this Confirmation relates
are as follows:
GENERAL TERMS:
Trade Date: June 18, 2003.
Effective Date: June 24, 2003, or on such later date as designed pursuant
to the terms of the Underwriting Agreement dated the date
hereof among the Issuer, Party A, Party B, and Xxxxxxx
Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated and the other
underwriters named therein (the "UNDERWRITING
AGREEMENT").
Base Amount: Initially, 3,906,666 Shares. On each Settlement Date, the
Base Amount shall be reduced by the number of Settlement
Shares for such Settlement Date.
Maturity Date: June 21, 2004.
Forward Price: On the Effective Date, the Initial Forward Price, and on
any other day, (i) the Forward Price on the immediately
preceding calendar day multiplied by the sum of (A) 1
PLUS (B) the Daily Rate for such day, MINUS (ii) the sum
of any cash dividend paid on such day (other than any
cash dividend for which the ex-dividend date occurred
prior to the Effective Date); PROVIDED that if on any
Settlement Date an ex-dividend date for a cash dividend
has occurred, but such dividend has not yet been paid,
then, solely for the purpose of calculating the
Settlement Amount for such Settlement Date, the present
value (as determined by the Calculation Agent) of such
dividend shall be deducted from the Forward Price on such
Settlement Date.
Initial Forward Price: USD 31.1355 per Share.
Daily Rate: For any day, (i)(A) "USD-Federal Funds" MINUS (B) the
Spread DIVIDED by (ii) 360.
Where, "USD-Federal Funds" means the rate as determined
by the Calculation Agent as of 9:00 a.m. (New York City
time) on such day and reported on the page FEDSOPEN
[Index] [GO] on the BLOOMBERG Professional Service or any
successor page available on Bloomberg for determining
such rate. In the event such rate is not available, the
Federal Funds rate shall be determined by the Calculation
Agent in good faith in a commercially reasonable manner.
Spread: 0.20%.
Shares: Common Stock, $0.01 par value per share, of Regency
Centers Corporation (the "ISSUER") (Exchange identifier:
"REG"). Exchange: New York Stock Exchange
Related Exchange(s): The principal exchanges(s) for options contracts or
futures contracts, if any, with respect to the Shares.
Clearance System: DTC
Calculation Agent: Wachovia.
The Calculation Agent shall promptly notify the parties
of its calculations and determinations in respect of the
Transaction. The calculations and determinations of the
Calculation Agent shall be final absent manifest error.
The Calculation Agent shall promptly correct any
instances of manifest error following any notice of such
error from a party. If Party A in good faith claims that
a calculation or determination is erroneous, both parties
shall promptly negotiate in good faith to resolve the
dispute, failing which Party A shall promptly appoint two
independent leading market dealers and Party B shall
promptly
appoint two independent leading market dealers to make
the relevant calculation or determination. In the case of
a calculation, such calculation shall be the arithmetic
mean of the calculations by the appointed dealers without
regard to the calculations that have the highest and
lowest values (if there are four different calculations),
and in the case of a determination, such determination
shall be the determination agreed upon by at least three
of the four dealers; provided that, if fewer than four
dealers provide a calculation or determination or if
three dealers do not agree on a determination, then Party
A and Party B shall agree on the appointment of such
number of additional dealers such that the Calculation
Agent receives four calculations or such that three
dealers agree on a determination as the case may be.
SETTLEMENT TERMS:
Settlement Date: Any Exchange Business Day following the Effective Date
and up to and including the Maturity Date, as designated
by Party A in a written notice (a "SETTLEMENT NOTICE")
delivered to Party B at least ten (10) Exchange Business
Days, in the case of Physical Settlement, and forty-five
(45) Exchange Business Days, in the case of Cash
Settlement, prior to such Settlement Date, unless
different periods for notice are mutually agreed to by
Party A and Party B; PROVIDED that the Maturity Date
shall be a Settlement Date if on such date the Base
Amount is greater than zero.
