Exhibit 10.39
(Local Currency - Single Jurisdiction)
ISDA
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of MAY 15, 2001
SANWA BANK CALIFORNIA and BEDFORD PROPERTY INVESTORS, INC. have
entered and/or anticipate entering into one or more transactions
(each a "Transaction") that are or will be governed by this Master
Agreement, which includes the schedule (the "Schedule"), and the
documents and other confirming evidence (each a "Confirmation")
exchanged between the parties confirming those Transactions.
Accordingly, the parties agree as follows: --
1. Interpretation
(a) Definitions. The terms defined in Section 12 and in the
Schedule will have the meanings therein specified for the
purpose of this Master Agreement.
(b) Inconsistency. In the event of any inconsistency between the
provisions of the Schedule and the other provisions of this
Master Agreement, the Schedule will prevail. In the event of
any inconsistency between the provisions of any Confirmation
and this Master Agreement (including the Schedule), such
Confirmation will prevail for the purpose of the relevant
Transaction.
(c) Single Agreement. All Transactions are entered into in
reliance on the fact that this master Agreement and all
Confirmations form a single agreement between the parties
(collectively referred to as this "Agreement"), and the parties
would not otherwise enter into any Transactions.
2. Obligations
(a) General Conditions.
(i) Each party will make each payment or delivery specified in
each Confirmation to be made by it, subject to the other
provisions of this Agreement.
(ii) Payments under this Agreement will be made on the
due date for value on that date in the place of the
account specified in the relevant Confirmation or
otherwise pursuant to this Agreement, in freely
transferable funds and in the manner customary for
payments in the required currency. Where settlement
is by delivery (that is, other than by payment),
such delivery will be made for receipt on the due
date in the manner customary for the relevant
obligation unless otherwise specified in the
relevant Confirmation or elsewhere in this
Agreement.
(iii) Each obligation of each party under Section 2(a)(i)
is subject to (1) the condition precedent that no
Event of Default or Potential Event of Default with
respect to the other party has occurred and is
continuing, (2) the condition precedent that no
Early Termination Date in respect of the relevant
Transaction has occurred or been effectively
designated and (3) each other applicable condition
precedent specified in this Agreement.
(b) Change of Account. Either party may change its account for
receiving a payment or delivery by giving notice to the other
party at least five Local Business Days prior to the scheduled
date for the payment or delivery to which such change applies
unless such other party gives timely notice of a reasonable
objection to such change.
(c) Netting. If on any date amounts would otherwise be payable: -
(i) in the same currency; and
(ii) in respect of the same Transaction,
by each party to the other, then, on such date, each party's
obligation to make payment of any such amount will be automatically
be 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 may elect in respect of two or more Transactions that a
net amount will be determined in respect of all amounts payable on
the same date in the same currency in respect of such Transactions,
regardless of whether such amounts are payable in respect of the same
Transaction. The election may be made in the Schedule or a
Confirmation by specifying that subparagraph (ii) above will not
apply to the Transactions identified as being subject to the
election, together with the starting date (in which case subparagraph
(ii) above will not, or will cease to, apply to such Transactions
from such date). This election may be made separately for different
groups of Transactions and will apply separately to each pairing of
branches or offices through which the parties make and receive
payments or deliveries.
(d) Default Interest; Other Amounts. Prior to the occurrence or
effective designation of an Early Termination Date in respect
of the relevant Transaction, a party that defaults in the
performance of any payment obligation will, to the extent
permitted by law and subject to Section 6(c), be required to
pay interest (before as well as after judgment) on the overdue
amount to the other party on demand in the same currency as
such overdue amount, for the period from (and including) the
original due date for payment to (but excluding) the date of
actual payment, at the Default Rate. Such interest will be
calculated on the basis of daily compounding and the actual
number of days elapsed. If, prior to the occurrence or
effective designation of an Early Termination Date in respect
of the relevant Transaction, a party defaults in the
performance of any obligation required to be settled by
delivery, it will compensate the other party on demand if and
to the extent provided for in the relevant Confirmation or
elsewhere in this Agreement.
3. Representations
Each party represents to the other party (which representations will
be deemed to be repeated by each party on each date on which a
Transaction is entered into) that: --
(a) Basic Representations.
(i) Status. It is duly organised and validly existing under
the laws of the jurisdiction of its organisation or
incorporation and, if relevant under such laws in good
standing;
(ii) Powers. It has the power to execute this Agreement
and any other documentation relating to this
Agreement to which it is a party, to deliver this
Agreement and any other documentation relating to
this Agreement that it is required by this Agreement
to deliver and to perform its obligations under this
Agreement and any obligations it has under any
Credit Support Document to which it is a party and
has taken all necessary action to authorise such
execution, delivery and performance;
(iii) 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;
(iv) Consents. All governmental and other consents that
are required to have been obtained by it with
respect to this Agreement or any Credit Support
Document to which it is a party have been obtained
and are in full force and effect and all conditions
of any such consents have been complied with; and
(v) Obligations Binding. Its obligations under this Agreement
and any Credit Support Document to which it is a party
constitute its legal, valid and binding obligations,
enforceable in accordance with their respective terms
(subject to applicable bankruptcy, reorganisation,
insolvency, moratorium or similar laws affecting creditors'
rights generally and subject, as to enforceability, to
equitable principles of general application (regardless of
whether enforcement is sought in a proceeding in equity or
at law)).
(b) Absence of Certain Events. No Event of Default or Potential
Event of Default or, to its knowledge, Termination Event with
respect to it has occurred and is continuing and no such event
or circumstance would occur as a result of its entering into or
performing its obligations under this Agreement or any Credit
Support Document to which it is a party.
(c) 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 Agreement or any Credit
Support Document to which it is a party or its ability to
perform its obligations under this Agreement or such Credit
Support Document.
(d) Accuracy of Specified Information. All applicable information
that is furnished in writing by or on behalf of it to the other
party and is identified for the purpose of this Section 3(d) in
the Schedule is, as of the date of the information, true,
accurate and complete in every material respect.
4. Agreements
Each party agrees with the other that, so long as either party has or
may have any obligation under this Agreement or under any Credit
Support Document to which it is a party: --
(a) Furnish Specified Information. It will deliver to the other
party any forms, documents or certificates specified in the
Schedule or any Confirmation by the date specified in the
Schedule or such Confirmation or, if none is specified, as soon
as reasonably practicable.
