Exhibit 10.24.2
[Bank of America logo]
Banc of America
Financial Products Inc.
A subsidiary of Bank of America, N.A.
233 South Wacker Drive, Suite 2800
Chicago, IL 60606
Tel 312.234.2433
Fax 312.234.2544
BANC OF AMERICA FINANCIAL PRODUCTS, INC.
- ----------------------------------------
DERIVATIVES TRADE SUPPORT
TO: Ventas Finance I, LLC
4360 Brownsboro Road, Suite 115
Louisville, KY 40207
ATTN: Debbie Cafaro
TEL: 502-357-9010
FAX: 502-357-9001
FROM: Banc of America Financial Products, Inc.
233 South Wacker Drive - Suite 2800
Chicago, IL 60606
Erroll Pessotto
312-234-2652
DATE: 12/11/01
Our Reference Number: 3405919
Internal Tracking Numbers: 202509
Dear Sir/Madam,
The purpose of this letter agreement is to confirm the terms and conditions
of the Transaction entered into between Ventas Finance I, LLC and Banc of
America Financial Products, Inc. (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 in paragraph 1 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. Each party represents and warrants to the other that (i) it is duly
authorized to enter into this Transaction and to perform its obligations
hereunder and (ii) the person executing this Confirmation is duly authorized to
execute and deliver it.
In this Confirmation "Party A" means Banc of America Financial Products,
Inc. and "Party B" means Ventas Finance I, LLC.
1. 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 (with a Schedule in which the parties elected that the Termination Currency
would be United States Dollars and that the governing law would be New York law
and in which the parties included the following non-negotiable provisions from
Party A's form of Schedule a copy of which has been provided to Party B (which
Party B agrees that it has received and understands): Part 1(a), 5(a), 5(b),
5(c), 5(d), 5(j), and 5(l), but otherwise without any Schedule, 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 purposes of this Transaction.
2. Notwithstanding Section 7 of this Agreement, Party B acknowledges and agrees
that the parties' failure to execute and deliver an Agreement in a form
acceptable to us within thirty (30) business days of the Trade Date of this
Transaction shall, at Party A's election, (i) constitute an Additional
Termination Event with both parties as Affected Parties and this Transaction as
an Affected Transaction, or (ii) entitle Party A to assign and delegate its
rights and obligations under this Transaction to the parent company of Party A
(the "Parent"), upon written notice to Party B by either or both of Party A and
the Parent, and such Transaction shall be governed by the existing ISDA Master
Agreement, if any, between Party B and the Parent or, in the absence
-2-
thereof, the ISDA Form (with a Schedule in which the Parent and Party B elected
that the Termination Currency would be United States Dollars and that the
governing law would be New York law). As of and from the date of such
assignment, the Parent shall succeed to all rights and obligations of Party A
under this Transaction and Party A shall, without further action, forever be
released therefrom (including any liability for breach thereof).
For purposes of this transaction only, the provisions of Part 5(d) of the
Schedule to the Master Agreement shall not apply, upon payment in full of all
amounts due and owing by Ventas Finance I, LLC.
3. The terms of the particular Transaction to which this Confirmation relates
are as follows:
Notional Amount: $225,000,000 (Amortizing - see schedule)
Trade Date: December 11, 2001
Effective Date: December 12, 2001
Termination Date: December 10, 2006, subject to adjustment in accordance with the
Modified Following Business Day Convention
Fixed Amounts:
Fixed Rate Payer: Ventas Finance I, LLC
Fixed Rate Payer Payment Date: December 14, 2001
Fixed Amount: $45,000
Floating Amounts:
Floating Rate Payer: Banc of America Financial Products, Inc.
Cap Rate: 8.00%
Floating Rate Period End Dates: The tenth day of each month commencing January 10, 2002 and ending on
the Termination Date, subject to adjustment in accordance with the
Modified Following Business Day Convention
Floating Rate Payer Payment Dates: The ninth day of each month commencing January 9, 2002 and ending on
December 9, 2006, subject to adjustment in accordance with the
Preceding Business Day Convention
Floating Rate Option: USD-LIBOR-BBA
-3-
Floating Rate for initial 1.9413%
Calculation Period:
Designated Maturity: 1-month
Spread: N/A
Floating Rate Day Count Fraction: Act/360
Reset Dates: Two business days prior to the first day of each calculation period
Method of Averaging: N/A
Compounding: Inapplicable
(Compounding Dates:) N/A
Business Days: New York
Calculation Agent: Party A
4. Recording of Conversations:
Each party to this Transaction acknowledges and agrees to the tape or
electronic recording of conversations between the parties to this
Transaction whether by one or other or both of the parties and that any
such recordings may be submitted in evidence in any Proceedings relating to
the Agreement and/or this Transaction.