Settlement: Settlement of this Transaction shall be Physical
Settlement as specified below unless Party A informs
Party B in writing no fewer than forty-five (45) Exchange
Business Days prior to the scheduled Settlement Date that
Party A has elected Cash Settlement at Party A's option,
unless a different period for notice is mutually agreed
to by Party A and Party B.
In the event that the Borrower (Party B) under that
certain Securities Loan Agreement dated as of June 18,
2003 among Party B and UBS Securities LLC, as Agent, and
supplemented by the Supplemental Securities Loan
Agreement, among Party A, Party B, and UBS Securities
LLC, as Agent, dated as of June 18, 2003 (collectively,
the "Securities Loan Agreement") does not deliver Shares
to Party A under that Securities Loan Agreement, then
Physical Settlement shall apply and Party A shall have
the right to apply its right to receive Shares under the
Securities Loan Agreement, in whole or in part, against
its delivery obligation under this Transaction, in whole
or in part, and to assign to Party B, Party A's interest
in the "Collateral" under the Stock Loan Agreement with
respect to such Shares in satisfaction of Party B's
corresponding payment obligation under this Transaction.
In the event that, upon the tender of Shares by Party B
as Borrower under the Securities Loan Agreement, Party A
as Lender fails to return "Collateral" as defined under
the Securities Loan Agreement as required thereunder,
Party B shall have the right to satisfy its payment
obligation under this
Transaction, in whole or in part, by directing Party A as
Lender to retain an amount of the "Collateral" under the
Securities Loan Agreement equal to the amount of Party
B's payment obligation hereunder that is to be so
satisfied, in which event instead of delivering the
tendered Shares to the Lender under the Securities Loan
Agreement, Party B, as Borrower, shall retain such Shares
and the obligation of Party B to deliver the Shares
hereunder shall be satisfied.
In the event that Party B fails to make any payment to
Party A hereunder, Party A as Lender may retain an amount
of "Collateral" under the Securities Loan Agreement equal
to such payment and apply it in satisfaction of Party B's
payment obligation hereunder, in whole or in part as the
case may be, and in conjunction therewith shall assign to
Party B its right to receive the corresponding Shares in
repayment of the Loan evidenced by the Securities Loan
Agreement.
If Physical Settlement is elected, either Party A or, to
the extent, but only to the extent, that Party B
concurrently tenders payment to Party A as required
hereunder, Party B may direct Party A to apply any right
of Party A to receive delivery of Shares from Borrower
under the Securities Loan Agreement to satisfy the
delivery obligation of Party A hereunder with respect to
the number of Shares that Party A as Lender is then
entitled to receive from Party B as Borrower. In such
event, Party A shall return the corresponding
"Collateral" under the Securities Loan Agreement to
Borrower upon payment by Party B with respect to this
Transaction.
Physical Settlement: Except as otherwise provided above, on any Settlement
Date, Party A shall deliver to Party B or its designee a
number of Shares equal to the Settlement Shares for such
Settlement Date, and Party B shall deliver to Party A, by
wire transfer of immediately available funds to an
account designated by Party A, an amount in cash equal to
the Settlement Amount for such Settlement Date, on a
delivery versus payment basis. The Settlement Shares
delivered in accordance with the terms of this
Transaction will have been held by Party A as of the
Trade Date or will have been acquired by Party A from
holders of Shares and not from the Issuer and will not be
subject to any preemptive or similar rights and will be
free and clear of liens and other encumbrances.
Cash Settlement: On any Settlement Date, the party indicated below shall
make the specified cash payment by wire transfer of
immediately available funds to the designated account:
(A) If the Forward Price equals or exceeds the Final
Equity Level, Party B shall pay an amount equal
to:
(Forward Price - Final Equity Level) x Settlement
Shares
(B) If the Forward Price is less than the Final
Equity Level, Party A shall pay an amount to
equal to:
(Final Equity Level - Forward Price) x Settlement
Shares
Settlement Shares: With respect to any Settlement Date, a number of Shares,
not to exceed the Base Amount, designated as such by
Party A in the related Settlement Notice; PROVIDED that
on the Maturity Date the number of Settlement Shares
shall be equal to the Base Amount.