(b) Maintain Authorisations. It will use all reasonable efforts to
maintain in full force and effect all consents of any
governmental or other authority that are required to be
obtained by it with respect to this Agreement or any Credit
Support Document to which it is a party and will use all
reasonable efforts to obtain any that may become necessary in
the future.
(c) Comply with Laws. It will comply in all material respects with
all applicable laws and orders to which it may be subject if
failure so to comply would materially impair its ability to
perform its obligations under this Agreement or any Credit
Support Document to which it is a party.
5. Events of Default and Termination Events
(a) Events of Default. The occurrence at any time with respect to
a party or, if applicable, any Credit Support Provider of such
party or any Specified Entity of such party of any of the
following events constitutes an event of default (an "Event of
Default") with respect to such party: --
(i) Failure to Pay or Deliver. Failure by the party to make,
when due, any payment under this Agreement or delivery
under Section 2(a)(i) or 2(d) required to be made by it if
such failure is not remedied on or before the third Local
Business Day after notice of such failure is given to the
party;
(ii) Breach of Agreement. Failure by the party to comply
with or perform any agreement or obligation (other
than an obligation to make any payment under this
Agreement or delivery under Section 2(a)(i) or 2(d)
or to give notice of a Termination Event) to be
complied with or performed by the party in
accordance with this Agreement if such failure is
not remedied on or before the thirtieth day after
notice of such failure is given to the party;
(iii) Credit Support Default.
(1) Failure by the party or any Credit Support Provider
of such party to comply with or perform any
agreement or obligation to be complied with or
performed by it in accordance with any Credit
Support Document if such failure is continuing after
any applicable grace period has elapsed;
(2) the expiration or termination of such Credit Support
Document or the failing or ceasing of such Credit
Support Document to be in full force and effect for
the purpose of this Agreement (in either case other
than in accordance with its terms) prior to the
satisfaction of all obligations of such party under
each Transaction to which such Credit Support
Document relates without the written consent of the
other party; or
(3) the party or such Credit Support Provider
disaffirms, disclaims, repudiates or rejects, in
whole or in part, or challenges the validity of,
such Credit Support Document;
(iv) Misrepresentation. A representation made or repeated
or deemed to have been made or repeated by the party or
any Credit Support Provider of such party in this
Agreement or any Credit Support Document proves to have
been incorrect or misleading in any material respect
when made or repeated or deemed to have been made or
repeated;
(v) Default under Specified Transaction. The party, any Credit
Support Provider of such party or any applicable Specified
Entity of such party (1) defaults under a Specified
Transaction and, after giving effect to any applicable
notice requirement or grace period, there occurs a
liquidation of, an acceleration of obligations under, or an
early termination of, that Specified Transaction, (2)
defaults, after giving effect to any applicable notice
requirement or grace period, in making any payment or
delivery due on the last payment, delivery or exchange date
of, or any payment on early termination of, a Specified
Transaction (or such default continues for at least three
Local Business Days if there is no applicable notice
requirement or grace period) or (3) disaffirms, disclaims
repudiates or rejects, in whole or in part, a Specified
Transaction (or such action is taken by any person or
entity appointed or empowered to operate it or act on its
behalf);
(vi) Cross Default. If "Cross Default" is specified in the
Schedule as applying to the party, the occurrence or
existence of (1) a default, event of default or other
similar condition or event (however described) in
respect of such party, any Credit Support Provider of
such party or any applicable Specified Entity of such
party under one or more agreements or instruments
relating to Specified Indebtedness of any of them
(individually or collectively) in an aggregate amount
of not less than the applicable Threshold Amount (as
specified in the Schedule) which has resulted in such
Specified Indebtedness becoming, or becoming capable at
such time of being declared, due and payable under such
agreements or instruments, before it would otherwise
have been due and payable or (2) a default by such
party, such Credit Support Provider or such Specified
Entity (individually or collectively) in making one or
more payments on the due date thereof in an aggregate
amount of not less than the applicable Threshold Amount
under such agreements or instruments (after giving
effect to any applicable notice requirement or grace
period);
(vii) Bankruptcy. The party, any Credit Support Provider of
such party or any applicable Specified Entity of such
party:--
(1) is dissolved (other than pursuant to a consolidation,
amalgamation or merger); (2) becomes insolvent or is unable
to pay its debts or fails or admits in writing its
inability generally to pay its debts as they become due;
(3) makes a general assignment, arrangement or composition
with or for the benefit of its creditors; (4) institutes or
has instituted against it a proceeding seeking a judgment
of insolvency or bankruptcy or any other relief under any
bankruptcy or insolvency law or other similar law affecting
creditors' rights, or a petition is presented for its
winding-up or liquidation, and, in the case of any such
proceeding or petition instituted or presented against it,
such proceeding or petition (A) results in a judgment of
insolvency or bankruptcy or the entry of an order for
relief or the making of an order for its winding-up or
liquidation or (B) is not dismissed, discharged, stayed or
restrained in each case within 30 days of the institution
or presentation thereof; (5) has a resolution passed for
its winding-up, official management or liquidation (other
than pursuant to a consolidation, amalgamation or merger);
(6) seeks or becomes subject to the appointment of an
administrator, provisional liquidator, conservator,
receiver, trustee, custodian or other similar official for
it or for all or substantially all its assets; (7) has a
secured party take possession of all or substantially all
its assets or has a distress, execution, attachment,
sequestration or other legal process levied, enforced or
sued on or against all or substantially all its assets and
such secured party maintains possession, or any such
process is not dismissed, discharged, stayed or restrained,
in each case within 30 days thereafter; (8) causes or is
subject to any event with respect to it which, under the
applicable laws of any jurisdiction, has an analogous
effect to any of the events specified in clauses (1) to (7)
(inclusive); or (9) takes any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in,
any of the foregoing acts; or
(viii) Merger Without Assumption. The party or any Credit
Support Provider of such party consolidates or
amalgamates with, or merges with or into, or transfers
all or substantially all its assets to, another entity
and, at the time of such consolidation, amalgamation,
merger or transfer: --
(1) the resulting, surviving or transferee entity fails
to assume all the obligations of such party or such
Credit Support Provider under this Agreement or any
Credit Support Document to which it or its
predecessor was a party by operation of law or
pursuant to an agreement reasonably satisfactory to
the other party to this Agreement; or
(2) the benefits of any Credit Support Document fail to
extend (without the consent of the other party) to
the performance by such resulting, surviving or
transferee entity of its obligations under this
Agreement.
