exv10w23w3



 








Sumitomo Mitsui Banking Corporation Group




CONFIRMATION




	 	 	 
	Date:

	 	October 27, 2005
	 
	 	 
	To:

	 	Ashford Dulles II LLC
	 

	 	14185 Dallas Park
	 

	 	Suite 1100
	 

	 	Dallas, TX 75254
	 

	 	USA
	 
	 	 
	 

	 	Documentation Contact: David Kimichik
	 

	 	Telephone: 1 972 778-9202
	 

	 	Telefax: 1 972 980-2705
	 
	 	 
	Cc:

	 	Chatham Financial Corporation
	 

	 	Attention: Mike Ashby
	 

	 	1805 Shea Center Drive # 160
	 

	 	Highlands Ranch, CO 80129
	 

	 	Telephone: 720-221-3503
	 

	 	Telefax: 720-221-3519
	 
	 	 
	From:

	 	SMBC Capital Markets, Inc. as Agent for SMBC Derivative Products Limited
	 

	 	Derivative Products Group
	 

	 	277 Park Avenue, Fifth Floor
	 

	 	New York, New York 10172
	 
	 	 
	cc:

	 	Documentation Contact: Julie Ann Estorque
	 

	 	Telephone: 212-224-5144
	 

	 	Telefax: 212-224-4959
	 

	 	Email Address: confirms@smbc-cm.com
	 
	 	 
	Re:

	 	USD 45,000,000.00 Rate Protection Transaction, dated as of October 27, 2005 between SMBC Derivative Products Limited
	 

	 	(“Party A“) and Ashford Dulles II LLC (“Party B“).






Our Reference Number: DPA506807



The purpose of this letter agreement is to set forth the terms and conditions of the Rate
Protection Transaction entered into between SMBC Derivative Products Limited and Ashford Dulles II
LLC on the Trade Date specified below (the “Rate Protection Transaction“). This letter agreement
constitutes a “Confirmation“ as referred to in the ISDA Master Agreement specified below. This
document supersedes all previous confirmations and amendments with respect to the above referenced
transaction.



The definitions and provisions contained in the 1992 ISDA Master Agreement subject to the 2000 ISDA
Definitions as published by the International Swaps and Derivatives Association, Inc., are
incorporated into this Confirmation. In the event of any inconsistency between those definitions
and provisions and this Confirmation, this Confirmation will govern.



SMBC Derivative Products Limited and Ashford Dulles II LLC have agreed not to amend, modify, assign, or terminate the Rate
Protection Transaction without the prior written consent of Merrill Lynch Mortgage Lending, Inc. or the current lender, as the case
may be.

 

277 Park Avenue New York, NY 10172           PHONE: 212-224-5144 FAX: 212-224-4959       Email: estorque@smbc-cm.com






 









 








Page 2




DPA506807



SMBC Derivative Products Limited and Ashford Dulles II LLC have agreed not to amend, modify, assign, or terminate the Rate
Protection Transaction without the prior written consent of Merrill Lynch Mortgage Lending, Inc. or the current lender, as the case
may be.


 



1. ISDA AGREEMENT:



This Confirmation evidences a complete and binding agreement between you and us as to the terms of
the Transaction to which Confirmation relates. In addition, you and we 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 you and we
will in good faith agree. Upon the execution by you and us of such an agreement, this Confirmation
will supplement, form part of, and be subject to that agreement. All provisions contained in or
incorporated by reference in that agreement upon its execution will govern this Confirmation except
as expressly modified below. Until we 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 us (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 we had executed an agreement in such form on the Trade Date of the
first such Transaction between us. 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.




2. NOTICE TO COUNTERPARTY:



SMBC Derivative Products Limited is solely responsible for its contractual obligations and
commitments; none of Sumitomo Mitsui Banking Corporation, SMBC Capital Markets, Inc., SMBC Limited
nor any other affiliate of SMBC Derivative Products Limited shall be responsible for the
contractual obligations or commitments of SMBC Derivative Products Limited.