Settlement Amount: For any Settlement Date, an amount in cash equal to the
product of the Forward Price on such Settlement Date and
the number of Settlement Shares for such Settlement Date.
Final Equity Level: The average execution price paid by Party B or its
designee to purchase a number of Shares equal to the
Settlement Shares during the period after Party B has
received notice of the election of Cash Settlement by
Party A and prior to the Settlement Date. The average
execution price shall include any fees or commissions
paid by Party B or its designee in connection with
purchases of the Shares.
Settlement Currency: USD.
Failure to Deliver: Applicable.
ADJUSTMENTS:
Method of
Adjustment: Calculation Agent Adjustment.
EXTRAORDINARY EVENTS:
Consequences of Merger Events:
(a) Share-for-Share: Alternative Obligation on the Business Day following
the Merger Event with mutually agreed upon commercially reasonable
adjustments to the terms to preserve the economics of the transaction
as originally bargained for pursuant to the terms stated herein;
PROVIDED that prior to the Merger Event Party B shall be permitted to
elect a Settlement Date with Physical Settlement within one (1)
Business Day preceding the day such Merger Event occurs.
(b) Share-for-Other: Party B shall be permitted to elect a Settlement
Date with Physical Settlement within one (1) Business Day preceding
the day such Merger Event occurs.
(c) Share-for-Combined: In respect of any Share-for-Combined Merger
Event, as soon as practicable but not to exceed three (3) Business
Days prior to the occurrence of the Merger Event, the parties shall
mutually agree upon appropriate adjustments to the terms of the
transaction and, if the parties are unable to so agree, Party B shall
be permitted to elect a Settlement Date with Physical Settlement
within one (1) Business Day preceding the day such Merger Event
occurs.
If, as a result of a Merger Event, Party A would receive securities that
would be subject to resale restrictions pursuant to Rule 144 or Rule 145
under the Securities Act of 1933, as amended, then Party A may elect
Physical Settlement and designate a Settlement Date which shall occur
within three (3) Business Days preceding the day such Merger Event is
scheduled to occur (regardless whether such Settlement Date occurs within
six months of the Effective Date).
Nationalization or Insolvency: Negotiated Close-out
Termination Currency: USD
Account Details:
Payments to Party A: To be advised under separate
cover or telephone confirmed prior to
each Payment Date.
Payments to Party B: To be advised under separate cover or
telephone confirmed prior to each Payment
Date.
Delivery of Shares to Party B: To be advised.
2. Other Provisions:
CONDITIONS TO EFFECTIVENESS:
The effectiveness of this Confirmation on the Effective Date shall be subject to
(i) the condition that the representations and warranties of the Issuer and
Party A contained in the Underwriting Agreement and any certificate delivered
pursuant thereto by the Issuer or Party A be true and correct on the Effective
Date as if made as of the Effective Date, (ii) the condition that the Issuer and
Party A have each performed all of the obligations required to be performed by
it under the Underwriting Agreement on or prior to the Effective Date and (iii)
the satisfaction of all of the conditions set forth in Section 6 of the
Underwriting Agreement.
COVENANT OF PARTY A:
Party A agrees to comply with its obligations under the terms of the Securities
Loan Agreement, as mutually agreed upon with Borrower thereunder, it being
acknowledged that Party A's obligation to return Collateral to Borrower under
the Securities Loan Agreement is expressly conditioned upon Borrower tendering
delivery of the Shares borrowed thereunder.