(b) Termination Events. The occurrence at any time with respect to
a party or, if applicable, any Credit Support Provider of such
party or any Specified Entity of such party of any event
specified below constitutes an Illegality if the event is
specified in (i) below, and, if specified to be applicable, a
Credit Event Upon Merger if the event is specified pursuant to
(ii) below or an Additional Termination Event if the event is
specified pursuant to (iii) below: --
(i) Illegality. Due to the adoption of, or any change in, any
applicable law after the date on which a Transaction is
entered into, or due to the promulgation of, or any change
in, the interpretation by any court, tribunal or regulatory
authority with competent jurisdiction of any applicable law
after such date, it becomes unlawful (other than as a
result of a breach by the party of Section 4 (b)) for such
party (which will be the Affected Party): --
(1) to perform any absolute or contingent obligation to
make a payment or delivery or to receive a payment
or delivery in respect of such Transaction or to
comply with any other material provision of this
Agreement relating to such Transaction; or
(2) to perform, or for any Credit Support Provider of
such party to perform, any contingent or other
obligation which the party (or such Credit Support
Provider) has under any Credit Support Document
relating to such Transaction;
(ii) Credit Event Upon Merger. If "Credit Event Upon
Merger" is specified in the Schedule as applying to the
party, such party ("X"), any Credit Support Provider of
X or any applicable Specified Entity of X consolidates
or amalgamates with, or merges with or into, or
transfers all or substantially all its assets to,
another entity and such action does not constitute an
event described in Section 5(a)(viii) but the
creditworthiness of the resulting, surviving or
transferee entity is materially weaker than that of X,
such Credit Support Provider or such Specified Entity,
as the case may be, immediately prior to such action
(and, in such event, X or its successor or transferee,
as appropriate, will be the Affected Party); or
(iii) Additional Termination Event. If any "Additional
Termination Event" is specified in the Schedule or any
Confirmation as applying, the occurrence of such event
(and, in such event, the Affected Party or Affected
Parties shall be as specified for such Additional
Termination Event in the Schedule or such
Confirmation).
(c) Event of Default and Illegality. If an event or circumstance
which would otherwise constitute or give rise to an Event of
Default also constitutes an Illegality, it will be treated as
an Illegality and will not constitute an Event of Default.
6. Early Termination
(a) Right to Terminate Following Event of Default. If at any time
an Event of Default with respect to a party (the "Defaulting
Party") has occurred and is then continuing, the other party
(the "Non-defaulting Party") may, by not more than 20 days
notice to the Defaulting Party specifying the relevant Event of
Default, designate a day not earlier than the day such notice
is effective as an Early Termination Date in respect of all
outstanding Transactions. If, however, "Automatic Early
Termination" is specified in the Schedule as applying to a
party, then an Early Termination Date in respect of all
outstanding Transactions will occur immediately upon the
occurrence with respect to such party of an Event of Default
specified in Section 5(a)(vii)(1), (3), (5), (6) or, to the
extent analogous thereto, (8), and as of the time immediately
preceding the institution of the relevant proceeding or the
presentation of the relevant petition upon the occurrence with
respect to such party of an Event of Default specified in
Section 5(a)(vii)(4) or, to the extent analogous thereto, (8).
(b) Right to Terminate Following Termination Event.
(i) Notice. If a Termination Event occurs, an Affected Party
will, promptly upon becoming aware of it, notify the other
party, specifying the nature of that Termination Event and
each Affected Transaction and will also give such other
information about that Termination Event as the other party
may reasonably require.
(ii) Two Affected Parties. If an Illegality under Section
5(b)(i)(1) occurs and there are two Affected Parties,
each party will use all reasonable efforts to reach
agreement within 30 days after notice thereof is given
under Section 6(b)(i) on action to avoid that
Termination Event.
(iii) Right to Terminate. If: --
(1) an agreement under Section 6(b)(ii) has not been
effected with respect to all Affected Transactions
within 30 days after an Affected Party gives notice
under Section 6(b)(i); or
(2) an Illegality other than that referred to in Section
6(b)(ii), a Credit Event Upon Merger or an
Additional Termination Event occurs,
either party in the case of an Illegality, any Affected Party
in the case of an Additional Termination Event if there is more
than one Affected Party, or the party which is not the Affected
Party in the case of a Credit Event Upon Merger or an
Additional Termination Event if there is only one Affected
Party may, by not more than 20 days notice to the other party
and provided that the relevant Termination Event is then
continuing, designate a day not earlier than the day such
notice is effective as an Early Termination Date in respect of
all Affected Transactions.
(c) Effect of Designation.
(i) If notice designating an Early Termination Date is given
under Section 6(a) or (b), the Early Termination Date will
occur on the date so designated, whether or not the
relevant Event of Default or Termination Event is then
continuing.
(ii) Upon the occurrence or effective designation of an
Early Termination Date, no further payments or
deliveries under Section 2(a)(i) or 2(d) in respect of
the Terminated Transactions will be required to be
made, but without prejudice to the other provisions of
this Agreement. The amount, if any, payable in respect
of an Early Termination Date shall be determined
pursuant to Section 6(e).
(d) Calculations.
(i) Statement. On or as soon as reasonably practicable
following the occurrence of an Early Termination Date, each
party will make the calculations on its part, if any,
contemplated by Section 6(e) and will provide to the other
party a statement (1) showing, in reasonable detail, such
calculations (including all relevant quotations and
specifying any amount payable under Section 6(e)) and (2)
giving details of the relevant account to which any amount
payable to it is to be paid. In the absence of written
confirmation from the source of a quotation obtained in
determining a Market Quotation, the records of the party
obtaining such quotation will be conclusive evidence of the
existence and accuracy of such quotation.
(ii) Payment Date. An amount calculated as being due in
respect of any Early Termination Date under Section
6(e) will be payable on the day that notice of the
amount payable is effective (in the case of an Early
Termination Date which is designated or occurs as a
result of an Event of Default) and on the day which is
two Local Business Days after the day on which notice
of the amount payable is effective (in the case of an
Early Termination Date which is designated as a result
of a Termination Event). Such amount will be paid
together with (to the extent permitted under applicable
law) interest thereon (before as well as after
judgment), from (and including) the relevant Early
Termination Date to (but excluding) the date such
amount is paid, at the Applicable Rate. Such interest
will be calculated on the basis of daily compounding
and the actual number of days elapsed.
