GOLDMAN SACHS CONFIRMATION - SWAP TRANSACTION
Published on February 14, 1997
EXHIBIT 10.23
CONFIRMATION
FROM: Goldman Sachs Capital Markets, L.P.
CC: Goldman Sachs Capital Markets, L.P.
Swap Administration
SUBJECT: Swap Transaction
REF NO: NUUO611100 (600000000)
The purpose of this communication is to set forth the terms and conditions of
the above referenced transaction entered into on the Trade Date specified below
(the "Transaction") between Goldman Sachs Capital Markets, L.P. ("GSCM"),
guaranteed by The Goldman Sachs Group, L.P. ("Goldman Group"), and LTC
Properties Inc. ("Counterparty"). This communication constitutes a
"Confirmation" as referred to in the Swap Agreement specified below.
1. This Confirmation is subject to, and incorporates, the 1991 ISDA Definitions
(the "1991 Definitions"), published by the International Swaps and Derivatives
Association, Inc. ("ISDA"). If GSCM and Counterparty are parties to an Interest
Rate and Currency Exchange Agreement, ISDA Master Agreement or other form of
master agreement that sets forth general terms and conditions applicable to swap
transactions between GSCM and Counterparty (the "Swap Agreement"), this
Confirmation supplements, forms a part of, and is subject to, the Swap
Agreement. If GSCM and Counterparty are not yet parties to the Swap Agreement,
this Confirmation shall supplement, form part of, and be subject to, the Swap
Agreement upon its execution and delivery by GSCM and Counterparty. Prior to
the execution and delivery of such Swap Agreement, this Confirmation alone shall
constitute a complete and binding agreement with respect to the Transaction.
This Confirmation will be read and construed as one with the executed Swap
Agreement and all other outstanding Confirmations between the parties, so that
all such Confirmations and the executed Swap Agreement constitute a single
agreement between the parties.
If the Swap Agreement has not yet been executed and delivered by GSCM and
Counterparty, this Confirmation is also subject to, and incorporates, the
definitions contained in Section 14 of the form of ISDA Master Agreement
(Multicurrency-Cross Border), but without any Schedule or other modifications
thereto (the "ISDA Agreement"), Paragraph (4) of the May 1989 Addendum to
Schedule to Interest Rate and Currency Exchange Agreement (the "Cap Addendum")
and Paragraph (5) of the July 1990 Addendum to Schedule to Interest Rate and
Currency Exchange Agreement (the "Options Addendum"), all as published by ISDA
(except that all references to "Swap Transactions" in the 1991 Definitions, the
Cap Addendum and the Options Addendum will be deemed to be references to
"Transactions").
All provisions contained in, or incorporated by reference to, The Swap Agreement
will govern this Confirmation except as expressly modified herein. In the event
of any inconsistency between this Confirmation and the 1991 Definitions, the
Swap Agreement, the definitions contained in Section 14 of the ISDA Agreement,
Paragraph (4)
of the Cap Addendum, or Paragraph (5) of the Options Addendum, as the case may
be, this Confirmation will control for the purpose of the Transaction to which
this Confirmation relates.
2. Each party will make each payment specified in this Confirmation as being
payable by it, not later than the due date for value on that date in the place
of the account specified below or otherwise specified in writing, in freely
transferable funds and in the manner customary for payments in the required
currency. If on any date amounts would otherwise be payable in the same
currency by each party to the other in respect of this Transaction, then, on
such date each party's obligation to make payment of any such amount will be
automatically satisfied and discharged and, if the aggregate amount that would
otherwise have been payable by one party exceeds the aggregate amount that
would otherwise have been payable by the other party, replaced by an obligation
upon the party by whom the larger aggregate amount would have been payable to
pay to the other party the excess of the larger aggregate amount over the
smaller aggregate amount.