The parties acknowledge and agree that any Shares delivered by Party A to Party
B on any Settlement Date and returned by Party B to securities lenders from whom
Party B borrowed Shares in connection with hedging its exposure to the
Transaction will be freely saleable without further registration or other
restrictions under the Securities Act of 1933, as amended, in the hands of those
securities lenders, PROVIDED that they are not affiliates of the Issuer.
Accordingly, Party A agrees that the Settlement Shares that it delivers to Party
B on each Settlement Date will not bear a restrictive legend and that such
Settlement Shares will be deposited in, and the delivery thereof shall be
effected through the facilities of, the Clearance System.
EARLY SETTLEMENT EVENT:
Notwithstanding any other provision hereof, Party B shall have the right to
designate any Exchange Business Day to be a Settlement Date with Physical
Settlement applicable on at least two Exchange Business Days' notice, and to
select the number of Settlement Shares for such Settlement Date, if in the
judgment of the Calculation Agent, Party B is, on the date of such designation,
unable to hedge Party B's exposure to the Transaction because of the lack of
sufficient Shares being made available for Share borrowing from lenders at a
daily rebate rate received by Party B, net of the cost to Party B of borrowing
the Shares, of at least (i) USD-Federal Funds (as defined herein), minus 20
basis points, divided by (ii) 360.
Notwithstanding any other provision hereof, if the Issuer reduces the number of
outstanding Shares such that any of the Shares subject to delivery to Party B
pursuant to this Transaction would be treated as "Excess Shares" under the
articles of incorporation of the Issuer, Party B shall have the right to
designate any Exchange Business Day to be a Settlement Date with Physical
Settlement applicable on at least two Exchange Business Days' notice with
respect to a number of Settlement Shares necessary to avoid any of the Shares
being treated as such "Excess Shares".
ASSIGNMENT:
Party B may assign or transfer any of its rights or duties hereunder or delegate
its obligations hereunder to (i) any affiliate of Party B, provided, that Party
B may not make any such assignment if, immediately after giving effect to the
proposed assignment, there would be an Event of Default or Potential Event of
Default of Party B or such proposed assignee; or (ii) to the extent necessary to
avoid any of the Shares subject to delivery to Party B pursuant to this
Transaction being treated as "Excess Shares" under the articles of incorporation
of the Issuer, any entity not affiliated with Party B with a credit rating at
the time of such assignment of AA- or above by a nationally recognized
statistical rating organization (as defined in the Securities Exchange Act of
1934) with the consent of Party A which consent will not be unreasonably
withheld. This Confirmation is not intended and shall not be construed to create
any rights in any Person other than Party A, Party B, an affiliate of Party B
designated hereunder and their respective successors and assigns and no other
Person shall assert any rights as third party beneficiary hereunder. Whenever
any of the parties hereto is referred to, such reference shall be deemed to
include the successors and assigns of such party.
3. The Agreement is further supplemented by the following provisions:
CREDIT SUPPORT PROVISIONS:
Credit Support Documents: Guaranty dated as of June 18, 2003 by General
Electric Capital Corporation in favor of Party B.
Credit Support Provider: General Electric Capital Corporation
TERMINATION PROVISIONS:
(a) The "Automatic Early Termination" provisions of Section 6(a) will
not apply to Party A and Party B.
(b) For the purpose of Section 6(e), Second Method and Loss will apply;
PROVIDED, HOWEVER, that if an Early Termination Date occurs, this Transaction
shall not be included in calculating any amounts payable under Section 6(e) of
the Agreement, but rather such Early Termination Date shall be considered the
Settlement Date (regardless of whether such Early Termination Date occurs within
six months after the Effective Date) for the Base Amount with Physical
Settlement applicable.