(e) Payments on Early Termination. If an Early Termination Date
occurs the following provisions shall apply based on the
parties' election in the Schedule of a payment measure, either
"Market Quotation" or "Loss", and a payment method, either the
"First Method" or the "Second Method". If the parties fail to
designate a payment measure or payment method in the Schedule,
it will be deemed that "Market Quotation" or the "Second
Method", as the case may be, shall apply. The amount, if any,
payable in respect of an Early Termination Date and determined
pursuant to this Section will be subject to any Set-off.
(i) Events of Default. If the Early Termination Date results
from an Event of Default:--
(1) First Method and Market Quotation. If the First
Method and Market Quotation apply, the Defaulting
Party will pay to the Non-defaulting Party the
excess, if a positive number, of (A) the sum of the
Settlement Amount (determined by the Non-defaulting
Party) in respect of the Terminated Transactions and
the Unpaid Amounts owing to the Non-defaulting Party
over (B) the Unpaid Amounts owing to the Defaulting
Party.
(2) First Method and Loss. If the First Method and Loss
apply, the Defaulting Party will pay to the Non-
defaulting Party, if a positive number, the Non-
defaulting Party's Loss in respect of this
Agreement.
(3) Second Method and Market Quotation. If the Second
Method and Market Quotation apply, an amount will be
payable equal to (A) the sum of the Settlement
Amount (determined by the Non-defaulting Party) in
respect of the Terminated Transactions and the
Unpaid Amounts owing to the Non-defaulting Party
less (B) the Unpaid Amounts owing to the Defaulting
Party. If that amount is a positive number, the
Defaulting Party will pay it to the Non-defaulting
Party; if it is a negative number, the Non-
defaulting Party will pay the absolute value of that
amount to the Defaulting Party.
(4) Second Method and Loss. If the Second Method and
Loss apply, an amount will be payable equal to the
Non-defaulting Party's Loss in respect of this
Agreement. If that amount is a positive number, the
Defaulting Party will pay it to the Non-defaulting
Party; if it is a negative number, the Non-
defaulting Party will pay the absolute value of that
amount to the Defaulting Party.
(ii) Termination Events. If the Early Termination Date
results from a Termination Event: --
(1) One Affected Party. If there is one Affected Party,
the amount payable will be determined in accordance
with Section 6(e)(i)(3), if Market Quotation
applies, or Section 6(e)(i)(4), if Loss applies,
except that, in either case, references to the
Defaulting Party and to the Non-defaulting Party
will be deemed to be references to the Affected
Party and the party which is not the Affected Party,
respectively, and, if Loss applies and fewer than
all the Transactions are being terminated, Loss
shall be calculated in respect of all Terminated
Transactions.
(2) Two Affected Parties. If there are two Affected
Parties: --
(A) if Market Quotation applies, each party will
determine a Settlement Amount in respect of the
Terminated Transactions, and an amount will be
payable equal to (I) the sum of (a) one-half of
the difference between the Settlement Amount of
the party with the higher Settlement Amount ("X")
and the Settlement Amount of the party with the
lower Settlement Amount ("Y") and (b) the Unpaid
Amounts owing to X less (II) the Unpaid Amounts
owing to Y; and
(B) if Loss applies, each party will determine its
Loss in respect of this Agreement (or, if fewer
than all the Transactions are being terminated, in
respect of all Terminated Transactions) and an
amount will be payable equal to one-half of the
difference between the Loss of the party with the
higher Loss ("X") and the Loss of the party with
the lower Loss ("Y").
If the amount payable is a positive number, Y will pay it
to X; if it is a negative number, X will pay the absolute
value of that amount to Y.
(iii) Adjustment for Bankruptcy. In circumstances where an
Early Termination Date Occurs because "Automatic Early
Termination" Applies in respect of a party, the amount
determined under this Section 6(e) will be subject to
such adjustments as are appropriate and permitted by
law to reflect any payments or deliveries made by one
party to the other under this Agreement (and retained
by such other party) during the period from the
relevant Early Termination Date to the date for payment
determined under Section 6(d)(ii).
(iv) Pre-Estimate. The parties agree that if Market
Quotation applies an amount recoverable under this
Section 6(e) is a reasonable pre-estimate of loss and
not a penalty. Such amount is payable for the loss of
bargain and the loss of protection against future risks
and except as otherwise provided in this Agreement
neither party will be entitled to recover any
additional damages as a consequence of such losses.
7. Transfer
Neither this Agreement nor any interest or obligation in or under
this Agreement may be transferred (whether by way of security or
otherwise) by either party without the prior written consent of the
other party, except that: --
(a) a party may make such a transfer of this Agreement pursuant to
a consolidation or amalgamation with, or merger with or into,
or transfer of all or substantially all its assets to, another
entity (but without prejudice to any other right or remedy
under this Agreement); and
(b) a party may make such a transfer of all or any part of its
interest in any amount payable to it from a Defaulting Party
under Section 6(e).
Any purported transfer that is not in compliance with this Section
will be void.
8. Miscellaneous
(a) Entire Agreement. This Agreement constitutes the entire
agreement and understanding of the parties with respect to its
subject matter and supersedes all oral communication and prior
writings with respect thereto.
(b) Amendments. No amendment, modification or waiver in respect of
this Agreement will be effective unless in writing (including a
writing evidenced by a facsimile transmission) and executed by
each of the parties or confirmed by an exchange of telexes or
electronic messages on an electronic messaging system.
(c) Survival of Obligations. Without prejudice to Sections
2(a)(iii) and 6(c)(ii), the obligations of the parties under
this Agreement will survive the termination of any Transaction.
(d) Remedies Cumulative. Except as provided in this Agreement, the
rights, powers, remedies and privileges provided in this
Agreement are cumulative and not exclusive of any rights,
powers, remedies and privileges provided by law.
(e) Counterparts and Confirmations.
(i) This Agreement (and each amendment, modification and waiver
in respect of it) may be executed and delivered in
counterparts (including by facsimile transmission), each of
which will be deemed an original.
(ii) the parties intend that they are legally bound by the
terms of each Transaction from the moment they agree to
those terms (whether orally or otherwise). A
confirmation shall be entered into as soon as
practicable and may be executed and delivered in
counterparts (including by facsimile transmission) or
be created by an exchange of telexes or by an exchange
of electronic messages on an electronic messaging
system, which in each case will be sufficient for all
purposes to evidence a binding supplement to this
Agreement. The parties will specify therein or through
another effective means that any such counterpart,
telex or electronic message constitutes a Confirmation.