SMBC Derivative Products Limited is not a bank and is separate from any affiliated bank, and the
obligations of SMBC Derivative Products Limited are not deposits, are not insured by the United
States of America or any agency thereof, are not guaranteed by an affiliated bank, and are not
otherwise an obligation of an affiliated bank.



SMBC Derivative Products Limited is regulated by Financial Services Authority. The time of
execution of the transaction is available on request.




3. TERMS OF RATE PROTECTION TRANSACTION:



The terms of the particular Rate Protection Transaction to which this Confirmation relates are as
follows:




	 	 	 
	Type of Rate Protection Transaction:	 	Rate Cap Transaction
	Notional Amount:

	 	USD 45,000,000.00
	 
	 	 
	Trade Date:

	 	October 27, 2005
	 
	 	 
	Effective Date:

	 	October 28, 2005
	 
	 	 
	Termination Date:

	 	October 15, 2007




 


SMBC Derivative Products Limited and Ashford Dulles II LLC have agreed not to amend, modify, assign, or terminate the Rate
Protection Transaction without the prior written consent of Merrill Lynch Mortgage Lending, Inc. or the current lender, as the case
may be.






 









 













 














Page 3




DPA506807



SMBC Derivative Products Limited and Ashford Dulles II LLC have agreed not to amend, modify, assign, or terminate the Rate
Protection Transaction without the prior written consent of Merrill Lynch Mortgage Lending, Inc. or the current lender, as the case
may be.


 



	 	 	 
	FLOATING AMOUNTS:	 	( PARTY A )
	Floating Rate Payer:

	 	SMBC Derivative Products Limited
	 
	 	 
	Initial Calculation Period:

	 	The initial Calculation Period will be from and including the Effective Date up
to but excluding November 15, 2005, with No Adjustment for Period End Dates
	 
	 	 
	Floating Rate Calculation Period:

	 	The Floating Rate Calculation Period will be the initial Calculation Period and
thereafter, from and including the fifteenth (15th) day of each month to but
excluding the fifteenth (15th) day of the following month and continuing up to
but excluding the Termination Date; with No Adjustment for Period End Dates
	 
	 	 
	Floating Rate Payer Payment Dates:

	 	Five (5) Business Days prior to the twelfth (12th) calendar day of
each month, beginning with November 4, 2005 and continuing until the fifth (5th)
Business Day prior to October 12, 2007, however, the 12th day of each
month will first be subject to adjustment in accordance with the Preceding
Business Day Convention
	 
	 	 
	Floating Rate for initial Calculation Period:

	 	4.07000 % (percent) per annum
	 
	 	 
	Floating Rate Option:

	 	USD-LIBOR-BBA
	 
	 	 
	Designated Maturity:

	 	1 Month
	 
	 	 
	Spread:

	 	Inapplicable
	 
	 	 
	Floating Rate Day Count Fraction:

	 	Actual/360
	 
	 	 
	Reset Dates:

	 	The fifteenth (15th) calendar day of each month
	 
	 	 
	Compounding:

	 	Inapplicable
	 
	 	 
	Cap Rate:

	 	7.00000 % (percent) per annum
	 
	 	 
	FIXED AMOUNTS:

	 	( PARTY B )
	 
	 	 
	Fixed Rate Payer:

	 	Ashford Dulles II LLC
	 
	 	 
	Fixed Rate Payer Payment Date:

	 	October 31, 2005
	 
	 	 
	Fixed Amount:

	 	USD 9,400.00
	 
	 	 
	Business Days for Payments by both parties:

	 	New York
	 
	 	 
	Calculation Agent:

	 	SMBC Derivative Products Limited




 


SMBC Derivative Products Limited and Ashford Dulles II LLC have agreed not to amend, modify, assign, or terminate the Rate
Protection Transaction without the prior written consent of Merrill Lynch Mortgage Lending, Inc. or the current lender, as the case
may be.





 









 








Page 4




DPA506807



SMBC Derivative Products Limited and Ashford Dulles II LLC have agreed not to amend, modify, assign, or terminate the Rate
Protection Transaction without the prior written consent of Merrill Lynch Mortgage Lending, Inc. or the current lender, as the case
may be.