MISCELLANEOUS:
(a) Addresses for Notices. For the purpose of Section 12(a):
Address for notices or communications to Party A:
Security Capital Shopping Mall Business Trust
Address: c/o GE Capital Real Estate
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Facsimile No.: 000-000-0000
Copies to:
GE Capital Real Estate
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Legal Operation/Security Capital
Telecopier: 000-000-0000
and
General Electric Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Senior Vice President - Corporate
Treasury and Global Funding Operation
Telecopier: 000-000-0000
Address for notices or communications to Party B:
Address: Wachovia Bank, National Association
c/o Wachovia Securities, LLC
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Equity Linked Products Division - Documentation
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
(b) WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING RELATING TO THIS
CONFIRMATION OR ANY CREDIT SUPPORT DOCUMENT. Each party (i) certifies
that no representative, agent or attorney of the other party has
represented, expressly or otherwise, that such other party would not,
in the event of such a suit action or proceeding, seek to enforce the
foregoing waiver and (ii) acknowledges that it and the other party
have been induced to enter into this Confirmation by, among other
things, the mutual waivers and certifications in this Section.
Governing Law: The laws of the State of New York (without
reference to choice of law doctrine).
Representations of Party A: Party A represents and warrants to, and agrees
with, Party B as follows:
(a) Party A (i) has such knowledge and
experience in financial and business affairs
as to be capable of evaluating the merits and
risks of entering into the Transaction; and
(ii) has consulted with its own legal,
financial, accounting and tax advisors in
connection with the Transaction.
(b) None of Party A or any of its affiliates
is in possession of any material non-public
information regarding the Issuer.
(c) Party A shall comply with the reporting
and other requirements of Section 13 and
Section 16 of the Securities Exchange Act of
1934 relating to this Transaction.
(d) Party A covenants that it will send to
Party B via facsimile a copy of each filing
under Section 13 or 16 of the Exchange Act
relating to this Transaction concurrently with
filing or transmission for filing, as the case
may be, of such form to or with the Securities
and Exchange Commission (the "SEC").
(e) Party A is not and has not been the
subject of any civil proceeding of a judicial
or administrative body of competent
jurisdiction that could reasonably be expected
to impair Party
A's ability to perform its obligations
hereunder.
(f) Neither the consummation of any of the
transactions herein contemplated by Party A
nor the fulfillment of the terms hereof by
Party A will conflict with, result in a breach
or violation of, or constitute a default under
(i) any law or the charter or by-laws of Party
A or (ii) the terms of any indenture or other
agreement or instrument to which Party A or
any of its subsidiaries is a party or bound,
or any judgment, order or decree applicable to
Party A or any of its subsidiaries of any
court, regulatory body, administrative agency,
governmental body or arbitrator having
jurisdiction over Party A or any of its
subsidiaries other than (with respect to this
clause (ii)) any such conflicts, breaches,
violations or defaults that would not
reasonably be likely to have a material
adverse effect on the ability of Party A to
consummate the transactions herein
contemplated or to fulfill the terms hereof.
(g) Party A will immediately notify Party B
upon obtaining knowledge of the occurrence of
any event that would constitute an Event of
Default, a Potential Event of Default or a
Potential Adjustment Event.
(h) Party A is an "eligible contract
participant" as such term is defined in
Section 1(a)(12) of the Commodity Exchange
Act, as amended.
(i) Party A is not as of the Trade Date, and
will not as of the Effective Date after giving
effect to the transactions contemplated
hereby, be insolvent.
(j) The parties hereto intend that (a) Party B
be a financial institution within the meaning
of Section 101(22) of Title 11 of the United
States Code (the "BANKRUPTCY Code"), (b) the
Agreement and this Confirmation be a
securities contract, as such term is defined
in Section 741(7) of the Bankruptcy Code, (c)
each and every transfer of funds, securities
and other property under the Agreement or this
Confirmation be a settlement payment or a
margin payment, as such terms are used in
Sections 362(b)(6) and 546(e) of the
Bankruptcy Code, (d) the rights given to Party
B hereunder upon an Event of Default
constitute the rights to cause the liquidation
of a securities contract and to set off mutual
debts and claims in connection with a
securities contract, as such terms are used in
Sections 555 and 362(b)(6) of the Bankruptcy
Code, and (e) any or all obligations that
either party has with respect to this
Transaction or the Agreement constitute
property held by or due from such party to
margin, guaranty or settle obligations of the
other party with respect to Transactions under
this Confirmation or any other agreement
between such parties.