(f) No Waiver of Rights. A failure or delay in exercising any
right, power or privilege in respect of this Agreement will not
be presumed to operate as a waiver, and a single or partial
exercise of any right, power or privilege will not be presumed
to preclude any subsequent or further exercise, of that right,
power or privilege or the exercise of any other right, power or
privilege.
(g) Headings. The headings used in this Agreement are for
convenience of reference only and are not to affect the
construction of or to be taken into consideration in
interpreting this Agreement.
9. Expenses
A Defaulting Party will, on demand, indemnify and hold harmless the
other party for and against all reasonable out-of-pocket expenses,
including legal fees, incurred by such other party by reason of the
enforcement and protection of its rights under this Agreement or any
Credit Support Document to which the Defaulting Party is a party or
by reason of the early termination of any Transaction, including, but
not limited to, costs of collection.
10. Notices
(a) Effectiveness. Any notice or other communication in respect of
this Agreement may be given in any manner set forth below
(except that a notice or other communication under Section 5 or
6 may not be given by facsimile transmission or electronic
messaging system) to the address or number or in accordance
with the electronic messaging system details provided (see the
Schedule) 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 telex, on the date the recipient's
answerback is received;
(iii) 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 a transmission report generated by
the sender's facsimile machine);
(iv) 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; or
(v) if sent by electronic messaging system, on the date that
electronic message is received,
unless the date of that delivery (or attempted delivery) or that
receipt, as applicable, is not a Local Business Day or that
communication is delivered (or attempted) or received, as applicable,
after the close of business on a Local Business Day, in which case
that communication shall be deemed given and effective on the first
following day that is a Local Business Day.
(b) Change of Addresses. Either party may by notice to the other
change the address, telex or facsimile number or electronic
messaging system details at which notices or other
communications are to be given to it.
11. Governing Law and Jurisdiction
(a) Governing Law. This Agreement will be governed by and
construed in accordance with the law specified in the Schedule.
(b) Jurisdiction. With respect to any suit, action or proceedings
relating to this Agreement ("Proceedings"), each party
irrevocably: --
(i) submits to the jurisdiction of the English courts, if this
Agreement is expressed to be governed by English law, or to
the non-exclusive jurisdiction of the courts of the State
of New York and the United States District Court located in
the Borough of Manhattan in New York City, if this
Agreement is expressed to be governed by the laws of the
State of New York; and
(ii) waives any objection which it may have at any time to
the laying of venue of any Proceedings brought in any
such court, waives any claim that such Proceedings have
been brought in an inconvenient forum and further
waives the right to object, with respect to such
Proceedings, that such court does not have any
jurisdiction over such party.
Nothing in this Agreement precludes either party from bringing
Proceedings in any other jurisdiction (outside, if this Agreement is
expressed to be governed English law, the Contracting States, as
defined in Section 1(3) of the Civil Jurisdiction and Judgments Xxx
0000 or any modification, extension or re-enactment thereof for the
time being in force) nor will the bringing of Proceedings in any one
or more jurisdictions preclude the bringing of Proceedings in any
other jurisdiction.
(c) Waiver of Immunities. Each party irrevocably waives, to the
fullest extent permitted by applicable law, with respect to
itself and its revenues and assets (irrespective of their use
or intended use), all immunity on the grounds of sovereignty or
other similar grounds from (i) suit, (ii) jurisdiction of any
court, (iii) relief by way of injunction, order for specific
performance or for recovery of property, (iv) attachment of its
assets (whether before or after judgment) and (v) execution or
enforcement of any judgment to which it or its revenues or
assets might otherwise be entitled in any Proceedings in the
courts of any jurisdiction and irrevocably agrees, to the
extent permitted by applicable law, that it will not claim any
such immunity in any Proceedings.
12. Definitions
As used in this Agreement: --
"Additional Termination Event" has the meaning specified in Section
5(b).
"Affected Party" has the meaning specified in Section 5(b).
"Affected Transactions" means (a) with respect to any Termination
Event consisting of an Illegality, all Transactions affected by the
occurrence of such Termination Event and (b) with respect to any
other Termination Event, all Transactions.
"Affiliate" means, subject to the Schedule, in relation to any
person, any entity controlled, directly or indirectly, by the person,
any entity that controls, directly or indirectly, the person or any
entity directly or indirectly under common control with the person.
For this purpose, "control" of any entity or person means ownership
of a majority of the voting power of the entity or person.
"Applicable Rate" means: --
(a) in respect of obligations payable or deliverable (or which
would have been but for Section 2(a)(iii)) by a Defaulting
Party, the Default Rate;
(b) in respect of an obligation to pay an amount under Section 6(e)
of either party from and after the date (determined in
accordance with Section 6(d)(ii)) on which that amount is
payable, the Default Rate;
(c) in respect of all other obligations payable or deliverable (or
which would have been but for Section 2(a)(iii)) by a Non-
defaulting Party, the Non-default Rate; and
(d) in all other cases, the Termination Rate.
"consent" includes a consent, approval, action, authorisation,
exemption, notice, filing, registration or exchange control consent.
"Credit Event Upon Merger" has the meaning specified in Section 5(b).
"Credit Support Document" means any agreement or instrument that is
specified as such in this Agreement.
"Credit Support Provider" has the meaning specified in the Schedule.
"Default Rate" means a rate per annum equal to the cost (without
proof or evidence of any actual cost) to the relevant payee (as
certified by it) if it were to fund or of funding the relevant amount
plus 1% per annum.
"Defaulting Party" has the meaning specified in Section 6(a).
"Early Termination Date" means the date determined in accordance with
Section 6(a) or 6(b)(iii).
"Event of Default" has the meaning specified in Section 5(a) and, if
applicable, in the Schedule.
"Illegality" has the meaning specified in Section 5(b).
"law" includes any treaty, law, rule or regulation and "lawful" and
"unlawful" will be construed accordingly.
"Local Business Day" means, subject to the Schedule, a day on which
commercial banks are open for business (including dealings in foreign
exchange and foreign currency deposits) (a) in relation to any
obligation under Section 2(a)(i), in the place(s) specified in the
relevant Confirmation or, if not so specified, as otherwise agreed by
the parties in writing or determined pursuant to provisions
contained, or incorporated by reference, in this Agreement, (b) in
relation to any other payment, in the place where the relevant
account is located, (c) in relation to any notice or other
communication, including notice contemplated under Section 5(a)(i),
in the city specified in the address for notice provided by the
recipient and, in the case of a notice contemplated by Section 2(b),
in the place where the relevant new account is to be located and (d)
in relation to Section 5(a)(v)(2), in the relevant locations for
performance with respect to such Specified Transaction.