5. Credit Support Document: N/A
6. Account Details:
Account for payments to Bank of America, N.A. New York
Party A: BOFAUS3N
ABA # 026009593
Account # 6550105832
Favor: Banc of America Financial Products, Inc.
Account for payments to Pay to: First Union National Bank, Charlotte,
Party B: NC
ABA # 053-000-219
Account of: Ventas Finance I, LLC
In favour of:
-4-
Account No: 5000000031841
Reference: FUNB Loan #52-4000001
7. Offices:
The Office of Party A for Chicago, Illinois
this Transaction is:
The Office of Party B for Ventas Finance I, LLC
this Transaction is: c/o Ventas, Inc.
4360 Brownsboro Road, Suite 115
Attn: President and CEO
Louisville, KY 40207
8. Governing Law: The laws of the State of New York (without
reference to choice of law doctrine)
9. Termination Currency: USD
10.Assignment: This Transaction may not be assigned without
the prior written consent of the other party
(such consent not to be unreasonably withheld)
11.Legal and Out-of-Pocket For each party's own account
Expenses:
Please confirm that the foregoing correctly sets forth the terms and conditions
of our agreement by responding within three (3) Business Days by returning via
telecopier an executed copy of this Confirmation to the attention of Global
Derivative Operations, fax no. (312) 234-3603 and (312) 234-2544.
Failure to respond within such period shall not affect the validity or
enforceability of this Transaction, and shall be deemed to be an affirmation of
the terms and conditions contained herein, absent manifest error.
Banc of America Financial Products, Inc. Accepted and confirmed as of the date
first written:
Ventas Finance I, LLC
/s/ Erroll Pessotto /s/ T. Richard Riney
- ------------------------------ -------------------------------------
Authorized Signatory Name: T. Richard Riney
Erroll Pessotto CFA Title: Executive Vice President
Vice President
-5-
Amortization Schedule
Start Date Notional Amount (USD)
12/12/01 $ 225,000,000.00
1/10/02 $ 224,814,185.09
2/11/02 $ 224,626,905.34
3/11/02 $ 224,438,149.19
4/10/02 $ 224,247,905.02
5/10/02 $ 224,056,161.10
6/10/02 $ 223,862,905.59
7/10/02 $ 223,668,126.58
8/12/02 $ 223,471,812.07
9/10/02 $ 223,273,949.94
10/10/02 $ 223,074,528.00
11/12/02 $ 222,873,533.95
12/10/02 $ 222,670,955.40
1/10/03 $ 222,468,779.85
2/10/03 $ 222,260,994.72
3/10/03 $ 222,053,687.32
4/10/03 $ 221,844,544.85
5/12/03 $ 221,633,854.44
6/10/03 $ 221,421,503.08
7/10/03 $ 221,207,477.68
8/11/03 $ 220,991,765.05
9/10/03 $ 220,774,351.89
10/10/03 $ 220,555,224.78
11/10/03 $ 220,334,370.23
12/10/03 $ 220,111,774.60
1/12/04 $ 219,887,424.18
2/10/04 $ 219,661,305.13
3/10/04 $ 219,433,403.50
4/12/04 $ 219,203,705.26
5/10/04 $ 218,972,196.22
6/10/04 $ 218,738,862.12
7/12/04 $ 218,503,688.57
8/10/04 $ 218,266,661.07
9/10/04 $ 218,027,765.01
10/12/04 $ 217,786,985.64
11/10/04 $ 217,544,308.13
12/10/04 $ 217,299,717.52
1/10/05 $ 217,053,198.71
2/10/05 $ 216,804,736.52
3/10/05 $ 216,554,315.61
4/11/05 $ 216,301,920.55
5/10/05 $ 216,047,535.78
-6-
6/10/05 $ 215,791,145.61
7/11/05 $ 215,532,734.23
8/10/05 $ 215,272,285.71
9/12/05 $ 215,009,783.98
10/11/05 $ 214,745,212.87
11/10/05 $ 214,478,556.05
12/12/05 $ 214,209,797.09
1/10/06 $ 213,938,919.41
2/10/06 $ 213,665,906.31
3/10/06 $ 213,390,740.96
4/10/06 $ 213,113,406.39
5/10/06 $ 212,833,885.50
6/12/06 $ 212,552,161.05
7/10/06 $ 212,268,215.68
8/10/06 $ 211,982,031.86
9/11/06 $ 211,693,591.97
10/10/06 $ 211,402,878.21
11/10/06 $ 211,109,872.65
-7-