3. The following provisions will govern this Transaction until such time as the
Swap Agreement is executed and delivered by GSCM and Counterparty, whereupon
they shall be replaced by the terms of the Swap Agreement. If at any time, a
party (the "Defaulting Party") or its guarantor, if any, shall (i) fail to make,
when due, any payment under this Confirmation if such failure is not remedied
within three New York Business Days following written notice of such failure or
(ii) become subject to a Bankruptcy (as defined in Section 5(a)(vii) of the ISDA
Agreement), then the other party (the "Non-defaulting Party") shall have the
right to early terminate and liquidate this Transaction and all other Specified
Transactions then outstanding between the parties (the "Terminated
Transactions") and determine a net amount due in respect of the Terminated
Transactions in accordance with the early termination payment calculation
provisions of Section 6(e)(i) of the ISDA Agreement based on a payment measure
of Market Quotation and a payment method of the Second Method. The Non-
defaulting Party may exercise its right to early terminate and liquidate the
Terminated Transactions by written notice to the Defaulting Party, which notice
shall set forth the amount of the termination payment determined by the Non-
defaulting Party as set forth above. Such termination payment shall be due and
payable by no later than 1 New York Business Day following receipt of written
notice by the Defaulting Party. The Non-defaulting Party shall have the right to
set off the value of any collateral in its possession securing the obligations
of the Defaulting Party against amounts owed by the Defaulting Party to it as
determined above.
4. The terms of the particular Transaction to which this Confirmation relates
are as follows:
Mandatory Termination in Whole with Cash Settlement:
- ----------------------------------------------------
This Transaction shall early terminate, cancel and Cash Settle, in whole
but not in part, effective on the November 1998 Payment Date (the "Effective
Date of Cancellation"). Following any such early termination and cancellation
and payment of the Cash Settlement Amount as calculated below, the parties shall
be relieved of all
further payment obligations hereunder except for payment of all accrued but yet
unpaid amounts calculated to but excluding the Effective Date of Cancellation
(unless otherwise included in the Cash Settlement Amount as calculated below).
Cash Settlement Amount:
The Calculation Agent will determine a U.S. Dollar value for the terminated
portion of this Transaction (the "Settlement Value") at Counterparty's option in
accordance with either (i) or (ii) below:
(i) Such Settlement Value will be mutually agreed upon by the parties on
the day that is two (2) Business Days prior to the Effective Date of
Cancellation (the "Determination Date").
(ii) Such Settlement Value will be determined based on Market Quotations
obtained from at least five (5) Reference Market-makers selected in good faith
by the Calculation Agent. Such Reference Market-makers will be polled by the
Calculation Agent at approximately 11:00 a.m. (New York time) two (2) Business
Days prior to the Effective Date of Cancellation. The Cash Settlement Amount
will be the arithmetic mean of such quotations, after discarding the highest and
lowest quote; provided, however, that in the event one or more of the highest
or lowest quotations is identical, then only one such highest or lowest quote
will be discarded. If three Market Quotations or fewer are provided, the Cash
Settlement Amount will be the arithmetic mean of the quotations obtained,
without discarding the highest and lowest of quote, or the single Market
Quotation, as the case may be. Such Reference Market-makers will be polled by
the Calculation Agent on the Determination Date. Such Cash Settlement Amount
will be payable on the Effective Date of Cancellation.
Market Quotations shall be based on the U.S. Dollar value of this
Transaction, calculated as if each of the Reference Market-makers were
fulfilling the obligations of the Fixed Rate Payer under this Transaction and
the Settlement Amount shall be payable by the Floating Rate Payer to the Fixed
Rate Payer only if the Market Quotations obtained in the manner described above
result in a positive number. The absolute value of the Settlement Amount shall
be payable by the Fixed Rate Payer to the Floating Rate Payer only if the Market
Quotations obtained in the manner described above result in a negative number.
For the Account of:
Name of Bank:
Account No:
Attention:
ABA No.:
SWIFT Code:
9. Offices:
(a) The Office of GSCM for this Transaction is 85 Broad Street, New York,
New York 10004.
(b) The Office of the Counterparty for this Transaction is (please
provide):
300 Esplanade Drive, Suite # 1860
Oxnard, CA 93030
10. Counterparty hereby agrees (a) to check this Confirmation (Reference No.:
NUUO611100 (600000000)) carefully and immediately upon receipt so that errors
or discrepancies can be promptly identified and rectified and (b) to confirm
that the foregoing correctly sets forth the terms of the agreement between GSCM
and Counterparty with respect to the particular Transaction to which this
Confirmation relates, by manually signing this Confirmation and providing the
other information requested herein and immediately returning an executed copy to
Swap Administration, facsimile No. 212-902-5692.
Very truly yours,
GOLDMAN SACHS CAPITAL MARKETS, L.P.
By: Goldman Sachs Capital Markets, Inc.,
General Partner
By: /Marcia J. Riveglia/
--------------------
Name: Marcia J. Riveglia
Title: Vice President
Agreed and Accepted By:
LTC Properties, Inc.
By: /Christopher T. Ishikawa/
Name: Christopher T. Ishkikawa
Title: Vice President & Treasurer