"Loss" means, with respect to this Agreement or one or more
Terminated Transactions, as the case may be, and a party, an amount
that party reasonably determines in good faith to be its total losses
and costs (or gain, in which case expressed as a negative number) in
connection with this Agreement or that Terminated Transaction or
group of Terminated Transactions, as the case may be, including any
loss of bargain, cost of funding or, at the election of such party
but without duplication, loss or cost incurred as a result of its
terminating, liquidating, obtaining or reestablishing any hedge or
related trading position (or any gain resulting from any of them).
Loss includes losses and costs (or gains) in respect of any payment
or delivery required to have been made (assuming satisfaction of each
applicable condition precedent) on or before the relevant Early
Termination Date and not made, except, so as to avoid duplication, if
Section 6(e)(i)(1) of (3) or 6(e)(ii)(2)(A) applies. Loss does not
include a party's legal fees and out-of-pocket expenses referred to
under Section 9. A party will determine its Loss as of the relevant
Early Termination Date, or, if that is not reasonably practicable, as
of the earliest date thereafter as is reasonably practicable. A
party may (but need not) determine its Loss by reference to
quotations of relevant rates or prices from one or more leading
dealers in the relevant markets.
"Market Quotation" means, with respect to one or more Terminated
Transactions and a party making the determination, an amount
determined on the basis of quotations from Reference Market-makers.
Each quotation will be for an amount, if any, that would be paid to
such party (expressed as a negative number) or by such party
(expressed as a positive number) in consideration of an agreement
between such party (taking into account any existing Credit Support
Document with respect to the obligations of such party) and the
quoting Reference Market-maker to enter into a transaction (the
"Replacement Transaction") that would have the effect of preserving
for such party the economic equivalent of any payment or delivery
(whether the underlying obligation was absolute or contingent and
assuming the satisfaction of each applicable condition precedent) by
the parties under Section 2(a)(i) in respect of such Terminated
Transaction or group of Terminated Transactions that would, but for
the occurrence of the relevant Early Termination Date, have been
required after that date. For this purpose, Unpaid Amounts in
respect of the Terminated Transaction or group of Terminated
Transactions are to be excluded but, without limitation, any payment
or delivery that would, but for the relevant Early Termination Date,
have been required (assuming satisfaction of each applicable
condition precedent) after that Early Termination Date is to be
included. The Replacement Transaction would be subject to such
documentation as such party and the Reference Market-maker may, in
good faith, agree. The party making the determination (or its agent)
will request each Reference Market-maker to provide its quotation to
the extent reasonably practicable as of the same day and time
(without regard to different time zones) on or as soon as reasonably
practicable after the relevant Early Termination Date. The day and
time as of which those quotations are to be obtained will be selected
in good faith by the party obliged to make a determination under
Section 6(e), and, if each party is so obliged, after consultation
with the other. If more than three quotations are provided, the
Market Quotation will be the arithmetic mean of the quotations,
without regard to the quotations having the highest and lowest
values. If exactly three such quotations are provided, the Market
Quotation will be the quotation remaining after disregarding the
highest and lowest quotations. For this purpose, if more than one
quotation has the same highest value or lowest value, then one of
such quotations shall be disregarded. If fewer than three quotations
are provided, it will be deemed that the Market Quotation in respect
of such Terminated Transaction or group of Terminated Transactions
cannot be determined.
"Non-default Rate" means a rate per annum equal to the cost (without
proof or evidence of any actual cost) to the Non-defaulting Party (as
certified by it) if it were to fund the relevant amount.
"Non-defaulting Party" has the meaning specified in Section 6(a).
"Potential Event of Default" means any event which, with the giving
of notice or the lapse of time or both, would constitute an Event of
Default.
"Reference Market-makers" means four leading dealers in the relevant
market selected by the party determining a Market Quotation in good
faith (a) from among dealers of the highest credit standing which
satisfy all the criteria that such party applies generally at the
time in deciding whether to offer or to make an extension of credit
and (b) to the extent practicable, from among such dealers having an
office in the same city.
"Scheduled Payment Date" means a date on which a payment or delivery
is to be made under Section 2(a)(i) with respect to a Transaction.
"Set-off" means set-off, offset, combination of accounts, right of
retention or withholding or similar right or requirement to which the
payer of an amount under Section 6 is entitled or subject (whether
arising under this Agreement, another contract, applicable law or
otherwise) that is exercised by, or imposed on, such payer.
"Settlement Amount" means, with respect to a party and any Early
Termination Date, the sum of: --
(a) the Market Quotations (whether positive or negative) for each
Terminated Transaction or group of Terminated Transactions for
which a Market Quotation is determined; and
(b) such party's Loss (whether positive or negative and without
reference to any Unpaid Amounts) for each Terminated
Transaction or group of Terminated Transactions for which a
Market Quotation cannot be determined or would not (in the
reasonable belief of the party making the determination)
produce a commercially reasonable result.
"Specified Entity" has the meaning specified in the Schedule.
"Specified Indebtedness" means, subject to the Schedule, any
obligation (whether present or future, contingent or otherwise, as
principal or surety or otherwise) in respect of borrowed money.
"Specified Transaction" means, subject to the Schedule, (a) any
transaction (including an agreement with respect thereto) now
existing or hereafter entered into between one party to this
Agreement (or any Credit Support Provider of such party or any
applicable Specified Entity of such party) and the other party to
this Agreement (or any Credit Support Provider of such other party or
any applicable Specified Entity of such other party) which is a rate
swap transaction, basis swap, forward rate transaction, commodity
swap, commodity option, equity or equity index swap, equity or equity
index option, bond option, interest rate option, foreign exchange
transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction,
currency option or any other similar transaction (including any
option with respect to any of these transactions), (b) any
combination of these transactions and (c) any other transaction
identified as a Specified Transaction in this Agreement or the
relevant confirmation.
"Terminated Transactions" means with respect to any Early Termination
Date (a) if resulting from a Termination Event, all Affected
Transactions and (b) if resulting from an Event of Default, all
Transactions (in either case) in effect immediately before the
effectiveness of the notice designating that Early Termination Date
(or, if "Automatic Early Termination" applies, immediately before
that Early Termination Date).
"Termination Event" means an Illegality or, if specified to be
applicable, a Credit Event Upon Merger or an Additional Termination
Event.
