EXHIBIT 10.4
[BANK OF AMERICA LOGO]
To: Health Care Reit Inc.
One SeaGate Ste 1500
Toledo OH 43604
Attn: Mike Crabtree
Telephone: 419-247-2811
Fax: 419-247-2826
From: Bank of America, N.A.
233 South Wacker Drive - Suite 2800
Chicago
Illinois 60606
U.S.A.
Department: Swaps Operations
Telephone: (+1) 312 234 2732
Fax: (+1)312 234 3603
Date: 10th May 2004
Our Reference No: 3229283
Reference Name: DMuller JSmith
Internal Tracking No: 13124241
Dear Sir/Madam,
The purpose of this letter agreement is to confirm the terms and conditions of
the Transaction entered into between Health Care Reit Inc. and Bank of America,
N.A. (each a "party" and together "the parties") on the Trade Date specified
below (the "Transaction"). This letter agreement constitutes a "Confirmation" as
referred to in the ISDA Master Agreement specified below (the "Agreement").
The definitions and provisions contained in the 2000 ISDA Definitions, as
published by the International Swaps and Derivatives Association, Inc., (the
"Definitions") are incorporated into this Confirmation. In the event of any
inconsistency between the Definitions and this Confirmation, this Confirmation
will govern.
This Confirmation evidences a complete binding agreement between the parties as
to the terms of the Transaction to which this Confirmation relates. In addition,
the parties agree to use all reasonable efforts promptly to negotiate, execute
and deliver an agreement in the form of the ISDA Master Agreement
(Multicurrency-Cross Border) (the "ISDA Form"), with such modifications as the
parties will in good faith agree. Upon the execution by the parties of such an
agreement, this Confirmation will supplement, form a part of, and be subject to
that agreement. All provisions contained or incorporated by reference in that
agreement upon its execution will govern this Confirmation except as expressly
modified below. Until the parties execute and deliver that agreement, this
Confirmation, together with all other documents referring to the ISDA Form (each
a "Confirmation") confirming transactions (each a "Transaction") entered into
between the parties (notwithstanding anything to the contrary in a
Confirmation), shall supplement, form a part of, and be subject to an agreement
in the form of the ISDA Form, as if the parties had executed an agreement in
such form (but without any Schedule) on the Trade Date of the first such
Transaction between the parties. In the event of any inconsistency between the
provisions of that agreement and this Confirmation, this Confirmation will
prevail for the purpose of this Transaction.
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In this Confirmation "Party A" means Bank of America, N.A. and "Party B" means
Health Care Reit Inc.
GENERAL TERMS:
The terms of the particular Transaction to which this Confirmation relates are
as follows:
Notional Amount: USD 50,000,000.00
Trade Date: 6th May 2004
Effective Date 7th May 2004
Termination Date: 15th November 2013
FIXED AMOUNTS:
Fixed Rate Payer: Party A
Fixed Rate Payer
Payment Dates: The 15th of each May and November, commencing on
15th May 2004 and ending on the Termination Date,
subject to adjustment in accordance with the
Following Business Day Convention
Fixed Rate Payer
Period End Dates: The 15th of each May and November, commencing on
15th May 2004 and ending on the Termination Date.
No adjustment.
Fixed Rate: 6.00000 per cent
Fixed Rate Day
Count Fraction: 30/360
FLOATING AMOUNTS:
Floating Rate Payer: Party B
Floating Rate Payer
Payment Dates: The 15th of each May and November, commencing on
15th May 2004 and ending on the Termination Date,
subject to adjustment in accordance with the
Following Business Day Convention
Final Calculation Period: For the purposes of Section 4.13. of the
Definitions, the Termination Date shall be
subject to adjustment in accordance with the
Following Business Day Convention
Floating Rate for initial
Calculation Period: 1.77125 per cent
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Floating Rate Option: USD-LIBOR-BBA
Designated Maturity : 6 Month
Spread: plus 0.69500 per cent
Floating Rate Day
Count Fraction: Actual/360
Reset Dates: Last day of each Calculation Period
BUSINESS DAYS: New York
CALCULATION AGENT: Party A
RECORDING OF CONVERSATIONS:
Each party to this Transaction acknowledges and agrees to the tape recording
of conversations between the parties to this Transaction whether by one or
other or both of the parties or their agents, and that any such tape
recordings may be submitted in evidence in any Proceedings relating to the
Agreement and/or this Transaction.
CREDIT SUPPORT DOCUMENT:
In addition to any Credit Support Documents specified in the Agreement, the
following shall be Credit Support Documents with respect to Party B:
(i) each agreement or document providing for collateral or security for the
obligations of Party B hereunder.
CREDIT SUPPORT PROVIDERS:
In addition to any Credit Support Providers specified in the Agreement, the
following shall be Credit Support Providers with respect to Party B:
(i) any person executing a Credit Support Document with respect to Party B.
Party B agrees and acknowledges that any and all Collateral, guarantees, or
security interests heretofore or hereafter pledged, guaranteed, or granted
to Party A pursuant to a Credit Agreement, guarantee, or related document
shall also serve as collateral security for or guarantee of the obligations
of Party B hereunder and Party B hereby grants to Party A a continuing
security interest in any and all Collateral heretofore or hereafter pledged
to Party A pursuant to a Credit Agreement or related document as security
for any and all obligations of Party B hereunder. Party B agrees to cause
any security interest granted pursuant to any Credit Agreement or related
document to specifically include the obligations of
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Party B hereunder as secured obligations thereunder. As used herein, (a)
"Credit Agreement" means any note, instrument, agreement or other document
for borrowed money now or hereafter entered into between Party A and Party
B, as the same may be amended, modified, supplemented, restated or replaced
from time to time with the consent of Party A and (b) "Collateral" means any
or all accounts, equipment, general intangibles, instruments, inventory,
intellectual property and all proceeds and products of such in which Party B
has an ownership interest or any other property which may be included or
more specifically defined in such Credit Agreement.
ADDITIONAL TERMINATION Additional Termination Event will apply. The
EVENT: following event shall constitute an Additional
Termination Event with respect to which
Party B shall be the Affected Party:
(i) If Party B fails to execute and deliver
to Party A an ISDA Master Agreement in form
and substance satisfactory to Party A on or
before August 4, 2004.
ACCOUNT DETAILS:
Account for payments to
Party A: USD
Pay to: Bank of America NA New York
ABA#: 026009593
For Account of: Bank of America NA Charlotte
Account Number: 6550-219386
Swift Code: BOFAUS6SGDS
Account for payments to USD
Party B: To be advised
OFFICES:
The Office of Party A for
this Transaction is: Charlotte - NC United States
Please send reset notices to
fax no. (+1 312) 234 3603
The Office of Party B for
this Transaction is: Toledo - OH United States
GOVERNING LAW: the laws of the State of New York (without
reference to the conflict of the laws provisions
thereof)
Please confirm that the foregoing correctly sets forth the terms and conditions
of our agreement by returning via telecopier an executed copy of this
Confirmation to the attention of Globel Derivative Operations (fax no. (+1
312)234 3603).
Accepted and confirmed as of the date first
written:
Bank of America N.A. Health Care Reit Inc.
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By: /s/ Dave Walker By: /s/ Michael A. Crabtree
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Dave Walker Name: Michael A. Crabtree
Senior Vice President Title: Treasurer
Authorised Signatory
Our Reference Number: 3229283
Internal Tracking No: 13124241
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