(k) Non-Confidentiality of and Non-Reliance on
Tax Aspects. Each of Party A, Party B and
their respective employees, representative and
other agents (including legal counsel, if any)
authorizes the other party and its employees,
representative and agents to disclose to any
and all persons, without limitation, the
tax aspects of any Transaction and the
structure of any Transaction insofar as it
relates to the tax aspects thereof, and all
materials of any kind provided to the other
party related to such tax aspects and
structure, effective without limitation from
the commencement of discussions. In addition,
each of Party A and Party B agree that it is
not relying on the other party as to the tax
aspects, tax structure or tax consequences of
any Transaction, and each party will have
relied solely upon its own independent tax
advisors for advice on any such tax aspects,
tax structure or tax consequences.
TERMS RELATING TO XXXXXXXX'S AGENT:
(a) The Agent is registered as a broker-dealer with the U.S. Securities and
Exchange Commission and the National Association of Securities Dealers, is
acting hereunder for and on behalf of Xxxxxxxx solely in its capacity as agent
for Wachovia pursuant to instructions from Xxxxxxxx, and is not and will not be
acting as Party A's agent, broker, advisor or fiduciary in any respect under or
in connection with this Transaction.
(b) In addition to acting as Xxxxxxxx's agent in executing this Transaction, the
Agent is authorized from time to time to give written payment and/or delivery
instructions to Party A directing it to make its payments and/or deliveries
under this Transaction to an account of the Agent for remittance to Wachovia (or
its designee), and for that purpose any such payment or delivery by Party A to
the Agent shall be treated as a payment or delivery to Wachovia.
(c) Except as otherwise provided herein, any and all notices, demands, or
communications of any kind transmitted in writing by either Wachovia or Party A
under or in connection with this Transaction will be transmitted exclusively by
such party to the other party through the Agent at the following address:
Wachovia Securities, LLC
000 Xxxxx Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000-0601
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Equity Derivatives
(d) The Agent shall have no responsibility or liability to Wachovia or Party A
for or arising from (i) any failure by either Wachovia or Party A to perform any
of their respective obligations under or in connection with this Transaction,
(ii) the collection or enforcement of any such obligations, or (iii) the
exercise of any of the rights and remedies of either Wachovia or Party A under
or in connection with this Transaction. Each of Wachovia and Party A agrees to
proceed solely against the other to collect or enforce any such obligations and
the Agent shall have no liability in respect of this Transaction except for its
gross negligence or willful misconduct in performing its duties as the agent of
Wachovia.
(e) Upon written request, the Agent will furnish to Wachovia and Party A the
date and time of the execution of this Transaction and a statement as to the
source and amount of any remuneration received or to be received by the Agent in
connection with this Transaction.
Please confirm that the foregoing correctly sets forth the terms of our
agreement by executing a copy of this Confirmation and returning it to us by fax
at (000) 000-0000 (Attention: Xxxxxxxx Xxxxx, by telephone contact (212)
000-0000).
Very truly yours,
WACHOVIA SECURITIES, LLC, WACHOVIA BANK, NATIONAL ASSOCIATION
acting solely in its capacity as Agent By: Wachovia Securities, LLC,
of Wachovia Bank, National Association acting solely in its capacity as its Agent
By: /s/ XXXXXX XXXX By: /s/ XXXX XXXXXX XXXXXXXX
-------------------------------- -----------------------------------------
Name: Xxxxxx Xxxx Name: Xxxx Xxxxxx Xxxxxxxx
Title: Senior Vice President Title: Senior Vice President
Confirmed as of the date first above written:
SECURITY CAPITAL SHOPPING
MALL BUSINESS TRUST
By: /s/ XXXXXX X. XXXXX
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