"Termination Rate" means a rate per annum equal to the arithmetic
mean of the cost (without proof or evidence of any actual cost) to
each party (as certified by such party) if it were to fund or of
funding such amounts.
"Unpaid Amounts" owing to any party means, with respect to an Early
Termination Date, the aggregate of (a) in respect of all Terminated
Transactions, the amounts that become payable (or that would have
become payable but for Section 2(a)(iii)) to such party under Section
2(a)(i) on or prior to such Early Termination Date and which remain
unpaid as at such Early Termination Date and (b) in respect of each
Terminated Transaction, for each obligation under Section 2(a)(i)
which was (or would have been but for Section 2(a)(iii)) required to
be settled by delivery to such party on or prior to such Early
Termination Date and which has not been so settled as at such Early
Termination Date, an amount equal to the fair market value of that
which was (or would have been) required to be delivered as of the
originally scheduled date for delivery, in each case together with
(to the extent permitted under applicable law) interest, in the
currency of such amounts, from (and including) the date such amounts
or obligations were or would have been required to have been paid or
performed to (but excluding) such Early Termination Date, at the
Applicable Rate. Such amounts of interest will be calculated on the
basis of daily compounding and the actual number of days elapsed.
The fair market value of any obligation referred to in clause (b)
above shall be reasonably determined by the party obliged to make the
determination under Section 6(e) or, if each party is so obliged, it
shall be the average of the fair market values reasonably determined
by both parties.
IN WITNESS WHEREOF the parties have executed this document on the
respective dates specified below with effect from the date specified
on the first page of this document.
SANWA BANK CALIFORNIA BEDFORD PROPERTY INVESTORS, INC.
(Name of Party) (Name of
Party)
By: /s/Xxxxxx Xxxxxxxx By:/s/Xxxx Xxxxxx
Name: XXXXXX XXXXXXXX Name: XXXX XXXXXX
Title: FSVP & TREASURER Title: SENIOR VICE PRESIDENT &
CFO
Date: 6-11-01 Date: 6-12-01
NOTE: For Local Currency - Single Jurisdiction Agreements
SCHEDULE
to the
Master Agreement
dated as of
MAY 15, 2001
between
SANWA BANK CALIFORNIA ("Party A")
and
("Party B")
Part 1.
Termination Provisions.
In this Agreement:
(a) "Specified Entity" means in relation to Party A for the purpose
of:
Section 5 (a) (v): Not Applicable
Section 5 (a) (vi): Not Applicable
Section 5 (a) (vii): Not Applicable
Section 5 (b) (ii): Not Applicable
and in relation to Party B for the purpose of:
Section 5 (a) (v): Not Applicable
Section 5 (a) (vi): Not Applicable
Section 5 (a) (vii): Not Applicable
Section 5 (b) (ii): Not Applicable
(b) "Specified Transaction" will have the meaning specified in
Section 12 of this Agreement.
(c) The "Cross Default" provisions of Section 5 (a) (vi) will apply
to Party A and to Party B.
"Specified Indebtedness" will have the meaning specified in
Section 12 of this Agreement.
"Threshold Amount" means, in relation to a party, an amount
equal to 3 percent of such party's shareholders' equity
(determined in accordance with generally accepted accounting
principles in such party's jurisdiction of incorporation or
organization) as at the end of such party's most recently
completed fiscal year. For purposes of this definition, any
Specified Indebtedness of a party denominated in a currency
other than the currency in which the financial statements of
such party are denominated will be converted into the currency
in which such financial statements are denominated at the
exchange rate therefor reasonably chosen by the other party.
(d) The "Credit Event Upon Merger" provisions of Section 5 (b) (ii)
will apply to Party A and to Party B.
(e) The "Automatic Early Termination" provisions of Section 6 (a)
will not apply to Party A and will not apply to Party B.
(f) Payments on Early Termination. For the purpose of Section 6
(e) of the Agreement:
(i) Market Quotation will apply.
(ii) The Second Method will apply and, notwithstanding the
provisions of Section 6 (e) (i) (3), if the amount
referred to therein is a positive number, the
Defaulting Party will pay such amount to the Non-
Defaulting Party, and if the amount referred to therein
is a negative number, the Non-defaulting Party's
obligation to pay any amount to the Defaulting Party
shall be conditioned upon and subject to the
satisfaction of the conditions precedent set forth in
(A) and (B) below, at which time there shall arise an
obligation of the Non-defaulting Party to pay to the
Defaulting Party an amount equal to the absolute value
of such negative number less any and all amounts which
the Defaulting Party may be obligated to pay under
Section 9:
(A) the Non-defaulting Party shall have received
confirmation satisfactory to it in its sole
discretion (which may include an unqualified
opinion of its counsel) the (x) all Transactions
are terminated in accordance with Section 6 (c)
and no further payments or deliveries under
Section 2 (a) (i) in respect of Terminated
Transactions will be required to be made in
accordance with Section 6 (c) (ii), and (y) each
Specified Transaction shall have termination date
or through the exercise by a party of a right to
terminate and all amounts due and obligations
owing under each Specified Transaction shall have
been fully and finally paid and performed.
With respect to the foregoing clause (y), it is
expressly agreed that neither the Non-defaulting Party
nor any Affiliate of the Non-defaulting Party shall
have any obligation to exercise any right it may have
to terminate a Specified Transaction prior to its
specified termination date; and
(B) all obligations (contingent or absolute, matured
or unmatured) of the Defaulting Party and any
Affiliate of any Defaulting Party to make any
payment or delivery to the Non-defaulting Party or
any Affiliate of the Non-defaulting Party shall
have fully and finally paid and performed.
(g) "Termination Currency" means United States Dollars.
(h) "Additional Termination Event" will not apply.
Part 2.
Agreement to Deliver Documents
For the purpose of Section 4 (a) of this Agreement, each party agrees
to deliver to the other party the following documents, as applicable:
--
(i) Tax forms, documents or certificates to be delivered are:
Each party agrees to complete, accurately and in a manner
reasonably satisfactory to the other party, execute, arrange
for any required certification of and deliver to the other
party, or such government or taxing authority as the other
party directs, any form, document or certificate that may be
required or reasonably requested by the other party in order to
allow the other party to make a payment under this Agreement
without any deduction or withholding for or on account of any
Tax or with such deduction or withholding at a reduced rate
(the "Requested Form or Document") promptly upon the earlier of
(1) before the first Payment Date on which any such payment is
or may be so connected or attributable, (2) promptly upon
reasonable demand by the other party, and (3) promptly upon
learning that any such form previously provided has become
obsolete or incorrect.