 



	 	 	 
	Governing Law:

	 	New York
	 
	 	 
	Collateral Assignment:

	 	SMBC Derivative Products Limited consents to a
collateral assignment of this Confirmation and the
Agreement (if requested) and agrees to execute
separate consents as may be reasonably requested by
the parties to such agreements
	 
	 	 
	Assignment:

	 	SMBC Derivative Products Limited will not
unreasonably withhold or delay an assignment of
this agreement, in whole or in part, to any other
third party






4. CREDIT SUPPORT DOCUMENTS:     Inapplicable




5. PAYMENT INSTRUCTIONS:



Payments to SMBC Derivative Products Limited of USD amounts:




	 	 	 
	Depository:

	 	JPMorgan Chase Bank, N.A. New York Branch
	ABA Routing No.:

	 	021000021
	Address:

	 	New York, NY
	In Favor Of:

	 	SMBC Derivative Products Limited
	Account No.:

	 	400035413





Please contact Larry Weissblum of our Operations Group if you have any questions concerning SMBC
Derivative Products Limited’s payment instructions referenced above (Telephone: 212-224-5061;
Telefax: 212-224-5122).




Payments to Ashford Dulles II LLC of USD amounts:



	 	 	 
	Depository:

	 	PLEASE ADVISE
	In Favor Of:
	 	 





Each party will be deemed to represent to the other party on the date on which it enters into this
Transaction that (absent a written agreement between the parties that expressly imposes affirmative
obligations to the contrary for this Transaction):




     (i) Non-Reliance. It is acting for its own account, and it has made its own independent
decisions to enter into this Transaction and as to whether this Transaction is appropriate or
proper for it based upon its own judgment and upon advice from such advisers as it has deemed
necessary. It is not relying on any communication (written or oral) of the other party as
investment advice or as a recommendation to enter into this Transaction: it being understood that
information and explanations relating to the terms and conditions of this Transaction shall not be
considered investment advice or a recommendation to enter into this Transaction. No communication
(written or oral) received from the other party shall be deemed to be an assurance or guarantee as
to the expected results of this Transaction.



     (ii) Assessment and Understanding. It is capable of assessing the merits of and understanding
(on its own behalf or through independent professional advice), and understands and accepts, the
terms, conditions and risks of this Transaction. It is also capable of assuming, and assumes, the
risks of this Transaction.



     (iii) Status of Parties. The other party is not acting as a fiduciary for or an
advisor to it in respect of this Transaction.



 


SMBC Derivative Products Limited and Ashford Dulles II LLC have agreed not to amend, modify,
assign, or terminate the Rate Protection Transaction without the prior written consent of Merrill
Lynch Mortgage Lending, Inc. or the current lender, as the case may be.




 









 





Page 5




DPA506807



SMBC Derivative Products Limited and Ashford Dulles II LLC have agreed not to amend, modify, assign, or terminate the Rate
Protection Transaction without the prior written consent of Merrill Lynch Mortgage Lending, Inc. or the current lender, as the case
may be.

 



Please confirm that the foregoing correctly sets forth the terms of the agreement between you and
us by executing this Confirmation and returning it to the documentation contact above.

Yours Sincerely,




SMBC Capital Markets, Inc. as Agent for SMBC Derivative Products Limited




	 	 	 
	By: /S/ LARRY WEISSBLUM

	 	 
	 
	 	 
	Name: Larry Weissblum
	 	 
	Title: Senior Vice President
	 	 
	 
	 	 
	By: /S/ DANNY BOODRAM
	 	 
	 
	 	 
	Name: Danny Boodram
	 	 
	Title: Assistant Vice President
	 	 






Confirmed as of the date first written above:




ASHFORD DULLES II LLC, a Delaware limited liability company




	 	 	 	 	 
	 	 	 
	 	By:  	     /S/ DAVID A. BROOKS
 	 
	 	 	David A. Brooks 	 
	 	 	Vice President 	 
	 



 


SMBC Derivative Products Limited and Ashford Dulles II LLC have agreed not to amend, modify,
assign, or terminate the Rate Protection Transaction without the prior written consent of Merrill
Lynch Mortgage Lending, Inc. or the current lender, as the case may be.