(ii) Other Documents to be delivered are:
(1) Certificate evidencing the authority of each party to enter
into this Agreement and the names of each person authorized
to execute this Agreement and any documents required to be
executed pursuant to this Agreement, together with the
specimen signatures of each such person, upon execution and
delivery of this Agreement;
(2) Annual Report, containing audited financial statements for
each of its fiscal years certified by its independent
public accountants as fairly presenting its financial
condition and results of operations for and as at the close
of such fiscal year, as soon as available and, in any
event, on or before the 180th day after the close of each
of its fiscal years; and
(3) Such other information respecting each party's condition or
operations, financial or otherwise, as may be reasonably
requested from time to time, promptly after a request by
the other party.
The documents delivered are pursuant to the representations set forth
in Section 3 (d).
Part 3.
Miscellaneous
(a) Addresses for Notices. For the purpose of Section 10 (a) of
this Agreement.
Address for notices or communications to Party A with respect
to this Agreement and relating to any Transaction shall be
given to it at the following address:
Address: Sanwa Bank California
Treasury Operations, OC4-12
0000 Xxxxxx Xx.
Xxxxxxxx Xxxx, XX 00000
Attention: Derivatives Documentation Specialist
US$ Book Operations
Telex No: 674710 Answerback: SANWACALALA
Facsimile No: (000) 000-0000
Telephone No. (000) 000-0000
Address for notices or communications to Party B with respect
to this Agreement and relating to any Transaction shall be
given to it at the following address:
Address: Bedford Property Investors, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx/CFO
Telephone No: (000) 000-0000
Facsimile No: (000) 000-0000
(b) Calculation Agent. The Calculation Agent is Party A, unless
otherwise specified in a Confirmation in relation to the
relevant Transaction. With respect to Section 5 (a) (ii) of
the Agreement, if a party hereto is designated as the
Calculation Agent for any Transaction, then Section 5 (a) (ii)
shall not include any failure by that party to comply with its
obligations as Calculation Agent and the sole remedy of the
other party for such failure shall be the right, upon notice to
the Calculation Agent, to designate itself or a third party as
a replacement Calculation Agent.
(c) Credit Support Document. The provisions of Section 5 (a) (iii)
will not apply to this Agreement.
(d) Credit Support Provider. Details of any Credit Support
provider:
In relation to Party A, not applicable.
In relation to Party B, not applicable.
(e) Governing Law. This Agreement will be governed by and
construed in accordance with the law of the State of New York
(without reference to choice of law doctrine).
(f) Netting of Payments. Subparagraph (ii) of Section 2 (c) of
this Agreement will not apply to all Transactions.
(g) "Affiliate" will have the meaning specified in Section 12 of
this Agreement.
Part 4.
Other Provisions.
(a) Termination Payments (Full Two Way Payments). For the sole
purposes of calculating and making payments due in respect of
an Early Termination Date under Section 6 (d) and (e) of this
Agreement, any Event of Default specified in Section 5 (a) of
this Agreement shall be treated as if it were a Termination
Event with the Defaulting Party Treated as the Affected Party
(and for such purposes the provision of the definition of
"Settlement Amount" shall be deemed to be of no force and
effect).
(b) Set-off. The following provision shall be added as Section 6
(f):
Any Amount (the "Early Termination Amount") payable to one
party (the Payee) by the other party (the Payer) under Section
6 (e), in circumstances where there is a Defaulting Party will,
at the option of the non-Defaulting Party, be reduced by its
set-off against any amounts (the "Other Agreement Amount")
payable (whether at such time or in the future) by the Payee to
the Payer (irrespective of the currency, place of payment or
booking office of the obligation) under any other agreement(s)
between the Payee and the Payer or instrument(s) issued or
executed by one party to, or in favor of, the other party (and
the Other Agreement Amount will be discharged promptly and in
all respects to the extent it is so set-off). The non-
Defaulting Party will give notice as soon as reasonably
practicable to the other party of any set-off effective under
this Section 6 (f).
For this purpose, either the Early Termination Amount of the
Other Agreement Amount (or the relevant portion of such
amounts) may be converted by the non-Defaulting Party into the
currency in which the other is denominated at the rate of
exchange at which such party would be able, acting in a
reasonable manner, in good faith and with the consultation of
the other party, to purchase the relevant amount of such
currency.
Nothing in this Section 6 (f) shall be effective to create a
charge or other security interest. This Section 6 (f) shall be
without prejudice and in addition to any right of set-off,
combination of accounts, lien or other to which any party is at
any time otherwise entitled (whether by operation of law,
contract or otherwise).
(c) Waiver of Right to Trial by Jury. Each of the parties hereto
hereby irrevocably waives any and all right to a trial by jury
with respect to any legal proceeding arising out of or relating
to this Agreement or any transaction contemplated hereby.
(d) Severability. In the event any one or more of the provisions
contained in this Agreement should be held invalid, or
unenforceable in any respect other than in manner dealt with in
Section 5 (b), the validity and enforceability of the remaining
provisions contained herein shall not in any way be affected or
impaired thereby.
(e) Consent to Recording. Each party (i) consents to the
monitoring or recording, at any time and from time to time, by
the other party of any and all communications between officers
or employees of the parties, (ii) waives any further notice of
such monitoring or recording, and (iii) agrees to notify (and,
if required by law, obtain the monitoring or recording).
(f) Definitions. This Agreement, each Confirmation, and each
Transaction are subject to the 1991 ISDA definitions ("the
Definitions"), as published by the International Swaps and
Derivatives Association, Inc., and will be governed in all
respects by the provisions set forth in the Definitions with
references to "Swap Transactions" therein being a reference to
"Transaction" for purposes of this Agreement. The Provisions
of the Definitions are incorporated by reference in, and made
part of, this Agreement as if set forth in full in this
Agreement and each Confirmation.
SANWA BANK CALIFORNIA BEDFORD PROPERTY INVESTORS, INC.
(Name of Party) (Name of Party)
By: /s/Xxxxxx Xxxxxxxx By: /s/Xxxx Xxxxxx
Name: Xxxxxx Xxxxxxxx Name: Xxxx Xxxxxx
Title: FSVP & Treasurer Title: Senior Vice President and
CFO
Date: 6/11/01 Date: 6/12/01
